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McKoy v. Furlong8/6/1990
Per Curiam.
Plaintiffs-appellants, Patty A. and Marvin McKoy, appeal a jury verdict rendered in their medical malpractice claim against defendant-appellee, Thomas E. Furlong, M.D.
Patty McKoy was appellee's patient from 1976 until 1985, when she had surgery for breast cancer. On July 27, 1983, McKoy had a regular checkup with appellee, including a Pap smear and breast exam. Appellant testified that she informed appellee she had discovered a lump in her left breast during a routine self-examination. Appellant claimed that appellee confirmed the lump's existence but told appellant there was no reason for concern. Appellee had no independent recollection of appellant's claim regarding the lump's existence. He did testify, however, that when he asked appellant if she had any general health concerns, she did not respond. There was also evidence that appellant did not voice any concerns to appellee's physician's attendant. Finally, it is undisputed that appellee's medical records contain no mention of a lump during appellant's July 27 visit, although appellee testified he would have made an appropriate notation in appellant's record if she had mentioned the discovery of a lump. Appellee instructed appellant to return in one year for a similar examination.
Appellant did not return until November 6, 1985, over two years after her last visit. During this subsequent visit, appellee discovered a lump in appellant's left breast and ordered an immediate mammogram. A biopsy performed that same date revealed the presence of cancerous matter. Consequently, a radical mastectomy was performed on appellant on November 29, 1985.
Appellants filed their malpractice action against appellee on April 27, 1987. Trial by jury commenced on December 12, 1988. Over appellants' objection, the trial court instructed the jury that it could consider Patty McKoy's own negligence as it related to appellee's alleged failure to properly diagnose her cancer. In addition, the trial court instructed the jury that it could also consider the applicability of the statute of limitations to appellants' action.
The jury returned a general verdict in favor of appellee accompanied by interrogatories in which the jurors found that Patty McKoy committed acts of negligence which directly and proximately caused her own Injuries and damages. The jury also apportioned one hundred percent of the negligence to Patty McKoy while attributing no negligence to appellee.
Appellants filed a timely notice of appeal and assert two assignments of error which read as follows:
Assignment of Error No. 1
"The trial court erred by instructing the jury to consider the negligence of the plaintiff in its deliberation, in the absence of evidence that the plaintiff engaged in negligence which was both simultaneous and cooperating with that of the defendant physician."
Assignment of Error No. 2
"The trial judge erred in instructing the jury to consider the applicability of the statute of limitations to the facts of the case."
In their first assignment of error, appellants argue that the trial court improperly instructed the jury on the issue of the alleged negligence of Patty McKoy. Specifically, the court instructed the jury that:
"A patient is required to exercise ordinary care for her own well-being and should accept and obey all reasonable advice given to her after she has left the doctor's office. A failure to do so may be a failure to use ordinary care for her own well-being. If you find by the greater weight of the evidence that Patty McKoy failed to exercise ordinary care, then she was neglig
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