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Hutchinson v. Ingham County Health Department

Court of Appeals of Michigan

May 9, 2019

ZANETTA HUTCHINSON, Plaintiff-Appellant,

          Ingham Circuit Court LC No. 16-000453-NH

          Before: Boonstra, P.J., and Meter and Fort Hood, JJ.

          FORT HOOD, J.

         In this medical malpractice case, plaintiff Zanetta Hutchinson appeals by delayed leave granted[1] the trial court's order granting summary disposition in favor of defendants Ingham County Health Department, Carol Salisbury, N.P., and Peter Gulick, D.O., pursuant to MCR 2.116(C)(7). For the reasons set forth in this opinion, we reverse and remand for proceedings consistent with this opinion.


         In her first amended complaint, plaintiff, a 43-year-old single mother of a young child, unemployed and receiving Social Security disability benefits, alleged that she was a patient of the Ingham County Health Department and was treated by Salisbury, a nurse practitioner, and Dr. Gulick, a physician specializing in internal medicine.[2] Plaintiff further alleged that when she informed Salisbury that she had a lump in her left breast in the late summer of 2013, Salisbury, supervised by Gulick, ordered a mammogram for plaintiff, and a mammogram was performed on September 4, 2013. Plaintiff's first amended complaint alleged that she underwent a "MAMMO SCREEN DIGITAL W CAD PANEL BILAT" at Sparrow Health System, and that the radiologist, Alfredo P. La Fe M.D., stated with regard to the results:

The tissue of both breasts is heterogeneously dense. This may lower the sensitivity of mammography. . . . There is a benign appearing calcification in the right breast. There are also benign appearing calcifications in the left breast. No significant masses, calcifications or other finding [sic] are seen in either breast.

         According to the first amended complaint, Dr. Gulick reviewed and "electronically signed" the mammogram results on September 5, 2013. Plaintiff alleged that Dr. Gulick was negligent in not providing appropriate care and treatment to plaintiff by not monitoring and managing her treatment properly when she complained of a lump in her breast, and by not ordering a diagnostic mammogram for plaintiff as opposed to a screening mammogram. Specifically, plaintiff alleged, among other things, that Dr. Gulick ought to have ordered a biopsy performed on plaintiff once her mammogram showed "suspicious calcifications in her left breast" and that Dr. Gulick was negligent in his supervision of Salisbury. Plaintiff made similar allegations against Salisbury, and alleged that Salisbury failed to ensure that "[plaintiff's] physician [was] properly informed of [her] breast complaints and mammogram results[.]"[3] After plaintiff moved to Arkansas in 2014, she sought medical care at the University of Arkansas for Medical Sciences (UAMS). On June 1, 2015, a mammogram of plaintiff's left breast was performed, and following a June 9, 2015 biopsy, plaintiff was diagnosed with breast cancer on June 15, 2015. The parties do not dispute that plaintiff mailed her notice of intent in this case on December 4, 2015. MCL 600.2912b(1), (2).

         In her deposition in this case, plaintiff recalled that in August of 2013, she attended an appointment with Salisbury, and Salisbury ordered a mammogram for plaintiff after feeling a knot in plaintiff's left breast. According to plaintiff, the knot she described "was never tender, . . . it never hurt; it was just growing." While plaintiff would do her own monthly breast exams, it was her partner at the time that discovered the knot in her left breast. In plaintiff's words, her partner observed "a small-like pea shaped knot in [her] left breast." Plaintiff described that during her initial visit with Salisbury[4] concerning the lump in her left breast, "[Salisbury] had me lay back, and she did the breast exam and she felt the lump." After Salisbury felt the lump, plaintiff recalled that "[Salisbury] said that we would do a mammogram." Plaintiff denied that she felt any pain or tenderness when Salisbury was examining the lump. Plaintiff further described the ensuing events as follows:

So I went to [Sparrow Hospital] and I did the mammogram as scheduled and waited on the results to come back. So at my next checkup appointment, [Salisbury] told me that it was calcifications from me delivering my son late at 40. And they don't prescribe dry up breast milk pills anymore, so that's what she told me at 40. So I took her word as what it was. I know no different. I'm not a doctor.

         According to plaintiff, she had her mammogram on September 4, 2013. At the time that she had her mammogram, plaintiff was not experiencing pain, tenderness or discharge from her left breast. Plaintiff did not discuss her mammogram results with Dr. Gulick because he was not "the doctor that actually [was assigned] to be [administrator]; [Salisbury] was." According to the records of the Ingham County Health Department, plaintiff did not return to see Salisbury following her mammogram until November of 2013, but plaintiff could not independently recall the date of her follow-up appointment with Salisbury. However, plaintiff was adamant during her deposition testimony that Salisbury informed her that the lump in her breast "was just calcifications." Plaintiff testified that she was eager to follow up with Salisbury following her mammogram because "I wanted to know what the results were for the lump because the lump was still in my breast growing; it was getting bigger, and I wanted to know what it was."

         Following her September 4, 2013 mammogram, plaintiff continued to conduct her own self-examinations of her left breast, and the following colloquy took place between plaintiff and defense counsel on this subject:

Q. And you continued to do monthly self-exams?
A. Right. I continued to feel the knot every day.
Q. So at this point, you weren't doing it monthly, you're doing it daily?
A. Yeah. I am, like, touching that spot every day.
Q. And it was actually getting bigger?
A. Yeah.
Q. So between September, when you had the mammogram, and November, which would've been the next time that you actually saw NP Salisbury, every day you noticed this lump and you noticed it was actually getting bigger?
A. Well, right. When I did see [Salisbury] again, the knot had gotten bigger. And she felt it, and she said, "Yes. But it does seem to be bigger, but it's still - I just think it's calcifications because you had a baby at 40, and they don't give breastmilk pills anymore." So you know? What can I say? I'm not a doctor. I had to take her word for it.

         While plaintiff could not recall the exact specifics of her conversation with Salisbury during the appointment in which they discussed the results of her September 4, 2013 mammogram, she was very clear that Salisbury told her that the lump in her left breast was "calcifications." Plaintiff also recalled that Salisbury told her that her breast tissue was dense, that the lump was benign, and that made it difficult for "them to actually view what exactly [the lump] was." Plaintiff did not have any follow-up treatment with regard to the lump. Plaintiff denied that Salisbury informed her that she should return for a repeat mammogram in a year. In plaintiff's words, "[t]hey ruled it as calcifications, and they left it at that. And the lump continued to grow, and I continued to show her. They never did nothing else other than what they had did [sic]."

         Plaintiff saw Salisbury three more times before she moved to Arkansas on an unspecified date in 2014. Each time, plaintiff told Salisbury that the lump was getting bigger, and Salisbury would feel the lump but "[Salisbury] did nothing." According to plaintiff, Salisbury acknowledged during their appointments that the lump did appear to be growing. Plaintiff did not do any independent research on the subject of calcifications, she did not talk to anyone else about the lump in her breast and she did not consult with any other doctors about the issue. While the lump continued to grow, plaintiff did not experience any tenderness, pain or discharge. Plaintiff saw Dr. Gulick on February 14, 2014, for a reason unrelated to the lump in her breast but they did not discuss the lump in her breast or her mammogram results.

         After plaintiff moved to Little Rock, Arkansas, she began to treat with Dr. Moses[5] and during her first appointment on May 1, 2015, plaintiff told Dr. Moses about the lump in her breast and Dr. Moses ordered a mammogram. Plaintiff described the first appointment with Dr. Moses as follows:

Well, [Dr. Moses] did the breast exam, and she noticed the mass; and that is what she called it. And she said that she was unsure and got a little worried about that. And it was pretty big, and she wanted to get it checked out. So she referred me for a mammogram, and they took it from there.

         According to the record, plaintiff's last appointment with Salisbury was in June of 2014, and she did not consult with any other doctors before seeing Dr. Moses on May 1, 2015. Defense counsel continued to question plaintiff as follows regarding her initial visit with Dr. Moses in Little Rock:

Q. And did [Dr. Moses] tell you what she was worried about?
A. Not exactly. Just that the mass was - how big the mass was. She wanted to see what it was because it was kind of huge for my little breast. It was a pretty big tumor in there.
Q. Okay. Did she say to you that she was concerned it might be breast cancer?
A. No, she didn't say that. She just said she was concerned and she wanted to see what it was.
Q. Were you concerned that it might be breast cancer?
A. I was concerned that it could've been anything; you know?
Q. Was cancer one of the things you were concerned about?
A. Well, yeah. It don't [sic] run in my family in the girls, but yeah; you know?
Q. Just living in our society that is something you're ...

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