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Agnew v. Shaw1/28/2005
ough 1995, none of the plaintiff's mammograms or physical examinations revealed abnormalities. Furthermore, plaintiff had no physical complaints which would have led him to believe that she had breast cancer.
On August 21, 1995, Dr. Shaw ordered another mammogram, which revealed "nodes in both axillae" (nodes in both armpits). There was also a label affixed to the X ray which indicated that the mammogram was abnormal. After seeing the report, Dr. Shaw testified, he had plaintiff come in for an evaluation on August 31, 1995, to ensure that this was not a cancerous process. During her physical examination, Dr. Shaw was unable to palpate or feel any enlarged lymph nodes, which "somewhat" ruled out cancer because cancer is usually firm and hard. He testified that other factors can cause enlarged lymph nodes as well, and he thought that the cause of plaintiff's enlarged lymph nodes could have been an infection or an inflammation from her past chronic sinus infections. He also ordered a complete blood count, which came back normal. Therefore, he told plaintiff to return in six months for another mammogram.
In December of 1995, Dr. Shaw performed another physical examination on the plaintiff, at which time he was, once again, unable to palpate the lymph nodes after conducting a physical examination of the plaintiff's breasts and axillae. Plaintiff returned in February of 1996 for her six-month mammogram, which revealed that nothing had changed since the August 1995 X ray. Dr. Wiggins' report indicated that although the lymph nodes were still enlarged, they had not gotten any larger. The report also indicated "no radiographic evidence of malignancy," and Dr. Wiggins recommended yearly mammograms.
Dr. Shaw saw the plaintiff again on June 13, 1996, and he performed another examination on plaintiff's breasts and axillae, but was unable to palpate anything. However, the findings from this examination were not recorded on Dr. Shaw's chart. In December of 1996, the plaintiff returned to Dr. Shaw reporting that she could feel something in the tail of her breast. During that office visit, Dr. Shaw was able to palpate something and referred the plaintiff to a surgeon, Dr. Leonard. Finally, Dr. Shaw testified that he did not, in his opinion, deviate from the standard of care in rendering care and treatment to the plaintiff.
When Dr. Shaw concluded his testimony, on February 28, 2002, the court continued the Frye hearing in chambers. Dr. Schapira was brought into the judge's chambers and examined by both counsel concerning his testimony on the linear progressive growth of lymph nodes. Dr. Schapira testified that because the plaintiff had nine lymph nodes involved with cancer after the surgery in 1997, he could "extrapolate backwards" and determine that the plaintiff had one lymph node involved with cancer in August of 1995 and two to three lymph nodes involved with cancer in February of 1996. He opined that the cancerous lymph nodes discovered in April 1997 appeared to have started in her breasts. However, the cancer in her breast was never found, which is common with occult cancer. In Dr. Schapira's opinion, plaintiff had cancer in her lymph nodes a year to a year and a half before April of 1997. He testified that in the six-month follow-up, looking at the mammogram, there were one or two cancerous lymph nodes, and 20 months later there were nine cancerous lymph nodes. Dr. Schapira testified that the basis of his opinions was his observation of patients and literature on the growth of breast cancer. However, he could not identify a specific piece of literature. He also testified that since plaintiff's 1997 mammogram revealed that she had nine cancerous lymph nodes, 20 months before that (A
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