Gravitt v. Ward

Present:   All the Justices

BRENDA LOWERY GRAVITT
                                          OPINION BY
v. Record No. 982269            JUSTICE LAWRENCE L. KOONTZ, JR.
                                       September 17, 1999
PHILLIP D. WARD, M.D., ET AL.


             FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                     William L. Wellons, Judge


     On October 11, 1996, Brenda Lowery Gravitt instituted this

medical malpractice action against Dr. Philip D. Ward, an

obstetrician/gynecologist, and his employer, Fuller-Roberts

Clinic, Inc. (Fuller-Roberts), seeking $1,000,000 in damages she

alleged resulted from the defendants’ negligent failure to

timely diagnose her breast cancer.   In response, Dr. Ward and

Fuller-Roberts filed grounds of defense, denying that they were

negligent and reserving the right to rely upon the defense of

contributory negligence.   The action was tried to a jury on the

issues of negligence and contributory negligence.   The jury

returned its verdict for Dr. Ward and Fuller-Roberts and the

trial court entered final judgment in accord with the jury’s

verdict.   The sole issue we consider in this appeal is whether

there was sufficient evidence to support the trial court’s

granting the jury instruction on contributory negligence

requested by the defendants.
     In 1993, Gravitt, then age 46, had been a patient at

Fuller-Roberts since 1966.   Fuller-Roberts had performed her

most recent mammogram on May 20, 1992.   The mammogram report

documented the fact that Gravitt had a family history of breast

cancer.   Gravitt’s sister had died from breast cancer before the

age of 50.    Although the 1992 mammogram revealed no

abnormalities in Gravitt’s breasts at that time, there is no

dispute that Gravitt was subject to an increased risk of cancer

because of her family history of breast cancer and that she was

aware of that increased risk.

     On July 26, 1993, after discovering “a bruise and inverted

sunken-in place” on her left breast, Gravitt made an appointment

at Fuller-Roberts for later that day.    Since Gravitt’s regular

doctor was unavailable, Dr. Ward examined her.   Dr. Ward’s chart

notes initially indicated that Gravitt had complained of “a lot

of redness and discomfort around the nipple of the left breast.”

After conducting a breast exam, Dr. Ward found what he described

in the chart as a “[l]ittle glandular area at six o’clock

adjacent to the nipple.”   However, he found no redness or gross

tenderness.    Dr. Ward further noted in the chart that since her

condition “is resolving” he did not suspect that cancer was

present because “if it was cancer, [he] would not expect

resolution.”   Because Gravitt’s mammogram from the previous year

was normal, Dr. Ward chose to have Gravitt observe her


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condition, indicating that he would recommend repeating the

mammogram only if the problem persisted.

     On August 30, 1993, Gravitt attended a previously scheduled

appointment for a “Pap smear” with another doctor at Fuller-

Roberts.    During that appointment, Gravitt made no complaints

about her breast.

     On October 18, 1993, Gravitt called Fuller-Roberts for an

appointment and was examined again by Dr. Ward.      The events that

took place during that visit were disputed at trial.      Gravitt

testified that she and her husband found a lump in her left

breast sometime in early October.      Gravitt further testified

that she told Dr. Ward about the lump and that after conducting

a breast exam he informed her that it felt like a cyst.

According to Gravitt, Dr. Ward then asked her if she was having

any pain.    When she answered affirmatively he said, “[w]ell,

that’s a good sign because cancer doesn’t hurt.”      Dr. Ward told

her to take vitamin E to get rid of the cyst.      To which Gravitt

responded, “[t]his is wonderful.       I’m glad it’s just a cyst.”

Gravitt contends that they did not discuss the need for a

mammogram.

     At trial, Dr. Ward was never asked whether Gravitt informed

him about the lump in her breast, and Dr. Ward never expressly

stated that he had not been told about it.      Rather, Dr. Ward

testified that Gravitt’s chief complaint during the visit was


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premenstrual tenderness in her left breast.   Gravitt’s chart did

not reflect the presence of any other symptoms or that she had

found a lump in her breast.    Dr. Ward conducted a complete

examination of her breasts and found the breast tissue to be

“freely mobile.”   He did not locate any lesions, cancerous or

otherwise.   According to Dr. Ward, part of a normal breast exam

includes looking for dimpling or discharge and examining the

patient’s lymph nodes and glands for swelling.   Dr. Ward

testified that if dimpling, discharge, or swelling had been

found it would have been noted in the patient’s chart.

      Dr. Ward testified that he concluded that the tenderness in

Gravitt’s left breast was a result of fibrocystic changes

associated with her menstrual cycle.   Therefore, he recommended

that she decrease her caffeine intake and begin taking vitamin

E.   Dr. Ward was aware of a history of breast cancer in

Gravitt’s family, including the fact that Gravitt’s sister had

died from breast cancer before the age of 50.    However, he chose

not to order a mammogram because Gravitt had a normal mammogram

within the past year and a half and her symptoms were consistent

with a fibrocystic change.    Dr. Ward admitted that on occasion a

mammogram would locate a cancerous abnormality not detected

during a manual breast exam.

      During the next few months, Gravitt went on a low-fat diet,

took vitamin E, and exercised.   However, the discomfort in her


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left breast continued and worsened.    After her arm began to

hurt, Gravitt made an appointment at Fuller-Roberts for a

physical and a mammogram on May 11, 1994.   The mammogram

indicated a mass in her left breast.   A biopsy was performed on

May 18, 1994 and two doctors informed Gravitt that she would

need to have a mastectomy.   By this time, Gravitt’s breast

cancer had spread to her lymph nodes and metastasized throughout

her body.

     At trial, in addition to the foregoing evidence, the

parties introduced conflicting evidence from medical experts

regarding the standard of care applicable to this case.     Gravitt

presented expert testimony from Dr. Stephen E. Zimberg and Dr.

George M. Kemp that Dr. Ward breached the standard of care by

not ordering a mammogram during either the July 26, 1993 or

October 18, 1993 visits.   Dr. Kemp testified that he thought a

diagnosis of Gravitt’s breast cancer “could have been made and

probably would have been made in July with a mammogram.”    Dr.

Ward presented expert testimony from Dr. George Cornell

supporting his contention that the decision not to order

mammograms during either visit had not violated the applicable

standard of care.

     At the close of all the evidence, Gravitt objected to Jury

Instruction 15, which read as follows:




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          The defendants, in claiming contributory
     negligence as a defense in this case, have the burden
     of proving by the greater weight of the evidence that
     the plaintiff was negligent on October 18, 1993 in
     that the plaintiff failed to tell Dr. Ward about the
     lump in her breast, and that this negligence was a
     proximate cause of the plaintiff’s injuries.
     Contributory negligence may be shown by the
     defendant’s evidence or by the plaintiff’s evidence.

Relying on Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539 (1987),

and Lawrence v. Wirth, 226 Va. 408, 309 S.E.2d 315 (1983),

Gravitt asserted that whether she told Ward about the lump was

an issue of primary negligence not contributory negligence.   The

court granted the contributory negligence instruction. *

     The gravamen of Gravitt’s appeal is that the contributory

negligence instruction should not have been granted because the

trial testimony as a whole did not support it.   Our discussion

is necessarily limited to the resolution of that issue in the

context of the facts of this particular case.    Accordingly, we

do not reach the broader issue raised at trial, viz., whether

Gravitt’s acts of alleged negligence were solely issues

concerning the primary negligence of Dr. Ward.

     With respect to the requirements for giving a contributory

negligence instruction, we have said that “before either party


     *
     In addition, the trial court granted Instruction 16 which
provided, in pertinent part, that the jury should find its
verdict for the defendants if it found “by the greater weight of
the evidence that the plaintiff was contributorily negligent on
October 18, 1993, and that her contributory negligence was a
proximate cause of her injuries.”


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is entitled to an instruction on negligence or contributory

negligence, as the case may be, there must be more than a

scintilla of evidence introduced on the subject.”     Yeary v.

Holbrook, 171 Va. 266, 287-88, 198 S.E. 441, 451 (1938); see

also Ring v. Poelman, 240 Va. 323, 327, 397 S.E.2d 824, 827

(1990).   “When a defendant in a negligence action relies on the

contributory negligence of the plaintiff, the burden rests on

the defendant to show such negligence was a proximate, direct,

efficient and contributing cause of the injuries unless such

negligence is disclosed by the plaintiff’s own evidence or may

be fairly inferred from all the circumstances.”     Charlottesville

Music Center, Inc. v. McCray, 215 Va. 31, 37, 205 S.E.2d 674,

679 (1974).   Moreover, “in order for a plaintiff’s negligence to

bar recovery, it must concur with that of the defendant . . . .

[I]n the medical malpractice context, that means the patient’s

alleged contributory negligence must be contemporaneous with the

main fact asserted as negligence on the doctor’s part.”     Eiss,

233 Va. at 552, 357 S.E.2d at 543 (citing Lawrence, 226 Va. at

412-13, 309 S.E.2d at 317-18).

     Instruction 15, and the related portion of Instruction 16,

limited Gravitt’s alleged negligence to the events of the

October 18, 1993 visit at Fuller-Roberts.   According to

Gravitt’s theory of the case, this was the last missed

opportunity for Dr. Ward to have ordered a mammogram that would


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have led to the discovery and successful treatment of her

cancer.   Thus, to resolve the issue presented our focus is

necessarily drawn to the facts surrounding Dr. Ward’s

examination of Gravitt on that day.   Specifically, we must

consider the evidence to determine whether it presented a jury

question whether Gravitt failed to act as a reasonable person

would have acted for her own safety under the existing

circumstances.

     There is unequivocal evidence in the record that on October

18, 1993, Gravitt informed Dr. Ward of the lump in her left

breast that she and her husband had detected.   In contrast,

there is no evidence in the record to directly dispute her

testimony on this point.   The testimony of Dr. Ward is

conspicuously silent on this point, and thus did not raise a

triable issue.   The only evidence that, at best, indirectly

tends to create a factual dispute over Gravitt’s assertions is

that Dr. Ward made no notation of a lump when he recorded his

examination of her breast in the medical record.   More

significantly, there is no dispute that Dr. Ward conducted a

full breast exam on Gravitt.   Upon completion of this exam, Dr.

Ward did not tell Gravitt that he had failed to detect any

abnormality in her left breast.   To the contrary, he made a

positive diagnosis that the condition was not cancer, informing




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Gravitt that her symptoms were caused by “fibrocystic changes”

related to her menstrual cycle.

      Neither Eiss nor Lawrence resolves the narrow issue

presented by the facts of the present case.      Here, if there was

evidence of contributory negligence on Gravitt’s part, it was

contemporaneous with the main fact asserted as negligence on Dr.

Ward’s part on October 18, 1993.       However, in Lawrence we noted

that “[t]he physician-patient relationship differs substantially

from that of the ordinary plaintiff and defendant.”      226 Va. at

411, 309 S.E.2d at 317.   This is so because of the great

disparity in medical knowledge between “doctor and patient.”

Id.   Despite that disparity, it is common knowledge that the

presence of a lump in a woman’s breast presents the possibility

of the presence of a malignant tumor.      This is particularly the

case where there is also a family history of breast cancer.

Thus, under those circumstances, the woman patient seeks to

obtain, through a breast examination, the benefit of the

doctor’s medical knowledge to determine if a malignant tumor is

in fact present in her breast, and, if so, to obtain appropriate

treatment.

      In this context, it is inconsistent with common knowledge

and human experience that such a patient, concerned for her own

safety, would fail to inform her doctor with the fact that her

discovery of a lump in her breast was the very reason she sought


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the doctor’s examination of her breast.   While admittedly this

might occur in a given case, the evidence in the present case

does not establish that such was a proper issue for the jury to

determine.   Rather, here there was no more than a scintilla of

evidence that Gravitt failed to inform Dr. Ward of her discovery

of a lump in her left breast.   That evidence flows only from the

evidence that Dr. Ward did not note in her chart that she had

discovered a lump.   That evidence further pales to no more than

a scintilla in light of Dr. Ward’s positive diagnosis of non-

cancerous “fibrocystic changes” in Gravitt’s left breast that he

communicated to her.

     For these reasons, we hold that there was not sufficient

evidence from which the jury could reasonably find that Gravitt

was contributorily negligent.   Therefore, it was error for the

trial court to give the contributory negligence instruction.

Because the issue of primary negligence was principally a

classic “battle of the experts,” we cannot say that the

erroneous instruction on contributory negligence did not affect

the jury’s determination of liability.    See Clohessy v. Weiler,

250 Va. 249, 254, 462 S.E.2d 94, 97 (1995).    We must presume the

jury relied on the erroneous in reaching its verdict.     Id.

     Accordingly, we will reverse the judgment in favor of Dr.

Ward and Fuller-Roberts and remand the case for a new trial.

                                              Reversed and remanded.


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