Facts

On Aug. 1, 2001, plaintiff George Rust went to family physician Paul Jordan with a pea-sized mass below his left ear. Jordan believed the lesion was a sebaceous cyst and scheduled surgery to remove it on Sept. 7. On Aug. 17, plaintiff called Jordan's office to report the mass had doubled in size and was very painful. Jordan felt that it was a cyst that had become inflamed and advised plaintiff to apply hot compresses. On Sept. 7, Jordan attempted to remove the mass, but determined that nerves were wrapped around what appeared to be a tumor. He closed the wound and immediately arranged for plaintiff to see an otolaryngology surgeon James Lee. A few days later, Lee diagnosed a parotid tumor. At plaintiff's visit on Sept. 20, plaintiff claimed he was told surgery would be scheduled within a week. However, Lee asserted that he called Jordan on that date to tell him he no longer wanted to care for plaintiff because he was afraid he was litigious. Lee claimed Jordan agreed to find another surgeon. Jordan denied any such conversation. The tumor continued to enlarge, it became very painful and fluid drained from the wound created by the first surgery. Plaintiff was seen in an emergency room and later referred to another surgeon at UCI Medical Center. The malignant parotid tumor was removed in late October. A more extensive surgery was involved which required removal of plaintiff's ear. The plaintiff and his wife sued Jordan and Lee, alleging medical malpractice.

The plaintiff contended that Jordan should have considered the possibility of a parotid tumor in his diagnosis
based on the location of the mass directly over the parotid gland and its rapid growth.
The plaintiff's expert testified that Jordan should have brought the plaintiff back for an evaluation when he
called on Aug. 17 to report the mass was growing and becoming painful. It was alleged that simply incising
the mass to see if it drained would have been best to determine whether the mass was indeed a sebaceous cyst.
As to Lee, plaintiff contended that he abandoned the plaintiff and failed to follow-up to make sure that surgery
went forward as proposed on Sept. 27.
According to the plaintiff, a witness claimed that the reason the surgery never occurred was Lee's inability to
obtain a proctor to monitor the surgery at Placentia Linda Hospital.
DEFENDANT CONTENTIONS:
Lee denied this claim. Lee asserted that he met the standard of care and did
refer the plaintiff back to Jordan on Sept. 20.
Lee argued there was no basis for causation because, at most, there was only a 12-day delay from Sep. 20 until
Oct. 2 when plaintiff saw a new surgeon.
Jordan asserted his diagnosis of a cyst was reasonable, despite it being erroneous. He asserted there was no
reason to have plaintiff come back sooner after the Aug. 17 phone call.
Jordan argued that he promptly referred the plaintiff to a specialist once it became

Settlement Discussions

The plaintiff demanded C.C.P. Section 998 of $249,000 to Jordan and $249,000 to Lee. Jordan's offer was $30,000 and Lee made no offer.

Damages

The plaintiff claimed past economic damages of $60,800. He put on evidence of future expenses to replace the prosthetic ear every few years. The plaintiff's wife filed a claim for loss of consortium.

Injuries

The plaintiff alleged the delay in treatment forced him to undergo a more extensive surgery to remove the tumor, the facial nerve and his left ear. His reconstruction expert testified about a special silicone-based prosthetic ear that plaintiff will obtain in the next few months. The plaintiff claimed that he suffered severe mental and physical pain.

Result

The jury found for plaintiff and awarded him $307,800 ($142,800 economic damages and $165,000 non-economic damages) against Lee only. Jordan received a defense verdict. The plaintiff's wife did not receive an award.

Deliberation

seven hours

Poll

10-2 (Jordan), 12-0 (Lee)

Length

nine days