R.J. Taylor Memorial Hosp., Inc. v. Gilbert, A94A0535
| Decision Date | 13 April 1994 |
| Docket Number | No. A94A0535,A94A0535 |
| Citation | 213 Ga.App. 104,443 S.E.2d 656 |
| Parties | R.J. TAYLOR MEMORIAL HOSPITAL, INC. v. GILBERT. |
| Court | Georgia Court of Appeals |
Jones, Cork & Miller, C. Ashley Royal, W. Kerry Howell, for appellant.
Westmoreland, Patterson & Moseley, Thomas H. Hinson II, Bradley G. Pyles, for appellee.
Sharon Gilbert's surgeon performed a biopsy on her left breast at R.J. Taylor Regional Hospital in which the surgeon excised a small nodule to have it microscopically examined by a pathologist for possible breast cancer. After the nodule was excised and given to hospital employees to transport to the pathologist, it was lost at the hospital. Gilbert sued the hospital for damages allegedly resulting from the negligent loss of the tissue sample from her breast. We granted the hospital's application for an interlocutory appeal from the trial court's denial of its motion for summary judgment.
After the tissue sample was lost, Gilbert's surgeon referred her to an oncologist to make further recommendations on how to proceed in the absence of a pathologist's report on the nodule. Both physicians recognized that, without a microscopic examination of the tissue sample by a pathologist to determine whether or not it was cancerous, a diagnosis of Gilbert's condition would be difficult. Nevertheless, both physicians noted that the appearance of the nodule when it was removed was strongly suggestive of cancer; that mammogram findings were also suggestive of cancer; and that Gilbert had a family history of breast cancer which substantially raised her risk of having breast cancer. Based on these findings, both physicians stated that, although they could not say with complete certainty, they could say with a reasonable degree of medical certainty that Gilbert had cancer of the left breast and needed additional treatment. On the recommendations of her physicians, Gilbert subsequently underwent a lumpectomy to remove additional tissue around the site of the biopsy, an axillary lymph node dissection to determine if the lymph node showed evidence of any spread of cancer, and follow-up radiation therapy to the affected area. None of the additional treatment revealed further evidence of cancer. The medical evidence showed that, if a pathologist's examination of the original tissue sample had been done and was negative for cancer, none of the additional treatment would have been recommended.
Gilbert's theory of recovery against the hospital proceeds as follows: (1) because the hospital negligently lost her tissue sample, no determination could be made by the pathologist as to whether or not the nodule was cancerous; (2) that without the pathologist's determination, her physicians were unable to diagnose with a reasonable degree of medical certainty whether or not she had breast cancer; (3) therefore, she was forced to base her decision to undergo additional treatment on an indefinite diagnosis and has been forced to live with continuing uncertainty as to whether or not she has breast cancer; (4) that as a result of the uncertainty created by the loss of the tissue sample, the hospital is liable to her for: (a) the physical scarring and injuries she sustained as a result of the additional treatment; (b) the mental and physical pain and suffering she endured as a consequence of the additional treatment; and (c) the emotional anxiety and distress resulting from the uncertainty over whether or not she has cancer.
The hospital admitted it negligently lost the tissue sample and moved for summary judgment on the basis that its negligence was not the proximate cause of the damages claimed by Gilbert. Although the negligence of hospital employees in losing the tissue sample was not an issue involving expert medical testimony...
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