Jefferis v. Marzano

676 P.2d 880, 66 Or. App. 725
CourtCourt of Appeals of Oregon
DecidedJanuary 25, 1984
Docket16-79-93226; CA A21703
StatusPublished
Cited by1 cases

This text of 676 P.2d 880 (Jefferis v. Marzano) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jefferis v. Marzano, 676 P.2d 880, 66 Or. App. 725 (Or. Ct. App. 1984).

Opinion

ROSSMAN, J.

This is a wrongful death case involving allegations of medical malpractice in the diagnosis and treatment of uterine cancer. At the conclusion of the trial, the jury returned a verdict in favor of defendants. Plaintiff appealed, setting forth five assignments of error. Originally, we affirmed the trial court without opinion. 64 Or App 855, 669 P2d 843 (1983). Thereafter, plaintiff filed this petition for reconsideration. Because of our concern over the trial court’s allowing certain hearsay testimony about the practices of other doctors in the community, we allow the petition to reconsider this single issue.

Plaintiff contends that prejudicial evidentiary error was committed when defendant Dr. Marzano was allowed to testify that his acts were up to a standard of care established by the fact that he had conferred with a number of named doctors and they had told him that his practices were acceptable. On reconsideration, we now agree with plaintiff. Accordingly, we reverse and remand.

FACTUAL BACKGROUND

Plaintiff is the personal representative of the estate of Jo Ann Wood, who died as a result of defendants’ alleged malpractice. Decedent first encountered Dr. Marzano in December, 1976, when she went to him for a gynecological examination and routine Pap smear. The examination was normal in all respects, except that there was an eversion of the cervix. She returned to him in 1977 for another examination and Pap smear. The Pap smear was forwarded to defendant Pathology Consultants. Along with the smear went a form with the patient’s name, the patient’s number and the name of Dr. Marzano.

After the results of the laboratory tests are recorded on the form, the top copy is sent back to the treating physician, the middle copy is used for billing and the bottom copy is retained in the lab’s files. Mrs. Wood’s 1977 slide was viewed by a technologist for Pathology Consultants, who noted some atypical cells and marked them with dots for the pathologist’s attention. She also wrote “repair or worse,” “microinvasive?” on the lab form. Dr. Meyers then examined the slide and noted what he felt were repair changes. Although [728]*728the cells were atypical, he marked a box on the form denoting “no atypical cells.” He also wrote at the bottom of the form: “marked repair change, please repeat in three to six months to rule out coexistent dysplasia or carcinoma in-situ.”

That lab report form was then returned to Dr. Marzano’s office, where it was viewed by Sharon Henderson, a woman with some nurse’s aide training but no education, experience or certification as a nurse. She had been instructed not to bring the report to the attention of the physician if the box for “no atypical cells” was checked. Apparently, Dr. Marzano did not read the notation placed on the form by the pathologist. Ms. Henderson attempted to phone Mrs. Wood a couple of times about a re-examination, but her efforts were futile. The file then disappeared from her desk, and no further communication was initiated.

Pathology Consultants, concerned because it had received no evidence of a follow-up examination, as suggested on the lab report, wrote Dr. Marzano in March, 1978, inquiring about the suggested follow-up and possible need for further examination. This letter, like the lab report, was received by Ms. Henderson. Unfortunately, she inadvertently pulled the chart of Jo Ann Woods, another patient who earlier had undergone a hysterectomy. Henderson assumed that the chart belonged to Mrs. Wood and accordingly reported to Pathology Consultants that a hysterectomy had been performed on her. That ended their concern about re-examination. Dr. Marzano was not given the letter from Pathology Consultants. In July, 1978, and again in October of that year, Mrs. Wood called Dr. Marzano’s office, complaining of intramenstrual spotting and other cervical complaints. An examination by Dr. Marzano at the end of October revealed an enlarged cervix which bled when touched and, according to Dr. Marzano, looked like cancer. He took a Pap smear and sent it to Pathology Consultants, which initially found “squamous” cancer, Grade 3. Dr. Marzano then spoke to Mr. and Mrs. Wood and explained how his office and the lab had mishandled the 1977 smear and the subsequent follow-up.

Mrs. Wood was referred to Dr. Nakao, who clinically staged her at “1-B” but diagnosed the disease as adenocarcinoma. Surgery was performed at the end of January, 1979, and doctors found that the cancer had spread outside the [729]*729treatment area and to the bladder, bowel and surrounding area. The disease had also metastasized into the lymph nodes, was then in Stage 4 and was too widespread for radiation. Chemotherapy was the only available treatment, but the situation was essentially hopeless. Mrs. Wood then went into rapid decline and, after months of pain, died in May, 1979. The autopsy revealed adenosquamous cancer as the terminal agent.

THE EVIDENTIARY ISSUE

As part of the case, plaintiff maintained that Ms. Henderson had neither the training nor the experience to handle the lab reports. The specific issue raised by plaintiffs assignment of error concerns the appropriateness of a series of questions asked Dr. Marzano on direct examination relating to the particular practice of having nonmedical office personnel review lab reports. What follows are portions of that colloquy:

“Q. [BY MR. CALKINS]: Dr. Marzano, with regard to Sherry Henderson and the functions she carried out with respect to Pap smear reports, do you have an opinion as to whether that is an appropriate function for her to carry out in this case?
(i* * * * jf:
“A. Yes, I do. The question is why do we let her look at the Pap smears. That is the big question in this whole thing.
“MR. SCHROETER: I object to the response as not responsive. He is reframing the question inappropriately. He’s not being responsive.
“THE COURT: Overruled.
“[BY MR. CALKINS]: Go ahead.
“A. When I came to Springfield to set up my practice, I had been practicing obstetrics and gynecology for about ten years either as a resident or in my service training, or as a student where I trained with the Cancer Referral Center for Wisconsin, and we were one of the two major cancer treating centers in the state of Wisconsin, one in Milwaukee and one in Madison, Wisconsin.
“My experience with cancer of the cervix and pap smears was under Dr. Adolph Stafi, who was one of the foremost doctors as far as cancer detection and the specific procedure you heard about on colposcopy where you look at the cervix [730]*730with a microscope. It was my experience and training that this is the way they handled pap smears and I found no problem with it. We had, I don’t know, literally hundreds of patients referred per year there for screening of abnormal cervical problems.
“The way the pap smears were handled at our referral institution was that a non-MD, a non-doctor person would take the pap smears, would sort through them. The normal ones she would file in the chart. The abnormal ones she would pull and show to the doctor.

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Related

Jefferis v. Marzano
696 P.2d 1087 (Oregon Supreme Court, 1985)

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Bluebook (online)
676 P.2d 880, 66 Or. App. 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jefferis-v-marzano-orctapp-1984.