Gravitt v. Ward
In Gravitt v. Ward, 258 Va. 330, 518 S.E.2d 631 (1999), the plaintiff was also diagnosed with breast cancer a few months after she was examined by her doctor and told that a lump in her breast was a cyst.
The plaintiff's chart did not reflect that she had reported finding a lump although it did indicate that the doctor had found "fibrocystic changes."
In finding that a contributory negligence 2 instruction was not appropriate, the Supreme Court of Virginia stated:
"The physician-patient relationship differs substantially from that of the ordinary plaintiff and defendant." Lawrence v. Wirth 226 Va. 408, 411, 309 S.E.2d 315, 317 (1983). This is so because of the great disparity in medical knowledge between "doctor and patient." Id. Despite that disparity, it is common knowledge that the presence of a lump in a woman's breast presents the possibility of the presence of a malignant tumor. . . . Thus, under those circumstances, the woman patient seeks to obtain, through a breast examination, the benefit of the doctor's medical knowledge to determine if a malignant tumor is in fact present in her breast, and if so, to obtain appropriate treatment.
(Gravitt, 258 Va. at 336, 518 S.E.2d at 634.)
Although the plaintiff in Gravitt testified that she initially went to her doctor because she found a lump in her breast, we do not believe that distinction from the case at bar makes a difference.
As discussed above, with the exception of the absence of a notation in the appellant's chart indicating that she had found a lump in her breast, there is no evidence that the appellant failed to make such a report.
"In this context, it is inconsistent with common knowledge and human experience that such a patient, concerned for her own safety, would fail to inform her doctor with the fact that she discovered a lump in her breast." Gravitt, 258 Va. at 336, 518 S.E.2d at 634-35.