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Gilmore v. O'Connor6/29/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiffs, the surviving husband and adult children of Olivia Gilmore, appeal from the judgment entered following summary judgment in their wrongful death action against Dr. Brian P. O'Connor, a rheumatologist who was one of Mrs. Gilmore's treating physicians at the time of her death. We conclude triable issues of material fact exist as to whether Dr. O'Connor breached the standard of care and thereby proximately caused Mrs. Gilmore's death by failing to refer Mrs. Gilmore to a cardiologist or otherwise rule out a cardiac origin for her symptoms. Accordingly, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Dr. O'Connor treated Mrs. Gilmore for various degenerative joint problems from 1988 until her death in 2002. Dr. O'Connor's diagnosis of Mrs. Gilmore's condition included osteoarthritis, recurrent rotator cuff bursitis, and frequent episodes of costochondritis, which responded promptly to cortisone injections in the chest, and was usually worse on the left side than the right. Mrs. Gilmore's medical records indicated a significant family history of coronary disease. Her mother and two brothers died of heart attacks, her father died following a stroke, and a sister had coronary artery disease and diabetes. In addition, Mrs. Gilmore was being treated for hypertension and hyperlipidemia (high cholesterol).
On March 5, 2002 Mrs. Gilmore presented to the emergency department of Huntington Memorial Hospital complaining of chest pain radiating to the back. According to respondent's medical expert, Dr. Daniel Wohlgelernter, Dr. O'Connor spoke with the emergency room physician and was told there was no evidence of cardiopulmonary disease. The following day Mrs. Gilmore saw Dr. O'Connor, who treated her "`chest pain radiating to the back'" with a cortisone injection. According to another of respondent's medical experts, Dr. Rodney Bluestone, Dr. O'Connor alerted Dr. Manoogian on March 12, 2002 that Mrs. Gilmore had been to the emergency room but there was no cardiac problem. But appellants' medical expert, Dr. Phillip S. Frankel, expressly stated that Mrs. Gilmore's medical chart notes "do not indicate that Dr. O'Connor and Dr. Manoogian conferred with each other regarding [Mrs. Gilmore's] complaints, treatment and her response to treatment or lack thereof." And Dr. Manoogian testified that he did not confer with Dr. O'Connor following her March 5, 2002 emergency room visit.
According to Dr. Frankel, Mrs. Gilmore's medical records indicate that on April 3, 2002 a CT scan revealed Mrs. Gilmore had an enlarged heart, but Dr. O'Connor did not order further cardiac workup. Dr. Frankel further stated that on May 13, 2002 Mrs. Gilmore complained of chest pain radiating down both arms, but again, no cardiac evaluation was ordered. A "`stress'" test was scheduled for two weeks later.
According to respondent's experts, Mrs. Gilmore was last seen by Dr. O'Connor on May 15, 2002. At that time, Mrs. Gilmore was not complaining of any chest pain, and there was no costochondritis. But according to Dr. Frankel, Mrs. Gilmore complained of arm pain radiating to the chest on May 17, 2002, and her medication was changed from Nexxium to Protonix, a medication for peptic acid disease.
Mrs. Gilmore died on May 18, 2002 from coronary failure. She was 72 years old.
On August 8, 2003 appellants file
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