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Martinez v. Jasperson1/28/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Arturo Martinez appeals the judgment entered in his medical malpractice action against defendants Thomas Jasperson, M.D. and Little Company of Mary Health Services. Finding no error, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In 1997, plaintiff reported to defendant Dr. Jasperson, his primary care physician, that for two months he had been experiencing hoarseness, a sore throat and difficulty swallowing. Dr. Jasperson referred plaintiff to Dr. Norman Cantor, an ear, nose and throat, or ENT, specialist. In November 1997, Dr. Cantor performed diagnostic procedures. He concluded that plaintiff suffered from leukoplakia of the larynx, which is not cancer. A biopsy followed, which revealed no cancer, but confirmed the diagnosis of clinical leukoplakia.
The foregoing results were reported to Dr. Jasperson in February 1998. The next month, Mr. Martinez sought a second opinion from ENT surgeon Dr. Darryl Rheuark. On August 7, 1998, following another diagnostic procedure, Dr. Rheuark diagnosed plaintiff with cancer of the larynx. Dr. Rheuark referred plaintiff to Dr. Thomas Simko, a radiation oncologist, for radiation treatment. Dr. Rheuark also performed a partial laryngectomy.
Dr. Simko conducted post-operative radiation therapy on Mr. Martinez between October 8 and November 24, 1998. Mr. Martinez returned to see Dr. Simko on December 9, 1998 and February 18, 1999. At the latter meeting, Mr. Martinez indicated that he had intermittent blood in his expectorate, but did not have throat pain or difficulty swallowing. Dr. Simko's impression was that post-radiation-related mucositis, a common side effect of radiation therapy, accounted for the blood. Dr. Simko planned to continue to follow Mr. Martinez's progress closely in conjunction with Dr. Rheuark.
On March 19, 1999, Mr. Martinez underwent a bronchoscopy, during which an endotracheal nodule was biopsied. The pathology report indicated that the cancer in Mr. Martinez's larynx had metastasized to his lung.
Plaintiff retained counsel and filed a complaint for medical malpractice on June 18, 1999. He named as defendants Dr. Jasperson, Dr. Cantor, and defendant Little Company of Mary Health Services, and alleged that the defendant doctors failed to properly diagnose cancer of the larynx. In an amended complaint, plaintiff added two additional defendants, Dr. Simko and Torrance Memorial Medical Center, and alleged that, when Mr. Martinez started to spit up blood during radiation treatments, Dr. Simko should have conducted tests to determine if Mr. Martinez's cancer had spread from the larynx to the lungs.
Drs. Simko and Cantor moved for summary judgment. The motions were unopposed, and Mr. Martinez's counsel filed a notice of non-objection to the court's tentative ruling. Judgment was entered February 8, 2000.
By mutual agreement Mr. Martinez's counsel, Mr. Braun, withdrew from the case. On February 4, 2000, Mr. Martinez filed a substitution of attorney, in which he undertook to represent himself. At the time of the substitution of attorney, the case was set for trial on June 13, 2000.
At a March 14, 2000 hearing, Mr. Martinez requested a continuance in order to locate an attorney to represent him. The trial court denied the request.
At a May 4 hearing on the motio
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