Bromme v. Pavitt

• Citation: 7 Cal.Rptr.2d 608,5 Cal.App.4th 1487
• Court: California Court of Appeals
• Decision Date: 31 March 1992
• Parties: Charles BROMME, Plaintiff and Appellant, v. Peter C. PAVITT, Defendant and Respondent. Civ. C009149.

Page 608

7 Cal.Rptr.2d 608 5 Cal.App.4th 1487 Charles BROMME, Plaintiff and Appellant,
v.
Peter C. PAVITT, Defendant and Respondent. Civ. C009149. Court of Appeal, Third District, California. March 31, 1992.
Review Denied July 27, 1992.

Page 610

[5 Cal.App.4th 1492] Schleicher & Sargeant, Estelle A. Schleicher, Sacramento, and Bridget Baynes, Santa Ana, for plaintiff and appellant.

Schuering, Zimmerman, Scully & Nolen, Leo H. Schuering, Jr. and John J. Sillis, Sacramento, for defendant and respondent.

Horvitz & Levy, S. Thomas Todd, Daniel J. Gonzalez and Lisa Perrochet, Encino, as amici curiae, on behalf of defendant and respondent.

SCOTLAND, Associate Justice.

Defendant was decedent Joan Bromme's physician from 1979 until her death in 1984. In June 1980, Bromme complained of abdominal pain, but defendant did not diagnose its cause. Following her renewed complaints in September 1981, it was determined that Bromme had colon cancer. After Bromme's death, her husband (plaintiff) brought this wrongful death action against defendant.

Evidence at trial suggested that before June 1981 it was medically probable the cancer, if detected, could have been treated successfully. After that time, successful treatment became medically improbable, i.e., the chance of success was less than 50 percent. At the close of plaintiff's case-in-chief, the trial court granted defendant's motion for partial nonsuit which precluded the jury from considering any alleged negligent acts by defendant after June 1981. The trial court reasoned "this is a [wrongful] death case" and "[i]t's more probable that after June of [1981] the cancer killed her than anything the doctor failed to do." The jury returned a verdict for defendant on the allegations of negligence through June 1981.

On appeal, plaintiff claims the trial court erred in granting the partial nonsuit because "California recognizes a cause of action for wrongful death even where the decedent had a less-than-50 percent chance for survival." Plaintiff is wrong. As we shall explain, a plaintiff who alleges a statutory cause of action for wrongful death arising from medical negligence must [5 Cal.App.4th 1493] prove by reasonable medical probability based on competent expert testimony that a defendant's acts or omissions were a substantial factor in bringing about the decedent's death. Where the alleged negligence relates to the failure to diagnose and treat a potentially terminal condition, a plaintiff fails to satisfy the requisite causation if the evidence shows the decedent did not have a greater than 50 percent chance of survival had the defendant properly diagnosed and treated the condition.

Plaintiff also contends the partial nonsuit was improper because: the jury should have been allowed to determine whether, if defendant had properly diagnosed and treated her condition, Bromme would have been among the minority who survive the type of cancer she suffered rather than the majority who do not; the trial court's ruling erroneously required plaintiff to prove defendant was the proximate cause of Bromme's death rather than a proximate cause of the death; and the court wrongly selected June 1981 as the last point at which defendant's alleged negligence could have caused Bromme's death. In addition, plaintiff contends the trial court erred in instructing with BAJI No. 3.75 rather than BAJI No. 3.76 concerning defendant's alleged negligence through June 1981. Only the last contention has merit, but we shall conclude the instructional error was harmless. Accordingly, we will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Summarized most favorably to plaintiff (Freeman v. Lind (1986) 181 Cal.App.3d

Page 611

791, 799, 226 Cal.Rptr. 515), the evidence is as follows:

On June 6, 1980, Bromme complained to defendant about abdominal pain, constipation, and "difficulties with food." After upper gastrointestinal and gallbladder studies appeared normal, defendant made no further effort to diagnose Bromme's complaints. He recommended she drink fruit juices and take Metamucil.

In February and March 1981, Bromme saw defendant for the removal of a cyst. There is no indication she complained about abdominal pain or bowel problems during these visits.

When Bromme saw defendant on September 10, 1981, he recorded in her chart that she was "[i]n today with a year's history of abdominal pain." Bromme complained of constipation and pencil-thin stool. Defendant scheduled a barium enema x-ray study of Bromme's colon and planned a sigmoidoscopy to visually inspect the colon's interior.

Defendant performed the sigmoidoscopy one week later. However, an obstruction of the colon prevented a complete examination. Defendant believed the obstruction was caused by a spasm.

[5 Cal.App.4th 1494] That same day, Dr. Heffernon, a radiologist, performed the barium enema examination. He concluded the obstruction "probably" was an adenocarcinoma (cancer) of the colon.

Based on Dr. Heffernon's finding, defendant referred Bromme to Dr. Imperato, a gastroenterologist, who saw her the same day, September 17, 1981. Dr. Imperato attempted to perform a sigmoidoscopy, but residual barium from the x-ray process precluded him from seeing anything. A few days later, he repeated the procedure but Bromme fainted, and Dr. Imperato was forced to perform mouth to mouth resuscitation. Bromme revived within seconds but was very frightened, so the examination was terminated. Dr. Imperato wanted to do the procedure again in a hospital, but Bromme was unwilling to repeat it. Dr. Imperato and defendant discussed Bromme's fainting episode and unwillingness to undergo further tests.

Defendant next saw Bromme on November 2, 1981, when she and plaintiff received flu shots for a trip to China. As to the bowel problems, plaintiff testified that defendant told Bromme he "thought she had endometriosis, and it could wait." Defendant explained that endometriosis can grow around a bowel and "choke it off, restrict it," and that the condition could be treated with surgery or birth control pills after her trip.

When she and plaintiff returned from China, Bromme was constipated and vomiting so plaintiff took her to a hospital. Bromme was referred back to defendant. When Bromme saw defendant, he was not concerned and suggested she may have picked up a "bug" in China.

On December 28, 1981, defendant admitted Bromme to the hospital. Surgery on January 4, 1982, revealed she had colon cancer rather than endometriosis. The tumor and a portion of the colon were removed, and a colostomy was performed.

After surgery, plaintiff and Bromme learned for the first time that she had cancer. In November 1982, they learned the September 1981 barium enema study had shown a probability of cancer.

The pathology report revealed the cancer had invaded the full thickness of the bowel wall and had spread to surrounding lymph nodes. The report also revealed the surgeons had not removed all of the cancerous portion of the colon. A second surgery to correct that problem was performed in February 1982. In November 1982, the cancer metastasized to Bromme's right ovary. Both ovaries, the uterus, and the cancerous mass were removed. The cancer later metastasized to Bromme's lungs, causing her death in 1984.

[5 Cal.App.4th 1495] On August 13, 1985, plaintiff filed his complaint. As Bromme's heir, plaintiff alleged a cause of action for wrongful death. (Code Civ. Proc., § 377.) ¹

Page 612

At trial, Dr. Leon Schimmel, an obstetrician and gynecologist, and Dr. Barry Marfleet, a family practitioner, testified defendant's failure to diagnose the most likely cause of Bromme's abdominal pain in June 1980 was below the standard of care. Because the upper gastrointestinal and gallbladder studies proved negative, defendant should have ordered a stool test and lower gastrointestinal x-ray in 1980, not 1981. Moreover, defendant's failure to record important information on Bromme's chart misled subsequent physicians to conclude that Bromme had endometriosis. Dr. Marfleet testified defendant's failure to properly evaluate Bromme's complaints of abdominal pain in 1980 was a likely cause of the failure to timely diagnose the colon cancer. Because Dr. Imperato was unable to complete the sigmoidoscopies, it was defendant's responsibility to resolve the concern raised by Dr. Heffernon's report that Bromme had an adenocarcinoma. The failure to perform additional tests also was a likely cause of the failure to timely diagnose the colon cancer.

Several doctors testified regarding the surgical cure rate for cancer. Dr. Melvin Shiffman, who specializes in surgery for cancer and allied diseases, stated it was a reasonable medical probability Bromme's June 1980 complaints were caused by the colon cancer. At that time, the tumor probably was confined to the muscle and had not metastasized to the lymph nodes. Had the tumor been removed then, Bromme would have had a 70 to 75 percent probability of survival. Sometime between March and June 1981, the cancer spread to the adjacent lymph nodes. Thereafter, the survival rate dropped to between 35 and 40 percent. Bromme's chances for survival were further decreased when her bowel became obstructed prior to the January 1982 surgery. By that point, her chances of survival were as low as 15 to 17 percent.

According to Dr. Bruce Chosney, a medical oncologist and hematologist who saw Bromme shortly after her January 1982 surgery, the cure rate for cancers with some lymph node involvement is 40 to 50 percent. Because as many as six lymph nodes were involved by the time of Bromme's surgery, her cure rate was less than 40 percent. By "cure," it is meant that the patient will survive for five years without recurrence.

Dr. Gregory Graves, a surgical oncologist, testified the medical literature shows the prognosis is poor for patients with obstructing colon cancers. Dr. [5 Cal.App.4th 1496] Graves estimated that by January 1982 Bromme faced a...