Defense Digest

THE JURY CAN ONLY FOLLOW THE INSTRUCTIONS IT'S GIVEN: AN ANALYSIS OF VALLONE V. CREECH (2003 PA SUPER. 111)

By Laurianne Falcone, Esq.*

In a recent opinion, the Pennsylvania Superior Court affirmed the trial judge's decision to grant the plaintiff's post-trial motions seeking a new trial in a medical malpractice case involving an alleged failure to diagnose and treat the plaintiff, Mrs. Vallone, for recurrent cancer for 14 to 15 months.

The jury rendered a verdict for the defendant, Richard H. Creech, M.D., where Dr. Creech himself admitted that he believed recurrence of cancer in Mrs. Vallone was a 20 percent possibility. The trial judge charged the jury and included an instruction on the mere error in judgment doctrine, which states that a physician cannot be held liable for a mere error in judgment in his or her treatment of a patient.

Mrs. Vallone first saw Dr. Creech in March, 1991, after a biopsy indicated the presence of an infiltrative lobular carcinoma in her right breast. Soon after, Mrs. Vallone underwent a lumpectomy and remained in Dr. Creech's care until December, 1993, when she sought treatment elsewhere for insurance reasons.

Mrs. Vallone noticed significant changes in her breast in August, 1996, at which time she made an appointment to see Dr. Creech in October. During that appointment, Mrs. Vallone told Dr. Creech about the changes in her breast, that it had begun to hurt, and that she was concerned about a recurrence of cancer.

Dr. Creech ordered a bone scan, blood work, and a mammogram. Mrs. Vallone returned to Dr. Creech one week later, reiterating her concerns about the changes in her breast. Dr. Creech told Mrs. Vallone that the changes were the result of the radiation therapy she underwent after her lumpectomy. She was instructed to see Dr. Creech again in three months. No biopsy was ordered.

Mrs. Vallone visited Dr. Creech on December 2, 1997, with a red rash on her right breast. Dr. Creech diagnosed Mrs. Vallone with a recurrence of cancer, which was confirmed by biopsy the following week. Mrs. Vallone's breasts were later removed, and she underwent extensive chemotherapy treatment.

At trial, the plaintiffs' experts testified that the 14- to 15-month delay caused by Dr. Creech's failure to order a biopsy resulted in Mrs. Vallone's chances for survival plummeting from 90 percent to zero. Surprisingly, Dr. Creech testified that he believed in October, 1996, that there was a 20 percent chance that Mrs. Vallone's cancer had recurred. Despite this, he did nothing to confirm his suspicion until 14 months later.

After a four-day trial, the jury rendered a verdict for the defendant. The plaintiff filed post-trial motions claiming that the trial judge charged the jury in error. Specifically, the plaintiff alleged that the trial judge erred when he included an instruction regarding the mere error in judgment doctrine.

The court granted the plaintiffs' request for a new trial pursuant to their post-trial motions. The court agreed that, given Dr. Creech's admission of his 20 percent belief in a recurrence of cancer in October, 1996, the jury's verdict in his favor shocked the court's conscience. Thus, a new trial was warranted. The Superior Court affirmed the trial court's decision because the mere error in judgment instruction given to the jury was not supported by the evidence. Dr. Creech's failure to order a biopsy in light of his suspicions did not constitute a mere error in judgment.

The Vallone decision simply reiterates the court's notion that, while the trial court should be given the utmost discretion concerning the jury charge, clear errors in the charge are grounds for a new trial. In the case at hand, the defendant physician's admission mandated the removal of the mere error in judgment instruction from the jury charge and the granting of a new trial.

* Laurianne is an associate in the Philadelphia, PA office, and may be contacted at (215) 575-2715 or at lfalcone@mdwcg.com.