Filed 1/29/15 Uriell v. Regents CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA

PATRICK URIELL, Individually and as Trustee, etc. et al., Plaintiffs and Respondents,

v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Appellant. D064098

(Super. Ct. No. 37-2011-0091600- CU-PO-CTL)

APPEAL from a judgment of the Superi or Court of San Diego County, William S. Dato, Judge. Affirmed.

Carroll, Kelly, Trotter, Franzen, McKenn a & Peabody; John C. Kelly, David P. Pruett and Natalie J. Buccini for Defendant and Appellant. Niddrie Fish Addams and David A. Nidd rie; Cynthia Chihak & Associates and Cynthia Chihak for Plai ntiffs and Respondents.2 INTRODUCTION A jury found the Un iversity of California San Dieg o Medical Center (UCSD) failed to timely diagnose Barbara Kastan's breast ca ncer in 2007 resulting in her death in 2010. The Regents of the University of California (Regents) 1 appeal the wrongful death judgment in favor of Kastan's husband and children contendi ng: (1) plaintiffs' expert lacked foundation for his opinion there wa s a reasonable medical probability Kastan would have survived 10 more years if she had been timely diagnosed and (2) the court failed to properly instruct the jury on the i ssue of causation when it gave the standard substantial factor jury instruction rather th an a special instruction regarding proof of causation to "a reasonable medical probability." We disagree with both contentions and affirm the judgment.
FACTUAL AND PROCEDUR AL BACKGROUND
A Kastan had an extensive family histor y of breast cancer. Her mother was diagnosed with breast cancer in her early 50s and died at age 68 or 69, approximately 18 years after she was diagnosed. Kastan's mother's aunt died of breast cancer. In addition, Kastan's paternal grandmother and 10 gr eat aunts all died of breast cancer. 2

1 The University of California is administer ed by the Regents. (Cal. Const., art. IX, § 9.)
2 Uriell prepared a diagram indicating Kastan 's family history of breast cancer based on family reports and death certificates. At the time of trial, there were only three relatives for whom he was not able to obtain death certificates conf irming the causes of death.3 In the summer of 2007, Kastan's husband , Patrick Uriell, found a lump deep in Kastan's left breast the size of an eraser on a pencil. It was firm and did not move. Because of her family history, Kastan was concerned and obta ined an appointment with a doctor as quickly as she could. Kastan saw a family practice physician at UCSD who palpated a two centimeter hard lump. The physician ordered a mammogram and ultrasound, which were reassuring. On the mammogram, the radiologist found no significant masses suspicious for cancer, but stated "the breast [was] extremely dense, which could obscure a lesion on mammography." The radiologist testified a two to three-centimeter mass could be obscured on a mammogram in a dense breast. On ultrasound, the radiologist noted "a collection of small simple cy sts" in the area of the clinically palpable mass. Kastan was referred to Sarah Blair, M.D ., a surgeon specializing in breast cancer who is employed by UCSD. After reviewin g the mammogram and ultrasound results, Dr. Blair examined the area and thought Kast an had simple cysts, which was consistent with the ultrasound report. Dr. Blair told Kastan she did not have cancer. Dr. Blair offered the option of aspirating the cyst, but told Kastan she was fairly sure it was just a cyst and advised her to cut back on caffein e. Dr. Blair discussed genetic testing to determine Kastan's lifetime risk of getting ca ncer, but Kastan was concerned her medical insurance would become expensive or could jeopardize her children' s future employability if it was determined they had a gene showing a predisposition to cancer. Dr. Blair did not order an MRI or other follow-up testing.4 About a year and a half later, Kastan began complaining about back pain and flulike symptoms that did not go away. Kastan's breast also changed in appearance. By January 2009, the breast was fu ller and the nipple was flat a nd appeared tacked down. After some difficulty scheduling a mammogram, Kastan eventually un derwent an MRI of the spine, a mammogram, another ultra sou nd and a tissue biopsy; she also obtained another referral to Dr. Blair. Kastan was diagnosed with cancer in May 2009. She was told the cancer could not be cured at that point because she had it for some time. Kastan in itially responded well to treatment. Her breast swelling resolved, she did not complain of back pain and her energy returned. However, Kastan succumbed to her cancer on December 8, 2010.
B Uriell, and their minor children (collec tively the Uriells) sued the Regents for wrongful death. The Uriells' surgical e xpert, Leo Gordon, M.D., opined Dr. Blair breached the standard of care by (1) failing to bi opsy the area in the left breast for which she was referred and (2) failing to order an MRI to detect breast cancer and to follow-up with a biopsy of the area. Had those measures been taken at the time of the August 2007 visit, Dr. Gordon opined a biopsy "to a reas onable degree of probab ility . . . would have shown breast cancer." Even th ough the ultrasound identified only cysts, Dr. Gordon believed cancer should have been detected in 2007 based on the other presenting factors, including family history.5 Dr. Blair and her standard of care expert , Kenneth Deck, M.D., testified neither an MRI nor a biopsy was indicated because the ultrasound showed simple cysts. Using a computer program, Dr. Blair estimated Kastan had a 17 percent lifetime risk of getting breast cancer, but told Kastan sh e thought this underestimated her risk. Dr. Blair admitted if a patient had a lifetime risk of getting breast cancer greater than 20 percent, the standard of care would have required obtaining an MR I. Dr. Blair testified at trial she did not believe Kastan's lifetime risk was greater th an 20 percent, but was impeached with her deposition testimony in which she admitted she suspected her risk was probably in excess of 20 percent. Dr. Deck admitted the comput er program Dr. Blair used to assess the patient's risk did not account for history of di sease in the paternal branch. He further admitted if her risk of cancer was greater than 20 percent, th e standard of care required an MRI, which is more sensitive than a mammogram. Dr. Blair also admitted if a doctor had access to information with the patient's family history and did not read it, "the standa rd of care would have been breached." The medical records showed on the date of the 2007 visit with Dr. Blair a medical assistant recorded Kastan's family history stating, "mother died of breast cancer. Diagnosed late 50's . . . paternal grandmother, breast cancer, '94. Paternal aunts, 10 females, breast cancer. Maternal aunt, breast cancer. Uncle, brain cancer." Dr. Blai r conceded this was information she should have r ead and reviewed before trea ting Kastan, but did not recall seeing this piece of paper.6 With respect to causation, the Uriells' oncology expert , Robert Brouillard, M.D., testified Kastan had the most common form of breast cancer. The fact it was estrogen receptive and HER2 negative meant it was less aggressive and amenable to treatment by both hormonal therapy and chem otherapy. Dr. Brouillard te stified the tumor burden in 2007 would have been substantially less than it was when it was diagno sed in 2009. As a result, he opined it was "probable she would have had [a] more durable response to hormones alone had the tumor been diagnosed in 2007. In addition, if something had been discovered on a bone s can that also would have had a better chance of response" because there would be less chan ce for spontaneous mutation to resistance with a smaller tumor burden. In hi s opinion, "to a reas onable degree of medical probability," Kastan would have survived 10 years if she was treated early, even if she had stage 4 cancer in
2007. The defense oncology expert , David Okun, M.D., opined Kastan had stage 4 cancer in August 2007, meaning it spr ead from the primary tumor to so me other distant site in the body. Dr. Okun stated, "[w]e have gotten a lo t better at treating patients with this. We can keep them alive five years, sometimes ten, but it's unfort unately fatal." He conceded earlier treatment would have extended her life, but would not say it would have extended her life beyond three years. He agreed a newe r metastasis is more sensitive to treatment. John Link, M.D., an oncologist who c onsulted with Kastan before she died, testified if she had been diagnosed in 2007, she could have taken medications to prevent the leg fractures she suffered as a result of bo ne metastasis and could have taken hormonal therapy to potentially put her in remission. In Dr. Link's opinion, earlier treatment would7 have prolonged her life, but by only a few year s based on the type of cancer he suspected she had. However, he admitted he did not know specifically what type of cancer she had and he did not know whether he r cancer could have been more responsive to treatment if provided earlier. Earlier in the litigation, Dr. Deck declar ed under penalty of perjury he believed Kastan did not have cancer in 2007. At trial, however, Dr. Deck testified she had microscopic cancer that year.
C At the conclusion of the Uriells' case , the Regents moved for nonsuit contending the Uriells could not recover for wrongful de ath because they could not prove a greater than 50 percent chance Kastan would have survived he r cancer because she was stage 4 when she presented in 2007. In denying the mo tion, the trial court distinguished this case from Dumas v. Cooney (1991) 235 Cal.App.3d 1583, 1605-1606, in which the court rejected the lost chance doctrine of recovery because plaintiff ha d only proven he was denied a 30 percent chance of recovering from hi s disease. In this case, the trial court ruled, "plaintiffs are not seeking to be co mpensated for a less-than-50 [percent] chance that Ms. Kastan would have survived. Ra ther, they are relyin g on the 'traditional approach' to recover only the extent to which it was probab le 'that cancer killed the patient sooner than it would have with timely diagnosi s and treatment.' " During argument on the motion, the court explained, "I think the pr oblem is the probability. That's what those cases are talking about. We all have a terminal condition. Life is a terminal condition. Medical science, all it does is extend our life e xpectancy. We're all going to die, okay. So8 in that sense it's really when you talk about ca using the death we're all going to die. . . . And so what I mean by that is . . . that's what we talk about wh en we're talking about wrongful death, all right, is the fact that the negligence caused th e death earlier than it would have otherwise occurred. That's the claim here. Th e difference here by comparison to the cases you're citing is that in thos e cases there was no prob ability greater than 50 percent chance that the life woul d have been extended. In this case we have testimony that it was. Whether the jury is going to accept that is an entirely different issue." The jury returned a verdict for the Uriells finding, by a vote of 10 to 2, UCSD was negligent in the diagnosis or treatment of Kastan, and, by a vote of 9 to 3, UCSD's negligence was a substantial factor in causin g harm to the Uriells. The court entered judgment on the jury verdict in favor of the Urie lls for $548,911 plus costs. The trial court denied the Regents' moti on for new trial and declined the Regents' invitation to reweigh expert testimony to "contra dict the jury's finding that [Kastan's] life would have been significantly lengthened had she been prope rly diagnosed and treated." In denying the motion for new trial, the trial court noted Dr. Brouillard testified "based on his experience in treating women with breast cancer, to a reasonable degree of medical probability he believed Kastan would have su rvived for ten more years had she obtained earlier diagnosis and treatment." As a result, the court did not believe it was inappropriate for the jury to rely on Dr. Brouillard's opinion.9 DISCUSSION
I Expert Opinion Established Causation The Regents contend the trial court erre d in denying its motions for nonsuit and new trial because Dr. Brouillard's opinion la cked adequate foundation to establish the failure to timely diagnose Kastan's cancer caused her death. We do not agree. Although we independently review an or der on a motion for nonsuit, we apply the same test as the trial court. Viewing the evidence in the light most favorable to the plaintiff, we will affirm an order denying a motion for nonsuit "s o long as there was substantial evidence to suppor t the jury's verdict." ( Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 7 13.) We will not disturb a court's ruling on a motion for new trial "unless a manifest and unmistakab le abuse of discreti on clearly appears." ( Buckner v. Milwaukee Electric Tool Corporation (2013) 222 Cal.App.4th 522, 530.) "[U]nder Evidence Code sections 801, subdi vision (b), and 802, th e trial court acts as a gatekeeper to exclude expert opinion te stimony that is (1) based on matter of a type on which an expert may not reasonably rely , (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative." ( Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771- 772.) However, "[t]he trial court's gatekeeping role does not involve choosing between competing expert opinions. The . . . gatekeeper's focus 'm ust be solely on principles and methodology, not on the conclusions that they generate.' " ( Id . at p. 772.) The abuse of discretion standard applies to the court's rulings regarding the ad missibility of expert testimony. ( Burton v. Sanner10 (2012) 207 Cal.App.4th 12, 18; In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) " ' "Discretion is abused wheneve r, in its exercise the court exceeds the bounds of reason, all of the circumstances before it being considered." ' " ( Burton v. Sanner , supra , at p. 18.) The Regents' reliance on Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108 is mi splaced. In that case, we determined expert testimony was properly excluded where the expert lacked a reasoned explanation for his opinion a negligent act was a cause-in-f act of injury and he based the opinion on speculation. ( Id . at pp. 1119-1120.) Here, contrary to Regents' contention, Dr. Brouillard's opini on was not based on speculation, and it was not derived from Kastan 's family history alone. Dr. Brouillard testified based on his experience as well as Kastan's medical history. It was Dr. Brouillard's opinion Kastan had the most co mmon type of breast cancer and the most amenable to treatment. The r ecords indicate Kastan responde d to treatment initially, and Dr. Brouillard opined she woul d have obtained a better result if she had been treated two years earlier when the tu mor burden was less. Dr. Brouillard agreed it wa s more likely than not the di sease had metastasized by August 2007. However, in Dr. Brouillard's opinion, if Kastan had distant metastasis in 2007 (stage 4), she could have lived another five to 10 years or more with treatment. When Dr. Brouillard was aske d about the patient's family history as reflected in the medical records, he commented Kastan's mother 's history of developi ng breast cancer in her early 50s and dying at age 68 or 69 of breast cancer was "a rather remark able survival11 with what has to be presumed stage 4 breas t cancer." He explained one has to presume Kastan's mother had stage 4 cancer because, fo r her to have died of breast cancer, the tumor must have escaped from th e breast to another part of the body after initial treatment "where it lay dormant or responsive to treatme nt" before it started to grow again. Since Kastan's grandmother and the grandmother's 10 si sters all died of breast cancer, as well as Kastan's mother's aunt, Kastan had a gene tic abnormality passed on through the family both maternally and paternally, making her at high risk for breast cancer. The Regents did not object to this fa mily history testimony. Dr. Brouillard said Kastan's mother's cancer history was important because they "shared the same set of gene s, which made both of them susceptible to getting breast cancer." In his opinion, "having had enough tim e for [Kastan's] treatment to take effect, she might have enjoyed perhaps not the same survival [as her mother] but certainly substantial survival." When asked if Kastan coul d have survived 15 years lik e her mother, Dr. Brouillard did not respond ba sed on Kastan's family history. Instead, he responded by saying, " My experience is that women who are treated early w ith stage 4 disease can have very long, [10] years or more survival." (Italics added.) Dr. Brouillard then concluded, to a reasonable degree of medical probability , Kastan would have surviv ed 10 years if she was treated early with her stage 4 disease. 3

3 The Regents objected and moved to strike , but on the basis the causation opinion was not adequately disclosed du ring deposition in violation of Kennemur v. State of California (1982) 133 Cal.App.3d 907, 917-920 a nd was beyond the scope of cross-12 The Regents' counsel did not follow up with questions about the basis for this opinion. Under these circumstances, we ca nnot conclude the trial court abused its discretion in admitting Dr. Brouillard's expert testimony on the issue of causation or that the court erred in denying the mo tions for nonsuit and new trial.
II
No Instruc tional Error The Regents next contend the court erred in giving CACI instructions 430 and 431 regarding causation without gi ving an additional special in struction stating, "Causation must be proven with in a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case." We are not persuaded and conclude the court did not err.
A "A party is entitled upon request to corre ct, nonargumentative in structions on every theory of the case advanced by him which is supported by substantial evidence." ( Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) However, "[i]nstructions should state rules of law in general terms a nd should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues , theories or defenses either by repetition or singling them out or making them undu ly prominent although the instruction may be a legal proposition. [Citati ons.]' [Citation.] Finally, '[e]rror cannot be examination. After an unreported sidebar, the court allowed the questi on and answer to be read back. It is not evident from this record the Regents objected or moved to strike based on the foundation for the expert's opinion.13 predicated on the trial court's refusal to give a requested instruction if the subject matter is substantially covered by the instructions given.' " ( Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4t h 333, 359-360.) "We independently review claims of instru ctional error viewing the evidence in the light most favorable to the appellant." ( Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1333.) " 'The refusal of a proper instruction is prejudicial error only if " 'it seems probable' that the error 'prejudicially affected the verdict.' [Citations.]" [Citation.] "[W]hen deciding wh ether an error of instructi onal omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's argumen ts, and (4) any indications by the jury itself that it was misled." ' " ( Ibid .)
B Here, the jury was instruct ed with the standard jury instruction for negligence, setting forth the essential factual elements th e Uriells were required to prove: "Patrick, Alana, and John Uriell claim they were harmed by the negligen ce of Dr. Blair acting as an agent of the Regents . . . . To establish th is claim, the Uriells must prove all of the following: [¶] 1. That UCSD was negligent; [¶] 2. That the Uriells were harmed; and [¶] 3. That UCSD's negligence was a substantial factor in causing their harm." (CACI No. 400, italics added.) After instructing the jury regarding the st andard of care for a physician and breast specialist, the court gave standard jury inst ructions regarding causation for negligence as follows:14 "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the ha rm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct." (CACI No. 430.) "A person's negligence may combine with another factor to cause harm. If you find that UCSD's negligence was a substantial fact or in causing the Uriells' harm, then UCSD is responsible for the harm. UCSD cannot a void responsibility just because some other person, condition, or event was also a substa ntial factor in causing the harm." (CACI No. 431.) The court also instructed the jury the burden of proof required the plaintiffs to "persuade you, by the evid ence presented in court, that what he or she is required to prove is more likely to be true than not true." (CACI No. 200.)
C The court's use of standard jury inst ructions for the essential elements of negligence, including causation, was appr opriate because medi cal negligence is fundamentally negligence. (CAC I No. 500, use note, p. 377; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 999 [although Medical Injury Compensation Reform Act altered certain si gnificant aspects of medical malpractice claims from ordinary negligence claims, "the fundamental substance of such actions on the issues of duty, standard of care, breach, and causation remains unaffected"]).15 The court's use of CACI No. 430 to instruct the jury regarding the substantial factor standard for causation was appropriate and accurate ly stated the applicable legal principle. "The concept of proximate or legal cause has 'defied precise definiti on.' [Citations] [¶] Whether a defendant's con duct actually caused an injury is a question of fact [citation] that is ordinarily for the jury [citation]. . . . Our Supreme Court has . . . observed that the 'substantial factor' test genera lly subsumes the 'but for' te st. [Citation.] [¶] However the test is phrased, causation of fact is ultimatel y a matter of probability and common sense." ( Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 252-253.) "The substantial factor standard is a relatively broa d one, requiring only that the contribution of the individual cause be more than negligible or theoretical." ( Rutherford v. OwensIllinois, Inc. (1997) 16 Cal.4th 953, 978.) Even "a very minor forc e" that causes harm is considered a cause in f act of the injury. ( Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) However, " 'a force which plays only an "inf initesimal" or "theoretical" part in bringing about [the] injury . . . is not a substantial factor." ( Ibid. ) The Regents' proposed instruction on the issue of causation was based on Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396 ( Jones ). However, Jones did not involve instructional error. Rather, the issue before the Jones court was whether the plaintiff met her evidentiary burden to allow the jury to decide the issue of causation where plaintiff's expert test imony only established a possibility (less than a 50-50 chance) an oral contraceptive was caus ally connected to the deve lopment or aggravation of plaintiff's cancer. ( Id . at pp. 401-402.) The appellate court noted, "[t] he law is well settled that in a personal injury action caus ation must be proven within a reasonable16 medical probability based upon competent expe rt testimony. Mere possibility alone is insufficient to establish a prima facie case. [C itations.] That there is a distinction between a reasonable medical 'probability' and a medical 'possibility' needs little discussion. There can be many possible 'causes, ' indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only become s 'probable' when, in the absence of other reasonable causal explanatio ns, it becomes more like ly than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury ." ( Id . at pp. 402-403, italics added.)
Jones went on to explain, "[a] lthough juries are normally permitted to decide issues of causation without guidance fro m experts, 'the unknown an d mysterious etiology of cancer' is beyond the experien ce of laymen and can only be explained through expert testimony. [Citation.] Such testimony, however can enable a plaintiff's action to go to the jury only if it establishes a reasonably probab le causal connection between an act and a present injury. [¶] . . . '[In] the absence of factua l circumstances of probability understandable to a jury there must be some scientific testimony that can be interpreted as an inference of hypothetical probability before we can allow a jury to spec ulate upon the rights of citizens. . . . If experts cannot predict probability in these situations, it is difficult to see how courts can expect a jury of laymen to be able to do so." ( Jones , supra , 163 Cal.App.3d at p. 403, italics added.) Base d on the record before it, the Jones court concluded the expert testimony was insufficient to meet plaintiffs' prima facie burden to establish causation, and, thus, the tr ial court properly granted nonsuit. ( Id. at p. 404.)17 Similarly, in Bromme v. Pavitt (1992) 5 Cal.App.4t h 1487, 1498-1499 ( Bromme ), the appellate court held nonsuit was appr opriate where plaintiff did not establish negligence caused the decedent's death becaus e expert witnesses ag reed the chance of surviving cancer was less than 50 percent even with prope r medical intervention. "Consequently, defendant's alleged negligence . . . was not a substantial factor (cause in fact) of . . . death." ( Ibid .) These cases are consistent with other negligence cases. In Raven H. v. Gamette (2007) 157 Cal.App.4th 10 17, 1029, the court held " ' "[A plaintiff] is not required to eliminate entirely all possibility that the defenda nt's conduct was not a cause. It is enough that he introduces evidence from which reasona ble [persons] may conclu de that it is more probable that the event was cau sed by the defendant than that it was not. The fact of causation is incapable of mathematical proo f, since no [person] can say with absolute certainty what would have occurred if the de fendant had acted otherwise." ' " If the evidence presented on causation l eaves the matter " 'one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it b ecomes the duty of the court to direct a verdict for the defendant." ' " ( Id . at p. 1030.) "In any negligence case, th e plaintiff must present evidence from which a reasonable fact finder may conclude that defendant's conduct probably was a substantial factor in bringing about the harm." ( Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416, fn. 2.) Therefore, Jones , supra , 163 Cal.App.3d 396 and Bromme , supra , 5 Cal.App.4th 1487, do not require a heightened standard fo r causation in medical malpractice cases as the Regents suggest. Rather, these cases addr ess the factual burden a plaintiff is required18 to meet to establish a prima facia case. If a plaintiff cannot present evidence the defendant's conduct more likely than not was a substantial factor (a cause in fact) of plaintiff's alleged injury, then the issue of causation should not go to the jury and the defendant is entitled to judgment. As explained in Lineaweaver v. Plant Insulation Co.,

supra , 31 Cal.App.4th at p. 1416 , footnote 2, the reference to "medical probability" in medical malpractice cases is no more than a recognition the case involves the use of medical evidence. In this case, as we have discussed, Dr. Brouillard testified to a reasonable degree of medical probability Kastan woul d have survived 10 additional years if her cancer had been timely diagnosed and treated in 2007. As the trial cour t correctly determined, this testimony is distinguishable from Dumas v. Cooney , supra , 235 Cal.App.3d at pp. 1597- 1598, 1605-1606, which it was alleged the patient was deni ed only a possibility (a 30 percent chance) of survival by the delayed diagnosis. Here, Dr. Brouillard's testimony established to a probability (great er than 50 percent) of a be tter result, Kastan's survival for more than 10 year s, if she were timely diagnosed in 2007. ( Id . at p. 1603.) This was sufficient to meet the plainti ffs' prima facie burden on causa tion and the jury was required to consider and weigh the evid ence, including the credibility of the expert witnesses. The jury decided it was more likely true than not true that the Regents' failure to diagnose Kastan's breast cancer in 2007 wa s a substantial factor in caus ing Kastan's untimely death. (CACI Nos. 200, 430.) We find no error.19 D We are also not persuaded CACI No. 431 confused the ju ry or diluted the standard for causation. The Regents conflate the legal concepts of substantial factor for causation and concurrent cause. CACI No. 431 is necessa ry to explain to the jury a "plaintiff need not prove that the defendant's ne gligence was the sole cause of pl aintiff's injury in order to recover. Rather it is sufficient that defendant's negligence is a legal cause of injury, even though it operated in combination with other causes, whet her tortious or nontortious." ( Logacz v. Limansky (1999) 71 Cal.App.4th 1149 , 1158.) Failure to give an instruction on concurrent and multiple causes, where a ppropriate, is reversible error. ( Id . at p. 1166.)
In Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304 ( Espinosa ), the appellate court reversed a nonsuit in a me dical malpractice case because the plaintiff produced expert evidence indicating there were three separate causes of a baby's brain injury (two attributable to the defendants and one attributab le to the mother's use of medication early in the pregnancy), all of whic h the expert testified were substantial and contributory to the injury. ( Id . at pp. 1316-1317, 1321.) The Court of Appeal distinguished Jones , supra , 163 Cal.App.3d 396 in which the plaintiff's experts were unable to make a causal connection showing th e use of the drug and the development of cancer was more than a 50-50 possibility. In Espinosa , however, the expert testified to direct causal effect. ( Espinosa , supra , at p. 1320.) The Espinosa court concluded the plaintiff is not required to apportion damages among multiple causes. "It is only necessary that a plaintiff demonstrate th at the negligence of the defendant was a substantial factor in causing the claimed injury." ( Id. at p. 1321.)20 Similarly here, the Uriells establishe d through Dr. Brouillard's testimony the Regents' negligence was a substantial factor in causing Ka stan to die 10 years earlier than she would have if she had been timely diagno sed and treated. The fact she had cancer, which acted concurrently, as another substan tial factor in causing her death, did not relieve the Regents of liability. CACI No. 431 properly explaine d this issue of concurrent substantial causes to the jury.
DISPOSITION The judgment is affirmed. Plainti ffs shall recover their costs on appeal.

M C CONNELL, P. J. WE CONCUR:

HUFFMAN, J.

M C DONALD, J.