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Levitin v. Brown4/21/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiffs Louise and Jerry Levitin filed a medical malpractice action against radiologists Thomas Brown, M.D., Susan Denny, M.D., Frederick Margolin, M.D., and Allen Oshita, M.D. (collectively defendants), alleging defendants failed to timely diagnose and treat malignant tumors in Mrs. Levitin's left axillary lymph node and left breast. The trial court granted defendants' summary judgment motion, concluding that defendants had established that plaintiffs could not prove the causation element of their claims. We reverse.
Background
This lawsuit arises out of defendants' alleged failure to timely diagnose and treat cancerous tumors in Mrs. Levitin's left axillary lymph node and left breast. It is undisputed that she underwent annual screening mammograms from 1994 through 2000, and that no evidence of breast cancer was detected until November 16, 2000, when the radiologist (Dr. Denny) reported a "worrisome," "asymmetric density . . . in the left axilla." A follow-up mammogram and ultrasound were performed, confirming this finding. On December 19, 2000, a needle biopsy was performed, which identified the mass as an "infiltrating lobular carcinoma" and showed "one of two lymph nodes with metastatic carcinoma (1/2)." (Surgical Pathology Report (SPR) No. CPC-00-17757.)
On January 29, 2001, an excision was performed of the same biopsy site that, on pathologic examination, again revealed infiltrating lobular carcinoma. (SPR No. CPC-01-1360.) Additional lymph nodes were sampled, revealing four out of nine nodes to be metastatic. Extranodal extension, not identified in the prior needle biopsy, was found in this lymph node sampling.
The pathology slides for both procedures (SPR Nos. CPC-00-17757 & CPC-01-1360) were reread at the University of California San Francisco (UCSF) Mount Zion Medical Center on April 19, 2001. The UCSF pathologist described the appearance of a tumor mass in the lymph node area as suggesting a "tumor entirely replacing a lymph node with extensive extranodal involvement rather than a primary neoplasm." The pathologist suggested further evaluation of a separate left breast mammographic abnormality, noted by the UCSF Tumor Board, to determine if it was a malignant tumor of the same type, which might indicate the tumors in the lymph nodes "represent metastasis" (i.e., were not the primary breast tumor).
On April 30, 2001, additional mammogram and ultrasound studies were performed at UCSF Mount Zion Medical Center that were interpreted as showing a suspicious area in the left breast tissue recommended for needle biopsy. A subsequent core needle biopsy revealed the mass in the left breast tissue was an "infiltrating lobular carcinoma." Plaintiffs contend, and defendants do not deny, that this finding suggests the breast tissue tumor was the primary tumor site and that the tumor found in the left axillary lymph node was a secondary metastasis.
In March 2002, plaintiffs filed their personal injury complaint against defendants, alleging causes of action for medical negligence, loss of consortium and deceptive practices (Civ. Code, ยง 1770). The deceptive practices claim was eliminated on demurrer, and defendants answered the remaining claims. In May 2003, defendants moved for summary judgment based on the assertion that there was no evidence they breached the standard of care
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