Dumas v. Cooney

• Decision Date: 19 November 1991
• Citation: 1 Cal.Rptr.2d 584,235 Cal.App.3d 1593
• Parties: Elaine DUMAS, as Special Administrator, etc., Plaintiff and Respondent, v. David COONEY, et al., Defendants and Appellants. H006808.
• Court: California Court of Appeals Court of Appeals

Page 584

1 Cal.Rptr.2d 584

235 Cal.App.3d 1593

Elaine DUMAS, as Special Administrator, etc., Plaintiff and Respondent, v. David COONEY, et al., Defendants and Appellants.

H006808.

Court of Appeal, Sixth District, California.

Nov. 19, 1991.

Review Denied March 12, 1992.

Edward A. Hinshaw, Tyler G. Draa, and Gerhard O. Winkler, Law Offices of Edward A. Hinshaw, and Hinshaw, Winkler, Draa & Marsh, San Jose, for defendants and appellants.

B.E. Bergesen, III, Berkeley, Walkup, Shelby, Bastian, Melodia, Kelly, Echeverria & Link, Paul V. Melodia, and Daniel J. Kelly, San Francisco, for plaintiff and respondent.

Horvitz & Levy, David M. Axelrad, S. Thomas Todd, and Sandra J. Smith, Encino, amicus curiae on behalf of defendants and appellants.

PREMO, Associate Justice.

In a medical malpractice action predicated upon delayed diagnosis and treatment of lung cancer, the jury rendered a verdict in favor of plaintiff Kenneth Dumas and against defendants David Cooney, M.D. and Alfred Spivack, M.D. It awarded plaintiff damages of $321,400. The trial court entered judgment accordingly, and defendants appeal. Defendants contend that the trial court erred by instructing the jury on the theory of lost chance. We agree and conclude that the error was prejudicial. We therefore reverse the judgment and remand for a new trial.

BACKGROUND

In 1986, following an annual physical examination, Dr. Spivack diagnosed lung cancer in plaintiff. A surgeon then removed a tumor and part of plaintiff's right lung. Plaintiff underwent treatment, but the disease recurred in May 1989. Plaintiff died on November 26, 1989, six days after the jury rendered its verdict. ¹

Plaintiff's theory at trial was that defendants, who were partners, negligently failed to diagnose his cancer in 1984. In September of that year, plaintiff was treated by Dr. Cooney for a separate illness and referred to a radiologist for a chest x-ray. The radiologist reported to defendants that there existed something of unknown significance in plaintiff's lung and recommended further study in three months' time. According to plaintiff, defendants failed to communicate the radiologist's recommendation, and he therefore did not undergo another x-ray until his physical examination in 1986.

Plaintiff's expert witness opined that plaintiff's tumor was a "stage 3A" tumor in 1986 but a "stage 1" tumor in 1984. He explained that a patient having a tumor resected at stage 1 has about a 67 percent chance of being alive and free of disease in five years. He continued that approximately 67 percent of those patients who survive disease-free for 5 years will survive disease-free for 10 years which would be considered a cure for the form of lung cancer suffered by plaintiff.

Plaintiff's expert also testified that a patient having a tumor resected at a more advanced condition known as stage 2 has about a 33 percent chance of being alive and disease-free in 5 years. He estimated that plaintiff's chance of a 5-year disease-free survival was 15 to 20 percent.

On cross-examination, the witness acknowledged that only about 10 percent of patients diagnosed with the form of lung cancer suffered by plaintiff are diagnosed at stage 1. He agreed that there are relatively few five-year survivors because there are few stage 1 patients and the mortality rate of lung cancer is nearly identical Defendants' principal expert witness testified that all lung cancer is essentially incurable because it spreads before the primary tumor can be detected. He opined that plaintiff's tumor began spreading in 1974 and could not have been detectable until relatively late in its biological life.

to the incidence because of the low rate of cure.

Plaintiff divided his argument to the jury into three parts: liability, causation, and damages. He argued causation as follows: "Now, I'd like to address the question of causation in this case, and the major issue regarding causation is if the resection of the tumor and the removal of the right upper lung had occurred in 1984, or shortly after three months from September of 1984 ... would it have had a beneficial effect on the length and quality of [plaintiff's] life?

"Now, the plaintiff's evidence in this area relies on the statistical studies and the medical literature that forms the basis for the staging system and the basis for the step by step treatment of lung cancer in patients at that time....

"...

"The testimony is that if [plaintiff] had been diagnosed and resected in 1984 that in [the expert's] opinion [plaintiff] probably would have had a stage I with no positive nodes....

"...

"So even if the lymph nodes were positive in '84 ... there is also an opportunity to have a stage II rather than a stage III, which is a better prognosis for [plaintiff].

"Now, [the expert] then testified as to what the prognosis would be for various stages. He said that if [plaintiff] was a stage I, that his prognosis would have been about 67 percent, about two-thirds for a five year survival disease free....

"...

"Now, he mentioned again if it was a stage II he would have one in three chances to go five years disease free, and at stage III, which [plaintiff] was, it left him with a prognosis of 15 percent or less going five years disease free. And we do know from the evidence that in less than two-and-a-half years recurrence was documented in [plaintiff's] case back in April."

Plaintiff continued his argument on causation by emphasizing evidence which discredited defendants' expert witness and then argued damages as follows: "Now, I would like to make a few comments on damages, and my comments in this case are going to be relatively brief....

"A case like this is something of a departure from the usual injury case. Usually in an injury case something occurs and a direct injury follows. In a case like this we are not talking about the defendants being responsible for the plaintiff's cancer. That has never been anything we tried to imply in any way in our testimony. What we are talking about is the effect of a delay in diagnosis. You are going to receive a legal instruction concerning how this applies to the damage part of the case, and that instruction will read as follows:

"Damages for negligence in providing medical care may be based on evidence that it is a reasonable medical probability that the plaintiff would have been benefitted by the possible cure, possible lengthening of his life, and/or improved personal comfort from more prompt diagnosis and treatment.

"Basically what this instruction is saying that with this kind of testimony and this kind of evidence you can draw an inference, and the inference, of course, will be drawn on the basis of probability. And if you draw that inference, then you can award damages for the probability that the plaintiff would have been benefitted for the possible cure, possible lengthening of his life and/or improved personal comfort from more prompt diagnosis and treatment.

"Now, this approach I think is reflected in two areas of damages we are going to talk about...."

Plaintiff then outlined claims for past and future job-related economic benefits and past and future pain and suffering.

Defendants began their argument on causation as follows: "Our position will be that unfortunately even if, even if the physicians Defendants concluded their argument on damages with the following remarks: "One last item in terms of the damages. You are going to be told by the court that you are going to be allowed if you find liability to compensate [plaintiff] for any loss of chance. And again it is the same standard. You have to prove it by the preponderance of the evidence, and so on. I submit to you that that is something you are going to have a hard time evaluating. How do you put a value on that? You have to use your judgment. If you find there is liability but loss of chance is, say, 10 percent and you say the damages are a million dollars, is the damage award a hundred thousand? What is it?"

were negligent that [235 Cal.App.3d 1600] there is no causation in this case. The injury is due to a most unfortunate disease that [plaintiff] has that is not curable. And I think you have heard all of the evidence, and I will put it all in perspective I hope for you when we get to that. Unfortunately, that is exactly what it is. There is no causation here."

The trial court instructed the jury in the language of BAJI No. 2.60 (plaintiff has the burden of proving by a preponderance of the evidence that defendants' negligence was a legal cause of damage to plaintiff) and BAJI No. 3.76 (legal cause is a cause which is a substantial factor in bringing about the injury). It then gave 10 instructions on the subject of negligence and 10 instructions on the subject of damages. The instruction on damages which plaintiff's counsel read to the jury during argument was given at plaintiff's request over defendants' objection.

The jury rendered its verdict by a 10 to 2 vote. The award consisted of $90,000 for past pain and suffering, $20,000 for future pain and suffering, $150,000 for past loss of earnings, and $100,000 discounted to a present value of $61,400 for loss of future earnings.

THE INSTRUCTION

The issue before us concerns the propriety of giving the jury the instruction assailed by defendants.

The trial court told the jury: "Damages for negligence in providing medical care may be based on evidence that it is a reasonable medical probability that the plaintiff would have benefitted by possible cure, possible lengthening of his life, and/or improved personal comfort from more prompt diagnosis and treatment."

Defendants focus upon the concept of "possibility" and contend that the charge permitted the jury to find for plaintiff on the theory of lost chance, a theory heretofore unrecognized in California that permits recovery even though the evidence shows no more than a better-than-even chance that a defendant caused a plaintiff's loss. ²

Pla...