Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial County, Christopher W. Yeager, Judge, Super. Ct. No. ECU03178
HALLER, Acting P. J.
Jimmie Martin brought a malpractice action against his former physician, Dr. Lorenzo Suarez and his medical group (collectively Dr. Suarez), alleging Dr. Suarez failed to diagnosis his colon cancer in 2003. After Martin presented his case, the court granted Dr. Suarez's nonsuit motion. The court ruled Martin failed to present sufficient evidence that Dr. Suarez's alleged negligence caused Martin's claimed injuries, and that Martin could not recover under a relaxed causation standard known as the "lost chance doctrine."
Martin appealed, contending he presented sufficient expert testimony to show within a reasonable medical probability that Dr. Suarez's negligence caused his injuries, and that he was not relying on the lost chance doctrine. We agree with these arguments and conclude the court erred in granting the nonsuit. We reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because we are reviewing a judgment after a nonsuit, we summarize the facts produced at trial in the light most favorable to Martin. (See Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 930.)
In setting forth the facts, Dr. Suarez cites to his own trial brief and discusses matters that were not presented at trial. This factual summary violates established appellate rules and reflects a misunderstanding of the applicable review standard. In reviewing the propriety of the nonsuit, we are limited to examining only those facts produced at trial and must draw all reasonable inferences in Martin's favor.
In May 2003, 29-year-old Martin, a City of Brawley police detective, visited Dr. Suarez, his primary care physician, complaining of severe abdominal pain and occasional diarrhea. Dr. Suarez said Martin probably had a viral infection and that it would go away in a few days. Dr. Suarez told Martin he could see a specialist for his own "peace of mind," but did not indicate there was any medical reason to do so. At the appointment, Dr. Suarez drew Martin's blood for testing. The blood test showed that Martin was substantially anemic. Dr. Suarez did not notify Martin of this result.
Seven months later, in December 2003, Martin saw Dr. Suarez for an injured ankle. During that visit, Dr. Suarez did not say anything about the anemia, or notify Martin that he should have a repeat blood test or a colonoscopy.
Seventeen months later, in May 2005, Martin began feeling "real fatigued" and suffered from "severe headaches every day" that were "so severe." He saw the nurse practitioner in Dr. Suarez's office, who told him he was extremely anemic and needed to do something about it. The nurse practitioner asked Martin why he had not taken care of his anemia in 2003, and Martin responded that he had not known he was anemic. The nurse stated that Martin was very anemic and that he must be losing blood from "somewhere," and the cause needed to be determined. Dr. Suarez's office then scheduled an immediate appointment for Martin to see a gastroenterologist.
Soon after, the gastroenterologist referred Martin for a colonoscopy. The results of the colonoscopy revealed that Martin had colon cancer and needed to have surgery. After the first surgery, the surgeon found the cancer had likely spread to Martin's lymph nodes. Martin had several additional surgeries, radiation therapy, and chemotherapy. But the cancer continued to spread, causing him extreme pain and precluding him from working or engaging in daily activities.
In July 2006, Martin filed a complaint alleging Dr. Suarez committed medical malpractice because he failed to diagnose Martin's colon cancer in 2003. He alleged Dr. Suarez's negligence caused his colon cancer to be "left untreated for two years resulting in widespread metastasis, extremely poor prognosis and limited life expectancy."
By the time of trial in 2007, Martin had advanced omitistatic colon cancer, involving various parts of his body, including "abdominal lymph nodes, tumors in the abdominal wall, buttock, spine, liver, [and] lungs." He was in constant pain and had been hospitalized numerous times for pain management. His doctor testified that he needs "total care for everything he does and . . . has a very limited survival . . ., [¶] . . . [¶] [p]robably several months." As a result of the surgeries and chemotherapy, Martin incurred out-of-pocket medical expenses, and lost wages.
At trial, Martin called two medical experts to support his medical malpractice claim. First, Dr. Richard Lorose, an internist, opined that Dr. Suarez failed to meet the standard of care primary care physicians owe to their patients. He explained that Martin's May 2003 test results showed he had at least "moderate anemia" with blood loss "close to 25 percent of his blood volume" and this was a "significant" and "serious problem." Dr. Lorose stated that anemia indicates bleeding or blood loss, and is a condition that cannot be ignored because it should never occur in a young healthy man. He stated that when a male younger than 30 has anemia "it should set off all sorts of alarms and red flags," and a physician is "obligated to follow this to the end of the earth until you find out what is going on."
Under these circumstances, Dr. Lorose opined that Dr. Suarez breached the applicable standard of care by failing to: (1) notify Martin of the blood test results in 2003; (2) inform Martin of the significance of the test results; (3) follow up to ensure Martin had been seen by a gastroenterologist; and (4) investigate the cause of the anemia.
Martin also called Dr. Sabrina Wallach, Martin's treating oncologist. Dr. Wallach agreed that anemia in a male must be "followed up immediately" and "even mild cases of anemia in a male warrant careful investigation to rule out cancer of the colon[.]" She opined that Martin's anemia found in 2003 was the result of the same colon cancer discovered in 2005.
Dr. Wallach also testified on the issue of causation. She testified that shortly after Martin's colon cancer was diagnosed in 2005, a surgeon removed a large malignant tumor from his large intestine. The surgeon also removed 42 surrounding lymph nodes, five of which contained cancer, but the surgeon was unable to remove several additional enlarged lymph nodes that appeared to contain residual cancer. Dr. Wallach said that Martin had an aggressive type of tumor, meaning the cancer cells were growing more rapidly than an average cancer.
To describe the likely growth in the cancer, Dr. Wallach discussed the four stages of colon cancer. Stage 1 is the earliest stage and Stage 4 is the final stage. Many of the stages have subtypes, including Stage 3. Dr. Wallach was unable to precisely identify the stage of Martin's cancer in 2003 because no diagnostic tests were performed. She opined the tumor could have been anywhere between Stage 1 and early Stage 3.
Dr. Wallach testified that if the cancer was at Stage 1 in 2003, the cancer could have been "removed surgically without any remaining cancer with an expectation of a 90 percent five year survival, meaning that there would be a 90 percent chance that the patient would be alive five years later." Dr. Wallach explained that "Stage 1 colon cancer is a shallow or smaller cancer that is confined to part of the bowel wall and has not broken through the complete bowel wall nor has it entered the blood vessels nor has it entered the lymphatic channels nor has it involved any nearby lymph glands or nodes." She said that for an early Stage 1 cancer, chemotherapy is frequently not needed because surgery will generally remove all of the cancer.
To determine Martin's chances of surviving his cancer, Dr. Wallach used the year survival rate, i.e., the percentage chance a patient will not have a recurrence of cancer within five years of surgery. If the cancer does not reoccur within five years, the risk of recurrence during the next five years is much lower.
Dr. Wallach also testified that if Martin had a Stage 2 or an early Stage 3 cancer in 2003, he would have had a greater than 50 percent survival rate if the cancer had been diagnosed at that time. Dr. Wallach said that if Martin had Stage 2 cancer in 2003 and underwent chemotherapy and/or radiation treatments his five-year survival rate would have been approximately 75 percent. And if Martin had early Stage 3 cancer in 2003 and underwent chemotherapy and/or radiation treatments he would have had a five-year survival rate of about 65 percent.
With respect to Martin's condition in 2005, Dr. Wallach did not directly opine on Martin's survival chances. But her testimony indicated that at the time of his surgery, Martin's cancer had progressed to a late Stage 3 cancer and was close to a Stage 4 cancer. When Dr. Suarez's counsel asked whether Martin had a "Stage 3" cancer in 2005, Dr. Wallach responded "not quite correct," and explained the cancer appeared to have been more advanced because the surgical report indicated there were remaining lymph nodes with cancer in Martin's abdomen. (Italics added.) She agreed with Martin's counsel's statement that the cancer had progressed to a "Sta[g]e 3 to 4 at the time of his surgery in 2005." (Italics added.) With respect to the expected survival rate of this type of an advanced stage cancer, Dr. Wallach testified that "Two years is a long time for a cancer to grow, and in that two-year interval not only would a cancer grow, but it would also have the opportunity to spread in the blood stream or in the lymphatic channels to lymph glands or other distant locations and therefore become incurable." (Italics added.)
Dr. Wallach further stated that Martin "would clearly have been in much better shape if his surgery had been performed 18 months to two years before it was performed, because the cancer would have been smaller at the time of surgery when it was removed and he would have had a much better statistical response to any medical treatment . . ., so he may very well have been tumor free now if he had had the surgery and any other definitive cancer treatment earlier than he had." Dr. Wallach also said that "the earlier the cancer was diagnosed the more localized it would have been and the more chance there would have been that he would have a complete resection of that cancer with surgery and he may have avoided some of his current problems, if not all of them."
Based on her knowledge of Martin's cancer and her education, training, and experience, Dr. Wallach opined with a reasonable degree of medical probability that the two-year delay in diagnosis was a substantial factor in: (1) causing the cancer to metastasize to the lymph nodes; (2) causing the "increased growth of the tumor and spread in 2005"; (3) decreasing Martin's chances of survival from about 70 to 80 percent to "less than a year"; and (4) "causing Martin's colon cancer to advance from a Stage 1 to 3 to a Sta[g]e 3 to 4 at the time of his surgery in 2005[.]" (Italics added.)
After Martin rested his case, Dr. Suarez moved for a nonsuit, arguing that Martin "failed to present sufficient evidence that could support a finding that [Dr. Suarez's] care and treatment caused [Martin's] injuries," and the " 'lost chance' . . . relaxed standard of causation" is inapplicable as a matter of law. Dr. Suarez argued Martin failed to establish the causation element because in his view Dr. Wallach's testimony established that Martin had more than a 50 percent survival rate in 2005, and the difference in survival rate between 2003 and 2005 was only "15 percent." According to Dr. Suarez, this meant Martin did not prove the claimed malpractice more likely than not caused Martin's damages.
Martin opposed the motion, arguing the evidence supported a finding that he had essentially a zero chance of survival when his cancer was diagnosed in 2005 based on testimony showing that by 2005, the cancer was at least a late Stage 3 and since it had spread to his lymph nodes it was more likely a Stage 4. Alternatively, Martin argued he suffered additional damages, including pain and suffering and the lost ability to pursue his career as a police detective. Martin argued these damages were not precluded by the lost chance doctrine.
After a hearing, the court granted Dr. Suarez's motion based on its conclusion that "Dr. Wallach's testimony unequivocally presented the jury factually with a lost chance theory, which is not recognized in California."
Martin appealed. Shortly thereafter, Martin died. His successor, Rebecca Lyons, has substituted as appellant.
On November 15, 2007, Lyons obtained an order appointing her as successor in interest for purposes of this appeal. This order was issued by the superior court, rather than the Court of Appeal, as the rules now require. (See Cal. Rules of Court, rule 8.36(a).) For judicial economy purposes, we deem this order filed in this court and likewise appoint Lyons as successor in interest to Martin for purposes of this appeal.
DISCUSSION
" 'A motion for nonsuit . . . concedes the truth of the facts proved, but denies as a matter of law that they sustain the plaintiff's case. A trial court may grant a nonsuit only when, disregarding conflicting evidence, viewing the record in the light most favorable to the plaintiff and indulging in every legitimate inference which may be drawn from the evidence, it determines there is no substantial evidence to support a judgment in the plaintiff's favor.' . . . " (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677.) We independently review a nonsuit, employing the same standards that govern the trial court. (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541-1542.)
In moving for a nonsuit, Dr. Suarez challenged the causation element of Martin's professional negligence claim, asserting the evidence did not support an inference that the two-year delay in diagnosing Martin's cancer caused any harm to him.
To prove a medical malpractice case, the plaintiff must establish "it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury." (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118.) " 'A possible cause only becomes "probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.' " (Ibid.) "[C]ausation in actions arising from medical negligence must be proven within a reasonable medical probability based on competent expert testimony, i.e., something more than a '50-50 possibility.' " (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504; accord Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603 (Dumas).) "[T]he evidence must be sufficient to allow the jury to infer that in the absence of the defendant's negligence, there was a reasonable medical probability the plaintiff would have obtained a better result." (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.)
Causation is generally a question of fact for the jury. (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666.) However, if expert testimony precludes a finding of causation by a trier of fact, the question may be decided as a question of law. (See Duarte v. Zachariah (1994) 22 Cal.App.4th 1652, 1657-1660; Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 288-289.)
In this case, Dr. Wallach testified that if Dr. Suarez had diagnosed Martin's colon cancer in 2003 and the cancer was at Stage 1, he would have had a 90 percent chance of a complete recovery. However, by the time the aggressive cancer was diagnosed in 2005, it was likely that the cancer had spread to Martin's lymph nodes, and thus the cancer essentially became incurable. Dr. Wallach, an experienced oncologist, opined that the two-year delay in diagnosis was a substantial factor in causing the cancer to "spread" and metastasize to the lymph nodes, and to cause Martin's colon cancer to advance "from a Stage 1 to 3 to a Sta[g]e 3 to 4 at the time of his surgery in 2005[.]" (Italics added.) This testimony supported a conclusion that the failure to diagnose the cancer in 2003 was more likely than not the cause of Martin's injuries, which included loss of the ability to perform his job, loss of future wages, out-of-pocket costs associated with the medical care, and substantial pain and suffering caused by the advanced cancer.
Although Dr. Wallach testified that the cancer also may have been at Stage 2 or Stage 3, the jury would have been entitled to accept the Stage 1 diagnosis if it found that Dr. Suarez's failure to perform any diagnostic tests precluded a more accurate determination of the precise extent of the disease in 2003. (See Cullum v. Seifer (1969) 1 Cal.App.3d 20, 26.)
In arguing to the contrary, Dr. Suarez relies on a portion of Dr. Wallach's testimony taken out of context. He focuses on Dr. Wallach's testimony about the chances for survival in 2003 if the cancer was at an early Stage 3 at the time (at least 65 percent). He then extrapolates from this testimony to argue that this necessarily means that Martin would have had a 65 percent chance of survival two years later in 2005 when the surgical report showed that he had a Stage 3 cancer.
Based on this factual argument, Dr. Suarez contends that even assuming he was negligent and caused the delay in diagnosis until 2005, it was more likely than not that Martin would have survived the cancer but for the "unfortunat[e]" fact that Martin "fell in the minority of patients who did not respond successfully to treatment." Citing the 65 percent survival rate figure, Dr. Suarez says that "regardless of the alleged two year delay in diagnosing the colon cancer, it was still more likely than not Mr. Martin would be cured of colon cancer when it was diagnosed in June 2005." Put otherwise, he argues that based on the evidence showing a greater than 50 percent chance that Martin would survive the cancer in 2005, the evidence did not establish a probability that the result would have been different had the cancer been detected earlier.
We need not reach the underlying legal merits of this argument because it is premised on an improper factual assumption regarding Martin's chance of survival in 2005. Dr. Wallach did not unequivocally state that Martin had a 65 percent chance of surviving the cancer in 2005. The questions preceding Dr. Wallach's 65 percent estimate concerned Martin's estimated survival rate in "May of 2003," when the cancer would have been, at most, an early Stage 3.
To the extent that Dr. Suarez could defend the case before a jury based on an argument that Dr. Wallach's 65 percent survival rate estimate for a Stage 3 cancer should logically apply to Martin's condition in 2005, this argument is not helpful here. In ruling on the propriety of a nonsuit, we must view the evidence in the light most favorable to the plaintiff and may not weigh the evidence or reach contrary inferences. Under this standard, the evidence supported that Dr. Wallach's greater than 50 percent estimate applied only to a hypothetical early Stage 3 cancer in 2003.
According to Dr. Wallach, if the cancer had been discovered in 2003, it is likely Martin would have been cured. However, because of Dr. Suarez's failure to diagnose the cancer in 2003, Martin's survival chances diminished to below 50 percent. This evidence supports a finding that it is more probable than not that Dr. Suarez's alleged negligence caused Martin to suffer injury and damages.
Under these circumstances, there was no need for Martin to rely on the lost chance doctrine. This doctrine was initially developed to address the situation where the plaintiff has a less than 51 percent chance of recovery at the time the doctor negligently failed to diagnose the disease. (See Dumas v. Cooney, supra, 235 Cal.App.3d 1603-1604; Perez v. Las Vegas Medical Center (Nev. 1991) 805 P.2d 589, 590-591; Annot., Medical Malpractice: "Loss of Chance" Causality (1987) 54 A.L.R.4th 10, 18-20.) Under this scenario, a plaintiff could not recover against the physician under a traditional proximate causation analysis because the probable cause of the injury (or death) was the disease and not the doctor's actions. (See Bromme v. Pavitt, supra, 5 Cal.App.4th at p. 591.) If it is probable (more than a 50 percent chance) that the plaintiff would have died even if the disease had been timely diagnosed, it is more likely than not that the failure to diagnose did not contribute to the patient's death or to the injuries related solely to the preexisting condition. (Ibid.; see Dumas, supra, 235 Cal.App.3d at p. 1605.) However, if the evidence showed that the plaintiff was not likely to die at the time of the faulty diagnosis (he or she had at least a 51 percent of surviving the preexisting condition), the plaintiff would be entitled to establish the doctor's negligence was a cause in fact of the death or injury. (Ibid.)
To reduce the perceived inequity of this " 'all or nothing' " approach, courts in some jurisdictions developed the "lost chance" doctrine that permits the plaintiff to recover even if he or she cannot prove traditional proximate causation, but instead can establish the medical professional decreased the patient's chance of achieving a better result due to faulty diagnosis or treatment. (See Dumas, supra, 235 Cal.App.3d at pp. 1603-1606; Perez, supra, 805 P.2d at p. 591.) California courts have thus far declined to recognize the doctrine, finding no reason for the courts to depart from traditional tort causation analysis. (Dumas, supra, 235 Cal.App.3d at pp. 1606-1611; see Duarte v. Zachariah, supra, 22 Cal.App.4th at pp. 1657-1660; Bromme v. Pavitt, supra, 5 Cal.App.4th at pp. 1505-1506.)
For purposes of the nonsuit motion, it was unnecessary for Martin to rely on the lost chance doctrine to establish causation. First, in this case, unlike Dumas and Bromme, the evidence supported that at the time of the failure to diagnose, Martin had a greater than 50 percent (90 percent) chance of a five-year survival with proper treatment. Thus, for purposes of the nonsuit motion, Dr. Suarez could not prevail on an argument that as a matter of law the probable cause of the injury was the disease rather than Dr. Suarez's medical negligence. Additionally, there was evidence that at the time the cancer was diagnosed, Martin had less than a 50 percent chance of survival. Thus, the evidence supported that it is more likely than not that Martin's advanced cancer was a result of the delay in diagnosis, rather than the disease itself.
In Dumas, the defendant doctor challenged a jury instruction permitting damages based on a lost chance analysis. The court held the instruction should not have been given and remanded the case, recognizing the existence of a factual issue as to whether the plaintiff had a greater than 50 percent chance of surviving at the time of the faulty diagnosis. (Dumas, supra, 235 Cal.App.3d at p. 1612.)
Equally significant, Dr. Suarez's reliance on the lost chance doctrine to support his nonsuit motion was misplaced because Martin's claimed injuries were not limited to a "lost chance to survive." Martin did not seek to recover only for the percent reduction in the likelihood he would remain cancer free. Instead, Martin sought recovery for the increased economic costs and pain and suffering caused by the fact that the cancer had substantially progressed by 2005. Martin presented evidence that the medical treatment was more complicated, difficult, and painful in 2005 than it would have been if the cancer had been diagnosed in 2003. This evidence showed that if the cancer was only at a Stage 1 in 2003, the surgery would have likely removed all of the cancer, and chemotherapy then would have been unnecessary. However, because the cancer progressed to a late Stage 3 to Stage 4 in 2005, Martin was required to undergo repeated chemotherapy and radiation treatments, causing Martin to endure substantially more physical suffering, and to bear increased economic costs associated with his lost employment. Additionally, Martin testified that he suffered severe headaches and substantial fatigue in 2005 before his cancer was diagnosed. If Dr. Suarez had diagnosed the cancer in 2003, the surgery would have been performed immediately and he would not have experienced these detrimental consequences.
If the evidence shows a plaintiff suffered more physical discomfort and/or incurred higher economic costs as a result of the delayed diagnosis, the evidence is sufficient to satisfy the causation element of a malpractice claim with respect to these alleged losses. (See Bromme v. Pavitt, supra, 5 Cal.App.4th at pp 1500-1501; Cullum v. Seifer, supra, 1 Cal.App.3d at p. 28.)
DISPOSITION
Judgment reversed. Respondents to pay appellant's costs on appeal.
WE CONCUR: McDONALD, J., IRION, J.