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McCarty v. Boswell2/21/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Orville and JoAnn McCarty have appealed from an order of the Floyd Circuit Court entered on June 15, 2001, which granted summary judgment in favor of John D. Boswell, M.D., and Consolidated Health Systems (the appellees) and dismissed the McCartys' medical malpractice action. Having concluded that the trial court did not abuse its discretion by excluding the expert testimony proffered by the McCartys or by denying them an extension of time in order to offer more medical proof, and that there is no genuine issue as to any material fact, we affirm.
Orville McCarty was admitted to Paul B. Hall Medical Center on October 30, 1993, after he suffered several seizures. According to the admitting diagnosis, Orville suffers from liver failure and chronic ethanol abuse. His condition was listed as critical and the prognosis was far from promising. Orville remained at the hospital until November 22, 1993, when his condition improved and he was discharged. Arrangements were then made for Orville to follow-up with a hematologist, Dr. William John, at Highlands Regional Medical Center.
Orville returned to the medical center for his follow-up visit on November 30, 1993, and he also returned on December 13, 1993, at which time he was seen by Dr. Donald R. Fleming, an oncologist. Upon noticing a swelling under Orville's jaw, Dr. Fleming decided to have a fine needle aspiration done of the area, which was performed by Dr. Boswell, a pathologist at Highlands Regional Medical Center. Upon reviewing the pathology slides of the tissue taken from the submandibular swelling, Dr. Boswell issued a report on December 14, 1993, in which he opined that the swelling under Orville's jaw was a "poorly differentiated malignant neoplasm." In his report, Dr. Boswell further commented that " he findings are most consistent with a metastatic poorly differentiated small cell neoplasm." In laymen's terms, Dr. Boswell diagnosed Orville with cancer. Dr. Boswell did not recommend any further biopsies prior to diagnosing Orville with cancer. Orville returned to the medical center on December 20, 1993, at which time Dr. Fleming recommended chemotherapy. According to Orville, Dr. Fleming and Dr. John informed him that he had only one year to live.
Orville was prescribed an oral regimen of the chemotherapy drug "Vp-16" in 50 milligram doses twice per day for a ten-day period, beginning every 21 days.
On January 10, 1994, Orville returned to the medical center and informed the treating physician, Dr. John, that he was feeling much better. Dr. John noticed that the mass that had been located under Orville's jaw was gone. Orville then followed-up with Dr. Fleming on January 24, 1994, at which time Dr. Fleming noted that Orville was responding favorably to the chemotherapy treatment.
On February 8, 1994, Orville consulted Dr. Vijayalakshmi Puram, an oncologist at Pikeville Methodist Hospital, concerning the condition of Orville's lungs. Dr. Puram took x-rays of Orville's chest and informed him that he would obtain the pathology slides from Highlands Regional Medical Center and have them reviewed by Pikeville Methodist's pathologist, Dr. James A. Dennis. Dr. Dennis reviewed the slides on February 10, 1994, and made the following observations:
Review of the slides show an intensely cellular neoplasm that has characteristics of lymphocytic origin. The cells have large oval nuclei with indistinct nuclear membranes. There is an intense expression of cells undergoing autolysis or necrosis and an intense proliferation of inflammatory cells as well as the malignant component...
Dr. Dennis then sent the pathology sl
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