Toche v. Killebrew

734 So. 2d 276, 1999 WL 55992
CourtCourt of Appeals of Mississippi
DecidedFebruary 9, 1999
Docket97-CA-00582 COA
StatusPublished
Cited by8 cases

This text of 734 So. 2d 276 (Toche v. Killebrew) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toche v. Killebrew, 734 So. 2d 276, 1999 WL 55992 (Mich. Ct. App. 1999).

Opinion

734 So.2d 276 (1999)

Dorothy Easterly TOCHE, Appellant,
v.
Larry H. KILLEBREW, M.D., Appellee.

No. 97-CA-00582 COA.

Court of Appeals of Mississippi.

February 9, 1999.

*277 Ben F. Galloway III, Gulfport, William L. Denton, Biloxi, Attorneys for Appellant.

Harry R. Allen, Rodney D. Robinson, Gulfport, Attorneys for Appellee.

BEFORE McMILLIN, P.J., COLEMAN, and PAYNE, JJ.

McMILLIN, P.J., for the Court:

¶ 1. This is an appeal from a jury verdict rendered in favor of the defendant doctor in a medical malpractice action. Dorothy Toche, the plaintiff at trial, had filed suit against Dr. Larry Killebrew, claiming that he negligently failed to detect an existing cancerous condition in her breast at a time when the disease had every prospect of being successfully treated without substantial adverse consequences to her overall health. Instead, according to her claim, because of Dr. Killebrew's failure to detect and diagnose her condition, the cancer was, over a course of several years, permitted to advance to the point that, once detected, it required aggressive treatment that was both expensive and extremely painful, and, additionally, left her overall health in a substantially deteriorated state and her prospects of ultimate recovery from cancer greatly diminished. Toche's claim was submitted to a jury on the theory of Killebrew's negligence in his treatment of Toche and the jury returned a verdict in favor of the defendant, Dr. Killebrew. It is from the judgment entered in furtherance of this verdict that Toche has appealed to this Court. She raises three issues for consideration. We find them to be without merit and affirm the judgment of the trial court.

I.

Facts

¶ 2. Toche, in 1990, was under the treatment of Dr. Killebrew for a lump that had been discovered in one of her breasts. Dr. Killebrew surgically removed the lump and subsequent testing revealed that the lump was malignant. As a result, Toche continued on a regular basis to return to Dr. Killebrew for further examination and appropriate testing. Toche's medical records reflect that, during this time, there was some continued monitoring by Dr. Killebrew of other small abnormalities in Toche's breast that appeared to be calcium deposits; however, Dr. Killebrew's records indicate that there was no enlargement or other transformation of these deposits that would suggest the necessity of a biopsy procedure to investigate whether the deposits might, in fact, be cancerous.

¶ 3. In 1993, a routine mammogram of Toche's breast revealed evidence of a cancerous condition. The condition had advanced to the stage that a radical mastectomy was required. Subsequently it was discovered that Toche also had cancer present in her lymph nodes and spine, which Toche claims to have been attributable to the fact that her breast cancer was not treated until after it had progressed to the extent that it had metastasize to other areas of her body. As a result of the radical treatment undertaken in an attempt to deal with the spreading cancer, Toche has endured substantial pain and *278 suffering, incurred large expenses for the treatment, and has found her health to be permanently and adversely impaired.

¶ 4. She attributes these difficulties directly to Dr. Killebrew's negligence in failing to exercise the necessary minimum level of professional care in her post-operative treatment after the 1990 surgery. According to her theory, the cancerous condition in her breast had existed all along in the calcified deposits noted on her earliest medical records, and Dr. Killebrew's failure to more aggressively pursue an investigation of that condition permitted the cancer to progress to the point that, when it finally unmistakenly manifested itself, her condition was substantially more serious, and the indicated course of treatment was significantly different and more involved than would have been the case had the condition been detected at an earlier stage. Additionally, she claims that the failure to detect the cancer until it had progressed so far had a permanent adverse impact on the quality of her remaining life.

¶ 5. Dr. Killebrew, in his defense, claimed essentially that Toche's most recent occurrence of cancer was not the result of the ultimate manifestation of a long-undetected cancerous condition. Rather, he asserted that Toche's cancer was a different type of cancer, referred to in the record as inflammatory carcinoma. This was, according to evidence presented at trial, a cancer that follows a rapid course from its beginning until the disease manifests itself in the manner in which it did in Toche's case. According to evidence presented by the defense, the typical course of this inflammatory carcinoma is over a course of just a few months until the patient displays the symptoms which led to Toche's being diagnosed with cancer. Thus, according to Dr. Killebrew's theory of defense, he committed no malpractice in his earlier treatment because the patient, at the time, did not have the disease.

¶ 6. Alternatively, Dr. Killebrew presented evidence that, even assuming the cancerous condition had existed at some earlier stage, Dr. Killebrew had followed the proper course of treatment because Toche had presented no symptoms that indicated the necessity for more aggressive monitoring of her condition, such as a biopsy at an earlier date. Toche's expert witness had claimed that more radical testing was clearly indicated at a much earlier time based on Toche's medical history and symptomology. Thus, under this alternative theory of the defense, the actual form of cancer that Toche had was of lesser significance. The question of Dr. Killebrew's negligence depended, rather, on whether Toche presented symptoms that indicated, at an earlier time, the necessity to more aggressively test for the presence of the disease in its earlier stages.

¶ 7. It was on this conflicting view of the case that the matter was submitted to the jury and the jury resolved the matter in Dr. Killebrew's favor. Toche's appeal raises four issues which we will proceed to consider.

II.

The First Issue: An Error in the Jury Instructions

¶ 8. Toche complains of the trial court's decision to grant the defense's requested instruction D-5A, which stated:

The Court instructs the jury that if you find from the evidence that in May of 1993, the plaintiff was diagnosed as suffering inflammatory carcinoma to her left breast rather than neglected cancer and that the character of such cancer was its rapid growth, so that at the time of Dr. Killebrew's examinations in 1990, 1991 and 1992, there was no cancer in the left breast capable of being detected by Dr. Killebrew in the exercise of that degree of care and skill which a minimally competent surgeon practicing in the United States would have used under the same or similar circumstances, then in that event, it would be your *279 sworn duty to return a verdict for the defendant.

¶ 9. Toche argues that the instruction amounted to a directed verdict for the defense because, even under her theory of her case, she conceded that she ultimately presented the symptoms of one form of inflammatory cancer, which she identifies as "secondary inflammatory cancer." The error in the instruction, according to Toche, lies in its direction to the jury to return a verdict for Dr.

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Bluebook (online)
734 So. 2d 276, 1999 WL 55992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toche-v-killebrew-missctapp-1999.