OF NORTH CAROLINA
THE GENERAL COURT OF JUSTICE SUPERIOR COURT
of the Estate of
FOR MEDIATION SETTLEMENT
The limited purpose of this memorandum is simply to
mention a few of the legal points plaintiff
anticipates relying on during the trial of this case
in January of 2000. On May 12, 1998
_______________________ filed a lawsuit against
____________________. In essence, Ms. __________'s
Complaint alleged that the defendants negligently
failed to diagnose her breast cancer during the fall
of 1996 which caused her to suffer injuries and
damages including metastasization of her breast
cancer to her brain, a right modified radical
mastectomy, loss of her employment, wage losses and
permanent loss of earning capacity, medical bills
and expenses, disfigurement, loss of her right
breast, physical scaring, physical pain, mental
anguish and emotional distress, and substantially
shortened life expectancy.
Ms. __________ died from her breast cancer on June
28, 1998. Thereafter, her daughter, __________,
qualified as Administratrix of her mother's estate,
and an Amended Complaint was filed by Ms.
__________, acting as Administratrix of her mother=s
estate, against __________. The Amended Complaint
states two separate claims for relief against the
defendant. The first claim for relief is brought by
Ms. __________'s estate and seeks damages for the
personal injuries suffered by Ms. __________ prior
to her death. This claim is authorized by North
Carolina=s Survival Act, G.S. '
28A-18-1. When North
Carolina enacted its Wrongful Death Statute in 1969,
the Survival Statute was not repealed, and it is
permissible for the estate to bring two separate
claims in the same action. Bowen v. Constructors
Equipment Rental Company, 283 N.C. 395, 196
S.E.2d 789 (1973)(copy enclosed). The injuries and
damages alleged in the first claim for relief
include metastasization of Ms. __________'s breast
cancer to her brain, the necessity for her to
undergo a right modified radical mastectomy, the
loss of her employment, wage losses and permanent
loss of earning capacity, medical bills and
expenses, disfigurement of her body, loss of her
right breast, physical scarring, physical pain,
mental anguish and emotional distress, including the
knowledge that her life expectancy had been
The second claim for relief set forth in the Amended
Complaint alleges the cause of action for Ms.
__________'s wrongful death, and seeks damages as
authorized by the Wrongful Death Act, G.S. '
THE FIRST CLAIM FOR RELIEF - MS. __________'S
The damages sought by plaintiff's first claim for
relief are expressly recognized by the landmark case
of Morrison v. Stallworth, 73 N.C. App. 196,
326 S.E.2d 387 (N.C. App. 1985)(copy enclosed),
which is frequently cited and discussed in national
legal publications. Bobbie Morrison was a 45
year-old woman who complained to her
obstetrician/gynecologist in March of 1977 of a
breast lump. The defendant told her she just had a
swollen milk gland and not to worry. Defendant's
records showed a negative examination. In October of
1977 Ms. Morrison consulted another doctor who found
a suspicious lesion in the breast and biopsy
confirmed that the lesion was cancerous. Ms.
Morrison underwent a radical mastectomy.
The plaintiff's complaint alleged that the defendant
failed to diagnose plaintiff's condition and that
his assurance to the plaintiff not to worry had
delayed the eventual detection and treatment of the
cancer. This had allowed the cancer to metastasize
more than it otherwise would have, caused the
plaintiff to undergo surgery, and to suffer a
shortened life expectancy. Among other errors
committed by the trial court, the court refused to
give plaintiff's requested instructions on damages
for shortened life expectancy and the associated
mental suffering. Plaintiff's evidence showed that
her chances of surviving ten years had decreased by
41%, and her chances of surviving twenty years had
decreased by 38%, due to the negligence of the
defendant. Plaintiff also offered evidence showing
that the decrease in life expectancy caused economic
and mental anguish damages. The Court of Appeals
held that "...shortened life expectancy is a
compensable element of damage."
The Court of Appeals noted that its "...result
is reinforced by a recent and similar Massachusetts
case. Glicklich v. Spievack, 16 Mass App.
488, 452 N.E.2d 287, Rev. Denied, 390 Mass 1103, 454
N.E.2d 1276 (1983)."(copy enclosed) In Glicklich,
a defendant physician failed to diagnose the
plaintiff's breast cancer during the period of time
between August of 1978 and February of 1979. The
testimony of plaintiff's expert witness indicated
that because of this delay the plaintiff's life
expectancy had been reduced from 94% for a 10 year
period to a 50% or less chance. Other expert
testimony was that the prognosis worsens as the
stage of the cancer progresses. As to a second
defendant physician who became the plaintiff's
doctor in February of 1979, expert testimony
indicated that if this physician had initiated
proper treatment within two to four weeks the
plaintiff probably would not have suffered brain
metastases. Her life expectancy decreased from a 50%
or less chance of 10 year survival in February of
1979 to a life expectancy of a year or two at the
time the case was tried. The Court held that
plaintiff's evidence provided a reasonable basis for
apportionment of damages by the jury between the two
Defendant has deposed plaintiff's two expert
oncologists and Ms. __________'s treating surgeon.
All three of these physicians have testified that
Ms. __________ had stage I breast cancer during
August of 1996 when her mammograms revealed a 1.5 cm
mass in the upper outer quadrant of her right
breast. Dr. __________, the surgeon, has testified
that in his opinion the plaintiff had a 90% chance
of 5 year survival with proper treatment and that
she could have been treated with lumpectomy rather
than modified radical mastectomy. The oncologists,
Dr. __________ and Dr. __________, have testified
that Ms. __________ had a 90% chance of 5 year
survival during August of 1996. Dr. __________
testified that in his opinion Ms. __________ had
better than a 50% chance of survival in February of
1997, which is the month that defendant contends Ms.
__________ was contributorily negligent by not
initiating and obtaining a follow-up mammogram of
her right breast. Dr. __________ testified that the
breast cancer had already metastasized to Ms.
__________'s brain during the early part of 1997,
probably during January, February or March. In his
second deposition, Dr. __________ testified that
upon further consideration of the case, he now
believes Ms. __________'s cancer was much more
aggressive than was originally thought.
Plaintiff is giving serious consideration to
preparing issues and jury instructions for trial
that would be based on a stipulation that the period
of time the jury would consider with respect to
plaintiff's first claim for relief for damages,
including, inter alia, shortened life expectancy,
would be between August 16, 1996 and February of
1997. Plaintiff would not stipulate that there was
any negligence or other fault attributable to Ms.
__________ in connection with the February, 1997
date or at any other time.
Under this scenario, a defense of contributory
negligence would be unavailable to the defendant
with respect to the plaintiff's first claim for
relief. If the jury finds defendant was negligent
during the fall of 1996, the jury could award
damages to the plaintiff based on whatever
diminished life expectancy it finds was attributable
to the defendant's negligence during the time period
from August 16, 1996 to February of 1997.
addition, the jury could award the plaintiff damages
for Ms. __________' loss of her breast, mental
suffering caused by her awareness that the
defendant's negligence had caused her life
expectancy to be shortened, and lost income caused
by her shortened life expectancy.
PLAINTIFF'S SECOND CLAIM FOR RELIEF - WRONGFUL DEATH
Plaintiff will also ask the jury to award damages
based on Ms. __________'s wrongful death. If the
jury finds in favor of the plaintiff on both claims
for relief, the plaintiff would then be required to
elect remedies in order to prevent a double
recovery. However, the plaintiff is not required to
elect remedies prior to the return of the jury's
verdict. Bowen, supra. For a recent
case illustrating this principle, see Cahoon v.
Cummings, 79A05-9801-CV-026 in the Court of
Appeals of Indiana, decided June 30, 1999 (copy
enclosed). Plaintiff has not yet deposed defendant's
medical expert witnesses. If the jury agrees with
Dr. __________ and Dr. __________, and finds the
defendant negligent in causing Ms. __________'s
death, plaintiff would probably elect to recover
damages pursuant to the wrongful death claim for
relief. However, should defendant's experts testify
that Ms. __________'s chances for 5 or 10 year
survival during February of 1997 were lower than
they were during August of 1996, and/or should the
jury believe Dr. __________'s testimony that the
plaintiff's chances for 5 year survival were
decreased from 90% to something over 50% between
August of 1996 and February of 1997, the plaintiff
will rely on Restatement of Torts (Second) '
which provides in pertinent part as follows:
who undertakes, gratuitously or for consideration,
to render services which he should recognize as
necessary for the protection of the other's
person..., is subject to liability to the other
for physical harm resulting from his failure to
exercise reasonable care to perform his
undertaking, if (a) his failure to exercise such
care increases the risk of such harm...
other words, if the jury finds that the defendant's
negligence increased the risk of Ms. __________'s
death, and that the increased risk was a substantial
factor in causing her death, the jury may find for
the plaintiff. In Shumaker v. U.S., 714
F.Supp. 154 (M.D.N.C. 1988) (copy enclosed), the
Middle District of North Carolina (Judge Frank
Bullock) found that the North Carolina Supreme Court
would not reject a lost possibility theory, in
ruling in favor of a child who had lost her sight
because of the defendants' negligence.
THE DEFENSE OF CONTRIBUTORY NEGLIGENCE IS NOT
AVAILABLE TO THE DEFENDANT
Defendant contends that its employees instructed Ms.
__________ to obtain a mammogram of her right breast
during February of 1997, and that her failure to do
so constitutes contributory negligence. However,
under North Carolina law and the facts of this case,
this defense is not available to the defendant. It
is undisputed that Ms. __________ was a patient of
defendants from approximately June of 1996 through
December of 1996. Defendant did not make an
appointment for Ms. __________ to have follow-up
mammography during February of 1997. Further,
although deposition testimony of defendant's
employees shows that it was defendant's policy and
procedure during the time in question to notify a
patient who had become disenrolled from __________
before follow-up mammography had occurred, that the
patient could have the follow-up mammography
performed at __________ on a fee-for-service basis,
or __________ would assist in obtaining the
mammogram through another physician, this procedure
was not followed with respect to Ms. __________. In
addition, there is no evidence that defendant sent
Ms. __________ a reminder letter or a card informing
her of the necessity to have follow-up mammography
during February of 1997. Defendant abandoned Ms.
__________'s care at least by the end of December of
1996 and terminated its relationship with her at
that time at the latest. Accordingly, defendant was
not treating Ms. __________ after that date.
the case of Cobo v. Raba, 125 N.C.App. 320,
481 S.E.2d 101, (N.C.App. 1997) (copy enclosed), our
Court of Appeals stated that:
a patient's negligent conduct occurs subsequent
to the physician's negligent treatment instead
of concurrently or simultaneously, recovery by the
patient should be mitigated and not completely
defeated pursuant to a contributory negligence
theory. Harney '
24.5, at 571; Miller v. Miller, 273 N.C. 228, 239,
160 S.E.2d 65, 74 (1968) (contrasting contributory
negligence with the "doctrine of avoidable
appeal of this case, our Supreme Court in Cobo v.
Raba, 347 N.C. 541, 495 S.E.2d 362 (1998) (copy
enclosed), noted that:
the evidence clearly indicates that the activities
of Dr. Cobo asserted as contributory negligence
took place prior to and contemporaneously with
defendant's treatment and that Dr. Cobo directly
contravened defendant's specific advice during the
course of treatment (emphasis added).
defendant had followed its normal procedure and
contacted Ms. __________ to schedule an appointment
for a mammogram or to remind her to obtain the
mammogram, defendant would have continued to treat
Ms. __________ and could attempt to avail itself of
the defense of contributory negligence. However, by
virtue of its abandonment of Ms. __________ and the
termination of her treatment by the end of December
of 1996, defendant cannot be heard to complain that
Ms. __________'s failure to obtain a follow-up
mammogram in February of 1997 constitutes
defendant's medical records show that on November 7,
1996, defendant "reassured" Ms. __________
that she had nothing to worry about. The evidence is
disputed as to whether defendant advised Ms.
__________ that she would undergo a follow-up
mammogram in February of 1997, or six months from
November of 1996, which would have been May of 1997,
when in fact Ms. __________ underwent an additional
physical examination and mammography.
evidence from defendant's medical records indicates
that the plaintiff was worried about her mammograms
and complained of a breast lump on November 7, 1996.
Also, less than three weeks before this date, Ms.
__________ had requested a breast ultrasound, which
defendant did not perform. It appears from the note
of November 7, 1996 that defendant reassured Ms.
__________ that she had nothing to worry about
because defendant's nurse practitioner was of the
opinion that Ms. __________'s mammogram from August
of 1996 was "normal." In fact, the words
"normal breast tissue" appear in Dr.
__________'s mammography report of August 16, 1996.
Further, Ms. __________'s supervising physician
testified that he thought the mammogram was normal.
Even if Ms. __________ had mentioned to Ms.
__________ during the November 7 visit, that she
should have a follow-up mammogram during February of
1997, which plaintiff denies based on the evidence,
this statement, in the absence of scheduling an
appointment or sending a reminder, and following
__________'s reassurance to the plaintiff that she
had nothing to worry about and that everything was
normal, is not sufficient to charge Ms. __________
with mitigating conduct by failing to have a
mammogram during February of 1997.
Lauderdale v. United States, 666 F.Supp 511 (M.D.Alabama,
1997) (copy enclosed), the Court refused to find a
plaintiff guilty of contributory negligence in a
medical malpractice case:
Court is convinced that, while the doctor informed
Lauderdale that he was considering the possibility
of a heart problem, the doctor did not convey his
suspicions to Lauderdale in a way that made clear
to him that his was a potentially severe heart
problem, and he did not impress on Lauderdale that
the treatment prescribed for him that day was a
tentative one and that it was mandatory that he
return in one week so the physician could assess
the effectiveness of his prescribed course of
treatment. The Court is convinced that Lauderdale
left the September 25 visit with the understanding
that the disclosed diagnosis was still a mild form
of pneumonia and that the doctor was treating him
for this mild illness...but the Court disagrees
that Lauderdale's failure to return to the clinic
constituted contributory negligence in light of
the insufficient warning given to him of the
urgency of his need to return.
same rationale is applicable to the encounter
between Ms. __________ and Ms. __________.
on the foregoing, the plaintiff anticipates the jury
returning verdicts in her favor on both claims for
relief, and the plaintiff would then elect her
the _________ day of September, 1999.
& ASSOCIATES, P.A.
Charles A. Bentley, Jr.
Attorney for Plaintiff
Post Office Box 52089
Durham, North Carolina 27717