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Court of Appeal, Second District, Division 4, California.

Steven WERNER, Plaintiff and Appellant, v. Gerald BLANKFORT et al., Defendants and Appellants.

No. B066800.

Decided: June 29, 1995

Law Offices of David M. Harney and Thomas Kallay, Los Angeles, and Esner, Marylander, Zakheim & Higa, Grant Marylander and Billie Ann U. Higa, Santa Monica, for plaintiff and appellant. Baker, Silberberg & Keener, Steven R. Van Sicklen, Jenny M. McMahon, Santa Monica, Horvits & Levy, S. Thomas Todd, Sandra J. Smith and H. Thomas Watson, Encino, for defendants and appellants. Catherine I. Hanson and Gregory M. Abrams, San Francisco, as amicus curiae on behalf of defendants and appellants.

The issue in this case is whether plaintiff Steven Werner may recover for emotional distress and related special damages if he proves that malpractice by his treating physicians reduced his five-year chance of surviving malignant melanoma from 40 percent to 13 percent.

Defendant physicians argue that Mr. Werner's claim is barred by established principles of causation because he cannot show that he had a greater than 50 percent chance of surviving the cancer that afflicted him even if there had been no malpractice.   They contend that Mr. Werner cannot succeed in his lawsuit unless we adopt the controversial lost chance doctrine.   Mr. Werner responds that this is not a true lost chance case, and that the damages he seeks are within established principles of California tort law.   We conclude that he is correct in this assertion, and affirm the trial court's order granting him a new trial.   Because of the limited nature of damages sought by Mr. Werner, we need not and do not decide the validity or application of the lost chance theory under which recovery of damages is measured by loss of life expectancy of the patient.   We discuss that theory as background for our review of Mr. Werner's theory on appeal.

We also find no basis for reversal in appellants' challenges to the new trial order.


Mr. Werner discovered a mole on his back in the Spring of 1986.   He went to his long-time internist, Dr. Gerald Blankfort.   Dr. Blankfort referred Mr. Werner to a dermatologist who concluded that because of the size of the mole, the attention of a surgeon was required.   Dr. Blankfort referred Mr. Werner to Dr. Schlemenson, an oncology surgeon.

On May 1, 1986, Dr. Schlemenson removed the mole and sent it to a pathologist.   Several days later, Mr. Werner was asked to return to Dr. Schlemenson's office, and was told the mole was a malignant melanoma.   The pathology report diagnosed the mole as malignant melanoma, Clark's level 2 invasion, with 1.1 millimeter thickness.   Dr. Schlemenson examined Mr. Werner's lymph nodes under his armpits because of the possibility that the melanoma had spread to those glands.   The examination of the lymph nodes was negative at that time.

On May 9, 1986, Dr. Schlemenson performed a second, more extensive surgery, to remove tissue surrounding the excised mole.   The subsequent pathology report indicated that there was no residual tumor.   Dr. Schlemenson saw Mr. Werner on several follow-up visits to monitor healing of the incision.   The last examination was on June 16, 1986.   At that time, Dr. Schlemenson believed Mr. Werner's prognosis was excellent.

The evidence was in conflict as to the advice Dr. Schlemenson gave Mr. Werner regarding the melanoma.   Mr. Werner testified that Dr. Schlemenson never explained:  (1) the progress of malignant melanoma;  (2) the available methods of treatment;  (3) the availability of elective lymph node dissection;  (4) the technique for self-examination;  or (5) the schedule of follow-up monitoring required.   Specifically, Mr. Werner testified that Dr. Schlemenson did not tell him to follow-up with Dr. Blankfort, and that Dr. Schlemenson told him there was no reason to return after the June 16, 1986 appointment.

According to Dr. Schlemenson, he explained that Mr. Werner had a serious cancer and should be examined regularly.   Dr. Schlemenson did not specify the necessary frequency of the follow-up examinations.   Dr. Schlemenson testified that he told Mr. Werner to return for a follow-up examination, but did not tell him when to return.   He told Mr. Werner about the possibility of an elective lymph node dissection, but recommended against the procedure.   The case notes taken by Dr. Schlemenson do not reflect this advice.   He testified that it was not his practice to record advice given to patients in his notes.   Dr. Schlemenson testified that he assumed Dr. Blankfort would regularly monitor Mr. Werner for reoccurrence of the melanoma.

Dr. Schlemenson had no record indicating that he had communicated with Dr. Blankfort about Mr. Werner's melanoma and the need for follow-up.   Dr. Blankfort testified that he was never told that the mole was malignant melanoma.

In 1986, Mr. Werner saw Dr. Blankfort for reasons unrelated to the melanoma.   Dr. Blankfort did not examine Mr. Werner for any growth under his arms or for a recurrence of the melanoma nor did he advise Mr. Werner to have regular checks for melanoma.   Mr. Werner received no instruction from Dr. Blankfort on conducting a self-examination for melanoma.

In November 1987, Mr. Werner felt a lump under his left arm.   He saw Dr. Blankfort the same day.   Dr. Blankfort told him the lump was a fatty tumor known as a lipoma.   Mr. Werner reminded Dr. Blankfort that he had a prior melanoma, but was assured that there was nothing to worry about.   Dr. Blankfort's notes reflect an entry for that date of “lipoma.”

Mr. Werner wanted the lump removed.   Dr. Blankfort recommended against the surgery since Mr. Werner planned a trip to Indonesia, and the healing wound would present a risk.   Dr. Blankfort suggested that the lump be removed when Mr. Werner returned in January 1988.   The evidence was conflicting as to whether Mr. Werner saw Dr. Blankfort for an unrelated reason in December 1987.   When Mr. Werner saw Dr. Blankfort in January 1988, the lump beneath his left arm was clearly visible.   Dr. Blankfort advised Mr. Werner to leave it alone.   According to Mr. Werner, similar advice was given when he saw Dr. Blankfort again in February 1988.   According to Dr. Blankfort, the last time he saw Mr. Werner professionally was at the January 1988 visit.   Mr. Werner testified that Dr. Blankfort never examined him for a reoccurrence of the melanoma.

By March 1988, the lump was more visible and had hardened, making it painful for Mr. Werner to lay or sleep on his left side.   He scheduled another appointment with Dr. Blankfort, but left when Dr. Blankfort was too busy to see him.   Instead, Mr. Werner saw Dr. Bierman, a dermatologist in the same building.   Dr. Bierman immediately removed the lump, which was diagnosed as a metastasized melanoma.   Dr. Bierman referred Mr. Werner to an oncologist at UCLA, who recommended that Mr. Werner undergo a lymph node dissection.   All of Mr. Werner's lymph nodes were removed.   Upon examination, two were found to harbor metastasized melanoma.

In March 1989, Mr. Werner filed an action for medical malpractice against Dr. Blankfort and Dr. Schlemenson, alleging their failure to properly diagnose his cancer and to obtain his informed consent.   At trial, Mr. Werner sought damages for past and future pain and suffering, for past and future medical expenses, lost earnings, and loss of future earning capacity.   Mr. Werner's expert witness, Dr. Leibowitz, testified that Mr. Werner's chance of ten-year survival had been reduced from 40 percent to 13 percent by the negligence of the defendant physicians.1

During trial, defendants moved for nonsuit on the basis of a failure of proof on the issue of causation.   They argued that because the evidence was that Mr. Werner had only a 40 percent chance of surviving the melanoma before defendants' negligence, there was no causal nexus between any negligence on their part and injury suffered by Mr. Werner.   The trial court denied the motion.

At the conclusion of the defense case, Mr. Werner attempted to call Dr. Leibowitz as a rebuttal witness.   Dr. Leibowitz's testimony was to be directed toward testimony by Dr. Armentrout, a defense expert.   According to that offer of proof, Dr. Leibowitz would have refuted Dr. Armentrout's testimony that only 5 percent of physicians would have recommended elective lymph node dissection when the melanoma was first diagnosed.   The defendants objected on the ground that Code of Civil Procedure section 2034, subdivision (m) precludes expert testimony in rebuttal to contradict the opinion of another expert.   The trial court sustained the objection, precluding Dr. Leibowitz from testifying about specific studies which refuted this aspect of Dr. Armentrout's testimony.

By a vote of 11 to 1, the jury returned a special verdict finding that the defendants were not negligent.   Mr. Werner filed a motion for new trial, arguing that the trial court had erred in limiting Dr. Leibowitz's rebuttal testimony and that the evidence was insufficient to support the verdict.   Defendants opposed the motion.

At the hearing on the new trial motion, the trial court concluded that it had erred in excluding the testimony of Dr. Leibowitz, and that the jury's verdict was against the great weight of the evidence.   These were the grounds stated in the trial court's order granting the new trial motion.   Defendants filed a notice of appeal from the order granting a new trial.   They also purport to appeal from the order denying their motion for nonsuit.2  Mr. Werner filed a protective cross-appeal from the underlying judgment.

Following oral argument, we requested additional briefing on the issue of damages, and granted a request by the California Medical Association, California Dental Association, and California Association of Hospitals and Health Systems to file a letter brief as amicus curiae.


ILost Chance

The threshold issue in this case is whether Mr. Werner's claim for damages comes within established principles of tort law or, as defendant physicians argue, whether we must adopt the controversial lost chance doctrine in order to allow recovery.

 Under traditional tort doctrine, which we apply, the plaintiff may recover damages only if it is established that the chance of achieving a better medical result is reduced from more than 50 percent to something less than probability.  (See Espinosa v. Little Company of Mary Hospital (1995) 31 Cal.App.4th 1304, 1315, 1320–1322, 37 Cal.Rptr.2d 541.)

Thus, if the patient had less than a fifty percent chance of surviving the original condition, under the traditional standard of causation there is no recovery based on a reduction of the prospect of survival, even if the evidence establishes that the treatment given did not meet the standard of practice in the community.

The lost chance doctrine has been advanced to allow recovery of damages in cases where the likelihood of a better medical result was less than a probability at the time the condition should have been diagnosed and treated.   It has spawned extensive commentary and a plethora of judicial solutions.   The doctrine was thoroughly discussed in a leading article, by Professor Joseph H. King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences (1981) 90 Yale L.J. 1353 (hereafter, “King”).   It sparked a still growing literature in support of and in opposition to its principal thesis.3

Some jurisdictions adopt a proportional approach to the lost chance doctrine.   In these jurisdictions, a plaintiff must show only a reasonable medical probability that some negligent act or omission by the health care provider reduced a substantial chance that the plaintiff would have survived if he or she had received appropriate medical care.  (See e.g. Perez v. Las Vegas Medical Center (1991) 107 Nev. 1, 805 P.2d 589, 592;  Falcon v. Memorial Hosp. (1990) 436 Mich. 443, 462 N.W.2d 44, 56–57;  Delaney v. Cade (1994) 255 Kan. 199, 873 P.2d 175;  Ehlinger v. Sipes (1990) 155 Wis.2d 1, 454 N.W.2d 754, 759.)   Under this approach, the damages awarded are limited to those attributable to the lost or reduced chance itself, and do not include damages which result from the preexisting condition.  (See King, at p. 1360;  McKellips v. Saint Francis Hosp., Inc., supra, 741 P.2d 467, 476;  Perez, supra, 805 P.2d at p. 592;  Delaney, supra, 873 P.2d at p. 186.)

Two methods have been identified for measuring damages under this approach.   A minority of courts have adopted the valuation approach, in which the court or jury determines the appropriate value of lost chance of a better result.  (See James v. United States (N.D.Cal.1980) 483 F.Supp. 581, and discussion in Delaney v. Cade, supra, 873 P.2d at p. 187.)   Most courts adopting the proportional approach use the method of calculating damages suggested by Professor King—the total amount of damages ordinarily recovered for the underlying injury or death is multiplied by the percent of the lost chance.   In Falcon, supra, 462 N.W.2d at page 57, for example, a wrongful death action, the patient's chance of survival was reduced from 37.5 percent to zero as a result of the defendants' malpractice.   The damages awarded were 37.5 percent of the damages recoverable for wrongful death.  (Ibid;  see also plurality opinion by Pearson, J., in Herskovits v. Group Health Co–Op. (1983) 99 Wash.2d 609, 664 P.2d 474, 487 [adopting Professor King's analysis].)

The principal rationale advanced in support of the proportional approach is that it avoids the inequitable “all or nothing” result of the traditional causation test.   That test bars recovery to many terminally ill patients, no matter how blatant the negligence of the defendant and, according to its detractors, over-compensates others.  (See Perez, supra, 805 P.2d at p. 591.)   The primary criticism of the proportional approach is that it is fundamentally opposed to the essential notion that causation requires proof of a probability.  (Falcon v. Memorial Hosp., supra, 462 N.W.2d at p. 58 (dis. opn. Riley, C.J.).)   Courts rejecting the lost chance doctrine also raise the specter that the expansion of liability would result in greater costs of medical care and in higher medical malpractice insurance premiums.  (Id. at p. 66.)

California courts directly addressing the lost chance doctrine have refused to adopt the proportional approach, adhering instead to the traditional test of causation.   The leading authority is Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1 Cal.Rptr.2d 584.   In that case, the plaintiff sought damages for medical malpractice for delayed diagnosis and treatment of lung cancer.   Judgment for plaintiff was reversed by the appellate court on the ground that the trial court erred in instructing the jury on lost chance.  (Id. at p. 1597, 1 Cal.Rptr.2d 584.)   The Dumas court refused to adopt the lost chance doctrine, concluding that doing so would undermine basic principles of tort causation.  (Id. at pp. 1608, 1610, 1 Cal.Rptr.2d 584;  see also Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 7 Cal.Rptr.2d 608;  Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696.)

Defendant physicians argue that we should follow the reasoning of the California courts which have examined and rejected the lost chance doctrine.   The California Supreme Court has not yet addressed the subject.   Decisions by courts of equal dignity are not binding under the principles of stare decisis (see In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1471, 278 Cal.Rptr. 468), but it is appropriate for us to consider them in our analysis.   As we shall explain below in more detail, the California cases rejecting the lost chance doctrine are distinguishable because of the nature of the damages sought here.

Much of the jurisprudence on the subject comes down to a debate as to whether lost chance is a matter of causation or the appropriate measure of damages.   (See e.g. Falcon, supra, 462 N.W.2d at pp. 52–55 (plurality opinion by Levin, J.), pp. 61, 65–68 (dissent by Riley, C.J.);  Dumas, supra, 235 Cal.App.3d at pp. 1603–1611, 1 Cal.Rptr.2d 584.)   Mr. Werner argues that the damages he seeks are within the scope of accepted principles of tort law in California, and, for that reason, we need not address the difficult issues posed by the lost chance debate.

As he points out, there are two types of cases that have fallen within the lost chance rubric.   They are distinguished by the scope of damages sought.4  In the first type, the plaintiff seeks general damages for the emotional distress caused by learning that his or her chance of surviving the underlying medical condition has been substantially reduced by the defendant's malpractice.   In these cases, the plaintiff may also seek special damages including the cost of additional medical treatment or monitoring occasioned by the malpractice and related lost wages.

In the second, more classic form of lost chance case, the plaintiff seeks a portion of future damages attributable to the lost chance of recovery itself.   In many such cases, the future damages sought are measured by the standards applied in wrongful death actions.   It is analytically possible for a plaintiff to seek both kinds of recovery (although the emotional distress damages are not recoverable by the patient's heirs or estate), but we are not confronted with that claim in this case.

Here, in supplemental briefing submitted after oral argument, Mr. Werner makes it clear that he seeks only the emotional distress and special damages recoverable in the first type of case.   He seeks general damages for mental pain and suffering caused by learning of, and living with, the knowledge that his chance of surviving the melanoma has been reduced from 40 percent to 13 percent.   He also seeks special damages for additional medical costs and loss of earnings related to this delay in diagnosis.   His brief states that “the plaintiff in this case is not speculating on his demise at some future time and then speculating further about the amount of the loss of future support caused by those lost earnings.   In short, he is not seeking the loss of earnings which are recoverable in a wrongful death action.”   Mr. Werner explains further that this is not a prospective wrongful death case.  “[T]his is not a case where the injury for which compensation is sought is death where the death has not yet occurred.   Put another way, the measure of damages sought in this case is not the loss of pecuniary support to some future estate, following a future death.”   Mr. Werner thus abandons any claim to damages stemming solely from the lost chance of survival itself.

The question, then, is whether the damages sought by Mr. Werner are within established principles of tort law in California.   We conclude that they are.

 In a medical malpractice action, the plaintiff must establish that negligent conduct was a proximate cause of the resulting injury.   The standard in California is that “ ‘[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony.   Mere possibility alone is insufficient to establish a prima facie case.  [Citations.]․  A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.   This is the outer limit of inference upon which an issue may be submitted to the jury.’  (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402–403, 209 Cal.Rptr. 456.)”  (Dumas v. Cooney, supra, 235 Cal.App.3d 1593, 1603, 1 Cal.Rptr.2d 584.)   Under this rule, if the plaintiff presents evidence that he or she had a better than 50 percent chance of a better result before the negligence of the defendant, full recovery is allowed.   If the evidence establishes that the plaintiff had less than a 50 percent chance of a better result, there is no recovery.

 Defendant physicians have much to say about the impact of the decision in Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1 Cal.Rptr.2d 913, 819 P.2d 872.   In that case, our Supreme Court explained its preference for the “substantial factor” formulation of the jury instruction on causation as opposed to the “but for” formulation.  (Id. at p. 1052, 1 Cal.Rptr.2d 913, 819 P.2d 872.)   The Mitchell court concluded that the substantial factor instruction (BAJI No. 3.76) 5 aids in cases in which a similar, but not identical result would have followed absent the conduct of the defendant.   (Id. at pp. 1052–1053, 1 Cal.Rptr.2d 913, 819 P.2d 872.)   The Supreme Court reaffirmed its commitment to the principles of comparative negligence in criticizing a construction of the term “substantial” in which defendant argues that its conduct was so insubstantial that liability should not be imposed.   The Mitchell court held:  “ ‘Used in this way, the “substantial factor” test becomes an additional barrier to liability․’  [Citation.]   Such a use of the ‘substantial factor’ test undermines the principles of comparative negligence, under which a party is responsible for his or her own share of negligence and the harm caused thereby.”  (Id. at p. 1053, 1 Cal.Rptr.2d 913, 819 P.2d 872.)   As we shall explain, application of the substantial factor test does not bar Mr. Werner's recovery.

Both defendant physicians and amici rely heavily on the Supreme Court's decision in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795.   In that case, the plaintiffs sought damages for negligent infliction of emotional distress due to fear of developing cancer because of exposure to toxic substances.   None of the plaintiffs had manifested any physical condition attributable to toxic exposure.  (Id. at pp. 985–986, 25 Cal.Rptr.2d 550, 863 P.2d 795.)

The court held:  “[I]n the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves that (1) as a result of the defendant's negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer;  and (2) the plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.   Under this rule, a plaintiff must do more than simply establish knowledge of a toxic ingestion or exposure and a significant increased risk of cancer.   The plaintiff must further show that based upon reliable medical or scientific opinion, the plaintiff harbors a serious fear that the toxic ingestion or exposure was of such magnitude and proportion as to likely result in the feared cancer.”  (Id. at p. 997, 25 Cal.Rptr.2d 550, 863 P.2d 795.)  (emphasis added.)

In our case, we deal with a person whose illness is manifest, and who presented evidence that he is living with the knowledge that defendants' negligence actually deprived him of a substantial chance of achieving a materially better result.   The speculative element as to whether a plaintiff is suffering from an aggravated disease process, which troubled the Potter court, does not exist in this case.

In Potter, the Supreme Court rejected plaintiffs' argument that the traditional causation test was unworkable because the risk of contracting cancer from any one source is unquantifiable.   The court observed that some experts say they can quantify such a risk.  (Id. at p. 994, 25 Cal.Rptr.2d 550, 863 P.2d 795.)   That is precisely the point here.   The expert testimony, if credited, established that plaintiff's chance of surviving the malignant melanoma was reduced from 40 percent to 13.   A 40 percent chance of survival (putting aside more refined questions about the measurement of “survival”) is substantial although less than a probability.   A 40 percent chance of survival is substantial;  a 13 percent chance is remote.   It is far from speculative that a person who suffers a loss of that magnitude will experience anxiety as a result.   There is nothing in law or reason to bar a person who suffers a loss of that magnitude from compensation for the resulting anxiety if it is proved to have been caused by the negligence of another.   The same is true, of course, with respect to special damages incurred as a result of a harsher regime necessitated by the delay of adequate treatment.  (See DeBurkarte v. Louvar, supra, 393 N.W.2d 131, 139–140 [damages awarded for mental pain and suffering as a result of failure to properly treat breast cancer].)

California courts have awarded the type of general and special damages Mr. Werner seeks in this case.   They have done so by applying established principles of causation.   For example, in Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665, the plaintiff's heart condition was not adequately diagnosed and treated.   Plaintiff's expert witness testified that proper care “might have prevented or minimized” the heart attack suffered by plaintiff.  (Id. at p. 144, 211 Cal.Rptr. 368, 695 P.2d 665.)   He stated that “as a result of the attack a large portion of plaintiff's heart muscle had died, reducing plaintiff's future life expectancy by about one-half, to about 16 or 17 years.   Although [plaintiff's expert] acknowledged that some of plaintiff's other coronary arteries also suffer from disease, he felt that if plaintiff had been properly treated his future life expectancy would be decreased by only 10 to 15 percent, rather than half.”   (Id. at pp. 144–145, 211 Cal.Rptr. 368, 695 P.2d 665.)

The jury in Fein awarded plaintiff damages for lost wages up to time of trial;  for wages lost in the future as a result of the reduction in his life expectancy;  future medical expenses, and $500,00 for noneconomic damages “to compensate for pain, suffering, inconvenience, physical impairment and other intangible damages sustained by plaintiff from the time of the injury until his death.”  (Id. at p. 145, 211 Cal.Rptr. 368, 695 P.2d 665.)   The judgment was affirmed in all respects.  (Id. at p. 167, 211 Cal.Rptr. 368, 695 P.2d 665.)

Defendant physicians cite Duarte v. Zachariah (1994) 22 Cal.App.4th 1652, 28 Cal.Rptr.2d 88, a recent decision by the Third District.   That case supports Mr. Werner's position.

In Duarte, a patient referred for chemotherapy following a mastectomy was given a massive overdose of cytoxin, one of the drugs used in the chemotherapy.   As a result, chemotherapy was halted.   Mrs. Duarte sought treatment from another physician, who determined that the overdose had so damaged Mrs. Duarte's bone marrow that chemotherapy could not be reinstituted.   Within a year, the original breast cancer had spread to her lung.   The trial court granted nonsuit to the defendant physician.

The Duarte court concluded that Mrs. Duarte and her husband had failed to establish the necessary causal nexus between interruption of her chemotherapy and the recurrence of cancer.   On that basis, the court found that nonsuit was properly granted on the plaintiffs' claim that the negligent conduct of the defendants caused the recurrence of Mrs. Duarte's cancer.   In reaching this conclusion, the court relied on California cases rejecting the adoption of the lost chance doctrine, which we discuss below.  (Dumas v. Cooney, supra, 235 Cal.App.3d 1593, 1 Cal.Rptr.2d 584;  Bromme v. Pavitt, supra, 5 Cal.App.4th 1487, 7 Cal.Rptr.2d 608.)

But the Duarte court found that the injury to Mrs. Duarte's bone marrow was actionable regardless of whether it could be shown to have been a cause in fact of the recurrence of the cancer.   The Duartes argued that the injury to Mrs. Duarte's bone marrow had “caused her to suffer from the knowledge that her plight is hopeless because of [the defendant's] negligence.”  (Id. at p. 1660, 28 Cal.Rptr.2d 88.)   The defendant argued that this claim also must fail because plaintiff could not prove causation.   The court rejected this argument:  “The argument rests on the invalid premise that no injury short of cancer is cognizable when the functioning of the bone marrow is detrimentally impaired.   The injury to Duarte's bone marrow inferably caused by [defendant's] negligence is itself an actionable harm to the body for which damages are recoverable.”  (Ibid.)

Defendant Zachariah argued that the Duartes had failed to present sufficient evidence that her emotional distress was caused by the injury to her bone marrow as opposed to that which would result from the recurrence of the cancer.   The Duarte court found the argument untenable.  “General damages may be awarded for the form of emotional distress called pain or suffering where it is a natural concomitant of a physical injury, inferable from the fact of the injury and the common experience of humanity.  [Citation.]   It is reasonable to infer that a person who has experienced a recurrence of cancer which cannot be treated because of bone marrow injury would suffer emotional distress as a result of the injury.”  (Id. at p. 1664, 28 Cal.Rptr.2d 88.)

The court also rejected defendant Zachariah's argument that the Duartes were required to show that the injury to the bone marrow was the cause in fact of a subsequent bodily injury, e.g., a cancer, which resulted in “gross and clearly ascertainable pecuniary loss.”  (Ibid.)  The Duarte court concluded that the difficulty in quantifying damages in these circumstances did not preclude recovery.  “Compensatory damages may be awarded for bodily harm without proof of pecuniary loss.  (See Rest.2d Torts, § 905.)   The fact that there is no market price calculus available to measure the amount of appropriate compensation does not render such a tortious injury noncompensable.  ‘For harm to body, feelings or reputation, compensatory damages reasonably proportioned to the intensity and duration of the harm can be awarded without proof of amount other than evidence of the nature of the harm.   There is no direct correspondence between money and harm to the body, feelings or reputation.   There is no market price for a scar or for loss of hearing since the damages are not measured by the amount for which one would be willing to suffer the harm.   The discretion of the judge or jury determines the amount of recovery, the only standard being such an amount as a reasonable person would estimate as fair compensation.’  (Rest.2d Torts, § 912, com. b., pp. 479–480.)”  (Id. at pp. 1664–1665, 28 Cal.Rptr.2d 88.)

The court in Duarte concluded:  “Here, the injury to the bone marrow has economic value even assuming that the only impairment is the inability to undertake a course of chemotherapy.   Even if such a treatment diminishes the likelihood of recurrence of the cancer by only five percent, patients willingly pay the economic costs of the treatment and bear the significant pain and discomfort occasioned as its side effects.   This alone shows that there is a significant value to the bodily capacity to undertake such treatment, which we are bound to assume was destroyed by Zachariah's negligence.   To conclude otherwise is to say that no injury short of cancer is compensable.   That would make for an unprecedented rule which denies recovery for all manner of detrimental impairments to the organs of the body.”  (Id. at p. 1665, 28 Cal.Rptr.2d 88.)   The judgment of nonsuit was reversed.

As in Duarte, Mr. Werner presented substantial evidence from which the jury could have concluded that his emotional distress resulted from the knowledge of the defendants' malpractice, as opposed to the underlying diagnosis of malignant melanoma.   As in Duarte, he is entitled to damages for that suffering if he can prove the causation he claims.

Fein and Duarte are consistent with earlier cases which allowed traditional medical malpractice damages based on a failure to discover or to diagnose.

In 1972 the Supreme Court affirmed a jury verdict in favor of the plaintiff in an action for damages against his employer for failure to discover that he suffered from cancer of the bone marrow in the course of a preemployment physical examination.  (Coffee v. McDonnell–Douglas Corp. (1972) 8 Cal.3d 551, 105 Cal.Rptr. 358, 503 P.2d 1366.)   A blood test taken during the physical examination would have revealed the necessity of further testing which would have led to the earlier discovery of plaintiff's cancer.   But, as a matter of corporate policy, the report of the blood test was filed without being reviewed by any competent medical person.   Medical testimony established that plaintiff had cancer at the time the blood test was taken, that it is an incurable disease, “but that had the presence of the disease been discovered earlier, plaintiff would not have suffered the extent of injuries that he did.”  (Id. at p. 556, 105 Cal.Rptr. 358, 503 P.2d 1366.)   At time of trial, plaintiff was in remission, but he had suffered nausea, weight loss, and contracted hepatitis as a result of the drug therapy instituted when the cancer was ultimately diagnosed.   The jury awarded plaintiff $200,000 in damages, which was reduced to $100,000 on the trial court's finding that his life expectancy was not permanently affected, although his condition temporarily worsened as a result of defendant's negligence.   This award was affirmed by the Supreme Court, which concluded that the failure to discover the plaintiff's blood condition was a consequence of the employer's own negligence because of the corporate procedure allowing filing of the blood reports without evaluation.  (Id. at p. 560, 105 Cal.Rptr. 358, 503 P.2d 1366.)

In Armstrong v. Svoboda (1966) 240 Cal.App.2d 472, 49 Cal.Rptr. 701, the defendant physician failed to diagnose and treat plaintiff's heart condition.   Ultimately plaintiff was required to undergo open-heart surgery because of the damage resulting from his untreated heart attack.   Following the jury's verdict for the defendant, the trial court granted plaintiff's motion for a new trial on the ground that the evidence was insufficient to justify the verdict.   The appellate court found substantial evidence that prompt hospitalization would have minimized the heart damage and affirmed the order granting plaintiff's motion for new trial.  (Id. at pp. 476–477, 49 Cal.Rptr. 701.)6

With these basic principles in mind, we return to further examination of the California cases on lost chance.   In Dumas v. Cooney, supra, 235 Cal.App.3d 1593, 1 Cal.Rptr.2d 584, the plaintiff sought damages for medical malpractice based upon delayed diagnosis and treatment of lung cancer.   Judgment for plaintiff was reversed because the trial court erred in instructing the jury on lost chance.  (Id. at p. 1597, 1 Cal.Rptr.2d 584.)

Plaintiff died six days after the jury rendered its verdict, and the special administrator of his estate was substituted as party plaintiff in the trial and appellate courts.   The jury awarded plaintiff damages for past pain and suffering, future pain and suffering, past loss of earnings, and future loss of earnings discounted to a present value.  (235 Cal.App.3d at p. 1600, 1 Cal.Rptr.2d 584.)   It was not treated as an action for wrongful death, but as a true lost chance case.7

The Dumas court did not directly focus on the limited nature of damages sought by Mr. Werner in this action.   In rejecting the claim for true lost chance damages, the Dumas court observed:  “A lost chance of survival or a better result cannot be proven unless and until the death or adversity occurs.   Otherwise, in the case of a loss proven by statistics alone, a court could be placed in a position of awarding damages without injury, e.g., in the case of a patient who ‘miraculously recovers despite the negligence and unfavorable odds.’  (Fennell v. Southern Maryland Hosp., supra, 580 A.2d at p. 213.)   The true injury in lost chance cases is therefore the death or adversity.  (Ibid.)  Thus, ‘when we strip away the rhetoric, damages are really being awarded for the possibility that the negligence was a cause of the death.’  (Ibid.)  Stated another way, ‘[t]he recognition of a lost chance as a cognizable injury is necessarily based on the reasoning that but for the defendant's negligence, the plaintiff might possibly have avoided an adverse result.   Thus, recognition of lost chance as a recoverable interest contradicts the very notion of cause in fact.’  (Falcon v. Memorial Hosp., supra, 462 N.W.2d at p. 65 (dis. opn. of Riley, C.J.).)”  (Id. 235 Cal.App.3d at pp. 1609–1610, 1 Cal.Rptr.2d 584.)

The Dumas court concluded:  “The damage label plaintiff places upon the instruction given in this case is therefore of no moment.   The instruction allows for damages for possible cure and possible lengthening of life and/or improved personal comfort from more prompt diagnosis and treatment.   California law does not permit tort compensation for a mere possibility.   Redefining lost chance as a new form of injury simply does not diminish that the theory radically alters the meaning of causation.”  (Id. at p. 1610, 1 Cal.Rptr.2d 584.)

If the Dumas court meant that emotional distress and other special damages may not be compensated under the circumstances presented in our case, we respectfully disagree because that result is not consistent with established precedent in this state and elsewhere.   Under established principles of causation, we conclude that the damages Mr. Werner seeks are recoverable in medical malpractice if he satisfies the substantial factor test of causation.   In other words, under Mitchell, he must show that the defendants' negligent conduct or omission was a substantial factor in bringing about the injury or damage.  (See 54 Cal.3d at pp. 1052–1053, 1 Cal.Rptr.2d 913, 819 P.2d 872.)

Another case frequently cited for the proposition that the lost chance doctrine has been rejected in California is Bromme v. Pavitt, supra, 5 Cal.App.4th 1487, 7 Cal.Rptr.2d 608.   In that case, the court declined to apply the lost chance doctrine to a statutory action for wrongful death, based on interpretation of former Code of Civil Procedure section 377.8  (Id. at pp. 1504–1505, 7 Cal.Rptr.2d 608.)   The plaintiff in Bromme, unlike Mr. Werner, sought only damages for wrongful death.   The Bromme court's decision turned on interpretation of the wrongful death statute.   It is not applicable here.9  (See also Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 260 Cal.Rptr. 772 [declining to apply lost chance doctrine in an action for wrongful birth and wrongful life];  Williams v. Wraxall (1995) 34 Cal.App.4th 199B, 33 Cal.App.4th 120, 39 Cal.Rptr.2d 658 [declining to extend lost chance doctrine outside of medical malpractice context].)

In summary, we conclude the damages sought by Mr. Werner are within established California jurisprudence on tort causation and medical malpractice.   We need not and do not decide whether the lost chance doctrine as described by Professor King should be recognized in California.   Plaintiff does not seek damages on that theory.


New Trial Order

Following the jury verdict for defendants, Mr. Werner moved for a new trial on two grounds.   His first ground was that the trial court erred in restricting the rebuttal testimony of Dr. Leibowitz.   The second was that the evidence was insufficient to establish that defendants were not negligent.   During argument on the motion, the trial judge observed:  “I was really dumbfounded with the verdict.”   He explained:  “Number one, I think I committed error by not allowing rebuttal by Doctor Leibowitz.   He was a duly noticed expert in all areas.   He should have been permitted to offer rebuttal testimony.  [¶] Number two, the court further finds that the testimony in this case, at least in my opinion, does not support a finding of no negligence.   I think one of the two doctors was, if not negligent as a matter of law, pretty close to it to the extent that the court feels that it would be [a] miscarriage of justice to allow the verdict to stand.”

The order granting new trial stated:  “Motion for new trial is argued and granted on the following grounds:  [¶] 1.   The Court did not allow rebuttal by Dr. Liebowitz.   Dr. Liebowitz was an expert in all areas.  [¶] 2.   The testimony in this case does not support a finding of no negligence.  [¶]  The Court declines to make a finding on the issue of causation.”

 In a supplemental letter brief, defendants argue the statement of reasons given by the trial court for each ground was insufficient.   They argue that the trial court properly restricted rebuttal, citing Code of Civil Procedure section 2034, subdivision (m), and that the proffered testimony was not proper rebuttal.   They also argue that there was sufficient evidence to support verdict for defendants on negligence.   Finally, defendants argue that denial of the new trial motion on the evidentiary grounds would not have prejudiced Mr. Werner because, even if the proffered rebuttal was allowed, he could not prove causation.

We conclude that the statement of reasons given by the trial court was sufficient.   It clearly states that the ruling regarding rebuttal by Dr. Leibowitz and the evidence of negligence by defendants were the reasons that the new trial motion was granted.   This satisfies the requirement that the court provide an adequate basis for appellate review.

The authorities on which defendants rely involve evidence preclusion as a form of discovery sanction.   They are limited to those situations in which a party has failed to designate an expert witness under Code of Civil Procedure section 2034, subdivision (j).  (Stark v. City of Los Angeles (1985) 168 Cal.App.3d 276, 287–288, 214 Cal.Rptr. 216;  Martinez v. City of Poway (1993) 12 Cal.App.4th 425, 432, 15 Cal.Rptr.2d 644.)   It is undisputed that Mr. Werner properly designated Dr. Leibowitz as an expert witness.

 We also conclude that the proffered testimony of Dr. Leibowitz was within the proper scope of rebuttal.   In Mr. Werner's case in chief, Dr. Leibowitz opined that early dissection of Mr. Werner's lymph nodes would have given him a longer period before a recurrence of the melanoma.   He testified that Dr. Schlemenson was required to inform Mr. Werner about the availability of lymph node dissection in order to comply with the standard of care in the community at that time.   Dr. Leibowitz referred to studies regarding lymph node dissection in support of his testimony.

Defendants' expert witness, Dr. Armentrout, testified that he was unaware of any “statistically valid” studies available in 1986 showing that lymph node dissection in cases such as Mr. Werner's was beneficial with respect to survival or overall prognosis.   From this, he concluded that only 5 percent of physicians would have recommended this procedure.   Dr. Leibowitz should have been allowed to testify that there were significant contemporaneous studies which showed that a majority of physicians would have recommended the procedure.

The trial court acted within its discretion in deciding that it had erred in precluding this evidence, and that the error was prejudicial.   It is reasonably probable that Mr. Werner would have had a more favorable result if the rebuttal had been allowed.  (See Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 254, 7 Cal.Rptr.2d 101.)   The trial court properly granted new trial on this ground alone.  Code of Civil Procedure section 657 provides that an order granting new trial “shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons, ․” (See also Sanchez–Corea v. Bank of America (1985) 38 Cal.3d 892, 899, 905, 215 Cal.Rptr. 679, 701 P.2d 826.)

Defendants also argue that the trial court erred in granting a new trial on the ground that the evidence was insufficient to establish that they were not negligent.

Code of Civil Procedure section 657 provides a deferential standard of review of an order granting a new trial for insufficiency of the evidence.   Under that statute, a new trial on this ground may not be granted “․ unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.  [¶] [O]n appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict ․ it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.”   (See also Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 710, 106 Cal.Rptr. 28, 505 P.2d 220;  County of San Diego v. Bressi (1986) 184 Cal.App.3d 112, 119, 229 Cal.Rptr. 44.)

“The trial court's exercise of discretion in ruling on the new trial motion may be disturbed only where ‘․ a manifest and unmistakable abuse of discretion clearly appears.’  [Citation.]   The admonition is particularly compelling when discretion is exercised in favor of granting the new trial.   [Citation.]   Furthermore, an abuse of discretion cannot be found in cases ․ where the evidence is in conflict and a verdict for the moving party could have been reached under the theory expressed in the order for a new trial.   [Citation.]”  (County of San Diego v. Bressi, supra, 184 Cal.App.3d 112, 119, 229 Cal.Rptr. 44.)

Defendants' argument on the insufficiency of the evidence ground is based on rejection of the lost chance doctrine.   In light of our conclusion that the limited lost chance theory advanced by plaintiff is a viable basis for recovery of damages, we affirm the trial court's ruling on the sufficiency of the evidence.   As we have seen, the evidence was in conflict, but clearly a verdict for Mr. Werner could have been reached if the jury credited the substantial evidence that his chance of surviving the cancer was reduced from 40 percent to 13 percent because of the delay in follow-up and treatment.


The order granting a new trial is affirmed.   Mr. Werner is to have his costs on appeal.   His cross-appeal is dismissed.


1.   The record does not reflect a standardized measure of “survival” which applies to all disease processes.   Dr. Armentrout, the expert witness for defendant physicians, testified in terms of the probability that a patient would remain free of malignant melanoma for both a five-year period and a ten-year period.   All parties appear to agree that this ten-year period is appropriate for measuring survivability in this case.   Our discussion is therefore based on that standard.

2.   Although the denial of defendants' motion for nonsuit, being an intermediate order, is not appealable, we review it on appeal from the order granting plaintiff's motion for new trial pursuant to Code of Civil Procedure section 906.  (See Eben v. State of California (1982) 130 Cal.App.3d 416, 418, 181 Cal.Rptr. 714.)

3.   Our research revealed more than 50 articles on the subject published between 1981 and 1995.

4.   The lost chance jurisprudence includes both cases brought by the patient in his or her own right and wrongful death actions brought by the estate or survivors of the patient.  (See e.g. Dumas, supra, 235 Cal.App.3d 1593, 1 Cal.Rptr.2d 584;  Bromme v. Pavitt, supra, 5 Cal.App.4th 1487, 7 Cal.Rptr.2d 608 (wrongful death);  Falcon v. Memorial Hosp., supra, 462 N.W.2d 44 (wrongful death);  DeBurkarte v. Louvar (1986) 393 N.W.2d 131.)

5.   Following the Mitchell decision, BAJI No. 3.76 was revised to read:  “The law defines cause in its own particular way.   A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm.”

6.   See also Cullum v. Seifer (1969) 1 Cal.App.3d 20, 81 Cal.Rptr. 381, disapproved on other grounds in Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 364, 90 Cal.Rptr. 592, 475 P.2d 864, which bears a close resemblance to this case on its facts.   In Cullum, the plaintiff brought an action against her physician for failure to promptly diagnose and treat her lymphatic sarcoma.   Following a jury verdict for the defendant, the trial court granted plaintiff's motion for a new trial on the ground of insufficiency of the evidence to support the verdict.   Affirming that ruling, the Court of Appeal found substantial evidence establishing damages brought about as a result of the delay in treatment “even if the disease had already spread throughout her body, spelling fatality․”  (Id. at p. 27, 81 Cal.Rptr. 381.)   The Cullum court relied in part on testimony of a defense expert witness that proper treatment “alleviates for awhile needless suffering by the patient, and makes survival more comfortable;  ․” (Ibid.)

7.   Mr. Werner attempts to distinguish Dumas on the ground that it is a wrongful death case.   The measure of damages in a wrongful death case is the present value of future earnings, services or other contributions during the period of life expectancy, and the value of the decedent's companionship and society.  (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 886, p. 326.)   That was not the measure applied in Dumas.

8.   Former Code of Civil Procedure section 377, subdivision (a) provided in pertinent part:  “When the death of a person is caused by the wrongful act or neglect of another, his or her heirs or personal representatives on their behalf may maintain an action for damages against the person causing the death, ․” (Emphasis added.)   See now Code of Civil Procedure section 377.60.

9.   The parties also discuss Pulvers v. Kaiser Foundation Health Plan, Inc. (1979) 99 Cal.App.3d 560, 160 Cal.Rptr. 392, a wrongful death case for negligent treatment of leukemia.   The lost chance doctrine was not discussed.   The plaintiff patient died during the pleading stage of the case, and his widow continued the action both as his administratrix and on her own behalf.   A defense verdict on the cause of action for medical malpractice was affirmed on appeal.   Like Bromme, the discussion of wrongful death in Pulvers is not helpful to our analysis in this case.

EPSTEIN, Acting Presiding Justice.