Swain v. Curry

• Decision Date: 19 February 1992
• Docket Number: No. 91-1208,91-1208
• Parties: 17 Fla. L. Weekly D538 Mary J. SWAIN and Charles Swain, her husband, Appellant, v. Calvin H. CURRY, M.D., Appellee.
• Court: Florida District Court of Appeals

Page 168

595 So.2d 168

17 Fla. L. Weekly D538

Mary J. SWAIN and Charles Swain, her husband, Appellant, v. Calvin H. CURRY, M.D., Appellee.

No. 91-1208.

District Court of Appeal of Florida,

First District.

Feb. 19, 1992.

Michael T. Callahan and John S. Derr of Callahan, Dobbins & Derr, Tallahassee, for appellants.

Patrick J. Farrell, Jr. and Ben A. Andrews of Fuller, Johnson & Farrell, Tallahassee, for appellee.

KAHN, Judge.

Mary and Charles Swain appeal an order of dismissal and partial final summary judgment entered against them. We reverse.

In May 1987, Mary Swain, who is presently forty eight years old, consulted Dr. Curry, her obstetrician/gynecologist, about a lump in her left breast at the 4:00 position near the nipple. According to Mrs. Swain, Dr. Curry told her the lump was a fibrocystic change in the breast and agreed to order a mammogram. Dr. Curry has no independent recollection of the visit. His office notes do not mention a lump, but do state that he requested Mrs. Swain to get a baseline mammogram. When the mammogram was performed on June 3, 1987, Mrs. Swain indicated on the radiologist's information sheet that she had a lump in her left breast. The result of the mammogram was negative. ¹ Dr. Curry advised no particular follow-up, beyond the one mammogram. Near the end of 1987, the lump became larger, the skin around it dimpled, and Mrs. Swain experienced periodic burning. In May 1988, Mrs. Swain returned to Dr. Curry and told him about these developments. Dr. Curry said that because the lump was fibrocystic there was nothing he could do except send her to a surgeon to have the lump aspirated. On June 6, 1988, Mrs. Swain met with Dr. Robert Snyder, a general surgeon, to have the lump aspirated. According to Mrs. Swain, Dr. Snyder could not aspirate the lump and decided to perform a biopsy. The biopsy performed on June 16, 1988 revealed a malignant tumor, determined at surgery to be 1.9 centimeters in diameter. The two treatment options available to Mrs. Swain were a modified radical mastectomy or a lumpectomy, sometimes termed wide resection. Dr. Snyder recommended a modified radical mastectomy which involved removal of the left breast and thirteen lymph nodes from the adjacent underarm. After consulting two other physicians, the Swains decided that Mrs. Swain should have a modified radical mastectomy. Dr. Snyder operated on July 12, 1988. After surgery, pathology studies revealed that three of the excised lymph nodes were malignant. Mrs. Swain underwent six months of chemotherapy and later had her left breast reconstructed from skin taken from her back, upper left thigh, and groin. At the present time Mrs. Swain has no clinical evidence of recurrence of cancer.

On March 13, 1990, the Swains filed suit against Dr. Curry, alleging that he negligently failed to diagnose and treat Mrs. Swain's cancer. ² The Swains further alleged that as a direct and proximate result of Dr. Curry's negligence Mrs. Swain

sustained permanent scarring and disfigurement, pain and suffering, mental anguish over her condition, a loss of capacity for the enjoyment of life, a significant reduction in her life expectancy, a loss of society, comfort and companionship, a permanent and drastic diminution in the quality of her life, she has been required to undergo and be obligated to pay for extensive medical treatment and reconstructive surgery and will continue to require periodic treatment and other surgical procedures in the future, and will be obligated to pay for such treatment and surgical procedures in the future; in addition, she will be in the future required to undergo and be obliged to pay for extensive medical treatment and care, including nursing care, and other life care services made necessary by the natural progression of the disease up until the time of her untimely death.

Mr. Swain's individual claim alleged he had "suffered and will suffer in the future the diminution and premature loss of his spouse's services[,] society, companionship, love, affection, aid, and comfort, has become obligated and will in the future be obligated to pay for her medical, hospital and nursing treatment."

On February 2, 1991, Dr. Curry filed a motion for summary judgment. After a hearing on the motion, the trial court entered an order of dismissal. The order dismissed the case without prejudice based upon the trial court's determination that no cause of action had arisen at the time. The order provided that the statute of limitations would begin to run at the time Mrs. Swain learns or with due diligence should learn of any clinically determinable metastasis. Upon rehearing, the trial court amended the order of dismissal and entered a "partial summary judgment" for Dr. Curry. In the amended order, the trial court concluded: (1) the Swains have no cause of action for an increased risk of cancer, (2) the Swains have no present cause of action for a decreased chance of survival, (3) the Swains have no present cause of action for reduction in life expectancy, (4) no cause of action exists for damages based upon fear of having a recurrence of cancer, (5) there exists no issue of material fact that had the alleged malpractice not occurred, the options for the surgical and chemotherapeutical treatment actually rendered would have been the same, (6) the statute of limitations will not commence to run until the Swains learn or should with due diligence learn of any clinically determinable metastasis.

On appeal the Swains argue: (1) there is an issue of material fact as to whether Mrs. Swain's treatment and related damages would have been different had the cancerous growth been detected and treated at an earlier date, (2) the law does not require the Swains to split their cause of action between damages which have occurred and those which, to a reasonable degree of medical probability, will be suffered, and (3) increased fear of the recurrence of cancer is a proper element of damages in a medical malpractice claim arising from a failure to timely diagnose and treat breast cancer.

A review of the record indicates the existence of an issue of material fact concerning the treatment Mary Swain would have most likely received had the cancer been earlier detected. Dr. Schapira, chief of the Section of Cancer Prevention at the Moffitt Cancer Center at the University of South Florida, testified that Mrs. Swain's cancer would have been about one centimeter in size in 1987. In Schapira's opinion, had the lesion been detected at this size, Mrs. Swain's treatment probably would have been lumpectomy and radiation to the breast. Dr. Schapira also testified that Mrs. Swain would not have received chemotherapy if she had no axillary node involvement. Schapira thus opined that the delay in diagnosis affected the treatment modalities for Mrs. Swain's cancer. On the other hand, Dr. Mabry, Mrs. Swain's oncologist, and Dr. Snyder testified that the treatment options in 1987 would have been the same as in 1988.

The testimony of Dr. Schapira conflicts with that of Dr. Mabry and Dr. Snyder. "If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it." Moore v. Morris, 475 So.2d 666 (Fla.1985) (citations omitted). Having established a material dispute in this regard, Mrs. Swain is entitled to proceed with her claim that she has suffered additional physical damages as a result of the delayed detection. Obviously, she will be bound at trial to present competent evidence as to the elements of this claim.

Since Mrs. Swain is entitled to a trial on present damages, we must determine whether she has the right to seek, in this action, compensation for future loss.

Dr. Curry, relying upon Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla. 3d DCA), rev. denied, 492 So.2d 1331 (Fla.1986), argues that any claim for future damages is merely "inchoate," and should be allowed to ripen before such damages could be recovered. Dr. Curry acknowledges the testimony from Dr. Schapira which attributes to Mrs. Swain a 65% statistical probability that she will develop a recurrence of the cancer. Dr. Schapira has also testified that timely follow-up and diagnosis of Mrs. Swain's condition would have revealed a "minimal" breast cancer, with a statistical survival rate of 90 to 95%. Nonetheless, argues Dr. Curry, Mrs. Swain's allegation of an increased risk of recurrence of cancer in the future is purely speculative as a matter of law.

In Eagle-Picher, the Third District considered the claim of an asbestosis victim that he should be able to recover present damages for a future enhanced risk of cancer as the result of an asbestos exposure. At the time of trial, the plaintiff in Eagle-Picher had asbestosis but not cancer. After explaining the historical and policy reasons behind the rule against splitting causes of action, the court decided that, in asbestos exposure claims, damages for increased risk of cancer could not be recovered, and in order to recover such damages, the plaintiff must "await the actuality of cancer," bringing at that time a separate action. 481 So.2d at 521. Significantly, however, the court framed its rationale in the vernacular of asbestos claims and expressly limited its holding to that context. ³

Mrs. Swain argues that she should not be singled out for treatment any different than that normally accorded the plaintiff in a personal injury lawsuit. She suggests that she has but a single cause of action which has already accrued. Since the Swains' damages have been caused, arguably, by the single event of medical negligence, there exists but a single cause of action giving rise to different elements of damage. The rule against splitting causes of actions thus requires that the Swains seek and recover all relief in one action. E.g., Thermofin, Inc. v. Woodruff,...