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Vohra v. Regents of the University of California2/4/2002
pak maintains Simmons is inapt because the court did not involve "an emergent matter of life and death where the decedent was deprived of a meaningful substantial chance of survival because of efendant's acts of malpractice." He fails to explain why, or cite to any authority holding, this is a factual distinction that makes a difference. We are unpersuaded that it does. Whether a physician is responding to an emergency life-threatening injury or a slow-progressing terminal illness, the patient's chance of survival, regardless of the physician's negligence, is dependent on the nature of the original disease or injury. To recover in a wrongful death action, the law requires there to be some degree of certainty the physician's negligence contributed to the patient's death. Specifically, there is no recovery if the patient's chance of survival was less than 50 percent. (Bromme v. Pavitt, supra, 5 Cal.App.4th at pp. 1504-1505.)
Deepak also complains that "Simmons involved a single act of malpractice, but the instant case deals with numerous acts of malpractice, all of which cumulatively were a substantial factor in bringing about decedent's demise." The premise of this argument is belied by the record, which shows Deepak's expert retracted all but one criticism of the treatment provided.
Rapeport revealed he was not a surgeon and would "defer to a cardiac surgeon with respect to rendering expert opinion at trial with respect to the issues [regarding] . . . the adequacy of the surgical repair of [the decedent's] heart." He testified that he told his client "that the technical issues of cardiac surgery are not in my domain . . . ." He also admitted he could not determine if the ventricular septal defect reoccurrence "was from an ineffective repair or whether the patient had a second cardiac event resulting from a perforation." In addition, he conceded any negligence in treating her thyroid condition was a "very small factor."
Although the expert was critical of the delay before surgery, he conceded Deepak's mother did not have a greater than 50-50 chance of survival if no delay had occurred. As a matter of law, this testimony does not establish a triable issue of fact regarding causation. Summary judgment was properly granted.
The judgment is affirmed. The Regents of the University of California and Jeffrey Milliken shall recover their costs on appeal.
WE CONCUR:
SILLS, P. J.
MOORE, J.
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