Pope v. Elder

671 So. 2d 730, 1995 Ala. Civ. App. LEXIS 678, 1995 WL 705298
CourtCourt of Civil Appeals of Alabama
DecidedDecember 1, 1995
Docket2940880
StatusPublished
Cited by2 cases

This text of 671 So. 2d 730 (Pope v. Elder) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pope v. Elder, 671 So. 2d 730, 1995 Ala. Civ. App. LEXIS 678, 1995 WL 705298 (Ala. Ct. App. 1995).

Opinion

SAM A. BEATTY, Retired Justice.

The plaintiff, Douglas Pope, appeals from a summary judgment for the defendant, Dr. James E. Elder. We affirm.

Our supreme court has transferred this case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Douglas Pope and his late wife, Linda Pope, filed a medical malpractice action against Dr. William N. Viar, Jr., and AMI Brookwood Medical Center (“Brookwood”). The Popes alleged that the defendants were guilty of negligence in failing to discover a breast cancer in Linda Pope. The Popes later added Dr. Elder as a defendant by substitution for a fictitious defendant. After Linda Pope died, Douglas Pope filed a suggestion of death. Thereafter, Dr. Viar and Brookwood were voluntarily dismissed; thus, Dr. Elder was the sole remaining defendant. Ultimately, all claims were disposed of except the claim alleging wrongful death and Douglas Pope’s claim for loss of consortium.

Linda Pope had discovered a lump in her right breast in May or June 1986. A mammogram suggested that the lump was malignant. Mrs. Pope later underwent a needle [732]*732biopsy at the University of Alabama at Birmingham. The biopsy results were positive for cancer. Dr. Viar, a general surgeon, evaluated Mrs. Pope on October 13, 1986. He admitted her to Brookwood on October 17 for a surgical biopsy; that biopsy confirmed the diagnosis of breast cancer, described as infiltrating ductal carcinoma. On that same day, Mrs. Pope underwent a modified radical mastectomy of her right breast, performed by Dr. Viar. During that procedure, axillary lymph nodes and resected breast tissue were removed and sent to the Brookwood pathology department.

Dr. Elder was the pathologist who examined these specimens. He performed microscopic examinations of the 46 lymph nodes and breast tissue, and he reported that he found no pathologic diagnosis, i.e., no cancer in the lymph nodes. Mrs. Pope’s primary tumor, nevertheless, was removed with her right breast.

On July 5, 1988, Dr. Viar examined Mrs. Pope for a skin rash located at the site of earlier breast reconstruction surgery. He biopsied the rash and discovered it to be recurrent breast cancer. Dr. Viar then referred Mrs. Pope to Dr. John G. Hankins, an oncologist, who admitted her to Brookwood on August 9, 1988, to begin chemotherapy. Dr. Hankins found that Mrs. Pope’s recurrent breast cancer had inflammatory characteristics which, he said, made it an aggressive, incurable disease.

Nevertheless, after discussing with the Popes an experimental treatment program involving high-dose chemotherapy with auto-logous bone marrow transplant support treatments at Duke University in North Carolina, and receiving their concurrence, Dr. Hankins had Mrs. Pope seen and treated by Dr. Jon Goekerman, a hematologist/oncologist, who first saw her on August 18, 1988. Dr. Goekerman also obtained the original pathology slides prepared after Mrs. Pope’s 1986 mastectomy. These were the same slides examined previously by Dr. Elder. The Duke pathology department found a single micrometastasis in one of the 46 nodes. This node-positive micrometastasis was less than two millimeters in diameter, and, according to Dr. Goekerman, was not significant in his treatment of Mrs. Pope.

Although Mrs. Pope received an autolo-gous bone marrow transplant at Duke and follow-up chemotherapy in Birmingham, she ultimately died on July 11,1989.

Dr. Elder moved for a summary judgment on two distinct grounds: (1) his contention that the Popes’ sole expert, Dr. Kenneth J. Fawcett, was not a “similarly situated health care provider” as required by § 6-5-548, Ala. Code 1975, and thus, could not testily about the standard of care expected of Dr. Elder, and (2) his contention that the Popes presented no expert testimony that his failure to identify the malignant cells in one of Mrs. Pope’s lymph nodes was the proximate cause of her death.

A plaintiff alleging medical malpractice must establish through expert medical testimony (1) that the defendant breached the standard of care and (2) that the breach proximately caused the injuries or harm of which the plaintiff complains. Levesque v. Regional Medical Ctr. Bd., 612 So.2d 445, 448 (Ala.1993).

This court need not address Pope’s argument regarding the standard of care because, after reviewing the record, we are convinced that Dr. Elder made a prima facie showing that any failure on his part to properly interpret the subject slide was not the proximate cause of Mrs. Pope’s death, and that Pope offered no substantial evidence to rebut that showing. See § 12-21-12, Ala. Code 1975.

In support of his motion for summary judgment, Dr. Elder offered the depositions of Dr. Hankins, Dr. Goekerman, and Dr. Viar.

Although Dr. Hankins testified that had he received a pathology report in 1986 indicating one positive node out of 46 from a 39-year-old woman, with infiltrating ductal carcinoma of the right breast, he would have recommended an adjuvant program,1 he further testified as follows:

[733]*733“Q. ... [W]hat will early detection of the infiltrating ductal carcinoma have [to do with] the success of adjuvant chemotherapy in those patients?
“A. You’re making a leap, and just making two statements. I’m not too sure that they can be bridged without a whole lot of explanation.
“Q. Maybe I don’t understand. Let me tell you where I’m coming from. I see it on TV, I see it in my own doctor’s office, where they’re always talking about doing breast exams for the purposes of early detection of breast cancer.
“A. That’s a different question. You leaped to the adjuvant form_ The earlier the disease is detected, statistically, the better chances for cure are. But, that doesn’t say that a two-millimeter lesion cannot become widespread, nor does it say a ten-centimeter lesion with all the nodes involved, once it’s removed, cannot be cured. It’s just statistically one has an 80% chance of cure, and one has a 90 or a 100% chance of death, or 99% chance of death.
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“Q. What caused Linda Pope’s death?
“A. Conjecture would be that it was ... a respiratory death, but it was due to probably a vasculitis involving the vessels of the lung.
“Q. Is that related to the cancer that she had?
“A. Probably not. It can ... have other origins. The thought is that it is possibly related to the chemotherapy. The data is still out on that.... But at the same time, she still had disease.
[[Image here]]
“Q. ... [Ajssuming that [she died of a respiratory ailment], and also assuming that she still has the cancer and she has gone through the therapy; and as I understand what you’re saying that she didn’t die of the cancer, she just still has the disease; correct?
“A. Or she would have died of it in time. From what I remember, by the time she had gotten what she had, you weren’t looking at a good or even a close to complete response; and eventually or fairly rapidly, it would have progressed.
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“Q.

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Bluebook (online)
671 So. 2d 730, 1995 Ala. Civ. App. LEXIS 678, 1995 WL 705298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pope-v-elder-alacivapp-1995.