Hutchinson v. Groskin, M.D.

927 F.2d 722 (2nd Cir. 1991)

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Nature of the Case

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Facts

On April 2, 1985, P visited D, her primary care physician, to inquire about a mole on her abdomen that was undergoing changes. Defendant examined the mole and instructed P to watch the mole and to return to his office if the mole increased in size. In November, P visited again and told him that the mole had increased in size and that when she nicked her thumbnail on it, it would bleed. D did a punch biopsy of it to obtain a specimen for pathologic analysis. He then cauterized the mole. Two weeks later, P called to learn the results. D, who had had a telephone conversation with the pathologist but had not received the written pathology report, told P that 'there was a ninety-five percent chance that things looked okay.' Shortly thereafter, D received the pathology report, which indicated that P had superficial spreading melanoma. D did not inform P about the written report. In January 1986, P sought a second opinion and D had had cancer. A wide excision of the area where the mole had been was performed. In September 1987, P's cancer had spread to one of her right inguinal (groin) lymph nodes. P underwent surgery for the removal of all nodes in the region. She was hospitalized for a week. For one month following surgery, P had a device inserted in her leg to drain excess lymphatic fluids. Since its removal, she has worn a heavy elastic, full-length, support stocking and has had continual pain and swelling in her right leg and foot. In March 1988, P sued D for negligence in not performing a biopsy at her first visit, in April, and later in failing to inform her that she had malignant melanoma. P claims that when the biopsy indicated that she had cancer, d should have made a wide excision of the area. P claimed that D's negligence resulted in the cancer's spread to her lymph node and an increased risk of recurrence and death. During trial D had its expert, Dr. Bronson looked at three opinion letters of three other doctors who were not disclosed as experts. Only one had examined P. D asked Dr. Bronson if their opinions agreed with his and he was allowed to answer over P’s objection. D got the verdict and appealed in part on the summarized testimony of Dr. Bronson in that the opinions in the letters were hearsay.