Prichard v. Kurucz ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PATRICIA ANN PRICHARD; RONALD F. 
PRICHARD,
Plaintiffs-Appellees,
v.  No. 01-1328
JANE A. KURUCZ, M.D.,
INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CA-98-54-3)
Argued: September 25, 2001
Decided: November 6, 2001
Before WILKINSON, Chief Judge, and WILKINS and
TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: C. Benjamin Salango, FLAHERTY, SENSABAUGH &
BONASSO, P.L.L.C., Charleston, West Virginia, for Appellant.
David L. White, MASTERS & TAYLOR, Charleston, West Virginia,
for Appellees. ON BRIEF: Amy Martin Herrenkohl, HER-
RENKOHL LAW OFFICE, Barboursville, West Virginia, for Appel-
lees.
2 PRICHARD v. JANE A. KURUCZ, M.D., INC.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jane A. Kurucz, M.D., Inc. appeals the denial of several post-trial
motions seeking to overturn a malpractice verdict in favor of her for-
mer patient, Patricia Ann Prichard, and Patricia’s husband, Ronald F.
Prichard. Finding no error, we affirm.1
I.
In 1996, a mammogram of Patricia Prichard’s left breast ("First
Mammogram") showed a suspicious cluster of calcium deposits
known as microcalcifications. Because such clusters may indicate
cancer, Prichard’s doctor recommended a biopsy for diagnostic pur-
poses. Prichard was ultimately referred to Kurucz, a surgeon, who
performed a stereotactic biopsy, a procedure involving the use of a
computer-guided needle to remove a tissue sample for analysis by a
pathologist. When the pathologist found cancer in the samples
removed by Kurucz, Prichard opted to have a lumpectomy.2 There is
essentially no dispute that Kurucz’s actions up to this point satisfied
the applicable standard of care.
Kurucz operated on Prichard on April 26, 1996 ("First Lumpec-
tomy"). Because neither the microcalcifications detected in Prichard’s
1
The Prichards’ cross-appeal, contending that West Virginia’s cap on
non-economic damages is unconstitutional, was dismissed by agreement
of the parties.
2
We use the term "lumpectomy" to refer to any operation involving the
excision of a limited amount of breast material (in contrast to a mastec-
tomy, which involves the removal of an entire breast). According to the
evidence at trial, this is the common understanding of the term "lumpec-
tomy," although some physicians define the term more narrowly or do
not use the term at all.
PRICHARD v. JANE A. KURUCZ, M.D., INC. 3
breast nor the cancer itself could be observed by sight or touch,
Kurucz needed some guide in order to find the affected tissue. The
Prichards allege in this suit that the guides employed by Kurucz were
deficient in two respects.
First, the Prichards allege that Kurucz used an inadequate method
of locating the microcalcifications during the surgery. Kurucz fol-
lowed the needle track left by the biopsy; she testified that the area
where she had inserted the stereotactic needle "looked and felt differ-
ent from the surrounding breast tissue," J.A. 995, as the result of a
phenomenon called "induration." According to the Prichards, how-
ever, the standard of care requires the use of a hookwire. This device,
which consists of a fine wire with a small hook at the end, is inserted
shortly before surgery by a radiologist, who uses mammography to
confirm that the device is in the proper location. The hook ensures
that the device remains in place until removed by the surgeon.
Second, the Prichards allege that Kurucz was negligent after the
surgery in relying on a pathologist’s analysis of a portion of the
excised tissue. The pathologist found no cancerous cells in the areas
he examined. The Prichards assert that Kurucz should have supple-
mented this analysis with a specimen radiograph, an X-ray of the
entire sample that would have shown whether the "lump" removed
during surgery contained the targeted microcalcifications. The Prich-
ards further allege that Kurucz misinterpreted the pathologist’s find-
ing that the excised tissue contained no cancer; Kurucz construed this
finding to indicate that all the cancerous growths were removed dur-
ing the biopsy (before the First Lumpectomy was performed), but the
Prichards contend that the negative finding demonstrated that Kurucz
missed the affected tissue during the lumpectomy.
The parties agree that, whether or not Kurucz’s practices met the
standard of care, Prichard should have undergone radiation treatment
following the First Lumpectomy. She did not do so. Prichard and
Kurucz offered conflicting testimony about whether Kurucz clearly
explained the need for such treatment.
Within the next year, Prichard had another suspicious mammogram
("Second Mammogram") and another lumpectomy ("Second Lumpec-
tomy"). The surgeon who performed the Second Lumpectomy deter-
4 PRICHARD v. JANE A. KURUCZ, M.D., INC.
mined that the cancer was sufficiently advanced that Prichard needed
to have her entire left breast removed. At trial, the Prichards’ experts
opined that the cancer observed in the Second Mammogram and dur-
ing the Second Lumpectomy was the same cancer that was targeted,
but not removed, during the First Lumpectomy. In contrast, Kurucz’s
expert witnesses testified that Kurucz properly removed all the micro-
calcifications that were evident at the time of the First Mammogram
but that new cancer then developed in the same area, in part due to
Patricia Prichard’s failure to undergo radiation following the First
Lumpectomy.
The Prichards filed a negligence suit against Kurucz in 1998.
Kurucz denied any negligence and also asserted that Prichard was
comparatively negligent in refusing to undergo radiation. The case
was tried twice; the first trial ended in a hung jury, but the second
resulted in a verdict in the Prichards’ favor on all questions.
II.
Kurucz contends that the district court erred in denying her motion
for a new trial, which alleged, inter alia, that (a) the Prichards’ attor-
neys engaged in extensive misconduct, (b) the comparative negli-
gence verdict was against the weight of the evidence, and (c) the court
erroneously admitted a radiologist’s opinion regarding the standard of
care for surgeons. Kurucz further asserts that she was entitled to judg-
ment as a matter of law on the question of whether the failure to use
a hookwire during the First Lumpectomy breached the standard of
care. Finally, Kurucz claims that the cumulative effect of these errors
resulted in sufficient prejudice to necessitate a new trial. We review
the denial of Kurucz’s new trial motion for abuse of discretion, and
we review de novo the denial of judgment as a matter of law. See
Rhoads v. FDIC, 257 F.3d 373, 381 (4th Cir. 2001).
A.
We first address Kurucz’s allegations of misconduct by the Prich-
ards’ attorneys. A new trial is required on the basis of attorney mis-
conduct only when a miscarriage of justice would otherwise result.
See Gearin v. Wal-Mart Stores, Inc., 53 F.3d 216, 219 (8th Cir. 1995)
(per curiam). Moreover, in reviewing a claim of this nature, we are
PRICHARD v. JANE A. KURUCZ, M.D., INC. 5
mindful that the district court is in the best position to assess the prej-
udice caused by counsel’s misconduct. See id. We conclude that the
determinations made by the district court here were not erroneous.
Kurucz’s primary allegation of misconduct relates to the Prichards’
attorneys’ repeated references to Kurucz’s failure to communicate
with Patricia Prichard’s gynecologist. At both trials, the district court
refused to admit evidence that Kurucz breached the standard of care
through inadequate communication with other doctors. Nevertheless,
at the second trial (from which this appeal was taken), the Prichards’
attorneys made several references to this issue. For example, counsel
asked one of the Prichards’ experts about record-keeping by doctors,
and then asked a question about whom certain information would be
shared with. In an ensuing bench conference, the district court
reminded counsel:
I’m not going to let you elicit testimony saying there’s a
standard of care for doctors to send records to referring phy-
sicians. And that’s certainly the implication, if not the sole
purpose, of asking him these questions.
J.A. 1186.
We do not agree with Kurucz that these incidents warrant a new
trial. Twice during the trial, and again in closing instructions, the dis-
trict court advised the jury that the extent of Kurucz’s communication
with other doctors was not at issue and could not form the basis for
a verdict in favor of the Prichards. Jurors are ordinarily presumed to
obey curative instructions. See Nichols v. Ashland Hosp. Corp., 251
F.3d 496, 501 (4th Cir. 2001). Furthermore, the court expressly found
that these instructions sufficed to protect Kurucz against prejudice
from counsel’s improper comments. We defer to this assessment
because the district court is in the best position to gauge the effects
of an attorney’s improper remarks and of its own remedial efforts. See
id.; City of Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749, 756
(6th Cir. 1980).
We reach a similar conclusion regarding Kurucz’s other allegations
of misconduct. According to Kurucz, the Prichards’ attorneys improp-
erly commented on Kurucz’s failure to bring in a pathologist as an
6 PRICHARD v. JANE A. KURUCZ, M.D., INC.
expert witness, discussed a witness’ testimony with the witness during
an overnight recess, advanced a theory of recovery based on lack of
informed consent, and elicited an opinion on the standard of care from
a witness not offered for that purpose. Having considered the record,
the briefs, and the applicable law, and having had the benefit of oral
argument, we see no reason to overturn the rulings of the district court
on these issues.
B.
We next consider Kurucz’s assertion that the determination of the
jury regarding comparative negligence was against the clear weight
of the evidence. Having failed to satisfy the jury with her evidence on
this issue, and having then failed to persuade the district court to over-
turn the verdict, Kurucz now faces the substantial burden of convinc-
ing us to forgo our usual deference to both the jury and the district
court. See Conner v. Schrader Bridgeport Int’l, Inc., 227 F.3d 179,
200-01 (4th Cir. 2000) (noting that grant or denial of new trial based
on weight of evidence is reviewed for abuse of discretion but that
even district court should not infringe on prerogative of jury to
resolve credibility issues).
Kurucz has not carried this burden. Kurucz asserted in the district
court that Patricia Prichard was negligent in failing to undergo radia-
tion treatment after the First Lumpectomy. As Kurucz correctly notes,
her records contain ample evidence that Prichard was given informa-
tion about the advisability of radiation treatment. There was also evi-
dence, however, that Kurucz told both Prichard and her daughter that
the surgery was so successful that no further treatment would be
required. As we have no basis for discrediting that testimony, we
uphold the determination by the district court that the verdict regard-
ing comparative negligence was not against the clear weight of the
evidence.
C.
Kurucz next faults the district court for denying a new trial based
on the admission of testimony by a radiologist, Dr. Tearle L. Meyer,
regarding the standard of care for surgical removal of non-palpable
calcifications. Meyer testified that Kurucz violated the standard of
PRICHARD v. JANE A. KURUCZ, M.D., INC. 7
care by failing to use a hookwire in the First Lumpectomy and by fail-
ing to obtain a specimen radiograph following the operation.
Although Meyer stated at his deposition that he did not consider him-
self an expert in surgery, this self-assessment was not binding on the
court. Moreover, our review of Meyer’s testimony persuades us that
the district court did not abuse its discretion in concluding that Meyer
was sufficiently familiar with the relevant practices of surgeons to tes-
tify about the standard of care for lumpectomies. See Friendship
Heights Assocs. v. Vlastimil Koubek, A.I.A., 785 F.2d 1154, 1159-60
(4th Cir. 1986) (stating that proffered expert was qualified based on
education and knowledge, notwithstanding her lack of relevant expe-
rience); see also Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 200
(4th Cir. 2001) (noting the broad leeway enjoyed by district courts in
evaluating the qualifications of experts).
D.
Kurucz asserts that she was entitled to judgment as a matter of law
on the question of whether she violated the standard of care by failing
to use a hookwire during the First Lumpectomy. Kurucz contends that
Meyer’s testimony on this issue (which we have just held was admis-
sible) does not preclude the entry of judgment in her favor because
Meyer’s position was contradicted by Dr. Phillip Breen, another
expert presented by the Prichards. The district court found that
Meyer’s and Breen’s opinions were not sufficiently inconsistent to
compel judgment as a matter of law against the Prichards. We affirm
on a different rationale.
Kurucz’s argument is premised on the segregation of the larger
issue of Kurucz’s negligence into narrow questions regarding particu-
lar methods: First, would a reasonable surgeon performing a lumpec-
tomy use a hookwire to locate targeted microcalcifications? Second,
would a reasonable surgeon request specimen radiography to deter-
mine whether the tissue excised in a lumpectomy contained the tar-
geted microcalcifications? We do not share this view of the case. At
the heart of this case was an allegation that Kurucz was negligent by
failing to use any method, including a hookwire or a specimen radio-
graph, to ensure that the microcalcifications observed in the First
Mammogram were no longer present following the First Lumpec-
tomy. Consistent with this theory of the case, the verdict form used
8 PRICHARD v. JANE A. KURUCZ, M.D., INC.
by the jury posed a single question relating to Kurucz’s duty to adhere
to the standard of care:
Do you find by a preponderance of the evidence that Jane
A. Kurucz, M.D. violated the applicable standard of care for
a general surgeon in the same or similar circumstances in
the manner in which she performed surgery on Patricia
Prichard on April 26, 1996?
J.A. 1587. Because the hookwire issue was not severable from the rest
of the case, Kurucz was not entitled to judgment as a matter of law
on this issue.3
E.
Finally, Kurucz invokes the doctrine of "cumulative error," under
which reversal may be required due to the aggregate effect of errors
that, taken individually, would be deemed harmless. Having found no
error by the district court, we must reject this argument. See SEC v.
Infinity Group Co., 212 F.3d 180, 196 (3d Cir. 2000), cert. denied,
121 S. Ct. 1228 (2001). Moreover, to the extent that this claim is
predicated on the misconduct of the Prichards’ attorneys rather than
the rulings of the district court, we again find no basis for reversal,
as the district court adequately examined the cumulative impact of
counsel’s improper acts.
III.
For the foregoing reasons, the judgment of the district court is
affirmed.
AFFIRMED
3
In light of this decision, we do not decide whether there are any cir-
cumstances in which a defendant would be entitled to judgment as a mat-
ter of law based on conflicting testimony by the plaintiff’s experts.