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McBride v. Mikulics5/24/2005
Plaintiffs Elia McBride (Elia) and Patrick McBride (Patrick) (collectively McBrides) appeal from the judgment entered after the trial court granted summary judgment in favor of defendants Stefanie A. Mikulics, M.D., Daniel S. Marks, M.D., Fresno Community Hospital and Medical Center, operator of University Medical Center (UMC) and the Regents of the University of California (the Regents) (collectively respondents). We will affirm.
FACTS AND PROCEDURAL HISTORY
Summary of Facts
On January 23, 2001, Elia saw Dr. Mikulics about a lump in Elia's left breast. Dr. Mikulics performed a fine needle aspiration, which was negative for malignant cells. Dr. Mikulics also performed a CT, but could not rule out cancer. An ultrasound performed on January 31, 2001, which Dr. Marks read, showed probable cystic disease in the left breast, which Dr. Marks concluded was "probably benign." A mammogram performed at the same time showed a palpable abnormality in the left breast that Dr. Susan Barrows interpreted as also "probably benign." A February 16, 2001 letter from Dr. Barrows to Elia explained the mammography showed the area was probably benign and recommended a follow-up mammogram in six months.
In March 2001, Elia returned to Dr. Mikulics regarding a vaginal lump, which was removed three days later and determined to be benign. Elia did not return to UMC after this.
On September 1, 2001, Elia and Patrick married.
On October 25, 2001, Elia went to Kaiser Hospital, complaining about the lump in her left breast, which she said had been slowly growing. A mammogram and biopsy performed on December 12, 2001 were highly suggestive of malignancy. On December 14, 2001, a lumpectomy was performed at Kaiser. Elia received five chemotherapy treatments from January 15, 2002, to May 26, 2002, followed by radiation and tamoxifen. As of February 26, 2004, the cancer had not recurred and Elia was in remission. Elia would have received the same treatment if the cancer had been discovered earlier.
Defense expert Frank Stockdale, M.D. opined Elia's prognosis did not change because of the alleged delayed diagnosis as it was more probable than not that the breast cancer would not recur. The McBrides' expert, David Palchak, M.D., opined that "because of the delayed diagnosis" Elia's "prognosis" was "59% with surgery followed by chemotherapy, then radiation, then tamoxifen[,]" while Elia's "chance of cure" in January 2001 was 86 percent with surgery, chemotherapy, radiation and tamoxifen. Dr. Palchak further explained the delayed diagnosis caused "injury and a poor prognosis" because Elia's 10-year survival rate fell.
This Lawsuit
On October 22, 2002, the McBrides filed their complaint alleging medical negligence on Elia's behalf, and negligent infliction of emotional distress and loss of consortium on Patrick's behalf. Dr. Mikulics and UMC were the only named defendants. On June 9, 2003, the McBrides amended the complaint to also name Dr. Marks as a defendant in place of Doe 2.
In December 2003, Dr. Mikulics, Dr. Marks and UMC filed separate motions for summary judgment or, in the alternative, summary adjudication, asserting essentially the same grounds: (1) all claims fail because respondents did not breach the standard of care or cause Elia's alleged injuries; and (2) both of Patrick's claims fail because the McBrides were not married when the alleged failure to diagnose occurred. Dr. Mikulics also asserted the negligent infliction of emotional distress claim failed because Patrick was not present when the purported negligence occurred, while Dr. Marks also asserted all claims against him failed because th
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