Wentling v. Jenny

Boslaugh, J.,

dissenting.

I am unable to agree with the majority opinion in this case for several reasons.

The plaintiff’s second amended petition alleged the defendants’ standard of care toward the plaintiff’s decedent fell below the “standards of accepted medical practice in the community of Alma, Nebraska,” because the defendants failed to make a timely and reasonable medical examination of the decedent; failed to diagnose carcinoma of the breast; failed to undertake timely medical treatment for carcinoma; and failed to take a biopsy of the mass in decedent’s right breast and the enlarged lymph node in decedent’s right axilla.

The record shows Dr. Jenny examined the decedent on June 30, 1972, July 10, 1973, and April 25, 1974. At the July 10, 1973, examination Dr. Jenny found small, “BB” size, cysts in both breasts. On April 25, 1974, Dr. Jenny found a large, smooth, freely movable, irregular mass in the right breast. Dr. Jenny believed the decedent had fibrocystic disease, a diagnosis that was later confirmed by physicians who treated the decedent in Denver, Colorado. However, as a precautionary measure, Dr. Jenny referred the decedent to Dr. Stevenson, a surgeon from Kearney, Nebraska.

Dr. Stevenson examined the decedent at Alma on April 30, 1974. Dr. Jenny was not present during the examination, but his partner, Dr. Long, was present. Dr. Stevenson found no dominant nodule but detected *341fine multinodularity in both breasts. Dr. Stevenson instructed the decedent to see Dr. Jenny after her next menstrual period.

Dr. Jenny again examined the decedent on June 19, 1974. The breasts were normal at that time except for the presence of multiple cysts. There was no mass, nodule, or lump at that time, and no enlarged node in either axilla.

On October 29, 1974, the decedent consulted Dr. Jenny in regard to a lump in her right axilla, or armpit, that she had first noticed 3 weeks earlier. Dr. Jenny examined the decedent’s breasts which appeared to be normal, there being nothing dominant in either breast. Nevertheless, Dr. Jenny referred the decedent to Dr. Stevenson who examined the decedent that same day.

Dr. Stevenson found nothing dominant in either breast, but instructed the decedent to return in 2 to 3 weeks for a further examination. If the node were still enlarged at that time, Dr. Stevenson would arrange for a biopsy to be done at Kearney, Nebraska. The decedent did not return as requested and was not seen again by Dr. Jenny or Dr. Stevenson.

This case turns on the question of whether the defendants or either of them were negligent in failing to diagnose cancer in the decedent. There could be no negligence in failing to treat a disease which was never diagnosed.

At the time Dr. Jenny detected a mass in the decedent’s breast, and the enlarged node in the axilla, he referred her to Dr. Stevenson. The plaintiff’s claim of negligence in this regard is that Dr. Jenny failed to discuss his findings with Dr. Stevenson prior to Dr. Stevenson’s examination of the' decedent. There is no evidence that this, in any way, prejudiced the examination of the decedent by Dr. Stevenson. The evidence is clear that Dr. Stevenson knew what the decedent’s complaints were and there is no evidence that Dr. Jenny’s alleged negligence in failing to dis*342cuss his findings with Dr. Stevenson was of any consequence whatever. There is a complete absence of evidence of causation in this regard. The motion to dismiss as to the defendant Jenny should have been sustained.

The witness Dr. Brittain, called by the plaintiff, attempted to testify as to the standard of care in Alma, Nebraska. It was demonstrated, however, that Dr. Brittain had no knowledge or information concerning the facilities available at Alma for use in making a diagnosis of the decedent’s condition. While the treatment for a disease may be more or less standardized, it is self-evident that the diagnostic procedures to be followed in a particular community will vary depending upon the facilities available. It is difficult to see how Dr. Brittain could testify as to the standard of care in communities similar to Alma if he was unfamiliar with tl;e facilities at Alma.

A trial court has some discretion in determining whether an expert witness has an adequate basis upon which to express an opinión. In view of Dr. Brittain’s unfamiliarity with the facilities available in Alma, Nebraska, it was within the discretion of the trial court to exclude his testimony as to the proper standard of care in that community in regard to diagnostic procedures.

The evidence in this case shows that at the times Dr. Stevenson examined the decedent she had no dominant mass in either breast. In other words, there was nothing in the breast to biopsy on either occasion. With respect to the node in the axilla, Dr. Stevenson did not believe an immediate biopsy was required because there was no dominant mass in either breast. The decedent, however, failed to return in 2 to 3 weeks as instructed, and in fact delayed a biopsy until January 28, 1975, approximately 90 days after her last examination by Dr. Stevenson, although she was aware of a lump in her right breast early in December 1974.

*343The judgment of the District Court should be affirmed.