Holcomb v. Carraway

• Decision Date: 21 April 2006
• Docket Number: 1041471.
• Citation: 945 So.2d 1009
• Parties: Charles D. HOLCOMB, individually and as administrator of the estate of Carolyn Holcomb v. Robert P. CARRAWAY, M.D., et al.
• Court: Alabama Supreme Court

Page 1009

945 So.2d 1009

Charles D. HOLCOMB, individually and as administrator of the estate of Carolyn Holcomb v. Robert P. CARRAWAY, M.D., et al.

1041471.

Supreme Court of Alabama.

April 21, 2006.

Rehearing Denied June 23, 2006.

Charles A. Dauphin and Joseph D. Jackson, Jr., of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for appellant.

Joseph L. Reese, Jr., and Randal H. Sellers of Starnes & Atchison, LLP, Birmingham, for appellee Robert P. Carraway, M.D.

Robert E. Cooper, Deborah Alley Smith, and Jennifer M. Thompson of Christian & Small, LLP, Birmingham, for appellees H. Chaney Aderholt, M.D., Randy Finley, M.D., and Steven Manzi, M.D.

STUART, Justice.

Charles D. Holcomb, individually and in his capacity as the administrator of the estate of Carolyn Holcomb, appeals from summary judgments entered in favor of Dr. Robert P. Carraway, Dr. H. Chaney Aderholt, Dr. Randy Finley, and Dr. Steven Manzi. We affirm.

Facts

This is a medical-malpractice action. Because Holcomb is the nonmovant, we construe all disputed facts in his favor. In 1984, Carolyn Holcomb became a patient of Dr. Carraway, a board-certified general surgeon. Carolyn, who had a family history of breast cancer, was first referred to Dr. Carraway in 1984 for surgical evaluation of a palpable cyst on her left breast. Dr. Carraway performed an aspiration of the cyst and determined that the cyst was benign but that it contained atypical cells. Dr. Carraway diagnosed Carolyn as having fibrocystic breast disease, also referred to as "dysplasia," which, according to Dr. Carraway, can create breast "nodularity" and fullness. Carolyn then began seeing Dr. Carraway regularly to monitor her fibrocystic breast disease.

In the years following her diagnosis, Carolyn had several cysts come and go, and, at various times, she complained of fullness, pain, and tenderness in her breasts. Carolyn regularly underwent mammograms, which were read and the results reported to Dr. Carraway by various radiologists. The radiology reports frequently indicated that Carolyn's films were difficult to evaluate. Carolyn also underwent mammograms at least once a year, sometimes every six months, and sometimes more frequently. Those mammograms were read by Dr. Aderholt, Dr. Finley, or Dr. Manzi (hereinafter referred to collectively as "the defendant radiologists").

On June 30, 1997, Dr. Carraway examined Carolyn and requested a mammogram. Dr. Aderholt interpreted the X-ray and reported to Dr. Carraway that there were "no significant interim changes" from Carolyn's previous examinations. On June 4, 1998, Dr. Aderholt interpreted another mammogram film and reported that the film indicated a "questionable new density with possible spiculated edges."¹

Dr. Carraway received this June 4, 1998, report from Dr. Aderholt. However, he could not locate a physical mass during his physical examination of Carolyn. Dr. Aderholt's report also indicated that no physical mass could be located. Dr. Carraway testified that he could not perform an aspiration or a biopsy unless a mass could be located. Therefore, he performed neither of those procedures at that time.

In December 1998, Dr. Carraway and Dr. Aderholt again saw Carolyn. She was complaining of pain and stinging in the area of her left breast. A mammogram was performed and Dr. Aderholt's interpretation of the mammogram indicated that the "previously noted opacity is less apparent . . . . Six month study advised." Dr. Carraway did not perform a biopsy or an aspiration during or as a result of the December 1998 visit.

In June 1999, Dr. Carraway again examined Carolyn. She again was complaining of pain in the same area. After a mammogram was performed, Dr. Manzi interpreted the films; in his report he stated "[n]o mammographic evidence of malignancy. Recommend bilateral study in 1 year." Dr. Carraway did not perform a biopsy.

On October 27, 1999, Carolyn reported pain, thickening, and the presence of a lump in her left breast. The next day, a mammogram was performed. Dr. Aderholt read it and saw "multiple benign appearing cysts." Dr. Aderholt ordered a repeat mammogram. On his interpretative report of this second mammogram, he indicated "[m]ultiple rounded lesions seen to be cystic in nature on ultrasound. Repeat ultrasound study advised in 3 months time." Dr. Carraway did not perform a biopsy.

In December 1999, Carolyn suffered an unrelated injury that caused pain in her hip. She consulted an orthopedist about the pain. During this examination and following workup, the orthopedist identified a lesion on Carolyn's right femur. Upon learning of this lesion, Carolyn informed her orthopedist of the lump in her left breast. Carolyn underwent another mammogram; Dr. Finley interpreted this mammogram. He indicated that the area of concern was a "probably benign finding."

On January 19, 2000, Carolyn underwent biopsies of her leg and her left breast. The following day, she was diagnosed with cancer. Carolyn began extensive treatment for her cancer.

On October 30, 2000, Carolyn Holcomb and Charles D. Holcomb sued Dr. Carraway, Dr. Aderholt, Dr. Finley, and Dr. Manzi. Carolyn Holcomb alleged that the defendants negligently failed to detect and diagnose her breast cancer in a timely manner. Charles Holcomb alleged a loss of consortium as a result of the defendants' negligence. All of the defendants filed motions for a summary judgment. Carolyn died on January 17, 2005, as a result of her cancer, and Charles was named as the administrator of her estate.

In March and April 2005, the trial court heard arguments on the summary-judgment motions. On May 11, 2005, the trial court held that no genuine issues of material fact existed, and it entered summary judgments in favor of all defendants. The trial court did not specify reasons for its holding.

On June 17, 2005, 37 days after the entry of the summary judgments, Charles Holcomb filed a motion to substitute Carolyn's estate as a plaintiff in place of Carolyn.² On June 21, 2005, the trial court granted this motion; this motion was granted on the same date the notice of appeal was filed.

On appeal, Holcomb raises the following issues:

"I. Whether the trial court erred in holding that Holcombs' expert, Dr. Murray Bern, a board certified oncologist, was not competent to testify against Carraway, a general surgeon, regarding the negligent failure to detect or diagnose breast cancer, when no surgical procedure was performed.

"II. Whether the trial court erred in holding there was no genuine issue of material fact as to whether there was a breach of the standard of care by Carraway in the failure to detect or diagnose breast cancer in Carolyn Holcomb.

"III. Whether the trial court erred in holding that Holcombs' radiology expert, Dr. Karl Dockray, was not a `similarly situated health care provider,' under the Alabama Medical Liability Act because he was not actively certified under the Mammogram Quality Standards Act (MQSA).

"IV. Whether the trial court erred in holding there is no genuine issue of material fact as to whether there was a breach of the standard of care by Aderholt, Manzi, and Finley in the failure to detect or diagnose breast cancer on the breast imaging mammograms of Carolyn Holcomb."

Standard of Review

"In determining whether the summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. Rule 56[, Ala. R. Civ. P.,] is read in conjunction with the `substantial evidence rule' (§ 12-21-12, Ala.Code 1975), for actions filed after June 11, 1987. In order to defeat a properly supported motion for summary judgment, the plaintiff must present `substantial evidence,' i.e., `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'"

Rodgers v. Adams, 657 So.2d 838, 839-40 (Ala.1995) (citations omitted).

Applicable Law

The plaintiff in a medical-malpractice action must prove by substantial evidence that the defendant health-care provider "failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case." § 6-5-548(a), Ala. Code 1975. To meet this burden, a plaintiff ordinarily must present expert medical testimony; however such expert testimony is allowed only from a "similarly situated health care provider." See § 6-5-548(e), Ala.Code 1975; Leonard v. Providence Hosp., 590 So.2d 906 (Ala.1991).

Section 6-5-548, a provision of the Alabama Medical Liability Act, § 6-5-504 et seq., Ala.Code 1975 ("the AMLA"), provides two definitions of a "similarly situated health care provider," depending upon whether the defendant health-care provider is a "specialist" or a "nonspecialist." See § 6-5-548(b) and (c), Ala.Code 1975. If the defendant is a nonspecialist, § 6-5-548(b) defines a "similarly situated health care provider" as one who meets all of the following qualifications:

"(1) Is licensed by the appropriate regulatory board or agency of this or some other state.

"(2) Is trained and experienced in the same discipline or school of practice.

"(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred."

If the defendant is a specialist, subsection (c) defines a "similarly situated health care provider" as one who meets all of the following qualifications:

"(1) Is licensed by the appropriate regulatory board or agency of this or some other state.

"(2) Is trained and experienced in the same specialty.

"(3) Is certified by an appropriate American board in the same specialty.

"(4) Has practiced in this specialty during the year preceding the date that the alleged breach of the standard of care occurred."

§ 6-5-548, Ala.Code 1975. In 1996, the legislature further addressed...