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Sawlani v. Mills7/13/2005
Tulsi Sawlani, M.D., appeals a judgment in favor of Robin Mills on Mills's complaint. Sawlani raises three issues, which we restate as:
I. Whether the trial court erred by denying Sawlani's motion for judgment on the evidence regarding proximate cause;
II. Whether the trial court erred by granting Mills's motion for judgment on the evidence regarding Sawlani's affirmative defense of contributory negligence; and
III. Whether the trial court erred when it instructed the jury regarding damages for increased risk of harm.
We affirm.
The relevant facts follow. In August 1997, Mills noticed a "thickness" and pain in her left breast. Appellant's Appendix at 62-63. Mills discussed her concerns with her doctor, who ordered various tests, including a mammogram. Mills went to Methodist Hospital in Merrillville, Indiana, for the mammogram on September 5, 1997. Sawlani, a radiologist, interpreted Mills's mammogram. After interpreting the films, Sawlani examined Mills's breast and again reviewed the films. On September 6, 1997, Sawlani prepared an exam report, which indicated "No discrete nodule, microcalcification, skin thickening, or nipple retraction is seen bilaterally" and "no radiographic evidence of malignancy." Id. at 196. Sawlani recommended in the report that Mills have a follow-up mammogram in one year. Sawlani also sent Mills a letter, which provided in part:
The above breast examination did not show any sign of cancer.
Please remember that some cancers (about 10%) cannot be found by mammography, and that early detection requires a combination of monthly breast self-examination, yearly clinical breast examination, and periodic mammography.
Mammography is important to your ongoing health. For all women over the age of 40, the American Cancer Society recommends a mammogram every year. In your case, I recommend that you return for a follow-up mammogram in 1 year.
Id. at 197. Mills read the first sentence of the letter but did not read the rest of the letter.
On May 11, 1999, twenty months after her September 1997 mammogram, Mills obtained another mammogram. The radiologist, Dr. Richard Lichtenberg, found a " uspicious abnormality" and asked Mills to retrieve the films from her 1997 mammogram. Id. at 198. Dr. Lichtenberg prepared an exam report, which provided, in part: "There is a speculated density in the left upper inner quadrant at approximately 11 o'clock which appears to persist on spot views and appears more prominent as compared with the previous exam." Id. Mills was diagnosed with breast cancer, and after consultation with a surgeon, she underwent a lumpectomy, radiation, and chemotherapy.
Mills filed her proposed complaint against Sawlani with the Indiana Department of Insurance and alleged that Sawlani "failed to meet the appropriate standards of care, skill and knowledge of physicians limiting their practice to the specialty of radiology in the diagnosis, treatment and care and reading of the mammogram films of the Plaintiff on or about September 6, 1997." Id. at 216. A medical review panel found that "the evidence submitted regarding [Sawlani] does support the conclusion that [Sawlani] failed to meet the appropriate standard of care as charged in the Complaint but it is a question of fact as to whether the conduct complained of was a factor of the resultant damages." Id. at 234 (emphasis in original). Mills then filed her complaint against Sawlani alleging medical malpractice.
A jury trial was held in March 2004. The parties stipulated to the admission of the medical review panel's report. Additionally, during Mills's case-in-chief, sh
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