Bromme v. Pavitt

In Bromme v. Pavitt (1992) 5 Cal. App. 4th 1487, 1504-1505, the husband of a woman who died of colon cancer in 1984 brought a wrongful death action against the doctor who treated her from 1979 until her death on the ground that the doctor negligently failed to detect the cancer even though the decedent complained to him of abdominal pain in June 1980 and September 1981; the cancer was diagnosed in September 1981. The court held that a partial nonsuit was properly granted the defendant doctor as to any alleged negligent acts after June 1981, as it was established that after that time, decedent's chance of successful treatment was less than 50 percent. In upholding the partial nonsuit, the court held that the "uncontradicted evidence established that Bromme's chance of surviving the cancer after June 1981 was less than 50 percent even if defendant had not been negligent, i.e., that it was not medically probable defendant's alleged negligence after June 1981 was a substantial factor in causing Bromme's death." (5 Cal. App. 4th at p. 1503.) In sum ,the Court affirmed a partial nonsuit for defendant that precluded any consideration of alleged negligence after June 1981, based on the testimony of several doctors that the decedent's chance of survival dropped to no greater than 40 percent after that date (whereas in June 1980 it had been as high as 75 percent). ( Id. at pp. 1495-1496.) After extensive analysis of the wrongful death statute (Code Civ. Proc., former 377, now 377.60) and case authorities that we need not reiterate here, this court concluded that "California does not recognize a cause of action for wrongful death based on medical negligence where the decedent did not have a greater than 50 percent chance of survival had the defendant properly diagnosed and treated the condition. " (Bromme, at pp. 1504-1505.) The Court held: "A plaintiff who alleges a statutory cause of action for wrongful death arising from medical negligence must prove by reasonable medical probability based on competent expert testimony that a defendant's acts or omissions were a substantial factor in bringing about the decedent's death. Where the alleged negligence relates to the failure to diagnose and treat a potentially terminal condition, a plaintiff fails to satisfy the requisite causation if the evidence shows the decedent did not have a greater than 50 percent chance of survival had the defendant properly diagnosed and treated the condition." ( Id. at pp. 1492-1493.) In Bromme, three medical experts "testified regarding the surgical cure rate for cancer." ( Bromme, supra, 5 Cal.App.4th at p. 1495.) These experts offered general opinions about the cure rate for colon cancer at various stages in the progress of the disease, which were not, by their very nature, specific to Bromme. ( Id. at pp. 1495-1496.)