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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