Ex-’Marlboro Man,’ Doctor Settle : Lawsuit: Former actor from cigarette ads says the judge has ordered the settlement terms to remain confidential. The Newport Beach physician was accused of failing to diagnose lung cancer.

SANTA ANA —  A former actor and Hollywood stuntman, who once portrayed the “Marlboro Man” in cigarette advertisements, agreed to an out-of-court settlement Wednesday with a physician who he alleged had failed to diagnose his lung cancer.

Wayne McLaren, 49, of Corona del Mar said the terms of the settlement in his malpractice lawsuit against Newport Beach physician William Freud were ordered confidential by the court.

“It doesn’t really matter what the settlement was,” McLaren said, “it could never compensate me for the screw-up that occurred.”

McLaren had alleged in his lawsuit that he went to Freud on Sept. 5, 1989, for a physical examination and to check out a cough. During that examination, he alleged, a chest X-ray was taken but never reviewed by the doctor.

Eight months later, when McLaren went to a second doctor to correct a sinus problem, another chest X-ray was taken. It was then that McLaren’s lung cancer was diagnosed in its advanced stage.

The lawsuit alleged that Freud had been negligent for not reading McLaren’s first X-ray and did not follow the “accepted standard of care.”

Freud denied any wrongdoing. During the first day of the trial in Orange County Superior Court, he testified that he would have reviewed the X-ray in a follow-up visit with McLaren but that McLaren never showed up for a scheduled appointment.

The doctor also contended that McLaren originally came to see him for impotency problems and made no mention of a cough.

McLaren contended that he had attended the follow-up appointment and was told by Freud that he was healthy.

“I’m going to go through a physical and not find out the results?” McLaren asked. “Give me a break.”

Wednesday’s settlement came after two days of testimony and after a threat by Judge Francisco F. Firmat to declare a mistrial if information about McLaren’s association with Philip Morris Inc., the manufacturer of the Marlboro brand, was published in a newspaper article. McLaren had been featured in several print ads as the “Marlboro Man” in 1975.

Firmat had granted a motion by McLaren’s attorney to exclude such evidence from the trial as overly prejudicial against the plaintiff.

After an article about the case Wednesday by The Times Orange County Edition, attorneys on both sides decided to settle after being faced with a possible mistrial.

Freud’s attorney, Steven R. Van Sicklen, said his client did not want to begin another trial and endure further publicity.

“He’s glad it’s over,” Van Sicklen said. “The publicity was not helpful. He’s worried about the effect on his practice. . . . This was the one and only time he’s been sued” in 30 years of practice.

During the trial, Freud testified that he reviews X-rays during follow-up appointments and that a patient had never before failed to attend a follow-up meeting.

Freud also testified that he has since reviewed the X-ray and acknowledged that it shows a 6-centimeter tumor in the left lung.

After the settlement was reached, McLaren--wearing a sport coat, jeans and cowboy boots--stood in the court hallway and expressed some disappointment with the judicial system.

“We don’t try the case anymore,” he said, “we try the law. . . . Nobody cares what’s right or wrong.”

He also said he would gladly give up anything he won in the settlement “if I could be the way I was prior to 1989.”

Nonetheless, he said, “I have a lot to be grateful for, . . . like an employer who stood by me when I had to be out of work” because of his treatment for cancer. McLaren is a plant facility manager for Pick Systems in Irvine.

McLaren, who has done stunt work in movies for actors including Burt Reynolds and Lee Marvin, smoked about a pack and a half of cigarettes a day for about 25 years.

After the second doctor discovered McLaren’s cancer, McLaren was told that he had about six months to live because of the size and location of the tumor.

McLaren’s attorney, Jerrold A. Bloch, argued that if the tumor had been identified when Freud took the X-ray, his client’s chances of survival would be much improved.

In May, 1990, McLaren underwent chemotherapy and radiation therapy. The tumor was subsequently removed, but in July cancer was found in McLaren’s brain, Bloch said.

Although that cancer has also been treated, Bloch said, McLaren’s prognosis is that he will live just a couple more years.

McLaren, however, said he will be around longer than that. “According to a lot of doctors, I’m not supposed to be here now,” he said with a laugh. “. . . The hearse that’s following me is running out of gas.”