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).