Bailey v. Jones

• Decision Date: 02 November 1993
• Docket Number: No. 9215SC893,9215SC893
• Citation: 435 S.E.2d 787,112 N.C.App. 380
• Court: North Carolina Court of Appeals
• Parties: Janet Patricia BAILEY and Charles Bailey v. J. Kempton JONES, Village Family Practice, Kaja Heater and Chapel Hill Radiology, P.A.

Page 787

435 S.E.2d 787

112 N.C.App. 380

Janet Patricia BAILEY and Charles Bailey v. J. Kempton JONES, Village Family Practice, Kaja Heater and Chapel Hill Radiology, P.A.

No. 9215SC893.

Court of Appeals of North Carolina.

Nov. 2, 1993.

Law Offices of Grover C. McCain, Jr. by Grover C. McCain, Jr., Kenneth B. Oettinger, and William R. Hamilton, Chapel Hill, for plaintiff-appellant Janet Patricia Bailey.

Patterson, Dilthey, Clay & Bryson by E.C. Bryson, Jr. and Mark E. Anderson, Raleigh, for defendant-appellees J. Kempton Jones and Village Family Practice, P.A.

GREENE, Judge.

Janet Patricia Bailey (plaintiff) appeals from a jury verdict entered for defendants, Dr. J. Kempton Jones (Dr. Jones) and Village Family Practice, in plaintiff's medical malpractice action.

The evidence presented at trial tended to show the following facts. In May of 1988, plaintiff discovered a mass in her left breast during a routine breast self-examination. On 13 May 1988, plaintiff went to Village Family Practice, a partnership, for a physical examination and was examined by Dr. Jones, one of the partners. During the examination, plaintiff told Dr. Jones of the mass she had discovered and Dr. Jones attempted to locate the mass, but could not feel it. Dr. Jones told plaintiff that she must be feeling part of her breastbone. Dr. Jones, however, referred plaintiff to Chapel Hill Radiology, P.A., for a mammogram. A member of Dr. Jones' office called Chapel Hill Radiology on 13 May 1988 and scheduled an appointment for plaintiff on either 6 June or 16 June. Dr. Kaja Heater (Dr. Heater), a radiologist with Chapel Hill Radiology, testified that if a woman had a palpable mass, Chapel Hill Radiology would perform a mammogram on the same day the woman was examined by the referring physician. Dr. Jones gave plaintiff a "referral slip" which plaintiff was to take with her when she went to Chapel Hill Radiology for her mammogram.

Plaintiff contends that Dr. Jones did not properly fill out the "referral slip," failing to note that plaintiff had felt a mass in her breast. Dr. Jones testified that it is his custom to fill out the slip in its entirety.

Plaintiff was examined by Dr. Jones on 13 May 1988, and had the mammogram performed on 16 June 1988. The appointment book of Chapel Hill Radiology recorded that a 6 June appointment for the mammogram was cancelled. Plaintiff testified that the mammogram was originally scheduled for 16 June and that she did not cancel a 6 June appointment.

On 16 June 1988, plaintiff went to Chapel Hill Radiology for her mammogram. Plaintiff presented the "referral slip" to an employee of Chapel Hill Radiology and awaited her mammogram. At some point, it appears the "referral slip" was rewritten by an employee of Chapel Hill Radiology. It is unclear what became of the "referral slip" filled out by Dr. Jones.

Neither the technician who performed the mammogram, nor Dr. Heater, who interpreted the mammogram, saw the "referral slip" written by Dr. Jones, and neither was aware that plaintiff had felt a mass in her breast. After the mammogram, plaintiff talked with Dr. Heater about the results. Dr. Heater told plaintiff that although there was no previous mammogram for comparison, everything looked "fine."

The report sent from Chapel Hill Radiology to Dr. Jones noted that the mammogram revealed a mild tissue asymmetry in the left breast. Dr. Heater's report stated that "[i]f a palpable lesion is present, decision to biopsy should be based on clinical criteria." Dr. Heater further recommended a follow-up mammogram in six months.

Upon his receipt of Dr. Heater's report, Dr. Jones called plaintiff and told her that everything looked fine, but that he would like her to come back in six months for another mammogram. At trial Dr. Jones admitted that he did not fully understand Dr. Heater's report and that he believed that the language "[i]f a palpable lesion is present" meant that if he felt a lesion, a biopsy should be performed. Although Dr. Jones asked plaintiff to return in six months, no follow-up appointment was scheduled, nor did Dr. Jones' office send plaintiff a reminder.

Plaintiff next returned to see Dr. Jones on 16 August 1989. On this occasion, Dr. Jones noticed a mass in plaintiff's breast. Dr. Jones again referred plaintiff to Chapel Hill Radiology, where a mammogram revealed a lesion in the left breast. Dr. Jones then referred plaintiff to a surgeon who performed a biopsy of the left breast and diagnosed plaintiff as having cancer. Plaintiff underwent a radial mastectomy, as well as radiation and chemotherapy treatments. At the time of trial, plaintiff was clinically disease-free of cancer.

Plaintiff and her husband, Charles R. Bailey, filed suit on 25 May 1990 in Orange County Superior Court, alleging that Dr. Jones, Village Family Practice, Chapel Hill Radiology, and Dr. Kaja Heater failed to timely diagnose her cancer, resulting in a delay in treatment. Plaintiff sought money damages for her reduced life expectancy and plaintiff's husband sought money damages for loss of consortium.

Plaintiff introduced the testimony of Dr. Lynn Carmichael (Dr. Carmichael), a family practitioner familiar with the standards of practice of family practitioners in Orange County at the time Dr. Jones treated plaintiff. Dr. Carmichael testified that the mammogram performed on plaintiff was a "screening mammogram" rather than a "diagnostic mammogram." The difference according to Dr. Carmichael, is that a screening mammogram is primarily a preventive measure performed on a woman where there are no symptoms or findings of a lump or mass. A diagnostic mammogram, on the other hand, is performed when a lump or mass has been felt or when there is another reason, such as a patient's family medical history, which suggests that the patient may be at risk for breast cancer. Dr. Carmichael testified that in cases such as this, where a patient has told the doctor that she has felt a mass in her breast, "the doctor would probably want to order--to do a mammogram. That would be a diagnostic mammogram." Dr. Carmichael further testified: "Usually, if you're referring for a screening mammogram, there is not a great deal of urgency, and so it may take a few weeks to set it up, or a time that's convenient for the patient to go. For the diagnostic mammogram, though, you want results, and you would like to have them quickly."

Dr. Carmichael also testified that Dr. Jones should have called the radiologist after receiving the mammography report to clear up ambiguities contained in the report. Dr. Carmichael testified as follows:

[A]s I read the report, and what I considered an abnormality was noted, the density deep in the left breast. And while it--there was a notation that there were none of the microcalcifications that are characteristic of malignancy, there was still an abnormality that I didn't understand.

My lack of understanding there was compounded by the recommendation. The recommendation was to repeat the mammogram in six months.

In doing the mammogram, your main concern--it's not the total concern, but the main concern is malignancy. Malignancies differ from other kinds of illnesses like respiratory infections or diabetes or arthritis in that you may in the course of the illness before the person maybe has many symptoms reach sort of a point of no return.

And I just feel that, while you might with a person who has diabetes, whose blood sugar was a little above normal say, "Well, let's just see what happens here, see if you develop any symptoms, and come in for a yearly physical, and if something happens in the meantime let me know."

You can do that with diabetes. You can't do that with malignancies, because you never know when these things are going to metastasize. So I felt that six months was outside the limit for a prudent recommendation for repeating the mammogram.

So when I'm faced with, again--please understand me. I'm not saying that--I'm saying that my interpretation was ambiguous. I don't think the radiologist meant to be ambiguous. I think, therefore, what I should have done as the physician would have been to call the radiologist and to discuss it with her and clarify her situation on it.

During the trial, plaintiff and her husband reached a settlement with Chapel Hill Radiology and Dr. Heater. At the close of plaintiff's evidence a directed verdict was entered for the remaining defendants on plaintiff's husband's loss of consortium claim.

The trial court instructed the jury in pertinent part as follows:

The defendant, Dr. Jones, would be negligent if he failed to provide care in accordance with the standard of health care required by law.

.... [T]he law requires a family practice physician to possess the degree of professional learning, skill, and ability that is ordinarily possessed by others in the same health care profession with similar training and experience who were situated in the same or similar communities at the time the health care services were rendered.

In order for you to find that Dr. Jones failed to act in conformity with the standard of health care required by law, plaintiff must satisfy you by the greater weight of the evidence what the standards of practice were among family practice physicians with similar training and experience, and who were situated in the same or similar communities at the time Dr. Jones examined the plaintiff in 1988, and that the defendant, Dr. Jones, did not act in accordance with those standards of practice in regards to what he did and did not do after receiving the mammogram report from the radiologist on June 16, 1988.

....

So finally, members of the jury, as to this issue on which the plaintiff has the burden of proof, if you are satisfied by the greater weight of the evidence that the defendant, Dr. Jones, was negligent in that he failed to comply with the standard of health care required by law, and that such negligence was a proximate cause of...