In its decision rendered on January 29, 2015, the Court of Appeal, Fourth Appellate District, District One, State of California, upheld a verdict in favor of the medical malpractice plaintiffs in a case involving the misdiagnosis of breast cancer in a woman who had an extensive family history of breast cancer and who had found a lump in her breast that she was told was a cyst and not cancer following an ultrasound. The medical malpractice claim alleged that a surgeon specializing in breast cancer negligently failed to timely diagnose the woman’s breast cancer in 2007, at which time her medical experts testified that she had a greater than 50% chance of surviving more than 10 years.
The Underlying Facts
During the summer of 2007, the woman’s husband found a lump within his wife’s left breast that was the size of a pencil eraser – the lump was firm and it did not move. Because of her extensive family history of breast cancer, the woman made an appointment with a family practice physician as quickly as she could. The physician palpated a two-centimeter hard lump and ordered a mammogram and ultrasound, which were reassuring (on the mammogram, the radiologist found no significant masses suspicious for cancer, but stated “the breast [was] extremely dense, which could obscure a lesion on mammography;” on the ultrasound, the radiologist noted “a collection of small simple cysts” in the area of the clinically palpable mass).
The woman was referred to a surgeon specializing in breast cancer who reviewed the mammogram and ultrasound results, examined the area, and concluded that the woman had simple cysts, which was consistent with the ultrasound report. The surgeon advised the woman that she did not have breast cancer but offered the option of aspirating the cyst, although she was fairly sure it was just a cyst and advised the woman to cut back on caffeine. The surgeon did not order an MRI or other follow-up testing.
About a year and a half later, the woman experienced back pain and flu-like symptoms that did not go away, and her breast changed in appearance (by January 2009, her breast was fuller and the nipple was flat and appeared tacked down). She underwent an MRI of the spine, a mammogram, an ultrasound, and had a tissue biopsy, and was referred back to the breast surgeon.
The woman was diagnosed with breast cancer in May 2009 and was told that the cancer could not be cured at that point because she had it for some time. Despite initially responding well to treatment (her breast swelling resolved, her back pain resolved, and her energy returned), she succumbed to her cancer on December 8, 2010.
The woman’s husband filed a medical malpractice case on behalf of his minor children and himself, alleging that the breast cancer surgeon breached the standard of care by failing to biopsy the area in the left breast for which his wife was referred and by failing to order an MRI to detect breast cancer and to follow-up with a biopsy of the area in August 2007. The plaintiffs alleged that had those actions been taken in August 2007, to a reasonable degree of probability, a biopsy would have shown breast cancer.
The Defendant alleged both at trial and on appeal that the plaintiffs’ expert’s opinion lacked adequate foundation to establish the failure to timely diagnose the woman’s cancer caused her death. The Appellate Court noted that the plaintiff’s expert’s opinion was not based on speculation and it was not derived from the woman’s family history alone: the expert had testified based on his experience as well as the woman’s history that the woman had the most common type of breast cancer, which was the most amenable to treatment, and, noting that the woman responded to treatment initially, it was his opinion that the woman would have obtained a better result if she had been treated two years earlier when the tumor burden was less, and even though it was more likely than not the disease had metastasized by August 2007, if the woman had distant metastasis in 2007 (stage 4), she could have lived another five to 10 years or more with treatment.
The Appellate Court stated, “[u]nder these circumstances, we cannot conclude the trial court abused its discretion in admitting [the] expert testimony on the issue of causation or that the court erred in denying the motions for nonsuit and new trial.” The Appellate Court also turned away the Defendant’s challenges to the jury instructions that were given by the trial judge. The Appellate Court therefore affirmed the verdict in favor of the medical malpractice plaintiffs.
Source Patrick Uriell, Individually and as Trustee, etc. et al. v. The Regents of the University of California, D064098.
If you or a loved one were injured due to medical negligence in California, you should promptly find a California medical malpractice lawyer who may investigate your California medical malpractice claim for you and represent you in a California medical malpractice case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in California or in your state who may assist you.
Turn to us when you don’t know where to turn.