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Hernandez v. Schittek

June 24, 1999


Appeal from the Circuit Court of Jefferson County. No. 93-L-90 Honorable James M. Wexstten, Judge, presiding.

Justices: Honorable Clyde L. Kuehn, J. Honorable Philip J. Rarick, P.j. Honorable Terrence J. Hopkins, J. Concur

The opinion of the court was delivered by: Justice Kuehn

JUSTICE KUEHN delivered the opinion of the court:

Following a jury verdict in favor of Anton Schittek, M.D., in this medical malpractice case, and the trial court's denial of her posttrial motion, Irene Hernandez appeals. We reverse and remand.

This case began when Hernandez's primary care physician, Dr. Evelyn Yu, found a lump in her left breast. Dr. Yu ordered a mammogram, which confirmed the presence of the lump and fixed its location in the upper, outer quadrant of the breast. The radiology report indicated that the lump was highly suspicious, requiring "excisional biopsy." Dr. Yu then referred Hernandez to a general surgeon, Dr. Schittek.

Dr. Schittek examined Hernandez's breast and reviewed the mammogram films. Based upon his examination and records review, Dr. Schittek recommended that Hernandez undergo a frozen section biopsy of the lump. In a frozen section biopsy, a portion of the lump is removed. While the patient remains anesthetized, a pathologist microscopically examines the frozen tissue sample. In Hernandez's case, if the pathologist found the presence of cancer within the frozen tissue sample, Dr. Schittek recommended the removal of the upper, outer quarter of the left breast-a procedure known as a quadrantectomy, as well as the removal of certain lymph nodes. If the pathologist did not detect cancer in the frozen tissue sample, then Dr. Schittek only planned to excise the lump. At trial, Dr. Schittek confirmed that there had not been any Discussion about what would occur in the event that the frozen section report was inconclusive.

Surgery was scheduled for February 8, 1993. On that date, Hernandez signed a standard consent form for Dr. Schittek's proposed surgical procedures. The form was filled out and witnessed by a registered nurse based upon Dr. Schittek's admission orders. The language of the consent form follows:

"I, the undersigned, authorize Dr. Schittek *** to perform the following operation[--]Left Breast Biopsy, Possible Quadrantectomy and axillary node dissection[--]on Sylvia Hernandez and such additional operations as are considered therapeutically necessary on the basis of findings during the course of said operation."

Hernandez believed that the quadrantectomy would only be performed in the event of cancer.

During surgery, Dr. Schittek made the initial incision and located the lump. The lump was smaller than it appeared on the mammogram. Dr. Schittek removed three lump fragments, which were immediately sent to the pathologist, Dr. Victor Aydt, for frozen section microscopic examination. Dr. Schittek closed the wound with sutures. Dr. Aydt was unable to form any conclusive opinions with the samples provided. He indicated that additional lump tissue could be beneficial in reaching a diagnosis. Dr. Aydt did suspect that the lump was malignant. Dr. Aydt then deferred his diagnosis until a permanent section of biopsied tissue could be performed, as the diagnostic quality improves with a permanent section.

Whether or not Dr. Schittek personally brought Dr. Aydt another small sample with which Dr. Aydt was still unable to make a definitive diagnosis is in dispute. Dr. Schittek testified that he left the operation and went to the laboratory with another sample for Dr. Aydt to analyze. This second sample is not detailed in Dr. Schittek's operative report, dictated on the date of the operation. Furthermore, Dr. Aydt did not testify to a personal visit from Dr. Schittek. What is known is that Dr. Aydt felt that an additional tissue sample could help him in reaching a preliminary diagnosis.

After informing Hernandez's sister that the pathologist could not reach a definitive Conclusion with the sample obtained, Dr. Schittek returned to surgery and performed the quadrantectomy. He elongated or continued the previous incision and actually encompassed the first incision, removing approximately one-third of Hernandez's breast. Dr. Schittek testified that he took so much tissue in an effort to avoid the possibility of repeat surgery in the event of a proven malignancy. He did not remove any lymph nodes, as had been his plan in the case of a malignancy. This tissue was submitted to Dr. Aydt for additional testing. Dr. Aydt was surprised with the size of this sample. Dr. Schittek requested additional frozen section examinations, which Dr. Aydt performed. He reported fibrous, cystic, and inflammatory changes pending permanent sections. Again, Dr. Aydt did not want to conclusively rule a malignancy in or out on the basis of the samples examined. Some tissue was preserved and sent to a laboratory for further testing.

After surgery, Dr. Schittek spoke with Hernandez's family. Hernandez's sister reports that Dr. Schittek advised that the tissue samples were inconclusive and that he knew that the lump was cancerous and that the testing would bear his feelings out. He also apologized to the family, stating that they might be mad at him as he opted to perform the quadrantectomy.

Following Hernandez's discharge from the hospital, the laboratory performed the permanent section analysis recommended by Dr. Aydt. The laboratory report, dated February 11, 1993, verified that the mass was benign and specifically stated: "radial scar, florid ductal hyperplasia without atypia and sclerosing adenosis." Dr. Aydt testified that under a ...

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