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08/08/94 DONALD P. KRAMER v. LARRY S. MILNER

August 8, 1994

DONALD P. KRAMER, INDEPENDENT EXECUTOR OF THE ESTATE OF LILLIAN KRAMER, DECEASED, AND MILTON KRAMER, PLAINTIFFS-APPELLANTS,
v.
LARRY S. MILNER, M.D., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County, Honorable Thomas E. Flanagan, Judge Presiding.

Released for Publication September 13, 1994.

O'connor, Campbell, Buckley

The opinion of the court was delivered by: O'connor

JUSTICE O'CONNOR delivered the opinion of the court:

Milton Kramer's wife, Lillian Kramer, died of breast cancer on August 13, 1990, at the age of 74. The cancer was detected in October 1988, after a screening mammogram had been recommended by her then doctor, Noel Browdy, M.D. A biopsy performed on October 19, 1988 indicated that Lillian Kramer was suffering from "advanced intraductal and infiltrating ductal adenocarcinoma" in her right breast. Kramer had a mastectomy on November 1, 1988, which was followed by six months of chemotherapy. However, testing in November 1989 indicated that Kramer's cancer had spread to her liver and bones. Her condition deteriorated thereafter until her death.

Plaintiffs Milton Kramer, Lillian's husband, and Donald P. Kramer, the executor of Lillian's estate, brought this action against defendant Larry S. Milner, M.D., alleging that Dr. Milner had been negligent in treating Lillian during the three years prior to the detection of her cancer. Specifically, the Kramers alleged that Dr. Milner violated the standard of care for treating physicians by failing to recommend or order a screening mammogram for Lillian at any time between the date he began treating her as her general physicianon November 1, 1985 and the date she left his care on September 9, 1988. A jury found Dr. Milner not negligent. The Kramers appeal. We reverse and remand for a new trial.

On appeal, the relevant evidence concerns exclusively the standard of care between November 1985 and September 1988 regarding the detection of breast cancer in women over the age of 50. The Kramers presented the testimony of Lillian's treating physician, Dr. Browdy, who testified to the standard of care for internists in the northern suburbs of Chicago during the time at issue. At that time, internists referred for annual mammograms those patients over the age of 50, who had a sister diagnosed with breast cancer. Lillian Kramer had a sister who had had breast cancer and who was also treated by Dr. Milner. Lillian was just shy of 70 when she began seeing Dr. Milner.

Plaintiff also presented the expert testimony of Dr. William D. Shorey, a general surgeon. Dr. Shorey testified that between 1985 and 1988, the time period during which Dr. Milner treated Lillian, the standard of care required that an annual mammogram be ordered for all women over 50 whose mother or sister had had breast cancer. Dr. Shorey based his opinion regarding the standard of care on publications from the American College of Radiology, the National Cancer Institute (NCI), the American Medical Association, and the American College of Physicians. Dr. Shorey concluded that Dr. Milner violated the standard of care by not referring Lillian for mammography between 1985 and 1988.

Dr. Shorey conceded that certain recommendations as to care by the American Cancer Society (ACS) and the NCI were only guidelines, rather than requirements. Nonetheless, he testified that a doctor, such as Dr. Milner, who did not follow these guidelines, violated the standard of care. Had Lillian's cancer been detected at a much earlier stage, she would have had an 80% chance of survival.

Dr. Shorey testified that he concluded from the ACS survey that his opinion represented the standard of care because the ACS survey showed that between 1985 and 1988, 80% to 90% of doctors followed the recommendations of the ACS. He stated that when a woman, like Lillian, had no personal history of breast cancer, 97% of doctors performed manual breast examinations. Only 49% of doctors ordered a mammogram in such cases. Dr. Shorey testified that in 1984, the ACS recommendations showed that only 9% of all women were ordered to have a mammogram, and by 1989, this figure had risen to 37%. These figures were not broken down according to age group.

Defendant presented the expert testimony of Harvey Morris Golomb, M.D., a specialist in hematology, who was familiar with theACS guidelines for screening mammography in women over age 50. He testified that the ACS guidelines, as well as recommendations made by other medical organizations, were only "signposts" to assist an internist in practice and were "clearly not standards of practice." Specifically, he asserted that the ACS guidelines in existence on November 1, 1985 recommending screening mammography for women over 50 years old did not establish the standard of care for a specialist in internal medicine in 1985. He stated likewise for NCI recommendations. Golomb further stated that since the time screening mammography had first been recommended by the ACS in 1976, the various medical associations had not been able to establish a uniform guideline for practitioners.

Dr. Golomb testified that Dr. Milner did not violate the standard of care in treating Lillian. Dr. Milner performed clinical breast examinations on Lillian four times in three years. Furthermore, Lillian had never registered a complaint about her breasts during any of her visits to Dr. Milner. Dr. Golomb noted that Lillian was asymptomatic when she first visited Dr. Milner on November 1, 1985 and remained so throughout her three years visiting him. Indeed, when Lillian presented herself to Dr. Browdy, she was still asymptomatic. Thus, had she been given a mammogram in her early treatment with Dr. Milner, the cancer may not have been detectable. Dr. Golomb concluded that Lillian's was an aggressive cancer and that it would not have been diagnosable early enough to affect treatment.

Dr. Golomb said that the fact that Lillian's sister had breast cancer was not relevant given Lillian's age. As women increase in age, and certainly when a woman is over 70, family history shrinks in importance and age becomes the primary indicator for treatment. Plaintiff's expert, Dr. Shorey, agreed with this assessment.

Dr. Milner testified that he considered his treatment of Lillian to be within the standard of care. He generally orders screening mammography on all women over 40, and for women over 50, orders them every one to three years. However, if an asymptomatic 70 year-old woman comes to Dr. Milner with no prior history of cancer and does not register complaints about her breasts and does not request a mammogram, he would not order one. However, he said ...


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