© Valeriy-Fotolia
© Valeriy-Fotolia (Valeriy – Fotolia)

The Delaware Supreme Court asked attorneys whether a doctor’s use of the word “likely” was a medical opinion stated in terms of reasonable medical probability or certainty during oral arguments last week in a medical negligence case. The appellant asked the high court to reverse a Superior Court decision granting judgment as a matter of law in favor of the defendants and, instead, grant a jury trial.

“The dictionary equates probably with likely,” said Ben T. Castle, an attorney with Hudson & Castle who represented appellant Barbara M. Mammarella. “That is the way numerous human beings speak the English language.”

Mammarella had filed a lawsuit against doctors Alan B. Evantash and Christine W. Maynard and All About Women of Christiana Care Inc., alleging that the defendants’ six-month delay in diagnosing her malignant breast tumor caused a 33 percent increase in the rise of her tumor, resulting in a 17 percent increased risk of death, according to court papers. The plaintiff alleged that the defendants’ delay also eliminated radiation as a possible treatment, forced her to undergo chemotherapy as well as caused fear and dread.

Castle claimed during oral arguments last week that Mammarella’s tumor grew from 6 millimeters to 1.1 centimeters during the months it took for the defendants to probably diagnose the tumor.

During the Superior Court trial in Mammarella v. Evantash, Castle claimed that the defendants’ delay cost his client the chance for a less punishing treatment. Plaintiff’s counsel had offered Mammarella’s treating oncologist, David D. Biggs, as the sole causation expert. Biggs testified that if the tumor was not larger than 8 millimeters, the patient would not be a likely candidate for chemotherapy.

“I indicated that if the tumor was no larger than it appeared on ultrasound, which I think was, what, 8 millimeters, that I would likely feel that she would not take chemotherapy,” Biggs said. “I would underline the word likely, though, because it’s really a gray zone.”

Superior Court Judge Vivian Medinilla granted judgment as a matter of law in favor of the defendants, ruling that no reasonable jury could find in the plaintiff’s favor on the causation between the doctor’s delay in treating her tumor and its growth.

Mammarella appealed Medinilla’s decision to the Supreme Court. During oral arguments last week at Widener University School of Law in Wilmington, a three-justice panel debated whether Biggs’ use of the word likely met the standard for reasonable medical probability or certainty.

The panel, composed of Chief Justice Leo E. Strine Jr. and Justices Randy J. Holland and Jack B. Jacobs, heard arguments from both sides.

“I’d like to address the heart of the matter in Dr. Biggs’ trial testimony,” said Ryan T. Keating of Wharton Levin Ehrmantraut & Klein, who represented Maynard and Christiania Care. “Whether he said likely or probably is medically and legally inconsequential because Dr. Biggs testified that he did not know the size of the tumor in 2009.”

Holland noted that since the Superior Court’s judgement was issued as a matter of law, the court did not issue an opinion on whether Biggs testified with a medical degree of probability. However, Keating responded that Biggs was asked three different ways whether or not the treatment would have changed had the defendants known the size of the tumor.

“It’s not an issue of that the magic words were not used,” Keating said. “He just didn’t give an opinion. We do not use a magic 8 millimeter cutoff. The question is whether or not we had sufficient recommendation for treatment at that time.”

Jacobs asked Castle if he could cite any case where a court accepted the use of the word “likely” instead of “probably” in a medical causation lawsuit. The attorney said that he could not, but the words have the same meaning.

“There is not inconsistency with the word likelihood,” he said. “The jury can infer from [Biggs'] testimony exactly what he is saying.”

Dennis D. Ferri of Morris James represented Evantash. He challenged the plaintiffs’ use of Biggs as an expert witness when he was also a fact witness as Mammarella’s treating oncologist.

“The big issue is that we have a factual witness who the plaintiffs attempted to turn into an expert witness,” Ferri said. “The only way a jury can find causation is through an expert. We don’t have that here. Dr. Biggs admitted that.”

Jeff Mordock can be contacted at 215-557-2485 or jmordock@alm.com. Follow him on Twitter @JeffMordockTLI.