I.       INTRODUCTION

          The limited purpose of this memorandum is simply to mention a few of the legal points plaintiff anticipates relying on during the trial of this case in January of 2000. On May 12, 1998 _______________________ filed a lawsuit against ____________________. In essence, Ms. __________'s Complaint alleged that the defendants negligently failed to diagnose her breast cancer during the fall of 1996 which caused her to suffer injuries and damages including metastasization of her breast cancer to her brain, a right modified radical mastectomy, loss of her employment, wage losses and permanent loss of earning capacity, medical bills and expenses, disfigurement, loss of her right breast, physical scaring, physical pain, mental anguish and emotional distress, and substantially shortened life expectancy.

          Ms. __________ died from her breast cancer on June 28, 1998. Thereafter, her daughter, __________, qualified as Administratrix of her mother's estate, and an Amended Complaint was filed by Ms. __________, acting as Administratrix of her mother=s estate, against __________. The Amended Complaint states two separate claims for relief against the defendant. The first claim for relief is brought by Ms. __________'s estate and seeks damages for the personal injuries suffered by Ms. __________ prior to her death. This claim is authorized by North Carolina=s Survival Act, G.S. ' 28A-18-1. When North Carolina enacted its Wrongful Death Statute in 1969, the Survival Statute was not repealed, and it is permissible for the estate to bring two separate claims in the same action. Bowen v. Constructors Equipment Rental Company, 283 N.C. 395, 196 S.E.2d 789 (1973)(copy enclosed). The injuries and damages alleged in the first claim for relief include metastasization of Ms. __________'s breast cancer to her brain, the necessity for her to undergo a right modified radical mastectomy, the loss of her employment, wage losses and permanent loss of earning capacity, medical bills and expenses, disfigurement of her body, loss of her right breast, physical scarring, physical pain, mental anguish and emotional distress, including the knowledge that her life expectancy had been substantially shortened.

          The second claim for relief set forth in the Amended Complaint alleges the cause of action for Ms. __________'s wrongful death, and seeks damages as authorized by the Wrongful Death Act, G.S. ' 28A-18-2.

II.       THE FIRST CLAIM FOR RELIEF - MS. __________'S PERSONAL INJURIES

          The damages sought by plaintiff's first claim for relief are expressly recognized by the landmark case of Morrison v. Stallworth, 73 N.C. App. 196, 326 S.E.2d 387 (N.C. App. 1985)(copy enclosed), which is frequently cited and discussed in national legal publications. Bobbie Morrison was a 45 year-old woman who complained to her obstetrician/gynecologist in March of 1977 of a breast lump. The defendant told her she just had a swollen milk gland and not to worry. Defendant's records showed a negative examination. In October of 1977 Ms. Morrison consulted another doctor who found a suspicious lesion in the breast and biopsy confirmed that the lesion was cancerous. Ms. Morrison underwent a radical mastectomy.

          The plaintiff's complaint alleged that the defendant failed to diagnose plaintiff's condition and that his assurance to the plaintiff not to worry had delayed the eventual detection and treatment of the cancer. This had allowed the cancer to metastasize more than it otherwise would have, caused the plaintiff to undergo surgery, and to suffer a shortened life expectancy. Among other errors committed by the trial court, the court refused to give plaintiff's requested instructions on damages for shortened life expectancy and the associated mental suffering. Plaintiff's evidence showed that her chances of surviving ten years had decreased by 41%, and her chances of surviving twenty years had decreased by 38%, due to the negligence of the defendant. Plaintiff also offered evidence showing that the decrease in life expectancy caused economic and mental anguish damages. The Court of Appeals held that "...shortened life expectancy is a compensable element of damage."

          The Court of Appeals noted that its "...result is reinforced by a recent and similar Massachusetts case. Glicklich v. Spievack, 16 Mass App. 488, 452 N.E.2d 287, Rev. Denied, 390 Mass 1103, 454 N.E.2d 1276 (1983)."(copy enclosed) In Glicklich, a defendant physician failed to diagnose the plaintiff's breast cancer during the period of time between August of 1978 and February of 1979. The testimony of plaintiff's expert witness indicated that because of this delay the plaintiff's life expectancy had been reduced from 94% for a 10 year period to a 50% or less chance. Other expert testimony was that the prognosis worsens as the stage of the cancer progresses. As to a second defendant physician who became the plaintiff's doctor in February of 1979, expert testimony indicated that if this physician had initiated proper treatment within two to four weeks the plaintiff probably would not have suffered brain metastases. Her life expectancy decreased from a 50% or less chance of 10 year survival in February of 1979 to a life expectancy of a year or two at the time the case was tried. The Court held that plaintiff's evidence provided a reasonable basis for apportionment of damages by the jury between the two defendant physicians.

          Defendant has deposed plaintiff's two expert oncologists and Ms. __________'s treating surgeon. All three of these physicians have testified that Ms. __________ had stage I breast cancer during August of 1996 when her mammograms revealed a 1.5 cm mass in the upper outer quadrant of her right breast. Dr. __________, the surgeon, has testified that in his opinion the plaintiff had a 90% chance of 5 year survival with proper treatment and that she could have been treated with lumpectomy rather than modified radical mastectomy. The oncologists, Dr. __________ and Dr. __________, have testified that Ms. __________ had a 90% chance of 5 year survival during August of 1996. Dr. __________ testified that in his opinion Ms. __________ had better than a 50% chance of survival in February of 1997, which is the month that defendant contends Ms. __________ was contributorily negligent by not initiating and obtaining a follow-up mammogram of her right breast. Dr. __________ testified that the breast cancer had already metastasized to Ms. __________'s brain during the early part of 1997, probably during January, February or March. In his second deposition, Dr. __________ testified that upon further consideration of the case, he now believes Ms. __________'s cancer was much more aggressive than was originally thought.

          Plaintiff is giving serious consideration to preparing issues and jury instructions for trial that would be based on a stipulation that the period of time the jury would consider with respect to plaintiff's first claim for relief for damages, including, inter alia, shortened life expectancy, would be between August 16, 1996 and February of 1997. Plaintiff would not stipulate that there was any negligence or other fault attributable to Ms. __________ in connection with the February, 1997 date or at any other time.

          Under this scenario, a defense of contributory negligence would be unavailable to the defendant with respect to the plaintiff's first claim for relief. If the jury finds defendant was negligent during the fall of 1996, the jury could award damages to the plaintiff based on whatever diminished life expectancy it finds was attributable to the defendant's negligence during the time period from August 16, 1996 to February of 1997.

In addition, the jury could award the plaintiff damages for Ms. __________' loss of her breast, mental suffering caused by her awareness that the defendant's negligence had caused her life expectancy to be shortened, and lost income caused by her shortened life expectancy.

III.       PLAINTIFF'S SECOND CLAIM FOR RELIEF - WRONGFUL DEATH

          Plaintiff will also ask the jury to award damages based on Ms. __________'s wrongful death. If the jury finds in favor of the plaintiff on both claims for relief, the plaintiff would then be required to elect remedies in order to prevent a double recovery. However, the plaintiff is not required to elect remedies prior to the return of the jury's verdict. Bowen, supra. For a recent case illustrating this principle, see Cahoon v. Cummings, 79A05-9801-CV-026 in the Court of Appeals of Indiana, decided June 30, 1999 (copy enclosed). Plaintiff has not yet deposed defendant's medical expert witnesses. If the jury agrees with Dr. __________ and Dr. __________, and finds the defendant negligent in causing Ms. __________'s death, plaintiff would probably elect to recover damages pursuant to the wrongful death claim for relief. However, should defendant's experts testify that Ms. __________'s chances for 5 or 10 year survival during February of 1997 were lower than they were during August of 1996, and/or should the jury believe Dr. __________'s testimony that the plaintiff's chances for 5 year survival were decreased from 90% to something over 50% between August of 1996 and February of 1997, the plaintiff will rely on Restatement of Torts (Second) ' 323, which provides in pertinent part as follows:

One who undertakes, gratuitously or for consideration, to render services which he should recognize as necessary for the protection of the other's person..., is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm...

In other words, if the jury finds that the defendant's negligence increased the risk of Ms. __________'s death, and that the increased risk was a substantial factor in causing her death, the jury may find for the plaintiff. In Shumaker v. U.S., 714 F.Supp. 154 (M.D.N.C. 1988) (copy enclosed), the Middle District of North Carolina (Judge Frank Bullock) found that the North Carolina Supreme Court would not reject a lost possibility theory, in ruling in favor of a child who had lost her sight because of the defendants' negligence.

IV.       THE DEFENSE OF CONTRIBUTORY NEGLIGENCE IS NOT AVAILABLE TO THE DEFENDANT

          Defendant contends that its employees instructed Ms. __________ to obtain a mammogram of her right breast during February of 1997, and that her failure to do so constitutes contributory negligence. However, under North Carolina law and the facts of this case, this defense is not available to the defendant. It is undisputed that Ms. __________ was a patient of defendants from approximately June of 1996 through December of 1996. Defendant did not make an appointment for Ms. __________ to have follow-up mammography during February of 1997. Further, although deposition testimony of defendant's employees shows that it was defendant's policy and procedure during the time in question to notify a patient who had become disenrolled from __________ before follow-up mammography had occurred, that the patient could have the follow-up mammography performed at __________ on a fee-for-service basis, or __________ would assist in obtaining the mammogram through another physician, this procedure was not followed with respect to Ms. __________. In addition, there is no evidence that defendant sent Ms. __________ a reminder letter or a card informing her of the necessity to have follow-up mammography during February of 1997. Defendant abandoned Ms. __________'s care at least by the end of December of 1996 and terminated its relationship with her at that time at the latest. Accordingly, defendant was not treating Ms. __________ after that date.

          In the case of Cobo v. Raba, 125 N.C.App. 320, 481 S.E.2d 101, (N.C.App. 1997) (copy enclosed), our Court of Appeals stated that:

When a patient's negligent conduct occurs subsequent to the physician's negligent treatment instead of concurrently or simultaneously, recovery by the patient should be mitigated and not completely defeated pursuant to a contributory negligence theory. Harney ' 24.5, at 571; Miller v. Miller, 273 N.C. 228, 239, 160 S.E.2d 65, 74 (1968) (contrasting contributory negligence with the "doctrine of avoidable consequences")(emphasis added).

On appeal of this case, our Supreme Court in Cobo v. Raba, 347 N.C. 541, 495 S.E.2d 362 (1998) (copy enclosed), noted that:

... the evidence clearly indicates that the activities of Dr. Cobo asserted as contributory negligence took place prior to and contemporaneously with defendant's treatment and that Dr. Cobo directly contravened defendant's specific advice during the course of treatment (emphasis added).

          If defendant had followed its normal procedure and contacted Ms. __________ to schedule an appointment for a mammogram or to remind her to obtain the mammogram, defendant would have continued to treat Ms. __________ and could attempt to avail itself of the defense of contributory negligence. However, by virtue of its abandonment of Ms. __________ and the termination of her treatment by the end of December of 1996, defendant cannot be heard to complain that Ms. __________'s failure to obtain a follow-up mammogram in February of 1997 constitutes contributory negligence.

          Moreover, defendant's medical records show that on November 7, 1996, defendant "reassured" Ms. __________ that she had nothing to worry about. The evidence is disputed as to whether defendant advised Ms. __________ that she would undergo a follow-up mammogram in February of 1997, or six months from November of 1996, which would have been May of 1997, when in fact Ms. __________ underwent an additional physical examination and mammography.

          The evidence from defendant's medical records indicates that the plaintiff was worried about her mammograms and complained of a breast lump on November 7, 1996. Also, less than three weeks before this date, Ms. __________ had requested a breast ultrasound, which defendant did not perform. It appears from the note of November 7, 1996 that defendant reassured Ms. __________ that she had nothing to worry about because defendant's nurse practitioner was of the opinion that Ms. __________'s mammogram from August of 1996 was "normal." In fact, the words "normal breast tissue" appear in Dr. __________'s mammography report of August 16, 1996. Further, Ms. __________'s supervising physician testified that he thought the mammogram was normal. Even if Ms. __________ had mentioned to Ms. __________ during the November 7 visit, that she should have a follow-up mammogram during February of 1997, which plaintiff denies based on the evidence, this statement, in the absence of scheduling an appointment or sending a reminder, and following __________'s reassurance to the plaintiff that she had nothing to worry about and that everything was normal, is not sufficient to charge Ms. __________ with mitigating conduct by failing to have a mammogram during February of 1997.

          In Lauderdale v. United States, 666 F.Supp 511 (M.D.Alabama, 1997) (copy enclosed), the Court refused to find a plaintiff guilty of contributory negligence in a medical malpractice case:

the Court is convinced that, while the doctor informed Lauderdale that he was considering the possibility of a heart problem, the doctor did not convey his suspicions to Lauderdale in a way that made clear to him that his was a potentially severe heart problem, and he did not impress on Lauderdale that the treatment prescribed for him that day was a tentative one and that it was mandatory that he return in one week so the physician could assess the effectiveness of his prescribed course of treatment. The Court is convinced that Lauderdale left the September 25 visit with the understanding that the disclosed diagnosis was still a mild form of pneumonia and that the doctor was treating him for this mild illness...but the Court disagrees that Lauderdale's failure to return to the clinic constituted contributory negligence in light of the insufficient warning given to him of the urgency of his need to return.

The same rationale is applicable to the encounter between Ms. __________ and Ms. __________.

V.       CONCLUSION

          Based on the foregoing, the plaintiff anticipates the jury returning verdicts in her favor on both claims for relief, and the plaintiff would then elect her remedy.

          This the _________ day of September, 1999.