Hahn v. Mirda

Filed 1/19/07  Hahn v. Mirda CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

            In this appeal from a ruling on a demurrer, we consider this factual predicate: a woman is told she has a particularly aggressive form of breast cancer.  She undergoes chemotherapy and has a radical mastectomy in an attempt to save her life.  The pathology report prepared after the surgery shows the woman did not have cancer at all.  The woman's doctors learn their patient did not have cancer, but they do not tell her.  As a result, the woman lives for more than two years believing she has a fatal disease.  We hold these facts can support her husband's independent cause of action for loss of consortium.

            I.  FACTUAL AND PROCEDURAL BACKGROUND

            Since the focus of our inquiry is the sufficiency of the allegations challenged by respondents' demurrer, we set forth the facts alleged in the operative third amended complaint of plaintiff Cynthia Hahn and her husband, plaintiff and appellant Kurt Hahn.

            Respondents Daniel Mirda and Paul Dugan are medical doctors.  Cynthia Hahn is their patient. 

            In March 2001, Ms. Hahn was diagnosed with cancer of her right breast.  Dr. Robert Lanflisi, a surgeon, performed a lumpectomy.  The pathology report stated there was no residual cancer in Ms. Hahn's breast.

            Ms. Hahn underwent a course of radiation after her lumpectomy.  When the treatments were complete, Ms. Hahn noted changes in her breast.  She was referred back to Dr. Lanflisi.

            Dr. Lanflisi biopsied Ms. Hahn's skin and the areas of her breast where the tumor had been removed, and sent the specimens to a lab for testing.  In September 2001, the biopsies came back positive.  The conclusion was that there was recurrent cancer in both specimens.

            Relying on the positive biopsy, Dr. Dugan concluded that Ms. Hahn had inflammatory carcinoma, a particularly aggressive form of cancer that has a poor prognosis.  As a result, Ms. Hahn underwent four months of intensive chemotherapy and then had a radical mastectomy.

            A specimen from Ms. Hahn's breast was sent to a lab for analysis.  On January 24, 2002, the pathologist reported that the specimen was entirely free from cancer.

            Dr. Lanflisi was surprised by this result.  He asked that the September 2001 biopsy slides be reexamined.  On February 6, 2002, Dr. Lanflisi received a report that indicated the September 2001 biopsy slides had been misread.  In fact, they showed no evidence of cancer.

            Dr. Lanflisi told Dr. Mirda and Dr. Dugan what he had learned.  He asked them to tell Ms. Hahn that she did not have recurrent cancer.  They agreed to do so.

            Dr. Dugan and Dr. Mirda did not tell Ms. Hahn she did not have recurrent cancer.  She did not learn the truth until July 2004 when Dr. Lanflisi testified at a deposition.  As a result Ms Hahn lived for more than two years believing that she had a terminal illness.

            Subsequently, the Hahns filed a complaint against several doctors including Dr. Mirda and Dr. Dugan (hereafter respondents).  As amended, as is relevant here, the complaint alleged three causes of action.  Ms. Hahn sought damages from respondents based on negligence and fraudulent concealment causes of action.  Appellant Kurt Hahn sought damages from respondents under a loss of consortium theory.

            Respondents demurred to the complaint.  They argued they were entitled to prevail on the negligence and fraudulent concealment causes action because they only had a duty to provide Ms. Hahn with information that was relevant to proposed future treatment.  Since they learned about the biopsy results after Ms. Hahn's surgery, respondents argued they were entitled to prevail as a matter of law.  Respondents argued that they were entitled to prevail on appellant's cause of action for loss of consortium because it was dependent upon Ms. Hahn's cause of action.

            The trial court agreed with respondents' arguments and sustained the demurrer without leave to amend ruling respondents were entitled to prevail as a matter of law.

            While this appeal was pending, Ms. Hahn dismissed her appeal leaving her husband as the sole appellant.^[1]

            II.  DISCUSSION

            Appellant contends the trial court erred when it sustained respondents' demurrer.

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