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Fraley v. Zambos

Court of Appeals of Kentucky

February 16, 2018

JANET FRALEY APPELLANT
v.
PHILLIP ZAMBOS, M.D.; AND EASTERN KENTUCKY IMAGING, P.S.C. APPELLEES

         APPEAL FROM FLOYD CIRCUIT COURT HONORABLE JOHNNY RAY HARRIS, JUDGE ACTION NO. 13-CI-00657

          BRIEF FOR APPELLANT: Kellie M. Collins Lexington, Kentucky J. Dale Golden Lexington, Kentucky.

          ORAL ARGUMENT FOR APPELLANT: J. Dale Golden Lexington, Kentucky.

          BRIEF AND ORAL ARGUMENT FOR APPELLEE: Daniel Brown Louisville, Kentucky.

          BEFORE: COMBS, J. LAMBERT AND NICKELL, JUDGES.

          OPINION

          COMBS, JUDGE.

         Janet Fraley appeals from an order of the Floyd Circuit Court denying her motion for a new trial following entry of the court's judgment in favor of the appellees, Phillip Zambos, M.D., and Eastern Kentucky Imaging, P.S.C.[1], in her medical negligence action. For the reasons stated herein, we affirm the judgment and order on appeal.

         Beginning in 1992, and upon the request of her family physician, Dr. Caruso, Fraley had screening mammograms performed at Highlands Regional Medical Center in Prestonsburg. These screening mammograms were performed at two-year intervals. In 1997, a radiologist who interpreted Fraley's screening mammogram noted in his report the appearance of a nodule in Fraley's left breast and similar nodules in her right breast. The radiologist recommended further imaging. As a result, bilateral ultrasounds were performed, and spot compression images of each breast were taken. The ultrasound revealed a cyst in Fraley's left breast. The spot compression images of the right breast were interpreted as normal.

         In 2001, Fraley began to have screening mammograms every year. Zambos, a radiologist, began working with the hospital in July 2004. A second radiologist, Dr. Terry Hall, was hired in July 2011.

         Fraley did not routinely perform breast self-examinations, but in 2012 she felt three lumps in her right breast. She made an appointment with Dr. Caruso, who recommended that she have a diagnostic mammogram. Dr. Hall interpreted the diagnostic mammogram performed at Highlands Regional Medical Center on September 11, 2012. As a result, he recommended that Fraley go to King's

          Daughters Medical Center in Ashland for further imaging. In Ashland, Fraley underwent an MRI. She saw Dr. Mary Legenza, who diagnosed her with breast cancer. Ultimately, Fraley underwent a total mastectomy of her right breast and began treatment with an oncologist, Dr. Suleiman Massarweh, at the University of Kentucky Markey Cancer Center. Fraley has undergone radiation, chemotherapy, and hormone treatment. Cancer has since been detected in Fraley's spine, pelvis, and possibly her brain stem.

         In July 2013, Fraley filed a medical malpractice action against Dr. Philip Zambos; Dr. Terry Hall; Eastern Kentucky Imaging P.S.C.; Highlands Hospital Corporation; and Consolidated Health Systems, Inc. Fraley sought damages for lost wages, medical costs, and pain and suffering.

         In her complaint, Fraley alleged that Dr. Zambos had breached the standard of care regarding the screening mammograms that he interpreted in 2006, 2007, 2008, 2009, and 2010 by failing to identify a suspicious abnormality in her right breast. She alleged that Dr. Hall had breached the standard of care by failing to find the suspicious abnormality in her 2011 screening mammogram. Fraley eventually settled her claims against Dr. Hall and the hospital. The matter proceeded to trial against Dr. Zambos and Eastern Kentucky Imaging, P.S.C.

         Following presentation of the evidence and the testimony of numerous experts, the jury rejected Fraley's claims and found in favor of Dr. Zambos. Fraley's motion for a new trial was denied, and this appeal followed.

         Fraley argues that by denying her motion for a new trial, the trial court abused its discretion with respect to several evidentiary matters. She maintains that these errors were so egregious as to entitle her to a new trial and that the trial court erred by ...


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