Swartzlander v. Hunt Laboratory, Inc.

552 So. 2d 1339, 1989 La. App. LEXIS 2341, 1989 WL 141515
CourtLouisiana Court of Appeal
DecidedNovember 15, 1989
DocketNo. 89-CA-249
StatusPublished
Cited by3 cases

This text of 552 So. 2d 1339 (Swartzlander v. Hunt Laboratory, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swartzlander v. Hunt Laboratory, Inc., 552 So. 2d 1339, 1989 La. App. LEXIS 2341, 1989 WL 141515 (La. Ct. App. 1989).

Opinion

KLIEBERT, Judge.

This medical malpractice action was originally filed by Mrs. Cynthia Swartzlander for damages alleged to have arisen from a delayed diagnosis of breast cancer. The delay resulted from the loss of breast tissue taken in a biopsy performed by Dr. Embry W. Williams, III, at Bonnabel Hospital. After removal of both breasts and parts of several organs, Mrs. Swartzlander died from the cancer on August 13, 1985. Her spouse, Joseph P. Swartzlander, Jr., and her five children, Michael Thomas, a major; and Joseph E., Ill; Heather; Kevin; and Monica Swartzlander, through their tu-trix, joined in the suit and, in addition to her claims, urged their claims for loss of consortium and their wrongful death action.

The claims were submitted to a medical review panel. It absolved Dr. Williams of liability but found that Bonnabel failed to comply with the appropriate standard of care. Bonnabel settled for the full $100,-000 limits of its liability under the Medical Malpractice Act. Other health care providers also settled their claims. A trial was had before a six person jury against the Patient’s Compensation Fund. The jury awarded $50,000 on Mrs. Swartzlander’s personal claim but denied recovery on the survivors’ wrongful death action. The survivors brought a devolutive appeal on the denial of damages for their mother’s wrongful death. For the reasons hereafter stated we affirm.

The facts are virtually undisputed.

In May 1985, about the time she stopped breast-feeding her youngest child, Mrs. Swartzlander, a 38 year old mother, discovered lumps in her right breast and sought treatment from Dr. Embry Williams, III. He confirmed the presence of lumps, extracted fluids for testing and scheduled her for a biopsy at Bonnabel Hospital on July 14, 1984.

In error, Bonnabel Hospital personnel did not send the removed masses (extracted on July 14, 1984) to a pathologist to perform a histopathological study1 as had been ordered by Dr. Williams. Instead, the specimens were shipped to a Georgia laboratory [1341]*1341to perform a hormonal analysis.2

Two weeks later, Dr. Williams, concerned by the absence of a pathological report, investigated and found no pathological report was done and no specimen remained so that a study could be done. Dr. Williams called in Mrs. Swartzlander and her husband and informed them of what had happened and said the only thing they could do was wait and see if the lumps reappeared.

Approximately three months later, in October 1984, a lump reappeared and another biopsy was performed. A histopathological study was performed and Mrs. Swartzlan-der diagnosed as having cancer. A modified radical mastectomy was performed on her right breast in November of 1984 and chemotherapy treatments begun. Lumps were later discovered in the left breast, necessitating a mastectomy of the left breast. The cancer spread to other internal organs and caused Mrs. Swartzlander’s death on August 13, 1985.

At trial negligence was not made an issue. It was stipulated Bonnabel had breached the appropriate standard of care in failing to have a pathologist examine the specimen as had been ordered by her treating physician.

The most accurate way to determine whether a mass is cancerous is by a pathologist performing a histopathological study. Since the opportunity to perform the study on the masses excised in July 1984 was lost, the extent to which the cancer had progressed as of July 1984 was uncertain and critical to Mrs. Swartzlander’s survivors’ wrongful death claim.

To recover on their wrongful death action, plaintiffs had the burden of proving the cause-in-fact of Mrs. Swartzlander’s death was the delay in commencing the cancer treatment. In an effort to meet this proof, plaintiffs presented the expert testimony of William Russel, M.D., who was qualified as an expert in pathology and in the diagnosis of cancer. He testified regarding the Surveillance, Epidemiology, and End Results (SEER) study, which is a nationwide study from fifteen to twenty urban centers that collect and categorize information on cancer and predicts survival rates of cancer patients. He said cancer development in a person is grouped by stages 1 through 4; stage 1 being basically the initial developmental stage of the cancer with the patient having a relatively high five year survival rate, while stage 4 is highly developed cancer with a relatively low five year survival rate.

Based on the clinical notes of other examinations of the decedent made prior to the July 1984 biopsy, Dr. Russell categorized Mrs. Swartzlander’s cancer as being in stage 2 of its development in July of 1984 with an associated 88% chance of survival for five years according to the SEER study. In October of 1984, based on clinical and pathological tests performed at that time, Dr. Russel categorized the decedent as a stage 3A patient with a 57% five year survival rate. Hence, he concluded her chances to survive five years was decreased 31% by the delay in the commencement of cancer treatment.

Based on Dr. Russel’s testimony, plaintiffs argue that Mrs. Swartzlander was deprived of a greater opportunity of survival by the delay in the commencement of treatment. Although the SEER study and Dr. Russel’s testimony would in general support a conclusion the delay in the commencement of cancer treatment could have deprived Mrs. Swartzlander of a greater chance of survival for five years and thus support a finding she had a personal claim for damages, as hereinafter shown, given the expert testimony offered by the defendants, it does not prove the delay in commencing the treatment was the cause in fact of her death.

Defendants offered the opinion of several experts who concluded the cancer had [1342]*1342developed into the lymphatic ductile system before July 1984 and hence was not treatable in July 1984. Therefore, they concluded the delay in the commencement of treatment made no difference, for Mrs. Swartz-lander would have died from cancer with or without cancer treatment.

Thus, the contested issue submitted to the jury was — Did the delay in initiating the cancer treatment cause Mrs. Swartzlan-der to die? The jury responded to the interrogatories submitted to it as follows:

A. Survival Action of Cynthia Swartzlander
Loss of earning capacity $ -0-
Mental anguish, disgrace $50,000.00
B. Joseph Swartzlander, II
Loss of consortium $ -0-
C-D. These interrogatories were responsed to as follows for each of Mrs. Swartzlander’s five surviving children
Loss of love and affection, guidance and support $ -0-

On appeal, plaintiffs list one specification of error, as follows:

“It was manifest error, error of law and abuse of discretion, for the jury to disregard stipulations of fact and instructions of law in reaching its verdict awarding survival damages to decedent, but failing to award wrongful death damages to decedent’s family, when it was uncontested that decedent died of the same condition (breast cancer) that was belatedly diagnosed and treated because of the negligence of defendant, and for which survival damages were awarded.”

Thus, the thrust of plaintiffs’ argument is that since the jury made an award for Mrs.

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Related

Kennedy v. United States
750 F. Supp. 206 (W.D. Louisiana, 1990)
Soares v. Lewis
566 So. 2d 129 (Louisiana Court of Appeal, 1990)
Swartzlander v. Hunt Laboratory, Inc.
556 So. 2d 1280 (Supreme Court of Louisiana, 1990)

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Bluebook (online)
552 So. 2d 1339, 1989 La. App. LEXIS 2341, 1989 WL 141515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swartzlander-v-hunt-laboratory-inc-lactapp-1989.