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Pennsylvania Appeals Court Affirms Order For New Trial In Medical Malpractice Action


HLD, v. 31 n. 5 (May 2003)

Pennsylvania Appeals Court Affirms Order For New Trial In Medical Malpractice Action

Plaintiffs Dennis and Dianne Vallone sued Richard H. Creech, M.D., for medical malpractice in state trial court. Creech treated Dianne for breast cancer from March 1991 to December 1993. Dianne returned to Creech in October 1996 after noticing changes in her breast. Creech ordered a bone scan, blood work, and a mammogram and concluded that the changes were due to the radiation therapy. Creech did not perform a biopsy until December 1997, when he determined that Dianne's cancer had returned. After a trial, both sides presented conflicting expert testimony as to whether Creech's failure to order a biopsy when Dianne presented to him in October 1996 fell below the standard of care. The jury entered a verdict in Creech's favor. Plaintiffs moved for a new trial, which the court granted. Creech appealed, arguing the trial court wrongly substituted its opinion for that of the jury.

The Pennsylvania Superior Court affirmed, agreeing that the jury verdict in Creech's favor "so shocks the court's conscience so as to require the award of a new trial." Creech admitted during the trial that after examining Dianne in October 1996 he believed a 20% chance existed that her breast cancer had recurred, the appeals court observed. Plaintiffs' experts testified that the failure to diagnosis Dianne's cancer in 1996 decreased her chance of survival from 90% to zero. Moreover, the appeals court agreed with the trial court that the "mere error in judgment" jury instruction was inappropriate. According to the appeals court, the instruction that the failure to order appropriate diagnostic testing would be negligence, unless the failure to order the test was a "mere error in judgment" clearly confused the jury and had no place in the charge given Creech's own admission that he thought recurrence was a 20% possibility. Creech's failure to order a biopsy under these circumstances was not a mere error in judgment, the appeals court said. Accordingly, the appeals court found the trial court did not abuse its discretion in granting a new trial.

Vallone v. Creech, No. 2172 EDA 2002, 2003 WL 1460358 (Pa. Super. Ct. Mar. 24, 2003) (4 pages).

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