Marsh v. Green

• Decision Date: 22 September 2000
• Citation: 782 So.2d 223
• Parties: Dixie MARSH v. W. Rodgers GREEN, M.D.
• Court: Alabama Supreme Court

782 So.2d 223

Dixie MARSH v. W. Rodgers GREEN, M.D.

1981897.

Supreme Court of Alabama.

September 22, 2000.

Rehearing Denied December 29, 2000.

Peter F. Burns of Burns, Cunningham & Mackey, P.C., Mobile; and G. Daniel Evans, Birmingham, for appellant.

Norman E. Waldrop, Jr., and Broox G. Holmes, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for appellee.

LYONS, Justice.

Dixie Marsh appeals from a judgment entered on a jury verdict in favor of W. Rodgers Green, M.D., in her medical-malpractice action against Dr. Green. We reverse and remand.

In February 1993, Marsh discovered a mass in her left breast. She had a mammogram, but it did not reveal the mass. However, the mammogram did reveal the presence of microcalcifications, which can suggest the early stages of a malignancy. Marsh consulted Dr. Green, who is a surgeon. On March 12, Dr. Green performed a biopsy and excised certain tissue for examination. The excised tissue was delivered to Pathology Laboratory Associates, P.A. ("the Laboratory"), where Dr. Brian C. Wenzel, a pathologist, examined it. Dr. Wenzel reported to Dr. Green that the tissue examined was not malignant. Dr. Green reported to Marsh that she did not have a malignancy.

A mass in Marsh's breast still was present, however, and she continued to see Dr. Green throughout the summer of 1993. Marsh says that during a postoperative examination on March 19, Dr. Green noted that there was still a mass in her breast and told her to return in six months or sooner if problems arose. She says that she visited his office on April 12, complaining of a painful lump in her breast, and that he told her to return in three months for a mammogram to determine whether he should excise the mass. She says that when she saw Dr. Green on May 7, still concerned about the mass, he told her that her pain resulted from fibrocystic disease and a small nodule in her left breast and also told her that he did not think the nodule was cancerous. Marsh stated that Dr. Green discussed with her the possibility of proceeding with a biopsy at that time or returning in September and then having a mammogram. She also stated that Dr. Green told her that even if the mass was cancerous, waiting four or five months would make no difference in her prognosis.

On September 28, Dr. Green removed the mass from Marsh's breast. A biopsy of that tissue revealed the presence of infiltrating ductal cell carcinoma. Nineteen of 22 lymph nodes biopsied tested positive for cancer. Marsh underwent a mastectomy, chemotherapy, and other treatment, including a bone-marrow transplant.

On March 10, 1995, Marsh, acting pro se, sued Dr. Green; his professional corporation, W. Rodgers Green, M.D., P.C. (the trial court dismissed the corporation; it is not a party to this appeal); and fictitiously named defendants, alleging that Dr. Green had committed medical negligence in failing to remove the cancerous mass from her breast. Marsh also alleged, among other things, that Dr. Green's negligence combined and concurred with the negligence of the fictitiously named defendants to allow her cancer to spread, and that she suffered injuries as a direct or proximate result of the combining and concurring negligence on the part of Dr. Green and the agents, servants, and employees of Dr. Green and his professional corporation. She filed her complaint within two years of the March 12, 1993, surgical procedure.

Initially, Marsh did not sue Dr. Wenzel or the Laboratory. Marsh deposed Dr. Green three years and two months after the date of the initial biopsy. By the time she took Dr. Green's deposition, she was represented by counsel. During his deposition, he testified that at the time of the initial biopsy he could not find, and did not remove, the mass that later was found to be cancerous; that, at that time, the breast tissue looked normal and not cancerous; and that the tissue he removed for analysis was not cancerous. The pathology report from Dr. Wenzel stated that the entire specimen had been submitted for microscopic examination and that it was benign.

While March's action was pending, Dr. Wenzel and the Laboratory continued to recut slides of the tissue removed during Marsh's initial biopsy. These slides were given to Dr. Green and his experts. Dr. Wenzel reexamined the tissue in September when Marsh's cancer was discovered, some six months after the initial biopsy; he did so again two years and nine months after the initial biopsy and three years and eight months after the initial biopsy. He remained satisfied with the accuracy of his initial report and so advised Dr. Green. However, approximately one month after the expiration of the four-year limitations period during which an action alleging medical negligence could be commenced, Dr. Wenzel detected for the first time the presence of cancerous tissue in specimens removed during Marsh's initial biopsy.

Dr. Green immediately contradicted his deposition testimony by amending his answers to interrogatories to state that the tissue removed during the initial procedure indeed had been cancerous. Marsh then deposed Dr. Wenzel. On June 3, 1997, Marsh amended her complaint to charge Dr. Wenzel and the Laboratory with medical negligence in failing to detect the cancerous tissue. Marsh's amended complaint included allegations that the Laboratory had breached a fiduciary duty to her and had breached an implied contract when it disseminated slides of her tissue without her knowledge or consent.

Dr. Wenzel and the Laboratory moved for a summary judgment, arguing that the limitations period had run and Marsh's claims were time-barred and, further, that the allegations relating to the dissemination of her tissue were insufficient, as a matter of law, to be actionable. The trial court entered a summary judgment in favor of Dr. Wenzel and the Laboratory on both grounds argued, and it certified the summary judgment as final pursuant to Rule 54(b), Ala.R.Civ.P. We affirmed the judgment, holding that, as to Marsh's medical-negligence claims, the doctrine of relation back was not available to her because she had known Dr. Wenzel's identity before the four-year statute-of-limitations period expired. We also affirmed the judgment as to Marsh's claims alleging breach of a fiduciary duty and breach of an implied contract. See Marsh v. Wenzel, 732 So.2d 985 (Ala.1998).

Marsh's claims against Dr. Green proceeded to trial. At trial, he testified that his treatment of Marsh was within the standard of care observed by surgeons under like circumstances. Dr. Green presented the testimony of two surgeons as expert witnesses; they also testified that his treatment of Marsh was within the standard of care. Dr. Michael Meshad testified that, even if Marsh's cancer had been detected in March 1993, a mastectomy still would have been necessary because her cancer had metastasized before her March 1993 visit with Dr. Green.

At trial, Dr. Green admitted that, after he saw the initial pathology report, he told Marsh that there was only a one-percent chance that she had cancer, but he said during his testimony that he had no medical basis for making such a statement. He acknowledged telling Marsh that waiting four or five months would not affect her prognosis, even if she had cancer. Dr. Green also testified that, if he had known in March that the mass was malignant, he would not have told her to wait until September. Marsh submitted to the trial court instructions 28.04 and 28.05, Alabama Pattern Jury Instructions: Civil (2d ed.1993), on the law of combining and concurring negligence, as well as the following charge taken from Phillips v. Anesthesia Services, P.C., 565 So.2d 127 (Ala.1990):

"`If one is guilty of negligence which concurs or combines with the negligence of another and the two combine to produce injury or damage, each negligent person is liable for the resulting injury or damage, and the negligence of each would be deemed the proximate cause of the injury.'"

Id. at 128 (quoting from a jury charge requested in that case by the plaintiff Phillips). The trial court refused to give those charges. The jury returned a verdict for Dr. Green, and the court entered a judgment on that verdict. Marsh appeals.

I. Sufficiency of the Evidence to Support the Verdict

Marsh argues that the verdict is against the great weight of the evidence because Dr. Green admitted that he gave medical advice that caused her to delay and thereby allow the cancer to spread. Specifically, Marsh contends that one of her medical-malpractice claims against Dr. Green was based upon undisputed evidence indicating that he told Marsh that, even if the mass was cancerous, waiting four or five months to treat it would not be detrimental. Jury verdicts carry a presumption of correctness. We decline to substitute our judgment for that of the jury in matters dealing with credibility of witnesses and weight of the evidence. See Ford Motor Co. v. Burdeshaw, 661 So.2d 236, 238 (Ala.1995); Delchamps, Inc. v. Larry, 613 So.2d 1235, 1239 (Ala.1992). The issues whether Dr. Green complied with the standard of care and whether delay contributed to Marsh's injuries were sharply contradicted at trial. We cannot say the trial court erred in denying Marsh's motion for a new trial on the ground that the verdict was against the weight of the evidence.

II. Applicability of the Doctrine of Combining and Concurring Negligence

Marsh argues that the trial court erred in refusing to charge the jury on the law of combining and concurring negligence. Under the law of combining and concurring negligence, Dr. Green can be liable for his own negligence, notwithstanding the fact that others, who are not his agents, could be liable for their own negligence. See Davison v. Mobile Infirmary, 456 So.2d 14, 25 (Ala.1984). Marsh contends that she was entitled to instructions on combining and concurring negligence because Dr. Green had blamed Dr. Wenzel for Dr....