Consortium claim goes forward even without wife's med-mal suit.

A husband's claim for loss of consortium may proceed even though his wife dropped the medical negligence case that gave rise to his claim, a panel of the California Court of Appeals has ruled.

In overturning the trial court's decision, the appeals court found that the facts of the case supported the wife's claims of fraud and negligence and, by extension, the husband's claims of damage to his marital relationship. It is the first published decision in California to find that a doctor's duty of care continues even after the patient's treatment has ended.

Writing for the court, Presiding Justice Barbara Jones found that the husband "is a foreseeable plaintiff to whom respondents owe a separate duty of care, arising out of respondents' tortious injury to his wife, but compensating plaintiff for impairment of his wholly separate interest in his wife's consortium." (Hahn v. Mirda, 54 Cal. Rptr. 3d 527 (Cal. App. 2007).)

In 2001, Cynthia Hahn of Sacramento was diagnosed with breast cancer. Her doctors, Daniel Mirda and Paul Dugan, referred her to a surgeon, Robert Lanflisi, who performed a lumpectomy. Cynthia also underwent radiation treatment.

After the surgery, Lanflisi ordered a biopsy on the lumpectomy specimen. The testing lab reported that Cynthia had inflammatory carcinoma, an aggressive form of recurrent cancer. Based on these results, Mirda and Dugan recommended a course of intensive chemotherapy followed by a radical mastectomy, and Cynthia agreed.

In 2002, Lanflisi received another pathology report on Cynthia's breast specimen, which concluded that she was cancer-free. Surprised, Lanflisi ordered a reexamination of the earlier biopsy slides and discovered that the lab had misread them; in fact, Cynthia did not have recurrent cancer. He told Mirda and Dugan about his findings and asked them to tell Cynthia what he had discovered.

But the doctors did not do so, and Cynthia did not find out about the incorrect diagnosis until July 2004, according to court records. Cynthia filed suit against Mirda and Dugan, charging negligence and fraudulent concealment; her husband, Kurt, filed his loss-of-consortium suit.

The doctors demurred to the complaint but argued that their duty was only to provide Cynthia with information about future treatment, meaning information they had about her case after the treatment and surgery were completed was irrelevant.

"It is pretty outrageous," said Jay-Allan Eisen, a Sacramento lawyer who represented the Hahns. "As I got more and more into the case, in fact, I became more and more outraged."

The trial court found for the defendants, and the Hahns appealed. While the appeal was pending, Cynthia settled another lawsuit against the laboratory that misread her results and dismissed her appeal of her claims against the doctors, leaving her husband as the only appellant.

The appellate court initially noted that the husband's claim could not proceed unless Cynthia's claims of negligence and fraud were valid. Such a claim "stands or falls based on whether the spouse of the party alleging loss of consortium has suffered an actionable tortious injury," the court wrote.

In support of the husband's claim that Cynthia's medical negligence claim was valid, "we argued that doctors have a fiduciary duty as long as the relationship is ongoing," Eisen said. "The treatment may be over, but they have a broader duty to keep the patient informed and to be fully candid. It's a crucial aspect of the doctor-patient relationship."

The appeals court agreed, saying, "The doctor-patient relationship is a fiduciary one, and as a consequence of the physician's fiducial obligations, the physician is prohibited from misrepresenting the nature of the patient's medical condition."

The court also rejected the doctors' defense that they could not be held liable for information they did not have at the time they proposed the unnecessary treatment. The doctrine of informed consent requires doctors to disclose all material information about a patient's condition, the court held, but it also means that the doctor "has a separate duty not to misrepresent the nature of a patient's medical condition."

Finding that the complaint stated well-pleaded causes of action for both negligence and fraudulent concealment, the court concluded that Cynthia's husband "had a viable cause of action for loss of consortium."

Eisen said he was not aware of any similar decisions. "In fact, this case was not going to be published," he said, "but the decision received quite a bit of public and media attention, so we asked the court of appeals to publish it. This makes it the first reported decision in California that deals with the duty to treat even after treatment is complete. Now it's precedent, and it can be cited and used for other cases."

Eisen added that the case took on an unusual dimension during oral argument because the three judges on the panel were all women.

"It was extremely interesting to be talking about misdiagnosed breast cancer, unnecessary chemotherapy, and unnecessary radical mastectomy to a panel composed entirely of women," he noted. "I'm not saying it affected the outcome, but it certainly added a powerful emotional element to the case."