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Henry v. Healthpartners of Southern Arizona9/19/2002
AFFIRMED
Virginia Henry filed this medical malpractice action as personal representative of the estate of her aunt, Kathleen Wilson. All defendants except appellant HealthPartners of Arizona, doing business as Tucson Medical Center (TMC), settled the case before trial. A jury rendered a verdict in favor of TMC, and the trial court later granted Henry's motion for a new trial. TMC challenges that ruling on appeal. For the reasons set forth below and in a separate memorandum decision that addresses other issues not worthy of publication, see Rule 28(g), Ariz. R. Civ. App. P., 17B A.R.S., we affirm.
BACKGROUND
In July 1995, Wilson was examined by her gynecologist, Dr. Jon Long, at his office. Nothing in the medical record on that date shows that Wilson reported any lumps in her breast or that Long had detected any lumps while conducting a breast examination. In August 1995, Wilson had a routine screening mammogram at TMC. A screening mammogram requires a technician to x-ray each breast twice from different angles; this method is used when the person has reported no breast problems. If the screening mammogram reveals problems or if the person reports problems, a diagnostic mammogram is used. A diagnostic mammogram requires x-rays with other views of the breast, including magnification as needed. To complete a diagnostic mammogram, a radiologist examines all x-rays taken in both mammograms.
A TMC volunteer who conducted the intake interview for Wilson's screening mammogram wrote on the mammography information sheet, "*lump--x6 weeks." That sheet was placed in Wilson's medical chart. The mammography technologist also wrote, "'Dr. Long thinks it's fibrous tissue', patient states," on Wilson's clinical history form. The screening mammogram x-rays, the results of Wilson's 1992 mammogram, the clinical history form, and the medical chart were placed near the diagnostic x-rays for Dr. Donald Mar to read. He was employed by Radiology Limited, with whom TMC had contracted to provide radiology services. When Mar read Wilson's screening x-rays, he noted: "Normal mammogram, except for moderate to severe increased density. No evidence of cancer. It should be appreciated that a negative mammogram should not supersede clinical concern if present. No significant change from 12/11/92." He did not read the mammography technologist's note or the information sheet in Wilson's clinical history record. On the patient notification form, Mar wrote, "No mammographic evidence of cancer." TMC sent Wilson a letter stating her mammogram result was normal.
During the next ten months, Wilson continued to see Long, but the medical records do not mention breast lumps or problems. Then, in May 1996, Wilson told Long that she had had a sore, tender lump in her breast for about a month. On a referral from Long, TMC did a diagnostic mammogram, which revealed that Wilson had breast cancer. The next day, Wilson underwent a mastectomy, which was followed by chemotherapy treatment. The cancer metastasized, however, before the full course of chemotherapy could be completed. Wilson died in April 1997. Henry then brought this action.
Henry settled with Mar and Long immediately before trial. On the first day of trial, TMC mentioned in its mini-opening statement to the potential jurors that "[Henry had] originally sued [Long and Mar]. You do not see them in the courtroom today." Henry immediately moved for a mistrial on the ground TMC was "talk about prior settlements." The trial court granted the motion for mistrial and issued what it characterized as the "rule in the case":
Okay, rule in the case: No mentioning settlements, who were previously parties i
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