McCormick-Gordon v. Cedars-Sinai Medical Center RB

Although Dr. Rifkin said that the catheter fragment played a "major
role" in Gordon's death (CT 99:20), elsewhere he made clear that, whatever
"major role" means, it does not mean "reasonable medical probability."
That is because, according to Dr. Rifkin, Gordon had only a 50% chance of
surviving his lung transplant, irrespective of any other health conditions or
catheter fragments,. (CT 99: 16-17.) This probability means that it cannot
be "more likely than not" that the catheter fragment, rather than the lung
transplant-to say nothing of all Gordon's other ailments-was what
caused Gordon's death.
The court in Bromme v. Pavitt, supra, 5 Cal.App.4th 1487 came to
precisely the same conclusion: "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." (ld at pp. 1504-1505.) In
Bromme the plaintiff claimed that the defendant's failure to diagnose his
wife's colon cancer caused her death. (ld at p. 1492.) But since the
experts agreed that as of a certain date the wife only had a 50% chance of
survival, the court found that as to any conduct after that date, the plaintiff
failed the more-likely-than-not standard-thus he could not show causation
to the required degree of a reasonable medical probability. (ld. at pp. 1499­
1504} According to Dr. Rifkin, Gordon's situation was identical: Even if
2 See also Duarte v. Zachariah (1994) 22 Cal.App.4th 1652, 1657-1658
(overprescription of chemotherapy drug could not be cause of medical
malpractice injury because there was, at best, only a 50% chance
chemotherapy would avert reoccurrence ofthe cancer); Dumas v. Cooney
(1991) 235 Cal.App.3d 1593,1603 (failure to diagnose plaintiffs lung
(continued...)
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