Uriell v. Regents of the Univ. of Cal.

• Decision Date: 29 January 2015
• Docket Number: D064098
• Citation: 234 Cal.App.4th 735,184 Cal.Rptr.3d 79
• Court: California Court of Appeals Court of Appeals
• Parties: Patrick URIELL, Individually and as Trustee, etc. et al., Plaintiffs and Respondents, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Appellant.

234 Cal.App.4th 735

184 Cal.Rptr.3d 79

Patrick URIELL, Individually and as Trustee, etc. et al., Plaintiffs and Respondents,

v.The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Appellant.

D064098

Court of Appeal, Fourth District, Division 1, California.

Filed January 29, 2015

Rehearing Denied March 12, 2015

Certified for Partial Publication.^*

Carroll, Kelly, Trotter, Franzen, McKenna & Peabody; John C. Kelly, David P. Pruett and Natalie J. Buccini, Long Beach, for Defendant and Appellant.

Niddrie Fish Addams and David A. Niddrie ; Cynthia Chihak & Associates and Cynthia Chihak, San Diego, for Plaintiffs and Respondents.

McCONNELL, P.J.

INTRODUCTION

A jury found the University of California San Diego Medical Center (UCSD) failed to timely diagnose Barbara Kastan's breast cancer in 2007 resulting in her death in 2010. The Regents of the University of California (Regents)¹ appeal the wrongful death judgment in favor of Kastan's husband and children contending (1) plaintiffs’ expert lacked foundation for his opinion there was a reasonable medical probability Kastan would have survived 10 more years if she had been timely diagnosed and (2) the court failed to properly instruct the jury on the issue of causation when it gave the standard substantial factor jury instruction rather than a special instruction regarding proof of causation to "a reasonable medical probability." We disagree with both contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A

Kastan had an extensive family history of breast cancer. Her mother was diagnosed with breast cancer in her early 50s and died at age 68 or 69, approximately 18 years after she was diagnosed. Kastan's mother's aunt died of breast cancer. In addition, Kastan's paternal grandmother and 10 great aunts all died of breast cancer.²

In the summer of 2007, Kastan's husband, Patrick Uriell, found a lump deep in Kastan's left breast the size of an eraser on a pencil. It was firm and did not move. Because of her family history, Kastan was concerned and obtained an appointment with a doctor as quickly as she could.

Kastan saw a family practice physician at UCSD who palpated a two-centimeter hard lump. The physician ordered a mammogram and ultrasound, which were reassuring. On the mammogram, the radiologist found no significant masses suspicious for cancer, but stated "the breast [was] extremely dense, which could obscure a lesion on mammography." The radiologist testified a two- to three-centimeter mass could be obscured on a mammogram in a dense breast. On ultrasound, the radiologist noted "a collection of small simple cysts" in the area of the clinically palpable mass.

Kastan was referred to Sarah Blair, M.D., a surgeon specializing in breast cancer who is employed by UCSD. After reviewing the mammogram and ultrasound results, Dr. Blair examined the area and thought Kastan had simple cysts, which was consistent with the ultrasound report. Dr. Blair told Kastan she did not have cancer. Dr. Blair offered the option of aspirating the cyst, but told Kastan she was fairly sure it was just a cyst and advised her to cut back on caffeine. Dr. Blair discussed genetic testing to determine Kastan's lifetime risk of getting cancer, but Kastan was concerned her medical insurance would become expensive or could jeopardize her children's future employability if it was determined they had a gene showing a predisposition to cancer. Dr. Blair did not order an MRI or other followup testing.

About a year and a half later, Kastan began complaining about back pain and flu-like symptoms that did not go away. Kastan's breast also changed in appearance. By January 2009, the breast was fuller and the nipple was flat and appeared tacked down. After some difficulty scheduling a mammogram, Kastan eventually underwent an MRI of the spine, a mammogram, another ultrasound and a tissue biopsy; she also obtained another referral to Dr. Blair.

Kastan was diagnosed with cancer in May 2009. She was told the cancer could not be cured at that point because she had had it for some time. Kastan initially responded well to treatment. Her breast swelling resolved, she did not complain of back pain and her energy returned. However, Kastan succumbed to her cancer on December 8, 2010.

B

Uriell and their minor children (collectively the Uriells) sued the Regents for wrongful death. The Uriells’ surgical expert, Leo Gordon, M.D., opined Dr. Blair breached the standard of care by (1) failing to biopsy the area in the left breast for which she was referred and (2) failing to order an MRI to detect breast cancer and to follow up with a biopsy of the area. Had those measures been taken at the time of the August 2007 visit, Dr. Gordon opined a biopsy "to a reasonable degree of probability ... would have shown breast cancer." Even though the ultrasound identified only cysts, Dr. Gordon believed cancer should have been detected in 2007 based on the other presenting factors, including family history.

Dr. Blair and her standard of care expert, Kenneth Deck, M.D., testified neither an MRI nor a biopsy was indicated because the ultrasound showed simple cysts. Using a computer program, Dr. Blair estimated Kastan had a 17 percent lifetime risk of getting breast cancer, but told Kastan she thought this underestimated her risk. Dr. Blair admitted if a patient had a lifetime risk of getting breast cancer greater than 20 percent, the standard of care would have required obtaining an MRI. Dr. Blair testified at trial she did not believe Kastan's lifetime risk was greater than 20 percent, but was impeached with her deposition testimony in which she admitted she suspected her risk was probably in excess of 20 percent.

Dr. Deck admitted the computer program Dr. Blair used to assess the patient's risk did not account for history of disease in the paternal branch. He further admitted if her risk of cancer was greater than 20 percent, the standard of care required an MRI, which is more sensitive than a mammogram.

Dr. Blair also admitted if a doctor had access to information with the patient's family history and did not read it, "the standard of care would have been breached." The medical records showed on the date of the 2007 visit with Dr. Blair a medical assistant recorded Kastan's family history stating, "mother died of breast cancer. Diagnosed late 50's ... paternal grandmother, breast cancer, '94. Paternal aunts, 10 females, breast cancer. Maternal aunt, breast cancer. Uncle, brain cancer." Dr. Blair conceded this was information she should have read and reviewed before treating Kastan, but did not recall seeing this piece of paper.

With respect to causation, the Uriells' oncology expert, Robert Brouillard, M.D., testified Kastan had the most common form of breast cancer. The fact it was estrogen receptive and HER2 (human epidermal growth factor receptor 2) negative meant it was less aggressive and amenable to treatment by both hormonal therapy and chemotherapy. Dr. Brouillard testified the tumor burden in 2007 would have been substantially less than it was when it was diagnosed in 2009. As a result, he opined it was "probable she would have had [a] more durable response to hormones alone had the tumor been diagnosed in 2007. In addition, if something had been discovered on a bone scan that also would have had a better chance of response" because there would be less chance for spontaneous mutation to resistance with a smaller tumor burden. In his opinion, "to a reasonable degree of medical probability," Kastan would have survived 10 years if she had been treated early, even if she had stage 4 cancer in 2007.

The defense oncology expert, David Okun, M.D., opined Kastan had stage 4 cancer in August 2007, meaning it spread from the primary tumor to some other distant site in the body. Dr. Okun stated, "[w]e have gotten a lot better at treating patients with this. We can keep them alive five years, sometimes ten, but it's unfortunately fatal." He conceded earlier treatment would have extended her life, but would not say it would have extended her life beyond three years. He agreed a newer metastasis is more sensitive to treatment.

John Link, M.D., an oncologist who consulted with Kastan before she died, testified if she had been diagnosed in 2007, she could have taken medications to prevent the leg fractures she suffered as a result of bone metastasis and could have taken hormonal therapy to potentially put her in remission. In Dr. Link's opinion, earlier treatment would have prolonged her life, but by only a few years based on the type of cancer he suspected she had. However, he admitted he did not know specifically what type of cancer she had and he did not know whether her cancer could have been more responsive to treatment if provided earlier.

Earlier in the litigation, Dr. Deck declared under penalty of perjury he believed Kastan did not have cancer in 2007. At trial, however, Dr. Deck testified she had microscopic cancer that year.

C

At the conclusion of the Uriells' case, the Regents moved for nonsuit contending the Uriells could not recover for wrongful death because they could not prove a greater than 50 percent chance Kastan would have survived her cancer because she was stage 4 when she presented in 2007. In denying the motion, the trial court distinguished this case from Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1605-1606, 1 Cal.Rptr.2d 584, in which the court rejected the lost chance doctrine of recovery because the plaintiff had only proven he was denied a 30 percent chance of recovering from his disease. In this case, the trial court ruled, "plaintiffs are not seeking to be compensated for a less-than-50 [percent] chance that Ms. Kastan would have survived. Rather, they are relying on the ‘traditional approach’ to recover only the extent to which it was probable ‘that cancer killed the patient sooner than it would have with timely diagnosis and treatment.’ " During argument on the motion, the court explained, "I think the...