Harris v. Gallaher — 407 A.2d 531

Majority

p. 531

Truman E. HARRIS, Individually and as Administrator of the Estate of Christine E. Harris, Plaintiff Below, Appellant, v. Phyllis D. GALLAHER, M.D., Defendant Below, Appellee.

Supreme Court of Delaware.

Submitted June 26, 1979.

Decided Oct. 4, 1979.

Rehearing Denied Nov. 2, 1979.

p. 532

C. Waggaman Berl, Jr., Wilmington, for appellant.

Jane R. Roth, of Richards, Layton & Finger, Wilmington, for appellee.

Before McNEILLY, QUILLEN and HORSEY, JJ.

In this medical malpractice case before this Court for a second time,^[1] plaintiff, decedent’s personal representative, appeals Superior Court’s directed verdict for defendant physician following grant of mistrial for inability of jury to reach a verdict.

The question on appeal is the correctness of the Superior Court’s ruling that decedent was contributorily negligent as a matter of law in not disregarding her gynecologist’s advice, allegedly given in May 1971, not to worry about a mass in her breast because such statement was admittedly contrary to her physician’s referral advice given decedent in October 1969 to see a surgeon for a biopsy of what was then a lump in her breast.

Viewing the evidence in a light most favorable to plaintiff, we cannot conclude that decedent was negligent as a matter of law in relying upon her physician’s advice not to worry about her breast condition because such advice was contrary to that given by her physician some 17 months earlier.

We hold that it was error for the Trial Court to remove from the jury the question of decedent’s negligence and whether or not it was a bar to plaintiff’s recovery.

* * * *' * *

REVERSED.

* See Harris v. Gallaher, Del.Super., 375 A.2d 456 (1977).