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Reeder v. Harper8/10/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
Charles G. Reeder, Special Administrator of the Estate of Denise C. Palmer, and Dennis W. Palmer (together "Palmers") appeal the grant of summary judgment in favor of A. Patricia Harper, M.D., and Indianapolis Breast Center (together "Harper"), and Carol C. Eisenhut, M.D., and Diagnostic Cytology Laboratory, Inc. (together "Eisenhut") (collectively "Defendants") on their claim of medical malpractice. They raise the following restated issue for review:
Whether the trial court erred in granting summary judgment on the Palmers' wrongful death claim and the Estate's survivorship claim for the injuries that Denise Palmer incurred by Harper's failure to perform and Eisenhut's failure to recommend an excisional biopsy.
We affirm.
FACTS AND PROCEDURAL HISTORY
In July 1991, Denise Palmer saw her obstetrician/gynecologist Dr. Timothy Feeney for an annual examination. At that time, she complained of a palpable lump in her left breast. Dr. Feeney recommended no further treatment. In December 1991, Denise again contacted Dr. Feeney's office, complaining that the lump had become larger and more painful. She was seen by Dr. Feeney's nurse, who noted the lump and contacted Harper. The nurse told Denise that Harper was very busy, and after reviewing Denise's medical records, Harper had decided that Denise could wait until after the first of the year to be seen.
On January 11, 1992, Harper performed a needle aspiration biopsy on the lump. The specimen from the procedure was examined and interpreted by Eisenhut, who determined that the cells were benign.
In February 1992, Denise was experiencing increased pain which interfered with her ability to use her left arm. She again contacted Dr. Feeney, who referred her to Dr. Thomas Schmidt. Dr. Schmidt performed an excisional biopsy of the lump. The results of this biopsy showed that the tissue was cancerous. In light of this, Dr. Schmidt recommended a second opinion on the specimen produced from the earlier biopsy. Dr. Sudha Kini examined the specimen and concluded that it was suspicious for cancer. Denise eventually underwent a double mastectomy, radiation, multiple courses of chemotherapy, and preparatory treatment for a bone marrow transplant.
In July 1993, the Palmers filed a proposed medical malpractice complaint alleging that Defendants' failure to diagnose and treat Denise's breast cancer caused her personal injury and resulted in Dennis Palmer's loss of his wife's services. In January 1996, the Palmers amended their complaint to reflect that Denise Palmer had died and to add a claim for wrongful death.
In June 1996, the Medical Review Board issued its opinion. The Board found that Harper deviated from the standard of care in failing to recommend a surgical excisional biopsy of the enlargening mass. It also found that Eisenhut deviated from the standard of care in failing to report that the lesion needed to be excised. However, the Board also found that "such deviations were not a factor in altering the course of the patient's disease or in hastening her death." Record at 186.
In August 1996, the Palmers filed their complaint for damages on the same bases identified in the proposed complaint. All of the defendants moved for summary judgment. In opposition, the Palmers designated several items of evidence, including the affidavit of William Alpern, M.D., who opined that Defendants' actions altered the course of Denise's disease and hastened her death. Following a hearing, the trial court denied the motions.
In June 1999, the defendants renewed their motion for summary judgment
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