DeBurkarte v. Louvar, 85-1024

CourtUnited States State Supreme Court of Iowa
Citation393 N.W.2d 131,73 A.L.R.4th 1
Docket NumberNo. 85-1024,85-1024
PartiesElaine DeBURKARTE and Donald DeBurkarte, Husband and Wife, Appellees, v. Richard D. LOUVAR, D.O., Appellant.
Decision Date17 September 1986

Page 131

393 N.W.2d 131
73 A.L.R.4th 1
Elaine DeBURKARTE and Donald DeBurkarte, Husband and Wife, Appellees,
Richard D. LOUVAR, D.O., Appellant.
No. 85-1024.
Supreme Court of Iowa.
Sept. 17, 1986.

Raymond R. Stefani and Richard A. Stefani of Silliman, Gray & Stapleton, Cedar Rapids, for appellant.

Tom Riley, T. Todd Becker and Mary K. Hoefer of Tom Riley, P.C., Cedar Rapids, for appellees.

Page 132

Considered en banc.

LAVORATO, Justice.

In this medical-malpractice action the district court entered judgment, based on a jury's verdict, against the defendant, Richard D. Louvar, D.O. He now appeals and challenges the sufficiency of the evidence on negligence and proximate cause. He also asserts the court erred in instructing on proximate cause, in overruling his objections to expert testimony, and in submitting a claim for lost consortium to the jury. Finally, he argues the damages are excessive and unsupported by the evidence. In their cross-appeal the plaintiffs, Elaine and Donald DeBurkarte, contend the court erred in failing to give their requested instruction on burden of proof. We affirm the judgment of the district court. 1

The jury could have found the following facts. On the evening of August 26, 1981, Elaine found a lump in her left breast. Because her sister died of breast cancer, she made an appointment the next day with Dr. Louvar, who examined her and ordered a mammogram, an x-ray of the breast. The results of the mammogram were negative.

The lump in her breast did not go away, and she returned to Dr. Louvar, less than a month later, in September. He assured her the lump was only a cyst, and not cancerous. He advised her to perform self-examinations, and not to return for a year.

Over the next nine months Elaine saw Dr. Louvar seven times. Each time she drew his attention to the lump, but Dr. Louvar merely palpated it. He was aware her age and family history placed her in the category of women particularly at risk for breast cancer. He was also aware the lump was located in the area of the breast where most cancerous tumors are found.

In April, 1982, Elaine discovered another lump in her breast. This one was between the first lump and the nipple. Dr. Louvar examined her the next day. He told her to return for an appointment after her menstrual period. Elaine forgot about the appointment; however, she returned for an examination in June. After examining Elaine, Dr. Louvar referred her to a surgeon, Dr. Robert Brimmer.

Dr. Brimmer examined Elaine one week later and performed a needle aspiration in both lumps. No fluid was withdrawn from either lump, leading him to conclude they were not cysts. He performed a biopsy the following day, and test results indicated the lumps were cancerous. Elaine then underwent a mastectomy.

Elaine was examined by Dr. Brimmer every three months. In July, 1983, tests revealed that the cancer had spread to her spine and leg. Dr. Brimmer referred Elaine to Dr. D.H. Gesme, Jr., an oncologist, for radiation therapy. Elaine's ovaries were removed because of the cancer in August, 1983.

The DeBurkartes then brought this action, alleging Dr. Louvar failed to diagnose her cancer at a stage when removal of the lump could have arrested the cancer. She requested damages for disfigurement, past and future pain and suffering, emotional distress, medical expenses, shortening her life, and death. Her husband requested damages for lost consortium.

The district court denied a motion for directed verdict, Iowa R.Civ.P. 216, and the jury returned a verdict against Dr. Louvar. The district court entered judgment for $405,000 for Elaine and $40,000 for her husband. It then denied motions for judgment notwithstanding the verdict, Iowa R.Civ.P. 243, and for new trial, Iowa R.Civ.P. 244.

I. Sufficiency of evidence.

A physician is liable for injury to a patient caused by failure of the physician to apply that degree of skill, care, and learning ordinarily possessed and exercised by other physicians in similar circumstances.

Page 133

Ordinarily, questions of negligence and proximate cause are for the trier of fact.... If supported by substantial evidence, the findings of a trier of fact on negligence and proximate cause are binding on us.

Speed v. State, 240 N.W.2d 901, 904 (Iowa 1976) (citations omitted). Moreover, in considering the propriety of a motion for directed verdict, we view the evidence in the light most favorable to the party against whom the motion was made. Iowa R.App.P. 14(f )(2).

A. Negligence. The defendant contends he was not negligent as a matter of law because the evidence failed to establish he should have ordered further diagnostic testing after first examining the plaintiff. The plaintiffs' evidence, however, established he did not exercise ordinary care in making his diagnosis.

Dr. Maurice Rosman, an osteopath in general practice in Philadelphia, testified:

Q. [L]et's assume ... that a forty-two-year-old woman with a known history of a sister having died from breast cancer [comes] to her family physician on August 27, 1981, with a complaint of a lump in her left breast, ... that the family practitioner finds what he notes as a mass in the upper outer quadrant of the left breast, and ... that he has a mammogram taken on September 3, 1981, that is negative for cancer, but shows moderate dysplasia in both breasts. [Let's also] assume that the patient [returns to] his office on September 22, 1981, with the mass essentially unchanged. What would such a family practitioner do for the further care and diagnosis of such patient, if he were to exercise that standard of care ordinarily possessed and exercised by family practitioners? ... A. I feel that that case deserves further evaluation. That there be needle biopsy, open biopsy, with excision of the mass.... I feel that the case should be referred to a surgeon who handles breast masses, and let him make his decision what he wants to do. Needle biopsy or open biopsy.

Q. And with what objective in mind? A. To determine, to make a diagnosis, primarily, to see what it is.

Q. ... And if a family practitioner in 1981 failed to do that, would it be a deviation or breach of such ordinary care? ... A. I feel so.


* * *

Q. What is the only definitive way to determine whether a mass is cancerous or not ...? A. The only way to tell definitively is by biopsy and examining the tissue ... and determining under a microscope [whether] it [is] benign or ... malignant. That's the only way.

Other experts supported Dr. Rosman's testimony. Dr. Brimmer testified that palpation alone would not reveal whether a lump was cancerous or cystic, and that a biopsy was necessary to make a proper diagnosis. Dr. Brimmer also testified he would not ignore, for two to three months, a breast lump in a woman of the plaintiff's age and family background. He further testified most breast cancers are located in the area in which the plaintiff's cancer was found.

Dr. Gesme agreed a mammogram would not rule out the presence of cancer. He testified the only definitive method of determining whether a breast lump is cancerous is by biopsy. He also agreed cancer is most commonly located in the area of the breast in which the plaintiff's lump was found. He added that a patient's family history of breast cancer increases the risk that she will suffer from it.

We agree with the defendant that testimony on what another physician would do is not sufficient to establish a standard of care. See Freeze v. Lemmon, 267 N.W.2d 680, 688 (Iowa 1978). In this case, however, Doctors Brimmer, Gesme, and Rosman all testified a family physician discovering a persistent lump should not allow it to continue undiagnosed without a biopsy. More important, the defendant admitted that during the plaintiff's first visit she informed him of her sister's death from breast cancer; that he knew a mammogram

Page 134

could produce a misleading negative; and that he advised her against a biopsy even though he was uncertain of his clinical impression.

We believe the district court did not err in denying the motion for directed verdict on this ground.

B. Proximate cause. The defendant contends there was insufficient evidence his conduct caused the plaintiff's injuries. He argues expert testimony did not establish the cancer was present and diagnosable during her first visits. He also argues there was no expert testimony his failure to properly diagnose the cancer probably caused her injuries. See Speed, 240 N.W.2d at 906-907.

(1 ). Preexistence of cancer. The defendant contends the lump did not reach the size where he could detect it until June, 1982. He argues the lump that was removed by Dr. Brimmer was neither the one the plaintiff discovered nor the one he first examined.

The defendant's initial record reveals that the lump in "the upper outer quadrant of the left breast" was three-by-two centimeters. In September, 1981, and again, in March, 1982, he noted the lump was essentially unchanged.

In April, he noticed a tenderness in the plaintiff's breast. In June, he wrote that the lump "in the oblong axis along the upper outer quadrant" had grown to approximately four-by-five centimeters. At that time the defendant, concerned that the lump might be a malignant lesion, referred her to Dr. Brimmer.

Dr. Brimmer testified he found two lumps in the plaintiff's breast. He described the larger one, which was in the upper outer quadrant of her breast, as approximately three-by-two centimeters. He located a second one, about one centimeter in diameter, outside the nipple. Because the two lumps were only a few centimeters apart, they were difficult to define exactly. He could palpate no other lumps in her breast. His records reveal the plaintiff was referred to him

because of a left breast mass. She has noted a lump in the upper part of her breast for one year.... Dr. Louvar feels that the...

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