Recent Wins

May 17, 2010 , Martin Stein, Alison M. Turner Healthcare Law
Court of Appeal holds radiologist not qualified to opine on family medicine physician’s standard of care

Levitt v. Ross (2010) 2010 Cal.App. Unpub. LEXIS 3598 (California Court of Appeal, Second Appellate District, Division Two) [unpublished]. After plaintiff complained of a possible pea-sized breast lump, defendant—her family medicine doctor—sent her for imaging studies, which gave her a clean bill of health. Eighteen months later, plaintiff was diagnosed with breast cancer. In this malpractice action, plaintiff alleged that if defendant had initially palpated her breast, he would have immediately uncovered the breast cancer that went undetected by the mammogram and ultrasound he had ordered. The trial court granted summary judgment because plaintiff offered no qualified expert witness on the standard of care of a family medicine physician—she submitted only the declaration of a radiologist with a specialized university-based breast cancer practice. The Court of Appeal affirmed, holding not only that the trial court acted within its discretion by throwing out the standard-of-care opinion of plaintiff’s expert witness, but also that summary judgment was proper because the expert’s declaration provided no causal link between defendant’s conduct and plaintiff’s eventual breast cancer diagnosis.