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WARD, et al.
September 17, 1999
Record No. 982269
BRENDA LOWERY GRAVITT
PHILLIP D. WARD, M.D., ET AL.
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Present: All the Justices
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
On October 11, 1996, Brenda Lowery Gravitt
instituted this medical malpractice action against Dr. Philip D.
Ward, an obstetrician/gynecologist, and his employer,
Fuller-Roberts Clinic, Inc. (Fuller-Roberts), seeking $1,000,000
in damages she alleged resulted from the defendants’
negligent failure to timely diagnose her breast cancer. In
response, Dr. Ward and Fuller-Roberts filed grounds of defense,
denying that they were negligent and reserving the right to rely
upon the defense of contributory negligence. The action was tried
to a jury on the issues of negligence and contributory
negligence. The jury returned its verdict for Dr. Ward and
Fuller-Roberts and the trial court entered final judgment in
accord with the jury’s verdict. The sole issue we consider
in this appeal is whether there was sufficient evidence to
support the trial court’s granting the jury instruction on
contributory negligence requested by the defendants.
In 1993, Gravitt, then age 46, had been a
patient at Fuller-Roberts since 1966. Fuller-Roberts had
performed her most recent mammogram on May 20, 1992. The
mammogram report documented the fact that Gravitt had a family
history of breast cancer. Gravitt’s sister had died from
breast cancer before the age of 50. Although the 1992 mammogram
revealed no abnormalities in Gravitt’s breasts at that time,
there is no dispute that Gravitt was subject to an increased risk
of cancer because of her family history of breast cancer and that
she was aware of that increased risk.
On July 26, 1993, after discovering "a
bruise and inverted sunken-in place" on her left breast,
Gravitt made an appointment at Fuller-Roberts for later that day.
Since Gravitt’s regular doctor was unavailable, Dr. Ward
examined her. Dr. Ward’s chart notes initially indicated
that Gravitt had complained of "a lot of redness and
discomfort around the nipple of the left breast." After
conducting a breast exam, Dr. Ward found what he described in the
chart as a "[l]ittle glandular area at six o’clock
adjacent to the nipple." However, he found no redness or
gross tenderness. Dr. Ward further noted in the chart that since
her condition "is resolving" he did not suspect that
cancer was present because "if it was cancer, [he] would not
expect resolution." Because Gravitt’s mammogram from
the previous year was normal, Dr. Ward chose to have Gravitt
observe her condition, indicating that he would recommend
repeating the mammogram only if the problem persisted.
On August 30, 1993, Gravitt attended a
previously scheduled appointment for a "Pap smear" with
another doctor at Fuller-Roberts. During that appointment,
Gravitt made no complaints about her breast.
On October 18, 1993, Gravitt called
Fuller-Roberts for an appointment and was examined again by Dr.
Ward. The events that took place during that visit were disputed
at trial. Gravitt testified that she and her husband found a lump
in her left breast sometime in early October. Gravitt further
testified that she told Dr. Ward about the lump and that after
conducting a breast exam he informed her that it felt like a
cyst. According to Gravitt, Dr. Ward then asked her if she was
having any pain. When she answered affirmatively he said,
"[w]ell, that’s a good sign because cancer doesn’t
hurt." Dr. Ward told her to take vitamin E to get rid of the
cyst. To which Gravitt responded, "[t]his is wonderful.
I’m glad it’s just a cyst." Gravitt contends that
they did not discuss the need for a mammogram.
At trial, Dr. Ward was never asked whether
Gravitt informed him about the lump in her breast, and Dr. Ward
never expressly stated that he had not been told about it.
Rather, Dr. Ward testified that Gravitt’s chief complaint
during the visit was premenstrual tenderness in her left breast.
Gravitt’s chart did not reflect the presence of any other
symptoms or that she had found a lump in her breast. Dr. Ward
conducted a complete examination of her breasts and found the
breast tissue to be "freely mobile." He did not locate
any lesions, cancerous or otherwise. According to Dr. Ward, part
of a normal breast exam includes looking for dimpling or
discharge and examining the patient’s lymph nodes and glands
for swelling. Dr. Ward testified that if dimpling, discharge, or
swelling had been found it would have been noted in the
Dr. Ward testified that he concluded that the
tenderness in Gravitt’s left breast was a result of
fibrocystic changes associated with her menstrual cycle.
Therefore, he recommended that she decrease her caffeine intake
and begin taking vitamin E. Dr. Ward was aware of a history of
breast cancer in Gravitt’s family, including the fact that
Gravitt’s sister had died from breast cancer before the age
of 50. However, he chose not to order a mammogram because Gravitt
had a normal mammogram within the past year and a half and her
symptoms were consistent with a fibrocystic change. Dr. Ward
admitted that on occasion a mammogram would locate a cancerous
abnormality not detected during a manual breast exam.
During the next few months, Gravitt went on a
low-fat diet, took vitamin E, and exercised. However, the
discomfort in her left breast continued and worsened. After her
arm began to hurt, Gravitt made an appointment at Fuller-Roberts
for a physical and a mammogram on May 11, 1994. The mammogram
indicated a mass in her left breast. A biopsy was performed on
May 18, 1994 and two doctors informed Gravitt that she would need
to have a mastectomy. By this time, Gravitt’s breast cancer
had spread to her lymph nodes and metastasized throughout her
At trial, in addition to the foregoing
evidence, the parties introduced conflicting evidence from
medical experts regarding the standard of care applicable to this
case. Gravitt presented expert testimony from Dr. Stephen E.
Zimberg and Dr. George M. Kemp that Dr. Ward breached the
standard of care by not ordering a mammogram during either the
July 26, 1993 or October 18, 1993 visits. Dr. Kemp testified that
he thought a diagnosis of Gravitt’s breast cancer
"could have been made and probably would have been made in
July with a mammogram." Dr. Ward presented expert testimony
from Dr. George Cornell supporting his contention that the
decision not to order mammograms during either visit had not
violated the applicable standard of care.
At the close of all the evidence, Gravitt
objected to Jury Instruction 15, which read as follows:
The defendants, in claiming
contributory negligence as a defense in this case, have
the burden of proving by the greater weight of the
evidence that the plaintiff was negligent on October 18,
1993 in that the plaintiff failed to tell Dr. Ward about
the lump in her breast, and that this negligence was a
proximate cause of the plaintiff’s injuries.
Contributory negligence may be shown by the
defendant’s evidence or by the plaintiff’s
Relying on Eiss v. Lillis, 233 Va. 545,
357 S.E.2d 539 (1987), and Lawrence v. Wirth, 226 Va. 408,
309 S.E.2d 315 (1983), Gravitt asserted that whether she told
Ward about the lump was an issue of primary negligence not
contributory negligence. The court granted the contributory
The gravamen of Gravitt’s appeal is that
the contributory negligence instruction should not have been
granted because the trial testimony as a whole did not support
it. Our discussion is necessarily limited to the resolution of
that issue in the context of the facts of this particular case.
Accordingly, we do not reach the broader issue raised at trial, viz.,
whether Gravitt’s acts of alleged negligence were solely
issues concerning the primary negligence of Dr. Ward.
With respect to the requirements for giving a
contributory negligence instruction, we have said that
"before either party is entitled to an instruction on
negligence or contributory negligence, as the case may be, there
must be more than a scintilla of evidence introduced on the
subject." Yeary v. Holbrook, 171 Va. 266, 287-88, 198
S.E. 441, 451 (1938); see also Ring v. Poelman, 240
Va. 323, 327, 397 S.E.2d 824, 827 (1990). "When a defendant
in a negligence action relies on the contributory negligence of
the plaintiff, the burden rests on the defendant to show such
negligence was a proximate, direct, efficient and contributing
cause of the injuries unless such negligence is disclosed by the
plaintiff’s own evidence or may be fairly inferred from all
the circumstances." Charlottesville Music Center, Inc. v.
McCray, 215 Va. 31, 37, 205 S.E.2d 674, 679 (1974). Moreover,
"in order for a plaintiff’s negligence to bar recovery,
it must concur with that of the defendant . . . .
[I]n the medical malpractice context, that means the
patient’s alleged contributory negligence must be
contemporaneous with the main fact asserted as negligence on the
doctor’s part." Eiss, 233 Va. at 552, 357 S.E.2d
at 543 (citing Lawrence, 226 Va. at 412-13, 309 S.E.2d at
Instruction 15, and the related portion of
Instruction 16, limited Gravitt’s alleged negligence to the
events of the October 18, 1993 visit at Fuller-Roberts. According
to Gravitt’s theory of the case, this was the last missed
opportunity for Dr. Ward to have ordered a mammogram that would
have led to the discovery and successful treatment of her cancer.
Thus, to resolve the issue presented our focus is necessarily
drawn to the facts surrounding Dr. Ward’s examination of
Gravitt on that day. Specifically, we must consider the evidence
to determine whether it presented a jury question whether Gravitt
failed to act as a reasonable person would have acted for her own
safety under the existing circumstances.
There is unequivocal evidence in the record
that on October 18, 1993, Gravitt informed Dr. Ward of the lump
in her left breast that she and her husband had detected. In
contrast, there is no evidence in the record to directly dispute
her testimony on this point. The testimony of Dr. Ward is
conspicuously silent on this point, and thus did not raise a
triable issue. The only evidence that, at best, indirectly tends
to create a factual dispute over Gravitt’s assertions is
that Dr. Ward made no notation of a lump when he recorded his
examination of her breast in the medical record. More
significantly, there is no dispute that Dr. Ward conducted a full
breast exam on Gravitt. Upon completion of this exam, Dr. Ward
did not tell Gravitt that he had failed to detect any abnormality
in her left breast. To the contrary, he made a positive diagnosis
that the condition was not cancer, informing Gravitt that her
symptoms were caused by "fibrocystic changes" related
to her menstrual cycle.
Neither Eiss nor Lawrence
resolves the narrow issue presented by the facts of the present
case. Here, if there was evidence of contributory negligence on
Gravitt’s part, it was contemporaneous with the main fact
asserted as negligence on Dr. Ward’s part on October 18,
1993. However, in Lawrence we noted that "[t]he
physician-patient relationship differs substantially from that of
the ordinary plaintiff and defendant." 226 Va. at 411, 309
S.E.2d at 317. This is so because of the great disparity in
medical knowledge between "doctor and patient." Id.
Despite that disparity, it is common knowledge that the presence
of a lump in a woman’s breast presents the possibility of
the presence of a malignant tumor. This is particularly the case
where there is also a family history of breast cancer. Thus,
under those circumstances, the woman patient seeks to obtain,
through a breast examination, the benefit of the doctor’s
medical knowledge to determine if a malignant tumor is in fact
present in her breast, and, if so, to obtain appropriate
In this context, it is inconsistent with common
knowledge and human experience that such a patient, concerned for
her own safety, would fail to inform her doctor with the fact
that her discovery of a lump in her breast was the very reason
she sought the doctor’s examination of her breast. While
admittedly this might occur in a given case, the evidence in the
present case does not establish that such was a proper issue for
the jury to determine. Rather, here there was no more than a
scintilla of evidence that Gravitt failed to inform Dr. Ward of
her discovery of a lump in her left breast. That evidence flows
only from the evidence that Dr. Ward did not note in her chart
that she had discovered a lump. That evidence further pales to no
more than a scintilla in light of Dr. Ward’s positive
diagnosis of non-cancerous "fibrocystic changes" in
Gravitt’s left breast that he communicated to her.
For these reasons, we hold that there was not
sufficient evidence from which the jury could reasonably find
that Gravitt was contributorily negligent. Therefore, it was
error for the trial court to give the contributory negligence
instruction. Because the issue of primary negligence was
principally a classic "battle of the experts," we
cannot say that the erroneous instruction on contributory
negligence did not affect the jury’s determination of
liability. See Clohessy v. Weiler, 250 Va. 249,
254, 462 S.E.2d 94, 97 (1995). We must presume the jury relied on
the erroneous in reaching its verdict. Id.
Accordingly, we will reverse the judgment in
favor of Dr. Ward and Fuller-Roberts and remand the case for a
Reversed and remanded.
*In addition, the trial court
granted Instruction 16 which provided, in pertinent part, that
the jury should find its verdict for the defendants if it found
"by the greater weight of the evidence that the plaintiff
was contributorily negligent on October 18, 1993, and that her
contributory negligence was a proximate cause of her