Opinion
E031879.
7-23-2003
PEGGY WATTS, Plaintiff and Appellant, v. GEBRE C. GOBEZIE, Defendant and Respondent.
The Cifarelli Law Firm, Thomas A. Cifarelli, Philip C. Cifarelli and Dawn M. Smith for Plaintiff and Appellant. Shernoff Bidart & Darras, Michael J. Bidart and Jeffrey Isaac Ehrlich for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant. Carroll, Kelly, Trotter, Franzen & McKenna, Mark V. Franzen and Samantha N. Lamm for Defendant and Respondent.
Plaintiff and appellant Peggy Watts (plaintiff) appeals from a judgment entered in favor of defendant and respondent Dr. Gebre C. Gobezie (defendant) after the trial court granted defendants motion for summary judgment. We have granted the request by the Consumer Attorneys of California (CAC) to file an amicus curiae brief in support of plaintiffs position. The amicus curiae brief, filed on April 4, 2003, has been considered in the determination of this appeal.
We affirm the judgment in part and reverse in part.
FACTUAL AND PROCEDURAL HISTORY
I. Factual History
Plaintiffs husband, Fred Watts (the decedent), went to see defendant on October 22, 1999, complaining that he could not eat, had difficulty swallowing, and was trying to lose weight. Moreover, although the decedent belched constantly, he reported that his appetite was good. The decedent also complained of generalized fatigue, a wheezing cough, shortness of breath, and a history of hypertension, nausea, constipation, headaches, and frequent urination. After examining the decedent, defendant diagnosed the decedent with: questionable reflux esophagitis, peptic ulcer disease, exogenous morbid obesity, chronic obstructive pulmonary disease and degenerative osteoarthritis. Defendant recommended that the decedent stop taking Reglan. Instead, defendant prescribed Librax (a combination antianxiety/antispasmodic and antisecretory drug). Defendant also recommended a "SMA-25" and "PSA" on the decedents return, and an esophagogastroduodenoscopy (EGD) if the decedent did not feel better.
On November 12, 1999, the decedent returned to defendant and complained that he continued to have trouble eating, even though the medication was helping somewhat. Defendant recommended that the decedent undergo an EGD with possible biopsy. Three days later, defendant performed the EGD. Defendant took biopsies from the stomach and esophagus during the procedure. The esophagus "appeared ulcerated and angry looking." The gastroesophageal junction at 40 cm was completely inflamed and there was food retained in the area. Defendant removed the food with a snare, but did not order further testing of the inflamed area. Following the procedure, defendant admitted the decedent for observation and further management. The decedent was later transferred to Ballard Rehabilitation Hospital for further rehabilitation. The biopsy specimens were sent to a pathologist who determined that the specimen showed areas of necrosis and acute and chronic inflammatory cells consistent with Barretts Esophagus. Barretts Esophagus is a precancerous condition acquired most often by patients with chronic gastroesophageal reflux disease. Clinicians have noted a dramatic increase in esophageal cancers in patients with Barretts Esophagus. The pathologist, however, found no evidence to atypia, granulomas, malignancy or helicobacter pylori. Defendant did not recommend any further tests or treatment after receiving the pathologists report.
The decedent returned for follow up visits with defendant on December 3, 1999, December 17, 1999, and January 21, 2000. During these visits, the decedent appeared to be doing better and was responding to his medications. Defendant, however, also noted that the decedents symptoms persisted.
On January 28, 2000, the decedent underwent a CT scan of the abdomen and pelvis; it revealed small ascites, but no masses in the liver, pancreas, or kidney, no hydronephrosis or dilated biliary ductile system, and no paraaortic or pelvic lymph adenopathy.
On February 4, 2000, the decedent complained to defendant that he was not feeling better, had vague abdominal pain, and was not responding to his medications. Defendant discontinued all his medications except for two. On February 16, 2000, the decedent complained of a burning pain in his abdomen. Defendants impression was that the decedent was suffering from esophagitis and irritable bowel syndrome with no underlying malignancy. Defendant recommended an esophagram of the upper "GI" and follow through.
On February 25, 2000, the decedent underwent an X-ray and upper GI series which "revealed mucosal irregularity filling defect-type in the abdominal region, involving an approximately 7 cm long segment of the distal esophagus. The radiologists impression was that the X-rays were highly suspicious of carcinomal distal esophagus and recommended an endiscopic biopsy."
On March 3, 2000, the decedent sought a second opinion from Moothdath Menon, M.D., who performed a second EGD and biopsy. Dr. Menon discovered a 3-4 cm circumferential mass lesion, which was slightly ulcerated and highly suspicious for neoplasm. Dr. Menon took multiple biopsies of the lesion. On March 6, 2000, the pathology report on the lesion revealed poorly differentiated infiltrating adenocarcinoma. One month later, on April 7, 2000, the decedent died of gastroesophageal carcinoma.
II. Procedural History
Plaintiff filed a complaint against defendant alleging survival and wrongful death causes of action based on defendants negligent care and treatment of the decedent. After filing an answer to plaintiffs complaint, defendant moved for summary judgment, contending that plaintiff failed to establish a prima facie case because there was no evidence of negligence or causation. The trial court granted defendants motion as to both causes of action, and entered judgment in favor of defendant.
ANALYSIS
I. The Trial Court Properly Granted Defendants Motion for
Summary Judgment as to the Second Cause of Action and
Improperly Granted the Motion as to the First Cause of Action
Plaintiff contends that the trial court erred in granting defendants motion for summary judgment "because defendant failed to demonstrate that [plaintiffs] claims for survival and wrongful death lacked merit under accepted principles of California tort law."
A. Standard of Review
A motion for summary judgment is properly granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "In evaluating the propriety of a grant of summary judgment our review is de novo, and we independently review the record before the trial court. [Citation.] In practical effect, we assume the role of a trial court and apply the same rules and standards that govern a trial courts determination of a motion for summary judgment. [Citation.]"
Code of Civil Procedure section 437c, subdivision (c).
Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 469-470.
"We apply the same three-step analysis required of the trial court in ruling on a motion for summary judgment. [Citation.] First, we identify the issues framed by the pleadings because the courts sole function on a motion for summary judgment is to determine from the submitted evidence whether there is a triable issue as to any material fact. [Citation.] To be material for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings [citation], and it must also be essential to the judgment in some way. [Citation.]
"Second, we determine whether the moving party has met its burden of proof under [Code of Civil Procedure] section 437c. [Citation.]"
Kelly v. First Astri Corp., supra, 72 Cal.App.4th 462, 470.
"Finally, if the moving party has met its statutory burden and the summary judgment motion prima facie justifies a judgment, we determine whether the opposing party has met its burden under [Code of Civil Procedure] section 437c."
Kelly v. First Astri Corp., supra, 72 Cal.App.4th 462, 470.
B. The Trial Court Properly Granted Summary Judgment as to the Second Cause of Action for Wrongful Death
Plaintiff contends that the trial court erred in granting defendants motion for summary judgment as to the second cause of action for wrongful death.
1. Step One — Issues Tendered by the Pleadings
In the complaint, plaintiff alleged that "as a proximate/legal result of the aforementioned negligent acts of the defendants, Decedent FRED WATTS did not receive timely and proper medical care, treatment, diagnosis, and observation, and died on April 7, 2000."
2. Step Two — Defendants Factual Showing Justified Judgment in His Favor
Defendant argued that his negligence "did not cause decedents death."
The principles of causation applicable to wrongful death actions based upon medical negligence were addressed in Bromme v. Pavitt. In Bromme, a husband filed suit against a doctor for the wrongful death of his wife, alleging that the doctor negligently failed to detect his wifes colon cancer. At trial, the evidence showed that the wifes cancer could have been successfully treated had it been detected prior to June of 1981, but that after that time, "successful treatment became medically improbable, i.e., the chance of success was less than 50 percent." The trial court granted a motion for partial nonsuit which barred the jury from considering any negligence after June 1981. The jury returned a verdict in favor of the doctor on allegations of negligence up to June 1981.
Bromme v. Pavitt (1992) 5 Cal.App.4th 1487 (Bromme).
Bromme, supra, 5 Cal.App.4th 1487, 1492.
Bromme, supra, 5 Cal.App.4th 1487, 1492.
Bromme, supra, 5 Cal.App.4th 1487, 1492.
The appellate court affirmed the partial nonsuit. The court reasoned that, in a wrongful death action based on medical malpractice, the plaintiff must show that the negligent act was a substantial factor in the cause of the death. That is, that there was "a reasonable medical probability that the negligence was sufficient of itself to bring about the death," or equivalently, that "the death was more likely than not the result of the negligence."
Bromme, supra, 5 Cal.App.4th 1487, 1498-1499.
Bromme, supra, 5 Cal.App.4th 1487, 1499, quoting Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal. App. 3d 396, 402-403, 209 Cal. Rptr. 456.
Therefore, the Bromme court concluded that "California does not recognize a cause of action for wrongful death based on medical negligence where the decedent does not have a greater than 50 percent chance of survival had the defendant properly diagnosed and treated the condition."
Bromme, supra, 5 Cal.App.4th 1487, 1504-1505.
In reaching its holding, the Bromme court rejected Pulvers v. Kaiser Foundation Health Plan, Inc. In Pulvers, which involved a wrongful death action, an appellate court held that the jury had been properly instructed that, even if the plaintiff did not establish that prompt diagnosis and treatment would have cured the decedent, the plaintiff could nonetheless PAGE CONTAINED FOOTNOTES recover damages by showing a reasonable medical possibility that diagnosis and treatment would have extended the decedents life for several months or years.
Pulvers v. Kaiser Foundation Health Plan, Inc. (1979) 99 Cal. App. 3d 560, 160 Cal. Rptr. 392 (Pulvers ).
Pulvers, supra, 99 Cal. App. 3d 560, 565-566.
The Bromme court declined to follow Pulvers, reasoning that Pulvers had ignored the statutory language limiting wrongful death claims to situations in which " the death of a person is caused by the wrongful act or neglect of another." In short, the Bromme court stated that "Pulvers extended wrongful death liability beyond the bounds set by the Legislature."
Bromme, supra, 5 Cal.App.4th 1487, 1501.
Bromme, supra, 5 Cal.App.4th 1487, 1501.
Both plaintiff and the CAC urge us to reject Bromme and follow Pulvers. We decline to do so. We find that reasoning in Bromme to be sound and follow its holding in this case.
In a similar argument, plaintiff argues that we should reject Bromme because "courts should not bar recovery simply because a terminally ill patient had a 50 percent, instead of a 50.1 percent chance of survival at the time of the alleged negligence." In essence, plaintiff argues that we "should follow a growing trend among the states [fn. omitted] and adopt the loss of a chance doctrine." "The loss of chance doctrine involves the idea that a doctor, through his negligence, has decreased the patients chance of a better result . . . ." "The loss of chance doctrine serves to fairly compensate the plaintiff for the tortious deprivation of an opportunity to live longer and recover from a physical injury or condition inflicted by the defendants wrongful act or omission. (Delaney v. Cade (Kan. 1994) 255 Kan. 199, 873 P.2d 175, 182.)"
This exact argument was rejected in Bromme and Dumas v. Cooney. Dumas involved a medical malpractice action predicated on delayed diagnosis and treatment of lung cancer. There, "the plaintiff claimed he was entitled to damages for the lost chance of a possible cure, possible lengthening of life or possible improved comfort even if the evidence showed less than a probability that the defendant caused such loss."
Dumas v. Cooney (1991) 235 Cal. App. 3d 1593 (Dumas).
Bromme, supra, 5 Cal.App.4th 1487, 1505, citing Dumas, supra, 235 Cal. App. 3d 1593, 1607-1610.
Dumas declined " to establish a more lenient standard of causation in medical malpractice cases to account for the theory of lost chance." In reaching this conclusion, "Dumas observed that relaxation of the traditional causation requirement may encourage a proliferation of defensive medicine, an escalation of medical costs, and an unwarranted expansion of liability exposure with troubling implications."
Dumas, supra, 235 Cal. App. 3d 1593, 1608.
Bromme, supra, 5 Cal.App.4th 1487, 1506, quoting Dumas, supra, 235 Cal. App. 3d 1593, 1608.
The Bromme court agreed with Dumas: "We agree with Dumas that the disagreement on such weighty matters of public policy militates against judicial tampering with the long-standing meaning of causation in deference to legislative consideration of the issue. [Citations.]"
Bromme, supra, 5 Cal.App.4th 1487, 1506.
We agree with the reasoning set forth under both Dumas and Bromme and also decline to adopt the lost chance theory advanced by plaintiff.
Therefore, in the context of this summary judgment motion, we must determine whether defendant presented sufficient evidence that the decedent did not have a greater than 50 percent chance of survival had defendant properly diagnosed and treated the decedents condition in October or November of 1999. PAGE CONTAINED FOOTNOTES
In support of the summary judgment motion, defendant presented the declaration of Dr. Gregory P. Sarna. In his declaration, Dr. Sarna opined that the decedents "esophagus cancer was not curable even if he had undergone an EGD [when he first presented himself to defendant] because the disease was highly aggressive." Dr. Sarna went on to state that, "according to the California Cancer Journal for Clinicians, statistics for the United States in 2000 show that there were expected to be 12,300 new esophagus cancer cases, which would be matched by 12,100 deaths from esophagus cancer. There would be 9,200 cases of esophagus cancer in males, matched by 9,200 deaths." Moreover, even with patients "who are good candidates for surgical treatment," Dr. Sarna noted that there is a "5-10% probability that they will die within 30 days of surgery. Additionally, of these patients who are good candidates for surgery, there is only a 10-20% survival rate of 5 years." Because of the decedents medical history — "obesity, history of heart attack and strokes, peripheral neuropathy and diabetes" — Dr. Sarna stated that decedent "was a poor candidate for surgical treatment." Dr. Sarna concluded that the decedents "chances of surviving even with earlier treatment was less than 10%[,]" and "even if [the decedent] had chosen to undergo chemotherapy [when he first presented himself to defendant], his survival rate would have been less than 5%." Therefore, Dr. Sarna opined that defendants "care and treatment did not cause [the decedents] death to a reasonable degree of medical probability."
Based on this evidence, and the rule espoused in Bromme, that "California does not recognize a cause of action for wrongful death based on medical negligence where the decedent does not have a greater than a 50 percent chance of survival had the defendant properly diagnosed and treated the condition[,]" — defendant established that he was entitled to judgment in his favor.
Bromme, supra, 5 Cal.App.4th 1487, 1504-1505.
3. Step Three — Plaintiff Failed to Raise a Triable Issue of Fact
In her opposing papers, plaintiff included a declaration by Dr. Birbal Bhaskar. Dr. Bhaskar opined that the decedents "life expectancy would have been increased by at least one year and possibly more had [defendant] diagnosed [the decedents] cancer in October or November 1999." Based on his opinion, Dr. Bhaskar concluded that defendants negligence "was the proximate cause beyond a reasonable degree of medical certainty of [the decedents] shortened life span."
Plaintiff failed to raise a triable issue of fact as to causation in wrongful death actions. Plaintiff failed to provide any evidence to contradict defendants showing that decedent had less than a 50 percent chance of survival had defendant properly diagnosed and treated decedents condition. The only thing that Dr. Bhaskar stated was that decedents life expectancy would have been "increased by at least one year and possibly more." This evidence is not sufficient to prove causation in wrongful death actions.
Therefore, we hold that the trial court properly granted summary judgment in favor of defendant as to the second cause of action for wrongful death.
C. The Trial Court Erred in Granting Summary Judgment as to the First Cause of Action
In the first cause of action, plaintiff alleged an "action for survival" based on medical malpractice. Plaintiff contends that the trial court erred in granting summary judgment as to the survival action.
1. Step One — Issues Tendered by the Pleadings
In the survival cause of action, plaintiff alleged that the decedent suffered personal injuries as a result of defendants negligence based on medical malpractice, and that plaintiff can recover damages under Californias survival statute, Code of Civil Procedure sections 377.20 and 377.34.
Code of Civil Procedure section 377.20 states as follows:
"(a) Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the persons death, but survives subject to the applicable limitations period.
"(b) This section applies even though a loss or damage occurs simultaneously with or after the death of a person who would have been liable if the persons death had not preceded or occurred simultaneously with the loss or damage."
Code of Civil Procedure section 377.34 states as follows:
"In an action or proceeding by a decedents personal representative or successor in interest on the decedents cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement."
A cause of action for medical malpractice has four elements: ""( 1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professionals negligence." [Citations.]"
Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.
2. Step Two — Defendants Factual Showing Justified Judgment in His Favor
In the motion for summary judgment, defendant argued that he neither breached the standard of care nor caused the decedents death. Defendants argument as to causation, however, solely focused on the wrongful death cause of action — whether defendant caused the decedents death — and not on the personal injury cause of action.
Proximate Cause
In James v. United States of America, a federal court, interpreting California law, stated the definition of proximate cause in personal injury/medical malpractice cause of actions:
"In a case such as the one at bench, where the diseased condition is the result of other causes, the evidence must show that defendants conduct placed plaintiffs in a position worse than that in which they would otherwise have been. [Citation.] . . . Evidence which shows a reasonable certainty that negligent delay in diagnosis or treatment increased the need for or lessened the effectiveness of treatment is sufficient to establish proximate cause. [Citations.]"
James v. United States of America (1980) 483 F. Supp. 581, 585 (James).
Defendant argues that James is not applicable in wrongful death actions: "In a wrongful death action, the issue is not whether the defendants life might have been prolonged or his suffering would have been lessened with earlier diagnosis. Instead, the issue is whether the defendants failure to discover the cancer was a substantial factor in causing the decedents death. [Citation.]" Defendant, however, cannot and does not argue that James does not apply to the survival action based on negligence.
As stated above, the Bromme court specifically stated that, in a wrongful death action based on medical malpractice, the plaintiff must show that the negligent act was a substantial factor in the cause of the death. That is, that there was "a reasonable medical probability that the negligence was sufficient of itself to bring about the death," or equivalently, that "the death was more likely than not the result of the negligence." Here, the survival cause of action is a negligence, and not a wrongful death, cause of action.
Bromme, supra, 5 Cal.App.4th 1487, 1499, quoting Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal. App. 3d 396, 402-403.
Therefore, as to the element on causation, because defendant presented evidence only with regard to the proximate cause required in wrongful death actions, i.e. whether defendant caused the decedents death, defendants showing was not sufficient to justify a judgment in his favor.
Breach of Standard of Care
As to the breach of standard of care, defendant provided the declaration of Dr. Andrew Ippoliti. Dr. Ippoliti opined that defendants care and treatment and care of the decedent "did not breach the standard of care because it is not below the standard of care to miss a cancer while performing an EGD, especially when there is severe inflammation." Dr. Ippoliti concluded that, "based on my review of these materials, as well as my education, training, and experience, it is my opinion that [defendants] care and treatment of [the decedent] complied with the standard of care."
Hence, defendant produced evidence that demonstrated that plaintiff could not prove one of the elements in her negligence cause of action.
3. Step Three — Plaintiff Raised a Triable Issue of Fact
In opposition to the motion for summary judgment, plaintiff submitted a decision by the Division of Medical Quality, Medical Board of California, Department of Consumer Affairs, State of California regarding defendant. The trial court took judicial notice of this decision. The decision discussed whether defendant provided competent care to numerous patients, one being the decedent in this case. With regard to the decedent, the decision stated as follows:
"31. During the time that [defendant] provided his care and treatment, the patients complaints remained the same and his condition continued to deteriorate. Therefore, a repeat EGD should have been done, especially given the condition of the esophagus when the first EGD was performed. Failure to do so constitutes an extreme departure from the standard of care.
"Further, when the patient continued to complain of trouble swallowing and moving foods, palliative relief, in the form of dilation, should have been offered to [the decedent]. Failure to do so constitutes an extreme departure from the standard of care."
Moreover, the decision stated: "cause exists to discipline [defendants] physicians and surgeons certificate in that he has engaged in unprofessional conduct in his care and treatment of . . . [the decedent], in that his conduct constitutes gross negligence and repeated negligent acts . . . ."
The decision clearly provided evidence to raise a triable issue of fact regarding whether defendant breached his duty to the decedent.
Furthermore, plaintiff allegedly provided a declaration from Dr. David Chapman as additional evidence in support of plaintiffs opposition to the motion for summary judgment. Dr. Chapman allegedly stated that defendant "was grossly and repeatedly negligent in his treatment of [the decent]. Dr. Chapman identified four areas in which [defendants] conduct breached the standard of care: (1) he did not recommend an immediate EGD in October given [the decedents] longstanding symptoms and history of reflux disease, (2) he did not detect esophageal cancer that was present when [defendant] preformed [sic] the November EGD and biopsied the visibly necrotic tissue; (3) he did not offer palliative relief by performing dilation of the esophagus, and (4) he did not perform necessary testing or monitor [the decedents] Barretts Esophagus, even though [the decedents] symptoms persisted."
We, unfortunately, cannot evaluate whether Dr. Chapmans declaration raised additional triable issues of fact because Dr. Chapmans declaration is not part of the clerks transcript. Although the index to the clerks transcript on appeal lists Dr. Chapmans declaration, the declaration is not included in the transcript. The appellant is obligated to provide a record on appeal that is adequate to demonstrate the claimed error.
Ballard v. Uribe (1986) 41 Cal.3d 564, 574, 224 Cal. Rptr. 664, 715 P.2d 624; Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.
Based on the decision by the Division of Medical Quality of the Medical Board of California, we hold that plaintiff raised a triable issue of fact as to defendants breach of the standard of care. Therefore, the trial court erred in granting summary judgment as to the first cause of action.
DISPOSITION
We affirm the trial courts grant of summary judgment in favor of defendant as to the second cause of action for wrongful death. We reverse the trial courts grant of summary judgment as to the first cause of action. The parties shall bear their own costs on appeal.
We concur: Hollenhorst Acting P.J., Gaut J.