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Jenkins v. Dyess6/19/2002
Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
BROWN, J., dissents with reasons.
We granted supervisory writs to review the trial court's denial of the defendant-physician's exception of prescription. After a mammogram was taken in 1992 revealing the need to biopsy a lump in plaintiff's breast, the defendant did not relate the need for the biopsy to plaintiff. Later, after more than three years passed with no further treatment by the doctor, plaintiff was diagnosed with breast cancer and filed this action in 1997. The trial court found the continuing tort doctrine applicable to this case and denied the exception. For the following reasons, we reverse and dismiss the suit.
Facts
In this medical malpractice case, plaintiff, Edna Jo Jenkins ("Jenkins"), asserts that her obstetrician/gynecologist, Dr. Jerry C. Dyess ("Dr. Dyess"), failed to timely diagnose a breast malignancy. Jenkins was diagnosed in 1997 with metastatic breast cancer. She asserts that Dr. Dyess failed to provide her with the results of a 1992 mammogram taken after she observed a suspicious mass in her breast.
Jenkins first sought medical attention from Dr. Dyess at his Caddo Parish clinic in November 1988. She had a routine medical examination and obtained a pregnancy test. Jenkins also saw Dr. Dyess in February 1989, June 1990, and June 1991 for routine examinations. Jenkins missed two scheduled appointments in March and April of 1992.
In mid-1992, Jenkins decided to have a small lump in her left breast medically evaluated. Apparently, the pea-sized lump had been present since the late 1980's. In her deposition, Jenkins stated that she spoke to another unidentified doctor, instead of Dr. Dyess, and decided to have a mammogram. Jenkins had the mammogram performed in Ruston at Lincoln General Hospital on August 28, 1992. The Ruston radiologist, Dr. Robert Francis, did not give Jenkins the test results, but sent the results to Dr. Dyess at Jenkins's request. Dr. Francis's report includes a section titled "impression" and reads:
Palpable mass on the left side with associated suspicious microcalcifications. Consideration for biopsy recommended.
The radiologist's report has a handwritten notation stating that the "results called to Dr. Dyess' nurse."
Dr. Francis confirmed in his deposition that he called Dr. Dyess's office with the results. However, Dr. Francis did not recall the details of the phone call. A phone record indicates that Dr. Francis called Dr. Dyess's office on August 28, 1992, the date of Jenkins's mammogram. Dr. Francis also confirmed that Lincoln General Hospital had the policy of mailing a copy of the x-ray report to the requesting physician.
Jenkins's deposition testimony reveals that she "had no idea" whether Dr. Dyess received Dr. Francis's report. Jenkins saw Dr. Dyess on September 14, 1992 and told him about the lump in her breast. Dr. Dyess's physician's notes for September 14 reflect that he examined the lump in Jenkins's breast.
When deposed about the September examination, Dr. Dyess stated that he did not have a copy of Jenkins's mammogram report at the time, nor did he ever receive the mammogram or Dr. Francis's report thereafter. Furthermore, Dr. Dyess testified that no one in his office informed him of the results, nor did any of his employees remember receiving a call about the test results. Dr. Dyess's notes of the September 14 examination state "check results of mammogram, check every month, and return to clinic PRN." Dr. Dyess claims that he is "pretty sure that probably told her to check the results of the mammogram or check w
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