February 15, 2013

162017_132140396847214_292624_nBy its decision filed on February 5, 2013, the Court of Appeals of the State of Mississippi (“Appeals Court”) upheld a defense verdict in a medical malpractice case. The Mississippi medical malpractice jury decided the case in favor of the plaintiff’s physician on October 13, 2010, following the two-day medical malpractice trial. The medical malpractice plaintiff’s motion for new trial was denied by the trial judge. The plaintiff then appealed to the Appeals Court on July 14, 2011.

The Underlying Facts

The medical malpractice plaintiff had a family history of breast cancer and had fibrocystic disease, which caused the formation of multiple cysts in her breasts. She was a patient of the defendant breast and thyroid specialist from 1984 through 2003. Between 1984 and 2003, the plaintiff had appointments with the medical malpractice defendant every six months for checkups; the defendant removed one benign mass from her breast and performed numerous fine-needle aspirations upon various masses that he discovered in both of the plaintiff’s breasts over that time period.

In June 2002, during one of the checkup appointments, the defendant performed an ultrasound that found “numerous cysts bilateral” in the plaintiff’s breasts but no solid masses, as he documented in his medical records; however, the plaintiff alleged that the defendant found a mass on her right breast at that time. The plaintiff testified during the medical malpractice trial that the defendant palpated her right breast, discovered a mass, and inquired about it. She alleged that she advised the defendant that she had failed to notice the mass, and in response, the defendant placed the plaintiff’s hand over her breast to help her feel the mass. The plaintiff further testified that the defendant told her that the mass was “round,” “moveable,” and was a “cyst,” and she was instructed by the defendant to watch the mass for six months, then return to his office in January 2003. However, the alleged mass in the plaintiff’s right breast was not documented in the defendant’s medical records.

The plaintiff returned to the defendant’s office for her follow-up appointment in January 2003, at which time the defendant, according to the plaintiff’s testimony at trial, examined both of her breasts and told her that the lump in her right breast was still round, moveable, and was a cyst. Plaintiff’s husband, who was present during the January 2003 appointment, testified at trial that the defendant told the plaintiff that the lump had gotten bigger, which the defendant disputed during the trial by denying any previous knowledge or previous discovery of this lump or mass in the plaintiff’s right breast.

The defendant referred the plaintiff for her annual mammogram upon discovering the mass in January 2003. The radiologist who performed the mammogram and an ultrasound of the plaintiff’s right breast in January 2003 described his finding a benign-appearing cyst that was not biopsied but the radiologist advised the defendant that “a negative report should not delay biopsy of a dominant mass or clinically suspicious condition.”

When the plaintiff returned to the defendant on June 10, 2003, she advised him that the lump in her breast had more than doubled in size. The defendant performed a fine-needle aspiration on the mass that reported as “positive — malignant cells adenocarcinoma.” The defendant’s medical record from that date stated, “Lump in right breast is bigger.” On June 16, 2003, a lumpectomy was performed to remove the mass; the plaintiff testified that the defendant told her that the margins were clean and that all of the cancer had been removed.

The plaintiff alleged in her medical malpractice complaint that the defendant negligently failed to perform a sentinel node biopsy at the time of the lumpectomy and made no effort to examine her lymph nodes (a subsequent pathologist who reviewed the prior biopsy advised the plaintiff that the margins were not clear and that all of the cancer was not removed). The plaintiff underwent a right mastectomy on July 7, 2003 and had chemotherapy shortly afterwards. In October 2005, the palintiff’s cancer recurred in her chest wall and she underwent a chest-wall resection.

The plaintiff’s medical malpractice lawsuit against the defendant was filed on March 5, 2004, alleging that the defendant negligently failed to provide adequate medical treatment by negligently failing to diagnose the plaintiff with breast cancer and negligently failing to provide medical care upon its discovery.

Plaintiff’s Appeal

The sole issue on appeal was whether the jury verdict in favor of the defendant was against the overwhelming weight of the evidence. The Appeals Court noted that conflicting evidence was presented to the jury in this case, and the Appeals Court had to determine if the jury’s verdict was supported by the substantial weight of the evidence.

The Appeals Court stated that any conflicts in the evidence presented at trial are to be resolved by the jury. “In the present case, the jury determined the credibility of the witnesses, as well as the weight to give to the testimony and evidence at trial, in determining whether [the defendant] breached the standard of care in providing medical treatment to [the plaintiff]. After hearing the testimony and evidence, the jury rendered a verdict in [the defendant’s] favor, finding no negligence in his medical treatment of [the plaintiff]. We find sufficient evidence in the record supports the jury’s verdict … Upon review of the record, we find that the jury’s verdict is not contrary to the overwhelming weight of the evidence, and we cannot say that the verdict shocks the conscience or rests on a complete lack of evidence … Accordingly, we affirm the trial court’s denial of the [plaintiffs’] motion for a new trial.”

Pierce, et al. v. Gibson, M.D., Case No. 2011-CA-01077-COA

If you are the victim of medical malpractice in Mississippi or in another state in the United States, you should promptly seek the advice of a Mississippi medical malpractice attorney or a medical malpractice attorney in your state who may agree to investigate your medical malpractice claim for you and file a medical malpractice case on your behalf, if appropriate.

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