Hawkins v. Pathology Associates

• Decision Date: 12 January 1998
• Docket Number: No. 2780.,2780.
• Citation: 330 S.C. 92,498 S.E.2d 395
• Parties: Richard B. HAWKINS, as Administrator of the Estate of Susan T. Hawkins, Deceased, for the Benefit of Richard B. Hawkins, Husband of the Deceased, and Jacob Nathaniel Hawkins and Charles Jordan Harkins, Minor Children of the Deceased, Respondent/Appellant, v. PATHOLOGY ASSOCIATES OF GREENVILLE, P.A. and Eugene C. Cox, M.D., Appellants/Respondents.
• Court: South Carolina Court of Appeals

330 S.C. 92

498 S.E.2d 395

Richard B. HAWKINS, as Administrator of the Estate of Susan T. Hawkins, Deceased, for the Benefit of Richard B. Hawkins, Husband of the Deceased, and Jacob Nathaniel Hawkins and Charles Jordan Harkins, Minor Children of the Deceased, Respondent/Appellant, v. PATHOLOGY ASSOCIATES OF GREENVILLE, P.A. and Eugene C. Cox, M.D., Appellants/Respondents.

No. 2780.

Court of Appeals of South Carolina.

Heard November 4, 1997.

Decided January 12, 1998.

Rehearing Dismissed March 17, 1998.

G. Dewey Oxner, Jr., and Sally McMillan Purnell, both of Haynsworth, Marion, McKay & Guerard, Greenville, for appellants/respondents.

D. Michael Parham, of Parham & Smith, of Greenville; Dennis T. Cathey, of Cathey & Strain, Cornelia, GA; and James Lee Ford, of Ford & Felton, Atlanta, GA, for respondent/appellant.

HUFF, Judge:

Richard B. Hawkins, as the administrator of the estate of Susan T. Hawkins, brought wrongful death and survival actions against Pathology Associates of Greenville and Eugene C. Cox, M.D., hereinafter Pathology Associates. The jury awarded Hawkins $1,100,000 in the wrongful death action and $3,500,000 in the survival action. The trial court denied Pathology Associates's motions for new trial and/or new trial nisi in both actions. In addition, the trial court granted Pathology Associates's motion for set-off of a previous settlement. Both parties appeal. We affirm in part and reverse in part.

FACTS

In October of 1988, when Mrs. Hawkins was five weeks pregnant with her first child, her doctor at Piedmont Ob/Gyn in Greenville took a Pap smear. The smear was sent to Pathology Associates of Greenville for analysis. The cytotechnologist who examined Mrs. Hawkins's smear had some questions about the endocervical cells and forwarded the slide to Dr. Cox, a pathologist, for his review. Dr. Cox observed abnormal cellular conditions but determined the changes were due to pregnancy. He diagnosed the smear as benign. Mrs. Hawkins's child was born on June 13, 1989. At her six week postpartum exam, her doctor took another Pap smear. A different cytotechnologist at Pathology Associates examined this smear. The cytotechnologist interpreted the cellular changes she saw on the smear to be normal postpartum changes and diagnosed the smear as benign. She did not ask Dr. Cox to review the slide.

Mrs. Hawkins became pregnant with her second child in the fall of 1990. At that time, she and her husband were living in Germany, where Mr. Hawkins was stationed in the army. Mrs. Hawkins saw a military doctor on October 23, 1990. Because of her history of hypertension, she went to a German obstetrician for her pregnancy and delivery. She had nine prenatal visits, but she did not have a Pap smear during this second pregnancy.¹ Her second son was born June 20, 1991. The delivery was difficult; her cervix was badly lacerated and required much suturing.

After giving birth, Mrs. Hawkins experienced more bleeding than she had after the first baby. In September of 1991, she and Mr. Hawkins left Germany and returned to Mrs. Hawkins's home town of Toccoa, Georgia. She continued to experience occasional vaginal bleeding, i.e. "spotting." At some point, Mr. and Mrs. Hawkins discussed the possibility of seeking a gynecological evaluation of why she continued bleeding. The doctor they saw after delivery of their second child indicated the bleeding was normal. In November of 1991, Mrs. Hawkins experienced a very bad vaginal bleeding episode where she was weakened from the loss of blood. She saw Dr. C.D. Gilbert, her mother's doctor in Toccoa, on November 14, 1991. Upon examination, Dr. Gilbert observed healing lacerations, increased blood vessels, and a granulated type tissue on her cervix. He did not perform a Pap smear or a biopsy. He thought it would be best to give the lacerations more time to heal and recommended Mrs. Hawkins return in January.

Mrs. Hawkins did not return for the recommended January evaluation. Mr. Hawkins testified she did not seek treatment with Dr. Gilbert again because the symptoms subsided. During the next months, she continued to experience occasional spotting, but this happened less frequently than in the fall. However, on March 25, 1992, she suffered another severe bleeding episode. Mr. and Mrs. Hawkins decided she would return to the doctors at Piedmont Ob/Gyn, who had delivered their first child.

On March 26, 1992, Mrs. Hawkins went to Dr. Mark T. Moore with Piedmont Ob/Gyn in Greenville. He discovered a tumor the size of a fist on her liver and that the cervix had been replaced by a tumorous mass. He took a biopsy, which was sent to Pathology Associates.

Dr. Jesse Stafford of Pathology Associates examined the biopsy taken in March of 1992. He determined the overall findings represented an adenosquamous carcinoma of apparent cervical origin. After Dr. Stafford made this diagnosis, he reviewed the 1988 and 1989 Pap smears. He testified, in retrospect, looking at the smears with the later diagnosis of cancer, both smears indicated precursor lesions. Precursor lesions are changes that, if not treated or corrected, can progress to full blown invasive cervical cancer.

After Mrs. Hawkins was diagnosed with cancer she went to Virginia and consulted with Dr. Ueno. Dr. Ueno confirmed the diagnosis of cancer and recommended combination chemotherapy. Mrs. Hawkins had her first chemotherapy in Virginia then returned to South Carolina. Dr. Mark Allen O'Rourke, an oncologist in Greenville, took over medical care of Mrs. Hawkins. He first saw Mrs. Hawkins on April 24, 1992. He testified that when he found the cancer had spread to the liver, he realized her condition was terminal. He told Mrs. Hawkins that her cancer had reached the incurable stage. He aimed treatment at pain control and trying to slow down the cancer. By June, he determined Mrs. Hawkins was not responding to his treatment and referred her to Dr. Clark Pearson at Duke. Dr. Pearson recommended radiation therapy, which she began receiving to her liver and cervix area. During this treatment it was discovered the cancer had spread to her spine.

Both the cancer and the treatment caused Mrs. Hawkins to experience great pain, discomfort, and depression. The side effects of chemotherapy are nausea that requires intravenous antinausea medicine, loss of hair, a low blood count that makes the patient susceptible to infection, irritation of the lining of the throat and intestines, and fatigue. She underwent four cycles of chemotherapy infusion, at three week intervals. Mrs. Hawkins became bloated beyond recognition. She had a catheter placed in her vein for receiving chemotherapy, and constantly feared infection. She received approximately twenty-five doses of radiation therapy. She suffered severe burns from the radiation. Once the cancer spread to her spine, she was in so much pain she had to sleep sitting up on the couch. Because she could not take care of her children, she became even more depressed.

When the chemotherapy and radiation treatment were unsuccessful, Mr. and Mrs. Hawkins went to a clinic in Mexico for unorthodox treatments in late September, 1992. Mrs. Hawkins needed a blood transfusion as soon as they arrived in Mexico. On October 2 they flew home. Mrs. Hawkins returned to their home in Toccoa rather than a hospital. For the last ten to fourteen days of her life, Mrs. Hawkins was in constant pain. On the morning of October 27, 1992, she slipped into a coma. She died that afternoon, seven months after she had been diagnosed with cancer. She was thirty-two years old.

Dr. William Johnston, an expert in the practice of cytology testified how Pap smears are evaluated at Duke University. He stated that in most laboratories in the United States, cytotechnologists have authority to make the final decision that a Pap smear is normal. He recounted that in his lab, if any abnormality is present on the smear, the cytotechnologist must refer the smear to the pathologist, regardless of his or her personal opinion about the significance of the abnormality. Dr. Johnston testified that when precursor lesions are detected in the early stages of development, the treatment is fairly simple and the cure rate is greater than ninety-five percent. Dr. Johnston examined the 1988 and 1989 Pap smears and found profound abnormalities in both. In his opinion, the abnormalities were very obvious and depicted carcinoma in situ, or preinvasive cancer. The smears could not be interpreted as coming from a normal pregnancy and postpartum condition. He stated Pathology Associates negligently deviated from the standard of care in the interpretation and reporting of Mrs. Hawkins's 1988 and 1989 Pap smears. Dr. Johnston believed the cancerous cells from the 1992 biopsy were a progression of the disease that could have been clearly observed on the 1988 and 1989 Pap smears. In his opinion, if the Pap smears had been appropriately diagnosed, there was a probability of over ninety-five percent that Mrs. Hawkins's life could have been saved.

Dr. Stanley J. Robboy, an expert specializing in obstetrical and gynecological pathology, also testified he viewed the Pap smear slides in question and determined they depicted "pretty clear cut carcinoma in situ in both 1988 and 1989." He stated the abnormalities were straight forward and obvious. Like Dr. Johnston, Dr. Robboy thought the abnormalities in the smears could not be accounted for by a pregnancy or postpartum condition. If Mrs. Hawkins had been treated after the 1988 or the 1989 smears, her chances for survival would have been over ninety-five percent.

Dr. Harlem Giles, an obstetrician/gynecologist testified that if the cancer had been diagnosed in November of 1991 by Dr. Gilbert, Mrs. Hawkins's chances for survival would have been more likely than not. However, the tumor was most likely invasive at that time, and treatment would have most likely required a radical hysterectomy and a pelvic operation followed...