Scafide v. Bazzone

• Court: Mississippi Court of Appeals
• Writing for the Court: Southwick
• Citation: Scafide v. Bazzone, 962 So.2d 585 (Miss. App. 2006)
• Decision Date: 12 September 2006
• Docket Number: No. 2004-CA-01658-COA.,2004-CA-01658-COA.
• Parties: Art SCAFIDE, Individually, and as Administrator of the Estate of Marlene E. Goss, Deceased, Appellant v. Victor T. BAZZONE, M.D., and John W. Godsey, M.D., Appellees.

962 So.2d 585

Art SCAFIDE, Individually, and as Administrator of the Estate of Marlene E. Goss, Deceased, Appellant v. Victor T. BAZZONE, M.D., and John W. Godsey, M.D., Appellees.

No. 2004-CA-01658-COA.

Court of Appeals of Mississippi.

September 12, 2006.

Rehearing Denied April 10, 2007.

John L. Hunter, Pascagoula, C. Victor Welsh, Jackson, attorneys for appellant.

Elizabeth Claire Barker, John A. Banahan, Pascagoula, Stephen Giles Peresich, Biloxi, Melinda Owen Johnson, Pascagoula, attorneys for appellees.

EN BANC.

SOUTHWICK J., for the Court.

¶ 1. The administrator of an estate brought suit against four physicians seeking damages for the allegedly wrongful death of their patient. The plaintiff's allegation was that the deceased had been misdiagnosed as having a malignant brain tumor and received radiation treatment that in fact caused her death. The cure, in the plaintiff's view, was undeniably worse than the disease. During trial in Jackson County Circuit Court against two of the doctors, a directed verdict was granted for one defendant. The jury later returned a verdict in favor of the other physician. On appeal, the heirs argue that the directed verdict was improperly granted and that a new trial should be granted as to both physicians. We find no error and affirm.

FACTS

¶ 2. On March 7, 1996, Marlene Goss was examined at the clinic of Dr. Dianne Ross, a Jackson County, Mississippi neurologist. Ms. Goss had been suffering from recurring pain in her neck and head. To assist in the diagnosis, Dr. Ross had a magnetic resonance imaging (MRI) scan of Goss's brain made on March 13. The MRI revealed that Goss had a large tumor in her head. Dr. Hoshall Barrett, a radiologist, read the MRI and discussed his findings with Dr. Ross. Dr. Barrett stated that the tumor seemed to be a high grade glioma, which is cancerous, but he did not render a firm opinion. After this discussion, Dr. Ross believed that the tumor was most likely cancerous.

¶ 3. On March 14, Dr. Ross telephoned a local neurosurgeon, Dr. Victor Bazzone. Without identifying her patient, Dr. Ross generally explained the medical evidence about Ms. Goss. Dr. Ross stated that there was evidence of a glioblastoma multiforme, which is a cancerous tumor, and asked for Dr. Bazzone's treatment recommendation if that was the condition. Dr. Bazzone responded that his recommendation would be steroids and radiation treatment. Dr. Ross recommended that Ms. Goss see Dr. Bazzone, to which Dr. Bazzone agreed, and also that she be examined by Dr. John Godsey, a radiation oncologist. Ms. Goss and some members of her family were in Dr. Ross's office when this telephone conversation with Dr. Bazzone occurred and were told of what he had said, including the referral recommendations. We note here that Ms. Goss never was seen by Dr. Bazzone.

¶ 4. On March 20, 1996, Goss and two of her children had a lengthy consultation with Dr. Godsey. Dr. Godsey reviewed the MRI films. His medical notes reflected several relevant facts. He was aware that Dr. Ross had consulted with Dr. Bazzone. Goss and her children informed Dr. Godsey that they had the impression that Dr. Bazzone had seen the MRI scan and that he had recommended foregoing any attempt at surgery to obtain a tissue sample for a biopsy, since that would probably produce no more than a tissue confirmation. Dr. Bazzone would not in fact examine the MRI until later. It is true, though, that Dr. Bazzone informed Dr. Ross that on the basis of the report of the MRI scan that she described to him, he would not recommend surgery for a biopsy.

¶ 5. Dr. Godsey's notes also stated that Goss "truly is not interested in pursuing this [issue of diagnosis confirmation] further and wishes to proceed" with the radiation. His final comment on the notes was "I cannot guarantee any outcome nor can I assure of an `absolute' diagnosis. I used the word `absolute' because this is the word the patient used as well and ... this treatment without histological confirmation is exactly what this patient continues to express as her desire."

¶ 6. The same day as the appointment with Dr. Godsey, Dr. Ross's office called Dr. Bazzone's office to schedule an appointment for Ms. Goss. The appointment set that day for March 25 was later cancelled by Ms. Goss. She had already met with Dr. Godsey and decided to seek no further examination or surgery to confirm the diagnosis and need for radiation treatment. Testimony from some of Ms. Goss's family confirmed that they strongly encouraged her to see Dr. Bazzone. Ms. Goss refused, based on considerations such as cost, the desire to avoid the brain surgery needed to obtain tissue for a biopsy, and perhaps also the belief created by the physicians that it was likely that the result of the surgery would simply confirm what they already believed.

¶ 7. Dr. Bazzone received Dr. Godsey's consultation notes on April 3. In response, Dr. Bazzone wrote a note dated April 3 and sent it to Drs. Godsey and Ross. He summarized what he had done so far, and corrected what Dr. Ross's note indicated she had been told by Ms. Goss. Dr. Bazzone stated in this note that he had not reviewed the MRI. He also indicated that Ms. Goss had cancelled her appointment with him.

¶ 8. On April 4, Dr. Bazzone wrote another note that did not indicate it was to be sent to the other two doctors. He wrote that since the previous day's note he had reviewed the MRI scans that were brought to his office by Ms. Goss before she cancelled her appointment. He wrote that he retained his opinion that the tumor was a glioblastoma multiforme and that radiation treatment and high dose steroids should be the treatment. He further stated that he would not recommend a "surgical procedure." At trial, Dr. Bazzone explained that the surgery he meant was the kind he formerly did on patients with a confirmed diagnosis of this kind of tumor, which was "to open the heads, take out the tumor, and try to remove as much as possible, knowing that I wasn't going to get it all, and then proceeding with additional treatment."

¶ 9. For some reason, the April 4 note was sent to Dr. Godsey and a copy was found in Ms. Goss's hospital medical records. Dr. Bazzone testified that the April 4 note being sent out of his office was not intended since it added nothing to his previous opinion. Dr. Godsey saw the note during the period of the radiation treatment and testified that no reliance was placed on that note. On the other hand, Dr. Godsey testified that had the April 4 note stated that the tumor may have been non-cancerous, then the radiation treatment would have stopped.

¶ 10. Dr. Godsey began Ms. Goss's radiation therapy on March 25, and it concluded on May 21, 1996. Because of continuing problems in July 1996, Goss was evaluated at University of Mississippi Medical Center in Jackson. The evaluating physician, Dr. Ruth Fredricks, was of the opinion that the March 13, 1996 MRI in fact showed only an atypical meningioma (a non-cancerous tumor) and recommended that the tumor be extracted by surgery. A biopsy performed after the surgery confirmed Dr. Fredricks' diagnosis of a nonmalignant tumor. Dr. Bazzone stated in his April 4 note that he did not believe the MRI showed a meningioma. No radiation treatment would have been required for this type of tumor. Goss underwent a surgical extraction of the tumor in December 1996. Thereafter, Goss had numerous falls and her health began to decline rapidly. Goss died on August 23, 1997. The certificate of death lists the cause as recurrent aspiration due to, or as a consequence of dementia, with other significant conditions, and from the meningioma. There is no significant dispute in this case that Ms. Goss's death was the result of the effects of the radiation treatment that she did not in fact need to have received to treat her tumor.

¶ 11. Suit was brought against four of the physicians who had been involved in Goss's treatment. Both Dr. Ross and Dr. Barrett were dismissed on summary judgment prior to trial. No appeal has been taken as to those judgments. The judgments in favor of Dr. Bazzone and Dr. Godsey are the only subjects of today's appellate challenge.

DISCUSSION

ISSUE 1: Physician's Legal Duty of Care

¶ 12. In the order granting the directed verdict, the court found that there was no doctor-patient relationship between Dr. Bazzone and Ms. Goss on March 14, 1996, when the phone conversation between Dr. Bazzone and Dr. Ross occurred. The trial court held that even though a formal relationship "is not always necessary for a physician" to have liability, it still is necessary to "look to the nature of the duty owed by a physician to an individual." In granting a directed verdict, the court held that no duty arose from Dr. Bazzone's telephone conversation about treatment based on orally described medical evidence. The trial court stated that Dr. Bazzone's subsequent interpretation of the MRI could be grounds to find a doctor-patient relationship under certain circumstances. The court found no legal duty on these facts because Dr. Bazzone intended the review of records on April 4 for his own purposes and not to affect the patient's treatment. Thus, the trial court granted judgment to Dr. Bazzone based on an absence of duty under tort law arising from either the phone conversation or the three-week later review of the MRI.

¶ 13. As an alternative basis for the directed verdict, the trial court made this statement: "There is no expert testimony in the record that if a duty of care arose by his affirmative act of writing the April 4, 1996 note, that he breached that duty." The trial court referred to expert testimony that Dr. Bazzone's opinion that radiation treatment should be performed without a confirmatory biopsy was inconsistent with the standard of care. It would appear that the trial court found that the MRI could be interpreted non-negligently to indicate a cancerous tumor, but treatment without first obtaining a...