Bonaparte v. Floyd

• Decision Date: 09 December 1986
• Docket Number: No. 0877,0877
• Citation: 354 S.E.2d 40,291 S.C. 427
• Court: South Carolina Court of Appeals
• Parties: , 86 A.L.R.4th 103 Cynthia E. BONAPARTE, Respondent-Appellant, v. John S. FLOYD, III, M.D., Morey Lipton, M.D., and J. Price Cameron, Jr., M.D. Defendants-Respondents, of whom John S. Floyd, III, is Appellant. . Heard

Page 40

354 S.E.2d 40

291 S.C. 427, 86 A.L.R.4th 103

Cynthia E. BONAPARTE, Respondent-Appellant, v. John S. FLOYD, III, M.D., Morey Lipton, M.D., and J. Price Cameron, Jr., M.D. Defendants-Respondents of whom John S. Floyd, III, is Appellant.

No. 0877.

Court of Appeals of South Carolina.

Heard Dec. 9, 1986.

Decided Feb. 9, 1987.

Certiorari Denied July 1, 1987.

J.W. Cabaniss of Grimball & Cabaniss, Charleston, for appellant.

Robert H. Hood, and Alexander M. Bullock of Robert H. Hood & Associates, and J. Rutledge Young, Jr. of Young, Clement, Rivers & Tisdale, Charleston, for defendants-respondents.

Michael A. Scardato of Morris, Duffy & Boone, Charleston, for respondent-appellant.

CURETON, Judge:

Cynthia E. Bonaparte commenced this medical malpractice action against Dr. John S. Floyd, III, Dr. Morey Lipton, and Dr. J. Price Cameron, Jr. for negligent diagnosis and treatment of a growth on her vulva. Dr. Lipton and Dr. Cameron were granted directed verdicts. The case was submitted to the jury against Dr. Floyd alone. The jury returned a verdict for Bonaparte of $70,000.00 actual damages. Dr. Floyd appeals the jury verdict, arguing insufficiency of evidence, abuse of discretion in the admission of certain evidence relating to damages, excessiveness of the verdict, and inconsistent verdicts. Bonaparte appeals the directed verdicts in favor of Dr. Lipton and Dr. Cameron, and claims error in excluding certain evidence of medical costs and in admitting evidence of her health insurance coverage. We affirm the verdict against Dr. Floyd, reverse the directed verdicts granted to Lipton and Cameron and remand to the trial court.

Dr. Floyd, a gynecologist, removed a growth diagnosed as a fibrous histiocytoma from Bonaparte's vulva in 1977. This was a relatively simple procedure conducted on an outpatient basis. This type of growth is a low-grade, slow-growing sarcoma, for which excision is the proper treatment. It has a rare rate of occurrence, and a slight tendency to recur. Bonaparte returned to Dr. Floyd in January 1979, complaining that the growth had recurred. Dr. Floyd noted a possible recurrence but recommended no action. Bonaparte returned in March 1979, but Floyd again took no action. Upon her request for a second opinion, Dr. Floyd referred her to Dr. Lipton, a general surgeon, but did not send any of Bonaparte's medical records or inform Dr. Lipton of the pathology reports for the former growth.

Although Bonaparte informed Dr. Lipton she had had a "cyst?" removed, Dr. Lipton did not request her medical records nor inquire as to the type of growth removed. He diagnosed the growth as a keloid scar and recommended no action, but advised Bonaparte to return in three months. She did not return. Dr. Lipton informed Dr. Floyd of his diagnosis. Dr. Floyd continued to see Bonaparte over the next several years, but made few notations and no measurements of the growth in her records.

In March 1982, Dr. Floyd noted the growth had increased in size. He again referred Bonaparte to Dr. Lipton, who recommended no action. Upon Bonaparte's insistence, Dr. Lipton referred her to Dr. Cameron, a plastic surgeon. Dr. Cameron did not receive or request any information regarding the type of growth previously removed from Bonaparte's vulva. He also diagnosed a keloid scar and treated Bonaparte with steroid injections into the vulva. In July 1982, after this treatment provided no relief, Bonaparte requested a referral to have the growth removed. Dr. Floyd referred her to Dr. Schuh, a plastic surgeon. Dr. Schuh examined Bonaparte and obtained a medical history from her. He then contacted Dr. Floyd who informed him a fibrous histiocytoma had been removed from that area in 1977. Dr. Schuh then biopsied the growth and the pathologist's report indicated a more aggressive growth known as a dermatofibrosarcoma protuberans. This type of tumor requires "wide removal" which is excision of the tumor with a two to three centimeter margin of tissue around the growth to insure that all of the tumor is removed.

Dr. Schuh referred Bonaparte to Dr. Lutz, a gynecological cancer surgeon. Dr. Lutz biopsied the tumor a second time. The pathology report again identified the tumor as a dermatofibrosarcoma protuberans. Dr. Lutz removed the tumor, measured at 6 X 4 X 1 to 2cm, along with a wide margin of 2 to 3cm of vulvar tissue, a portion of the covering of the pubic bone, and nearby lymph nodes. Dr. Lutz testified the nodes were "palpable" or enlarged, which could indicate spread of a malignancy. Subsequent pathology reports indicate the tumor may have been a recurrent fibrous histiocytoma rather than a dermatofibrosarcoma protuberans. The surgery took three hours. Bonaparte was subsequently hospitalized for 20 or 21 days. She later received treatment for depression caused by disfigurement and emotional distress. She has had no additional recurrence of the growth and there is no indication it has spread to other areas.

Bonaparte commenced this medical malpractice action against Drs. Floyd, Lipton, and Cameron in August 1984. She claimed the doctors had negligently failed to follow accepted medical procedure to diagnose and treat her condition, thereby permitting the tumor to increase in size resulting in more extensive surgery and hospitalization than would otherwise have been required. She sought damages for pain and suffering, disfigurement, and for medical, psychiatric and other services.

The case was tried in July 1985. Dr. Lipton and Dr. Cameron were granted directed verdicts. A jury verdict was returned against Dr. Floyd for $70,000.00 actual damages. Bonaparte and Dr. Floyd both appeal. We will consider the appeals separately.

FLOYD'S APPEAL

I.

Dr. Floyd first argues the court erred in failing to direct a verdict in his favor because there was no competent testimony to establish actionable negligence on his part. We reject this argument.

Floyd complains Bonaparte failed to show he deviated from the generally accepted standard of care exercised by competent physicians in the same or similar circumstances. He argues that Bonaparte's case rests solely on the conclusions of her expert witness, Dr. John R. Lurain, and that those conclusions are not supported by the facts or by Dr. Lurain's own stated opinions. He also maintains that Dr. Lurain was incompetent to testify as to the standard of care in this specialty in South Carolina and for the diagnosis and treatment of this type of tumor. Floyd bases this argument on the fact that Dr. Lurain had never examined Bonaparte, had never treated a fibrous histiocytoma or a dermatofibrosarcoma protuberans, had never treated a keloid, and had never practiced medicine in South Carolina.

We will first address Dr. Lurain's qualification as an expert witness. At the time of the trial, Dr. Lurain was an associate professor of obstetrics and gynecology and director of gynecologic oncology at Northwestern University Medical School. He has published numerous scholarly works on this subject and maintains a private practice in addition to his teaching duties. Dr. Lurain was questioned extensively by all counsel and by the court before being qualified as an expert in the areas of diagnosis and treatment of vulvar tumors.

The qualification of a witness as an expert and the admissibility of his testimony on a fact in issue are matters largely within the discretion of the trial judge. South Carolina Dept. of Social Services v. Bacot, 280 S.C. 485, 313 S.E.2d 45 (Ct.App.1984). Once qualified, the adequacy of the expert's knowledge goes to the weight of his testimony, not its admissibility. Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (Ct.App.1985), appeal dismissed, 286 S.C. 127, 332 S.E.2d 102 (1985). Given the demonstrated extent of Dr. Lurain's expertise, Dr. Floyd has failed to show an abuse of discretion in qualifying him as an expert.

We will now address the adequacy of the evidence demonstrating Dr. Floyd's negligence. To recover for medical malpractice, a plaintiff must show failure by a physician to exercise that degree of care and skill which is ordinarily employed by the profession under similar conditions and in like circumstances. Welch v. Whitaker, 282 S.C. 251, 317 S.E.2d 758 (Ct.App.1984). This must be established by expert testimony unless the subject matter is of common knowledge or experience. Clark v. Ross, 284 S.C. 543, 328 S.E.2d 91 (Ct.App.1985).

In this instance, Bonaparte introduced expert testimony to demonstrate Dr. Floyd's negligence in failing to diagnose and treat her tumor. Dr. Lurain testified in response to a detailed hypothetical question that there are standard methods of diagnosing vulvar area diseases to which all physicians treating those diseases should adhere. He noted that vulvar growths should be physically examined and biopsied. In his opinion, the removal of a fibrous histiocytoma from this site, together with the tumor's known propensity for recurrence, mandated a biopsy in 1979. Dr. Lurain also testified that a referring physician has a responsibility to furnish all relevant information necessary for proper diagnosis and treatment. Dr. Lurain's opinion was that, based on the facts of this case, there was a breach of the standard of care in the diagnosis and treatment of Bonaparte's tumor.

Dr. Lurain also testified that there is no difference in the standard of care for the diagnosis and treatment of vulvar conditions in Chicago, Illinois and Charleston, South Carolina, since both are large metropolitan areas with medical schools and large hospital centers. South Carolina has adopted a standard of care not bound by any geographical restrictions, under which locality is but one of the factors to be considered in determining the standard of care. King v. Williams, 276 S.C. 478, 279 S.E.2d 618 (1981). In our opinion, Dr. Lurain was qualified to give an opinion on the standard of care in this case, and his testimony shows Floyd breached that standard in...