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Agnew v. Shaw1/28/2005
ugust 1995) she probably had one cancerous node, and 14 months prior (February 1996), she probably had two to three cancerous lymph nodes. He stated that the basis for this testimony was that the cancer "would not stand still for that period of time." Dr. Schapira testified that there is a reasonable correlation when you look at the size of the tumors and the changes in the size of the tumors over time and the amount of lymph node involvement. Dr. Schapira further testified, " o one knows exactly how many lymph nodes were involved at any particular period of time." He stated, " ou can look at what happens over time with patients that have primary tumors and how quickly they grow and how many nodes will be involved" and that there is a significant amount of literature regarding patients with primary tumors. However, when concluding his testimony in chambers, he admitted that there is no scientific literature to support his theory concerning the systematic sequence of spread of occult primary breast cancer.
After Dr. Schapira completed his testimony in chambers, Dr. Schapira took the stand, without objection from defendants' counsel, and testified before the jury. During his trial testimony, plaintiff's counsel elicited extrapolation opinions from the doctor over the objections of the defendants. The parties then returned to chambers and Dr. Wiggins' counsel presented an affidavit from Dr. Micetich (the defendants' oncologist and proximate cause expert) and Dr. Rossof's (the plaintiff's oncologist) deposition in support of the defendants' motion in limine. At this time, the plaintiff's counsel made a formal objection and argued that he "mistakenly" believed that the Frye hearing was not going to be conducted piecemeal and that they were going to complete the Frye hearing and receive a ruling before Dr. Schapira took the stand at trial. The court overruled the objection and explained that there were no objections when the matter was first discussed and that all counsel were instructed on how the court would conduct the Frye hearing.
Dr. Alfred Torrence was the next witness called by the plaintiff. He opined that Dr. Shaw did not comply with the standard of care after receiving the abnormal mammogram of August 1995. Dr. Torrence testified that Dr. Shaw breached the standard of care because he failed to reach a diagnosis regarding the reason for the plaintiff's enlarged lymph nodes. Dr. Shaw also breached the standard of care by waiting until December of 1996 to refer the plaintiff to a surgeon for a second opinion. He stated that in his opinion, the plaintiff had occult breast cancer in August of 1995, and although occult breast cancer does not make a usual presentation, there were steps that Dr. Shaw could have taken in order to reach a proper diagnosis earlier.
Next, Dr. Wiggins was called by the plaintiff as an adverse witness. During his adverse testimony, Dr. Wiggins agreed that some of plaintiff's lymph nodes had grown twice as large in size between the August 1995 mammogram and the February 1996 mammogram. He did state that in hindsight, the change was significant and did show an abnormal finding. Dr. Wiggins concluded, however, that he did not deviate from the standard of care because it was reasonable for him to rely on the radiology studies and those studies did not indicate that cancer was present at the time he rendered care and treatment to the plaintiff.
Plaintiff then took the stand on her own behalf and testified regarding damages. She also stated that Dr. Shaw never informed her about her enlarged lymph nodes, but that she discovered them herself in December of 1996. She stated that she is fearful that the cancer will reoccur in the future. Plaintiff's daught
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