Case Name:   Eileen Tichane, et al. v. Irving W. Olender, et al.

Case No.:       1-12-CV-227211

In this medical malpractice action, plaintiffs Eileen Tichane and her spouse, Arvind Saklikar, (collectively, “Plaintiffs”) bring a single claim for negligence against defendants Irving W. Olender and Good Samaritan Hospital (“Good Samaritan,” collectively with Mr. Olender, “Defendants”).[1]  (First Amended Complaint (“FAC”), ¶ 10.)  Plaintiffs allege that Defendants were negligent in failing to diagnose Ms. Tichane’s breast cancer.  (FAC, p. 4, ¶ GN-1.)

Currently at issue is Good Samaritan’s motion for summary judgment.  Good Samaritan submits evidence that it offers mammography, breast ultrasound, and related services, but does not employ physicians.  (Decl. of Cameron L. Cobden ISO Mot., Ex. C, Decl. of Patricia Baker ISO Mot., ¶¶ 2-3.)  Its employees do not diagnose medical conditions, make orders for studies, or interpret imaging studies, but merely carry out the orders provided to them by third-party physicians.  (Separate Statement of Undisputed Material Facts (“GSSF”), no. 18.)  In addition, Good Samaritan submits an expert declaration by Jonathan Hargreaves, M.D., a physician practicing at the University of California, Davis, Department of Radiology, Breast Imaging Section who is familiar with the performance and interpretation of breast imaging studies.  (Cobden Decl., Ex. B, Decl. of Jonathan Hargreaves, M.D. ISO Mot., ¶ 1.)  Mr. Hargreaves states that all physician orders for Ms. Tichane’s imaging studies were timely and appropriately carried out, presented for review by radiologists, and reported within standard practices, meeting the standard of care.  (GSSF, no. 25.)  He concludes that no act or omission by Good Samaritan caused or contributed to any delay in the detection, diagnosis, or treatment of Ms. Tichane’s breast cancer.  (GSSF, no. 27.)  This evidence meets Good Samaritan’s initial burden to demonstrate that it was not negligent in providing services to Ms. Tichane and did not cause her damages.

In opposition, however, Plaintiffs submit declarations by two experts who conclude that Good Samaritan was negligent and did contribute to the delay in Ms. Tichane’s breast cancer diagnosis: (1) David Smoger, M.D., who is board certified in radiology and is Chief of Interventional Radiology at Riddle Hospital and Clinical Assistant Professor of Radiology at Jefferson Medical College and Thomas Jefferson University Hospital, and is familiar with the standard of care for mammographic facilities in California and with the performance and interpretation of imaging studies and medical records, and (2) Mark Levin, M.D., who is board certified in internal medicine and oncology, has been an Associate Professor of Clinical Medicine at several medical colleges, and is familiar with the impact of the timing of the diagnosis of breast cancer and the treatment of such cancer.  (Index of Exhibits ISO Opp., Ex. A, Decl. of David Smoger, M.D. ISO Opp., ¶ 1; Ex. B, Decl. of Mark Levin, M.D. ISO Opp., ¶ 1.)  Plaintiffs’ evidence shows that on September 26, 2006, Ms. Tichane’s physician placed an MRI order for Ms. Tichane with Good Samaritan.  (Plaintiffs’ Separate Statement of Undisputed Material Facts (“PSF”), no. 47.)  Good Samaritan informed Ms. Tichane’s physician that the MRI “could not be done at this point in history,” but did not offer an ultrasound or any other diagnostic procedure as a replacement.  (PSF, nos. 48, 50.)  In addition, on July 13, 2007, Ms. Tichane’s physician ordered a diagnostic mammogram, but Good Samaritan employees instead performed a screening mammogram.  (PSF, nos. 51-53, 59.)  These 2006 and 2007 omissions were breaches of the standard of care that more likely than not resulted in Defendants’ failure to detect Ms. Tichane’s cancer at an early, curable stage.  (PSF, nos. 63, 69, 70.)  The evidence submitted by Plaintiffs is adequate to raise triable issues of fact as to both elements of their claim that were challenged by Good Samaritan.

In light of the above, Good Samaritan’s motion for summary judgment is DENIED.

The objections to evidence submitted with Good Samaritan’s reply brief are OVERRULED given that they are not accompanied by a proposed order as required by the California Rules of Court.  (Cal. Rules of Court, rule 3.1354(c).)

[1] Good Samaritan was sued as “Good Samaritan Breast Care Center.”