Shapiro v. Burkons

• Decision Date: 14 December 1978
• Citation: Shapiro v. Burkons, 404 N.E.2d 778, 62 Ohio App.2d 73 (Ohio App. 1978)
• Parties: , 16 O.O.3d 175 SHAPIRO et al., Appellants, v. BURKONS, Appellee. *
• Court: Ohio Court of Appeals

Page 73

62 Ohio App.2d 73

404 N.E.2d 778, 16 O.O.3d 175

SHAPIRO et al., Appellants, v.BURKONS, Appellee. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 14, 1978.

Syllabus by the Court

1.In an action for medical malpractice where failure to perform a biopsy on a suspected cancerous lesion in the breast of plaintiff is alleged as the proximate cause of a reduced life span, and where plaintiff's evidence indicates that a failure to timely diagnose cancer prevented the patient from enjoying a longer life expectancy, it is not error to arrest the evidence from the jury where there is no evidence tending to show, in probability, that if a biopsy had been timely performed, it would have resulted in a diagnosis of cancer.

2.If, in ruling upon a motion for a directed verdict, the court is confronted with conflicting testimony of plaintiff's expert witness made during cross-examination on an issue essential to sustaining plaintiff's case, and where the basis for this conflict is resolved in favor of the movant by testimony of the same expert witness during further cross-examination, it is not error for the court to arrest the case from the jury since such a conflict does not present an issue of fact requiring the exercise of the function of the trier of facts.(Pope v. Mudge, 108 Ohio St. 192, 140 N.E. 501, distinguished.)

Ellis B. Brannon, and William J. Novak, Cleveland, for appellants.

Gary H. Goldwasser, Cleveland, for appellee.

JACKSON, Judge.

This is an appeal from a judgment of the Cuyahoga County Court of Common Pleas granting defendant's motion for a directed verdict.The facts of this case are as follows.

Plaintiffs-appellants, Alan and Marian Shapiro, filed this action against defendant-appellee, Dr. Harold Burkons for damages resulting from appellee's alleged negligent failure to diagnose Marian Shapiro's breast cancer.Between 1961 and 1972, appellantMarian Shapiro saw appelleeDr. Harold Burkons, an OB-GYN specialist, for gynecological care.In June 1971, appellant visited the office of Dr. Burkons and related to him that her mother had just died from breast cancer and that she was concerned about the consequences of breast cancer herself.She remarked about the increase in size of her right breast and that she wanted him to examine her breast every six months instead of annually.She told Dr. Burkons: "I'm putting myself in your hands.You are the one who will be responsible for me."

Six months later, in December 1971, appellant saw Dr. Burkons and expressed concern that her right breast was getting larger.Dr. Burkons' records indicate that he examined appellant's breast and diagnosed the presence of cysts with a slightly more prominent mass under the areola (nipple area).Dr. Burkons suggested a mammogram.Appellant went to the radiologists, Hill and Thomas, where a mammogram was taken and which subsequently proved negative for carcinoma.A biopsy was not performed at this time.

Appellant next saw Dr. Burkons on May 2, 1972.Prior to this visit, appellant had expressed to Dr. Burkons during a telephone conversation that her right breast was still increasing in size.Appellant testified that she was examined during the May 2, 1972, visit and that Dr. Burkons had assured her that all she had were cysts, and that the mammogram she had previously taken showed nothing unusual in the breast.Dr. Burkons then gave appellant an American Cancer Society breast self-examination booklet.

In August 1972, appellant visited Dr. Burkons at his office for the purpose of getting a vaginal culture due to a monilia infection which she had.She testified that, although her breast was steadily growing larger, she said nothing about this to Dr. Burkons during this examination for the reason that Dr. Burkons had told her not to worry.An examination of appellant's breasts was not made by appellee during this visit.

On November 21, 1972, appellant again visited Dr. Burkons for an examination.After examination of appellant's right breast, appellant testified that Dr. Burkons said: "The breast is getting larger," and that he noticed a hard lump.Dr. Burkons's records indicate a mass of cysts, about 5 X 5 cms., had developed in the lower part of appellant's right breast.¹This mass is to be differentiated from the lesion first noticed under the areola in December 1971.Appellant also testified that by this time she was also experiencing pain associated with the right breast.

Dr. Burkons attempted a needle aspiration to draw fluid from the mass which would indicate cysts.However, Dr. Burkons was unable to obtain any fluid.Dr. Burkons then suggested another mammogram which again showed no cancer.When appellant continued to complain to Dr. Burkons about pain in her right breast and armpit, he sent her to Dr. Jones at St. Luke's Hospital.Appellant made an appointment with Dr. Jones and an examination was performed.Appellant subsequently underwent an operation in December 1972, ostensibly to have the cysts removed.However, during the operation, a malignant tumor was discovered and a radical mastectomy performed.

Following the mastectomy, appellant underwent a course of radiological treatment.However, her condition started to deteriorate again, and in September 1976, she was examined by Dr. Marshall, an endocrinologist, at University Hospitals.Renewed cancerous activity was detected in her spine and Dr. Marshall placed appellant on a regimen of chemotherapy.Further X-rays revealed that the cancer had metastasized (i. e., spread) to appellant's hip.

Dr. Marshall, who was treating appellant at the time of trial, testified as to her diagnosis and present prognosis.Based upon appellant's condition known at the time, including the rate of metastasis of the cancer, Dr. Marshall testified that her prognosis, based upon reasonable medical certainty, was twelve months.

Dr. Sternen, one of appellants' expert witnesses, testified that during the December 1971 examination, the finding of a mass or lesion under the areola which stood out from the rest of the breast tissue was a discovery significant enough to justify a biopsy of that mass.²He testified that a failure to perform a biopsy under those circumstances violated the standard of care owed to such a patient according to the medical community of obstetrician-gynecologists.Dr. Steren further testified that a mammogram performed on a woman of appellant's age early thirties at the time is inaccurate since the breast tissue is dense tending to obscure any tumors.The fact a mammogram is negative does not necessarily mean that carcinoma is not present in the breast.Dr. Sternen also stated that had the cancer been discovered as early as December 1971, appellant's present prognosis of twelve months would be better due to the smaller size of the lesion.

Dr. Tweeddale, another expert witness for appellants, testified that appellant's cancer was a comedo-type carcinoma, which is a slow growing type.Dr. Tweeddale further testified that the earliest he would have performed a biopsy was in May 1972, assuming the lump in the lower part of the right breast was palpable (i. e., hard to the touch) and not diffuse.Moreover, Dr. Tweeddale stated that if a diagnosis of cancer was made as early as December 1971, appellant's chances for a "five year survival rate" would have perceptibly improved.

Following the conclusion of appellants' case-in-chief, defendant-appellee moved for a directed verdict.The trial court, in granting the motion, stated the following in its opinion:

"As to the first issue, the Court finds that the plaintiffs have adduced some probative evidence as to the existence of negligence and thus the plaintiffs have clearly met their burden as to the defendant's failure to follow standard and acceptable medical practice sufficient to warrant the submission of said issue to the jury.

"As to the second issue, after construing the evidence most strongly in favor of the plaintiffs, the Court finds that the evidence adduced by the plaintiffs, falls so far short of establishing that the alleged negligence of the defendant was the proximate cause of plaintiff's injury that this Court is compelled to hold as a matter of law that reasonable persons considering such issue must come to but one conclusion, i. e. that the defendant Burkons' conduct was not the proximate cause of plaintiff's misfortune."(Emphasis added.)

Appellants filed a timely notice of appeal and present two assignments of error for review:

"1.The trial court erred when it directed a verdict on proximate cause in favor of the defendant in the face of plaintiff's evidence that the defendant physician negligently shortened plaintiff's survival rate.

"2.The trial court erred when it directed a verdict on proximate cause in favor of the defendant physician because a fair inference from plaintiff's proof was that plaintiff's cancer metastasized to her lymph nodes after defendant's negligent failure to biopsy her breast."

In order for the trial court to properly grant a motion for a directed verdict at the close of the opponent's evidence, Civil Rule 50 provides that the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, must find that upon any determinable issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party.

The Ohio Supreme Court has stated the general rule of law applicable in medical malpractice cases as follows:

"1.In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or...