Dettmann v. Flanary

• Decision Date: 09 January 1979
• Docket Number: No. 76-084,76-084
• Citation: 273 N.W.2d 348,86 Wis.2d 728
• Parties: Patricia DETTMANN, Plaintiff-Respondent, v. Dr. John R. FLANARY, Dr. Michael Gryniewicz, John R. Flanary, M.D., S. C., the Shelby Mutual Insurance Company and the Medical Protective Company, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 348

273 N.W.2d 348

86 Wis.2d 728

Patricia DETTMANN, Plaintiff-Respondent, v. Dr. John R. FLANARY, Dr. Michael Gryniewicz, John R Flanary, M.D., S. C., the Shelby Mutual Insurance Company and the Medical Protective Company, Defendants-Appellants.

No. 76-084.

Supreme Court of Wisconsin.

Argued Oct. 31, 1978.

Decided Jan. 9, 1979.

Irving W. Zirbel (argued), Milwaukee, for defendants-appellants Dr. John R. Flanary, John R. Flanary, M.D., S. C., and the Medical Protective Co.; John M. Swietlik (argued), Milwaukee, for defendants-appellants Dr. Michael Gryniewicz and The Shelby Mut. Ins. Co.; Binder, Zirbel & Howard, Kasdorf, Dall, Lewis & Swietlik, Milwaukee, on joint briefs.

Raymond E. Krek (argued), Jefferson, for plaintiff-respondent; Danforth, McKenna & Krek, S.C., Jefferson, on brief.

COFFEY, Justice.

This is a medical malpractice action wherein the jury found Drs. John Flanary and Michael Gryniewicz and their associated clinic negligent in the diagnosis, care and treatment of the plaintiff's breast cancer. Damages were awarded for past and future pain and suffering. The defendants' motions after verdict were denied by the trial court. The defendants' respective insurers, The Shelby Mutual Ins. Co. and the Medical Protective Co., were joined in the action and also participate in this appeal.

The plaintiff, Patricia Dettmann, was 27 years old when her third child was delivered in February, 1971. Dr. Flanary, an obstetrician-gynecologist, was the attending physician and the only physician the plaintiff had consulted in the previous six years. In March of 1971, while performing breast exercises, the plaintiff noticed that blood was being discharged from the nipple in her right breast. Mrs. Dettmann testified to doing a self-examination and she discovered a "pea" sized lump in the upper right portion of her right breast. The plaintiff alleges that she telephoned Dr. Flanary to inform him of this development. Dr. Flanary denies receiving a call from Mrs. Dettmann in March, 1971. To the contrary, the plaintiff stated Dr. Flanary returned the call and informed her that the condition would be reviewed at the scheduled post-natal examination on April 14, 1971.

At the April examination the plaintiff claims she informed Dr. Flanary of the condition. The plaintiff testified that the doctor tried and failed to express any bloody fluid from her right breast, and further, the cyst she described was not palpable. Mrs. Dettmann's testimony reveals the following: "He (Dr. Flanary) told me that if the bleeding recurs to the extent it had before, to come back immediately and he would take up you know, a biopsy or have a pap test done from the fluid." The plaintiff also stated that the doctor informed her that the condition was nothing to be concerned about as it was associated with her recent pregnancy. Dr. Flanary denies receiving the complaint or making the alleged evaluation; this denial is substantiated by the absence of any notations to that effect in Dr. Flanary's office medical records of Mrs. Dettmann on that day. On August 3rd the plaintiff returned to the doctor's office complaining that she was experiencing discharges from her right breast. Dr. Flanary examined her and was unable to produce breast secretions. The medical records indicate that lumps were not found in either breast. The plaintiff claims Dr. Flanary stated that the bloody discharges were a result of the plaintiff's breast exercises. Dr. Flanary's office records reflect that on this date he advised the plaintiff to return immediately if the bleeding recurred so that a pap smear could be performed. The record establishes that Mrs. Dettmann did not experience a bloody discharge after the August 3, 1971 examination, nor did she return with any further complaints until October 10, 1972 when a second breast mass was found and subsequently determined to be cancerous.

The plaintiff's next office visit subsequent to the August 3, 1971 examination was on October 26, 1971 as she believed she was again pregnant. This examination was administered by Dr. Gryniewicz, also an obstetrician- gynecologist specialist, who had recently joined Dr. Flanary's practice. Dr. Gryniewicz confirmed the pregnancy and performed a breast examination. The examination revealed A lump in the upper right quadrant of the plaintiff's right breast. Dr. Gryniewicz attributed the condition to Mrs. Dettmann's pregnancy, explaining the lump to be a benign milk duct cyst referred to as intraductal papilloma, a condition which would dissolve in due course. According to Dr. Gryniewicz the Size of the cyst was one centimeter by one centimeter.

During the regular course of the plaintiff's pre-natal care, Mrs. Dettmann had eight appointments and was alternately examined by Drs. Flanary and Gryniewicz. During these eight pre-natal examinations Mrs. Dettmann did not have any complaints regarding the presence of the lump or bloody discharges. The plaintiff testified that the first lump found in March, 1971 was continuously present and readily palpable. The plaintiff's fourth child was born in February, 1972. Prior to and after the delivery, Dr. Flanary performed breast examinations on at least four or five occasions and found no masses or lumps. A hospital nurse examined the plaintiff's breasts daily following the delivery. The hospital records do not show that any breast irregularities were found during her confinement.

On June 13, 1972 Dr. Gryniewicz conducted a post-natal examination of the plaintiff and his records reveal that a breast examination established no definitive masses. Mrs. Dettmann returned to Dr. Flanary's clinic on October 10, 1972 complaining that a breast lump was growing and that after minimal exertion she was experiencing pain in her right arm. Dr. Flanary examined her and found a breast mass In the sub-areola region of her right breast.

The plaintiff was immediately referred to a general surgeon, Dr. William Kelley. On October 16, 1972, he performed a biopsy based upon his examination and the plaintiff's medical history as related in Dr. Flanary's medical records. A pathologist diagnosed the biopsy sample as cancerous, whereupon Dr. Kelley performed a radical mastectomy. The pathologist reported the size of the cancerous lesion to be 4 by 3 by 2.2 centimeters, and further indicated the presence of carcinomic metastasis into nine of twenty-one lymph nodes in the plaintiff's lower armpit. The size of the malignant tumor removed was disputed by the medical experts. At trial, both Dr. Flanary's and Dr. Kelley's testimony as to the location of the mass differed from that given by the plaintiff who positioned the mass in the upper and outer quadrant of the right breast. This testimony is supported by the medical records relied upon by every expert appearing at trial.

After the mastectomy the patient was referred to Dr. John Hurley, a cancer specialist. He recommended an oophorectomy, a surgical procedure removing Mrs. Dettmann's ovaries in order to minimize the hormone stimulation upon the estrogen receptive cancer cells. Following the surgery she received cobalt and chemotherapy treatments. As a result of these surgical procedures and medical treatment Mrs. Dettmann made a remarkable recovery in that the cancer has been arrested with no apparent metastasis to other parts of her body. Conversely, evidence was introduced that for cancer patients suffering from lesions and nodular involvement such as Mrs. Dettmann's there is an 85% Prognosis of an early death.

This appeal presents one issue for consideration:

Assuming the finding of negligence against the defendants, is there any credible evidence to support the jury's finding of legal causation that on or prior to October 26, 1971 the plaintiff had diagnosable cancer?

This medical malpractice action raises a question regarding a physician's liability for improper diagnosis of breast cancer and its relation to causation for subsequent injury. Previously, this court has reviewed the issue of a doctor's liability for negligent diagnosis and the accompanying failure to render appropriate care and treatment in other cases of medical malpractice. Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975); Francois v. Mokrohisky, 67 Wis.2d 196, 226 N.W.2d 470 (1975); Knief v. Sargent, 40 Wis.2d 4, 161 N.W.2d 232 (1968); Carson v. Beloit, 32 Wis.2d 282, 145 N.W.2d 112 (1966) and we have also considered whether "cancer-phobia" resulting from a physician's negligence is a compensable injury. Howard v. Mt. Sinai Hospital, Inc., 63 Wis.2d 515, 219 N.W.2d 576 (1974). However, heretofore we have never been asked to consider whether a physician can be held liable for failing to diagnose an alleged cancerous condition of the breast, this failure to make a timely diagnosis allegedly resulted in inadequate care and treatment being rendered for a claimed malignancy.

The plaintiff maintains there was a single palpable lump in her breast from April 14, 1971 when she was examined by Dr. Flanary following her complaint of bloody discharges until October 16, 1972 when a cancerous mass was removed from her right breast. Further, the plaintiff's contention is that her attending physicians, specialists in obstetrics and gynecology, failed to perform the necessary procedures which required a surgical examination in order to evaluate the October 26, 1971 diagnosis made by Dr. Gryniewicz as a non-cancerous cyst. It is claimed that as a result of this failure the condition was not given timely and adequate care and treatment which has caused the plaintiff to suffer injury and pain to a greater extent than if the condition had been timely diagnosed and treated. The defendant doctors contend that notwithstanding the issue of negligence, the plaintiff failed to offer any credible evidence that the alleged breach of a physician's standard of care as to diagnosis, care and treatment had a causal relation to the injuries...