Fraley v. Zambos

555 S.W.3d 441
CourtCourt of Appeals of Kentucky
DecidedFebruary 16, 2018
DocketNO. 2016-CA-001446-MR
StatusPublished

This text of 555 S.W.3d 441 (Fraley v. Zambos) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fraley v. Zambos, 555 S.W.3d 441 (Ky. Ct. App. 2018).

Opinion

COMBS, JUDGE:

Janet Fraley appeals from an order of the Floyd Circuit Court denying her motion for a new trial following entry of the court's judgment in favor of the appellees, Phillip Zambos, M.D., and Eastern Kentucky Imaging, P.S.C.1 , in her medical negligence action. For the reasons stated herein, we affirm the judgment and order on appeal.

Beginning in 1992, and upon the request of her family physician, Dr. Caruso, Fraley had screening mammograms performed at Highlands Regional Medical Center in Prestonsburg. These screening mammograms were performed at two-year intervals. In 1997, a radiologist who interpreted Fraley's screening mammogram noted in his report the appearance of a nodule in Fraley's left breast and similar nodules in her right breast. The radiologist recommended further imaging. As a result, bilateral ultrasounds were performed, and spot compression images of each breast were taken. The ultrasound revealed a cyst in Fraley's left breast. The spot compression images of the right breast were interpreted as normal.

In 2001, Fraley began to have screening mammograms every year. Zambos, a radiologist, began working with the hospital in July 2004. A second radiologist, Dr. Terry Hall, was hired in July 2011.

Fraley did not routinely perform breast self-examinations, but in 2012 she felt three lumps in her right breast. She made *444an appointment with Dr. Caruso, who recommended that she have a diagnostic mammogram. Dr. Hall interpreted the diagnostic mammogram performed at Highlands Regional Medical Center on September 11, 2012. As a result, he recommended that Fraley go to King's Daughters Medical Center in Ashland for further imaging. In Ashland, Fraley underwent an MRI. She saw Dr. Mary Legenza, who diagnosed her with breast cancer. Ultimately, Fraley underwent a total mastectomy of her right breast and began treatment with an oncologist, Dr. Suleiman Massarweh, at the University of Kentucky Markey Cancer Center. Fraley has undergone radiation, chemotherapy, and hormone treatment. Cancer has since been detected in Fraley's spine, pelvis, and possibly her brain stem.

In July 2013, Fraley filed a medical malpractice action against Dr. Philip Zambos; Dr. Terry Hall; Eastern Kentucky Imaging P.S.C.; Highlands Hospital Corporation; and Consolidated Health Systems, Inc. Fraley sought damages for lost wages, medical costs, and pain and suffering.

In her complaint, Fraley alleged that Dr. Zambos had breached the standard of care regarding the screening mammograms that he interpreted in 2006, 2007, 2008, 2009, and 2010 by failing to identify a suspicious abnormality in her right breast. She alleged that Dr. Hall had breached the standard of care by failing to find the suspicious abnormality in her 2011 screening mammogram. Fraley eventually settled her claims against Dr. Hall and the hospital. The matter proceeded to trial against Dr. Zambos and Eastern Kentucky Imaging, P.S.C.

Following presentation of the evidence and the testimony of numerous experts, the jury rejected Fraley's claims and found in favor of Dr. Zambos. Fraley's motion for a new trial was denied, and this appeal followed.

Fraley argues that by denying her motion for a new trial, the trial court abused its discretion with respect to several evidentiary matters. She maintains that these errors were so egregious as to entitle her to a new trial and that the trial court erred by failing to grant her motion. After our review, we are compelled to disagree.

The standard of review regarding a trial court's evidentiary rulings is abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson , 11 S.W.3d 575, 581 (Ky. 2000). An abuse of discretion is demonstrated by proving that the circuit court acted in a manner that was unfair, arbitrary, unreasonable, or unsupported by sound legal practice. Peters v. Wooten , 297 S.W.3d 55, 62 (Ky. App. 2009).

First, Fraley contends that the trial court erred by allowing Dr. Zambos to testify as an expert witness. In a pretrial order, the trial court limited Zambos to two experts per field. Zambos presented Dr. Michael Racenstein and Dr. Joel B. Bowers as his expert radiologists. Immediately before Zambos began his direct examination, the court conducted a bench conference to discuss Fraley's objection to Zambos's testifying as an expert and the scope of his testimony. The court noted counsel's objection and cautioned defense counsel not to ask Zambos questions that would elicit expert testimony. He reminded counsel that Zambos would be permitted to testify only as to what he did and what he observed. Fraley contends that Zambos's testimony on direct examination strayed from his factual observations to offering his expert opinion about the testimony of Dr. Linda B. Griska, Fraley's expert radiologist.

Dr. Griska testified that Fraley's screening mammograms revealed a pattern of spiculated focal asymmetric density in the *445upper quadrant of her right breast. According to Dr. Griska, this pattern was a clear indication that Fraley should have been called back for further radiology studies. She opined that Zambos had misinterpreted Fraley's mammograms again and again from 2006 through 2010 and that his misinterpretation of the images resulted in a delay of Fraley's cancer diagnosis.

Zambos presented the jury with Fraley's original radiology records and testified about what he had observed on each of the mammograms. He also referred to the spot compression images taken in 1997 that were interpreted as normal for the right breast. Zambos's observations and interpretations of Fraley's mammograms were in stark contrast to Griska's testimony.

After Zambos had presented an extensive narrative before the jury, counsel for Fraley raised an objection. The objection was aimed at Zambos's testimony related to the spot compression images taken following Fraley's suspicious screening mammogram of 1997. Counsel was not convinced that these images had been provided to Fraley prior to trial as part of discovery. After a lengthy discussion at the bench, the court took a brief recess to review the parties' discovery. After reconvening, the court ruled that the spot compression images had been duly provided to the defense as part of Fraley's radiological records. Fraley's counsel then confirmed to the court that he had been in possession of the disputed images after all.

Before the bench conference ended, counsel raised another objection. He argued that Zambos's testimony regarding the 1997 spot compression images constituted expert testimony which had not been properly disclosed in violation of the provisions of CR 2 26.02 and which violated the court's order limiting Zambos to two radiology experts.

The provisions of CR 26.02 permit a party to require another party to state the subject matter on which an expert is expected to testify; to state the substance of the facts and opinions to which the expert is expected to testify; and to provide a summary of the grounds for each expert opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Charash v. Johnson
43 S.W.3d 274 (Court of Appeals of Kentucky, 2000)
Goodyear Tire and Rubber Co. v. Thompson
11 S.W.3d 575 (Kentucky Supreme Court, 2000)
Polk v. Greer
222 S.W.3d 263 (Court of Appeals of Kentucky, 2007)
Peters v. Wooten
297 S.W.3d 55 (Court of Appeals of Kentucky, 2009)
MV Transportation, Inc. v. Allgeier
433 S.W.3d 324 (Kentucky Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
555 S.W.3d 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fraley-v-zambos-kyctapp-2018.