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Levitin v. Brown4/21/2005
t attempts to recover under a "loss of chance" theory of recovery, rejected in California in Dumas v. Cooney (1991) 235 Cal.App.3d 1593 as inconsistent with this state's probability-based standard of causation for professional negligence cases. Plaintiffs deny they are seeking damages under a "loss of chance" theory, contending, instead, that their claims rely on the traditional causation standard of loss of a probable cure, as well as on the increased growth and spread of the tumors resulting from the alleged delay in diagnosis. Plaintiffs also assert a claim for fear of cancer based upon the principles articulated in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965.
The crux of this appeal concerns whether the undisputed facts establish an absence of harm resulted from the alleged delay in diagnosis. Based on our independent review of the motion papers, we conclude defendants satisfied their initial burden to negate the causation element, but plaintiffs then successfully raised a triable issue as to whether harm resulted from the delay in diagnosis of the primary malignant tumor in Mrs. Levitin's left breast. Accordingly we reverse.
Plaintiffs have identified several discreet types of harm they contend resulted from the delayed diagnosis of Mrs. Levitin's malignant tumors:
1. A decrease in Mrs. Levitin's chance of survival from a 90 percent probability that she would remain disease-free 10 years after the tumors should have been first diagnosed in 1995, to a less than 50 percent possibility of remaining disease-free 10 years after the actual diagnosis in 2000;
2. Increased growth of the primary malignant tumor in Mrs. Levitin's left breast and spread of cancerous cells from that tumor into adjacent breast tissue and to the axillary lymph nodes during the period between 1995 and 2000; and,
3. Emotional distress (fear of cancer) resulting from knowledge, corroborated by expert medical opinion, of the probability Mrs. Levitin's cancer will recur due to the delayed diagnosis of her tumors.
We begin our analysis by considering the evidence related to the second claimed harm (increased growth and spread of left breast tissue tumor). Plaintiffs contend that a material triable issue of fact exists as to whether Mrs. Levitin was adversely affected by the delay in discovering this primary tumor. We agree.
Separate, identical sets of interrogatories were served on Mrs. Levitin by each defendant shortly after the complaint was filed and before defendants filed their answer. Interrogatory No. 2 in each set provided, "Please state every fact upon which you base your contention that [a specific doctor] was negligent." In response, Mrs. Levitin discussed the left breast tumor only in regard to Dr. Margolin: "Dr. Margolin failed to recognize the left breast tumor when he identified the axillary node tumor from the [November 28, 2000] film." In their moving papers, defendants provided an expert opinion by Dr. Link. He described Ms. Levitin's interrogatory response as a contention that "a left breast mass was identifiable from November 28, 2000 onward." Dr. Link then opined that Ms. Levitin "would have needed the same treatment that she received, and suffered the same sequelae [i.e. consequences] from the treatment, had her . . . left breast tumor been diagnosed in 2000." (Italics added.)
In opposition to the motion, plaintiffs submitted a declaration from their medical expert, Dr. Hance, describing specific features of mammograms obtained in 1995 and thereafter as revealing "architectural distortion and a spiculated mass in the upper left outer quadrant of the left breast that were suspicious abnormalities sugge
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