Kaplun v. Brenner, Unpublished Decision (3-3-2000) ( 2000 )

I write separately only to repudiate implied criticism ofDelong v. Greene County Memorial Hosp. (February 2, 1994), Montgomery App. No. 14161, unreported. Although I did not participate in that case, I believe that it was correctly decided. Perhaps the opinion ought to have explicitly addressed the issue of constructive knowledge of the cognizable event. Had it done so, however, I conclude that there was a genuine issue of material fact whether the plaintiff in that case should have recognized the existence of the cognizable event when she was diagnosed with breast cancer.

Nevertheless, the facts in that case are distinguishable. In the case before us, Brenner, the doctor alleged to have committed malpractice by failing to diagnose breast cancer was still failing to diagnose breast cancer less than a month before the correct diagnosis was made. That should, and apparently did, trigger a concern on Kaplun's part that Brenner's failure to diagnose breast cancer may have fallen below professional standards of medical care. The plaintiff in Delong, supra, had her diagnosis of breast cancer over twenty months after having had a mammogram resulting in a clean bill of health. Furthermore, Kaplun, unlike the plaintiff in Delong, had been told by her physician that she had a lump in her breast, and was told that, even though no diagnosis of cancer had been made, she should consult a surgeon about the lump. This, combined with the diagnosis of cancer resulting from her consultation with the surgeon, should have alerted Kaplun to the possibility that Brenner and Thomas were at fault for having failed to make a diagnosis of breast cancer earlier. In Delong, the patient testified that she assumed, until a later event, that she had not had cancer at the time of her examination by the defendant physician, but that cancer had developed in her breast at some time during the twenty months that followed. Under the facts of Delong, this was a perfectly reasonable assumption.

Although I reject its implicit criticism of Delong, supra, I concur with the reasoning expressed in the opinion of this court in the case before us in all other respects.

Copies mailed to:

Charles D. Lowe

Jeffrey W. Snead

Patrick K. Adkinson

Stephen P. O'Keefe

Hon. Dennis J. Langer