Chudson v. Ratra, 114

CourtCourt of Special Appeals of Maryland
Citation548 A.2d 172,76 Md.App. 753
Docket NumberNo. 114,114
PartiesJonathan CHUDSON and Frances Spielman, Personal Representatives of the Estate of Rhoda Tzemach, et al. v. Jessica RATRA. ,
Decision Date01 September 1988

Patricia P. Richardson (Martin H. Freeman and Freeman & Richardson, P.A., on the brief) Bethesda, for appellants.

Albert D. Brault (M. Kathleen Parker and Brault, Graham, Scott & Brault, on the brief) Rockville, for appellee.


WILNER, Judge.

Rhoda Tzemach died of breast cancer at the age of 36. Before she died, but after it became evident that the cancer had spread sufficiently to make death from it a probability, Ms. Tzemach filed a medical malpractice action against her gynecologist, Jessica Ratra. The basis of her action was that Dr. Ratra negligently failed to diagnose the cancer, to recommend or take appropriate action after Ms. Tzemach reported a lump in her breast, and to inform Ms. Tzemach of the risks of non-intervention.

Following a four-day evidentiary hearing, a health claims arbitration panel concluded that Dr. Ratra was not liable and thus entered an award in her favor. Ms. Tzemach rejected that award and filed a timely action in the Circuit Court for Prince George's County. After trial in that court, the case was submitted to a jury on issues. The jury concluded that Dr. Ratra was indeed negligent in her care and treatment of Ms. Tzemach, but it also found that Ms. Tzemach had been contributorily negligent. Upon that finding, the court entered judgment for Dr. Ratra, and this appeal, by Ms. Tzemach's personal representatives and her surviving daughter, Yael, ensued. No cross-appeal was filed by Dr. Ratra.

The sole issue on appeal is whether the Circuit Court erred in submitting the question of Ms. Tzemach's contributory negligence to the jury. It is evident, from the record before us, that the submission, and the jury's finding, necessarily rested upon evidence that Ms. Tzemach failed to report back to Dr. Ratra, or to seek other medical advice, when she knew, or at least suspected, that the lump she felt in her right breast not only did not disappear, as Dr. Ratra had led her to believe it would, but actually began to grow.

For purposes of this appeal, appellants concede that Ms. Tzemach's delay in seeking medical advice constituted negligence. They argue, however, that that negligence cannot operate to bar recovery in this case because (1) there was legally insufficient evidence that it contributed to the spread of the cancer to the point of incurability and lethality and, (2) in any event, it was not concurrent with Dr. Ratra's primary negligence.

I. General Factual Background Standard Of Review

Some of the important facts bearing on the negligence of both doctor and patient were in dispute. There was disagreement as to the purpose of some of Ms. Tzemach's visits to Dr. Ratra, what was said during those visits, what tests or other procedures were performed by Dr. Ratra, the size of lumps felt by Ms. Tzemach or noted by Dr. Ratra at various times, and the precise instructions given to Ms. Tzemach by Dr. Ratra during some of the visits. In that regard, we start with the propositions, drawn from a number of cases quoted, cited, and summarized in Moodie v. Santoni, 292 Md. 582, 441 A.2d 323 (1982), that:

(1) The burden of proving contributory negligence, including the causal connection between that negligence and the injury sued upon, is on the defendant.

(2) The absence or presence of contributory negligence is generally a question for the jury. If there is any evidence, however slight, legally sufficient as tending to prove contributory negligence, the weight and value of that evidence must be left to the jury. To be legally sufficient, the evidence must be beyond "a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture...." Fowler v. Smith, 240 Md. 240, 247, 213 A.2d 549 (1965).

(3) It is only when the minds of reasonable persons cannot differ that the court is justified in deciding the question as a matter of law. But before a plaintiff can be held to be free of contributory negligence as a matter of law, "the truth of all the credible evidence tending to sustain the claim of [contributory] negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish [contributory] negligence drawn." Id. at 246, 213 A.2d 549.

It is against these standards that we examine the record.

Ms. Tzemach had a family history of breast cancer, which was a matter of concern to her, and, perhaps as a result, she had learned the technique of breast self-examination. She began seeing Dr. Ratra in 1981 for routine gynecological examinations and for birth control advice and procedures. During those examinations, Dr. Ratra routinely examined Ms. Tzemach's breasts. Until March, 1983, the breast examinations were unremarkable.

In the course of her examination on March 25, 1983, Dr. Ratra said that she discovered "multiple nodularities, small cysts," about one centimeter in size, in the lower and outer quadrants of Ms. Tzemach's left breast. Aware that Ms. Tzemach was then pre-menstrual, Dr. Ratra concluded that these nodularities represented fibrocystic changes that were common in women. 1 She stated that she explained to Ms. Tzemach the nature of these changes, told her that they should regress after her period, and made sure that Ms. Tzemach was able to feel the cysts and was competent to do self-examinations. Ms. Tzemach said that she could recall no such conversation, or anything out of the ordinary about her breasts.

In August, 1983, Ms. Tzemach said that she felt a hard lump, about the size of a half dollar, in the upper right part of her right breast. She saw Dr. Ratra on September 6.

Once again, there is a dispute as to what occurred during that visit. Ms. Tzemach said that she showed Dr. Ratra the lump, which was different than the other lumps she had felt in that it was "a hard consistency" and "immobile." She stated further that Dr. Ratra aspirated the lump, withdrawing a "bloody fluid," but again told her that the lump was fibrocystic and that she should "keep an eye on it." In accordance with that advice, Ms. Tzemach decided simply to monitor the lump and see "if it changed in any way." Dr. Ratra denied aspirating the lump, claiming that she observed nothing more than a premenstrual cyst in the upper and outer quadrant of the right breast. She testified:

"Again, because it [was] a premenstrual cyst and I have already discussed with her fibrocystic changes I went over the same things again. We discussed, we talked and if you see the note, I warned her if the cyst is persistent to call me, having made sure again she felt the same cyst that I felt and she [was] competent enough to examine her breasts."

Dr. Ratra said that, if the cyst persisted beyond Ms. Tzemach's next period, she intended to "get further surgical consult."

Ms. Tzemach continued with her monthly self-examinations. At the end of November, she noticed that the lump seemed to be getting bigger, and so she called Dr. Ratra "immediately" and went for another examination on December 13. Here, too, the evidence differs as to what occurred.

According to Ms. Tzemach, the lump in her right breast was "a hard mass" that was "immediately detectable" and that Dr. Ratra agreed was "getting bigger." Although she was somewhat vague as to the size of coins, Ms. Tzemach estimated that the lump was "larger than a half dollar and perhaps as large as a silver dollar." Dr. Ratra, on the other hand, recorded both breasts as being sensitive and tender but found "no discrete lump." She attributed the sensitivity of the breasts to fibrocystic changes and the fact that they were "engorged" as the result of the menstrual cycle. Whether on her own initiative or at Ms. Tzemach's request--that too is in dispute-- Dr. Ratra referred Ms. Tzemach for a mammogram.

Again, according to Dr. Ratra, she made clear to Ms. Tzemach that the absence of a lump "does not mean [she] should stop examining [her] breasts"--that she "should continue with the breast exam" and "[a]ny change noticed any time should be reported to me."

The mammogram was done on December 21 at Prince George's Hospital. It revealed no discrete mass or evidence of malignancy but confirmed fibrocystic changes. Dr. Ratra informed Ms. Tzemach of the results. She said that, in such cases, she informs her patients, and thus inferentially informed Ms. Tzemach, that "[T]his is not a substitute for breast self-exam. There are some diagnostic errors in this where they can miss a lump. But that does not mean that they can be reassured everything is okay. They must come to me [sic, continue?] to examine their breasts. Any change must be reported to me."

Upon giving this advice, Dr. Ratra said that she expected Ms. Tzemach "[t]o continue breast self-exam every month after the period was over" and, if she found anything by way of a change, "to be calling me at once."

Ms. Tzemach denied much of what Dr. Ratra said. She claimed that Dr. Ratra told her that "the results showed normal, nothing to be concerned about" and said nothing about false negatives or continued self-examinations.

Whether or not Dr. Ratra repeated that advice, Ms. Tzemach was aware of the need to continue self-examination and she in fact performed self-examination in January, February, March, April, May, June, and July of 1984. 2 The lump that she felt since September, that she believed had grown in December, never disappeared. "Around April," she said, she "felt some change." It "seemed to be growing further into the breast and into the side of the breast." By July, she "was sure that it was much larger." Indeed, she stated, "By July it was very large and tender, pushing out on the side, to the point that if I was touched on that side I would immediately jump....

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