Conser v. Bd. of Trustees, CSU

Filed 11/20/08 Conser v. Bd. of Trustees, CSU CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Christiana Conser sued the Board of Trustees of the California State University and James Duzak, a nurse practitioner employed by the San Francisco State University Student Health Clinic, for professional negligence. Conser alleged that she contracted Lyme disease as a result of Duzaks negligence in treating her for a tick bite she received in February 2000. Following a three-week trial, the jury entered a special verdict finding that Duzak was not negligent. Conser appeals from the ensuing defense judgment.

Conser contends that the undisputed evidence at trial entitled her to: (1) a partial judgment notwithstanding the verdict (JNOV) or a new trial on the issue of whether Duzak denied her the right to make her own informed decision about treatment, (2) a partial JNOV that Duzak breached the applicable standard of care in various respects, and (3) cost-of-proof discovery sanctions in having to prove that she is suffering from late-stage Lyme disease resulting from the tick bite she received in February 2000. We find no merit in Consers contentions, and affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial Evidence

We summarize the evidence adduced at trial in the light most favorable to the judgment:[1]

On February 17, 2000, Conser went to the San Francisco State University Student Health Clinic requesting to be seen by Urgent Care. She was first seen by nurse Christine Cronin for an initial intake evaluation. Cronin interviewed Conser and wrote the following note in her medical chart: Patient states tick bite seven hours ago, with removal, per patient, to left upper back area. Now complaining of pain and tenderness to the area. Duzak, a licensed physicians assistant and nurse practitioner, was one of two or three medical providers seeing walk-in patients in the clinic that day. Duzak picked up Consers medical chart at about 2:00 p.m., and entered the examining room where she was waiting. Duzak introduced himself as a nurse practitioner and was wearing a name tag that read, Jim Duzak, PA, FNP. Duzak began by asking Conser the reason for her visit. She told Duzak she had been walking her dog in Marin County earlier that morning when she received a tick bite. Conser stated that the tick either fell off or was brushed off. She described the tick as large. Conser did not mention the ticks color and Duzak did not ask her about it. Conser did not report any other details about the circumstances of the tick bite to Duzak nor did she express any uncertainty about the circumstances under which she received it. Duzaks medical notes prepared at the time reflect that the patient reported the tick bite had occurred that morning and that the tick either fell off or was brushed off by the patient.

Duzak had previously treated about 20 patients for tick bites before treating Conser. Based on the circumstances described by Conser, Duzak did not believe the tick had attached itself to Consers body. Consers bite wound was consistent with a lack of attachment. Duzak saw no sign of tick parts in the wound, or any tearing or ripping or indications of bleeding. Duzak had seen many tick bite wounds after removal of an attached tick by pulling, and had almost always seen a tick part left in the wound. Duzak cleaned Consers wound with alcohol and recommended that Conser apply hydrocortisone cream to the wound a few times a day.

Conser asked Duzak to prescribe the antibiotic, doxycycline, to prevent Lyme disease. Duzak told her that based on her self-report and presentation and his physical examination of her, it was not appropriate in his medical judgment to prescribe antibiotics. Conser became angry and insisted that she be given antibiotics. She stated that she worked as a field biologist in Marin County and that she was at a higher risk for contracting Lyme disease due to her occupation. Duzak explained to Conser why he did not think it was appropriate for her to receive prophylactic antibiotics.

As reflected in his medical notes written immediately after seeing Conser, Duzak testified that he considered four factors: First, Conser did not exhibit any signs or symptoms of Lyme disease. Although a person bitten only seven hours earlier would not expect to see signs or symptoms of Lyme disease, the absence of signs or symptoms eliminated the possibility of infection from earlier tick bites.

Second, Duzak considered the guidelines for treating tick bites recommended by the Centers for Disease Control (CDC).[2] The CDC guidelines recommend against the routine prophylactic use of antibiotics for Lyme disease. Duzak understood that the medical community was starting to come down very hard on prescribing antibiotics without a good medical reason because the overuse of antibiotics might lead to community resistance.

Third, Duzak considered the low incidence of Lyme disease in Marin County caused by a relatively low rate of infected ticks. Duzak was aware that the incidence was low in Marin based on previous conversations with physicians, textbooks he had read, and lectures he had attended. Duzak also knew the infection rate for ticks was lower in the winter months than in the summer. Although Duzak was not aware of the exact incidence rate when he spoke to Conser, evidence introduced at trial from a study prepared by the California Department of Health Services found an average of 1.61 cases of Lyme disease per 100,000 persons in Marin County in the last 10 years. According to the study, there were four cases in 1999, three in 2000, and only one case reported in 2001. Consers medical expert, Dr. Steven Fugaro, testified that the overall percentage of ticks infected with the disease in Marin County was approximately 1 to 2 percent although there were probably pockets in the county where the infection rate might be higher.

Fourth, even assuming that the tick was infected, Duzak believedbased on Consers self-reportthat she had been exposed to the tick for less than the minimum amount of time required in order to transmit the Lyme bacteria. He testified that he had read scientific literature stating a tick must be attached for anywhere from 24 to 72 hours to transmit Lyme disease, but that 36 hours is the number cited by most studies. Defendants medical expert, Dr. Busch, confirmed that when the period of attachment is less than 36 to 48 hours, the risk of infection is greatly reduced.

Duzak also explained the disadvantages of antibiotic treatment to Conser, informing her that there is always the possibility of an allergic reaction to the antibiotic and that the availability of antibiotics may lead to a false sense of security and consequent failure to take proper precautionary measures to avoid getting tick bites.[3] He also told her that she was at low risk for getting Lyme disease but did not believe he convinced her.

Duzak did not have a specific recollection of reviewing the signs and symptoms of early Lyme disease with Conser so that she could watch for them. Conser denied that Duzak had discussed this subject with her. Over Consers objection, however, Duzak was allowed to testify that he was trained to and had a regular habit and custom of providing his patients with information about the signs and symptoms they should watch for and about the need to return to the clinic if the symptoms developed. He further testified that he did not always document his advice to patients to watch for signs and symptoms of illness, and his medical notes do not document the rendering of such advice in Consers case.

Duzak did recall advising Conser to see another provider for a second opinion. This was documented in his notes.[4] He testified that there were other medical providers at the clinic who would have been available to see her. He stated that one of his reasons for advising her to consult another provider was that she was clearly angry and insistent about receiving antibiotics even after he explained his reasons for not prescribing them. He thought another provider might be able to communicate better with her and would provide a means of resolving the conflict. He did not consider Consers anxiety enough of a reason to give her antibiotics.

Duzak testified that a clinic protocol existed about the circumstances under which a nurse practitioner should consult a medical doctor. Under the protocol, a nurse practitioner was to consult a physician when he felt he was not competent to deal with a medical issue. This might include a circumstance in which the treatment options were ambiguous. Duzak testified that he felt confident in his decision not to prescribe antibiotics in this case, and that there was no ambiguity about his treatment decision.

Dr. Busch testified that the medical care provided by Duzak was appropriate and met the standard of care for the treatment of tick bites. Duzaks care correlated with the treatment recommendations of the CDC and the parallel recommendations of the Infectious Diseases Society of America (IDSA). According to Dr. Busch, the CDC recommends removal of the tick, cleaning of the area, and observation of the patient for subsequent illness. It does not recommend routine prescription of antibiotics. Rather, it recommends individual assessment of the risk of infection based on three primary factors: (1) the geographic location where the tick bite occurred; (2) an assessment of whether the tick became attached to the host and, if so, for what length of time; and (3) to some extent an assessment of the time of year that the bite occurred. In Buschs opinion, the risk of infection was minimal in this case because the incidence of Lyme disease infection in Marin County was low, the likelihood of significant attachment was not great based on Consers self-report that the tick either fell off or she was able to brush it off, Consers physical description of the tick was not consistent with a tick that had completed its feeding and was engorged with blood, and the tick bite occurred in the winter. Busch also noted that doxycycline results in side effects in up to 30 percent of patients.

Busch testified that the CDC does not recommend follow-up blood testing either at the time of the bite or in the period immediately after because it takes four to six weeks or sometimes more for the antibodies to develop and produce a positive test result. Neither the CDC nor IDSA recommends a follow-up visit within 30 days. Antibiotics may be indicated at a later time based on the development of signs and symptoms of Lyme disease. One common symptom is the appearance of erythema migrans, a bulls eye rash, near the area of the bite that sometimes spreads to other areas. This rash generally appears between three and 30 days after the bite and is seen in approximately 80 percent of infected persons. A lesser percentage present with flu-like symptoms.

Busch found no evidence in Consers medical records that she had either the erythema migrans rash or flu-like symptoms within a month of being bitten. Consers next medical appointment after seeing Duzak occurred approximately six weeks after the tick bite and that was not related to any flu-like symptoms. Busch stated that in his opinion, based on reviewing Consers medical records, he would not have diagnosed Conser with Lyme disease at any time during the period from February 17, 2000 to 2004. Regarding the period after 2004, Busch opined that more information would be required before he could make a diagnosis of Lyme disease. He stated that there was poor evidence that Conser did in fact have Lyme disease. Her confirmed symptomsfatigue and neurological issuesdo develop late in approximately five percent of patients who have had the erythema migrans, but such symptoms are also consistent with conditions other than Lyme disease. Although Conser had a positive serological test result for Lyme disease at the end of 2003, and mixed test results in February 2004, the positive test results were suspect because all prior tests at Kaiser Permanente had been negative, the 2003 and positive 2004 tests were barely positive, and Busch did not consider the laboratory that conducted the 2004 tests to be entirely reliable. In any event, to make a diagnosis of Lyme disease, there must be both positive serological results and an appropriate clinical pattern of signs and symptoms, according to Dr. Busch. In Consers case, there were serological test results that needed to be confirmed by additional testing and a weak clinical presentation that was difficult to interpret.

Consers medical expert, Dr. Steven Fugaro, found that the manner in which Duzak assessed the risk of infection fell below the standard of care because Duzak failed to make appropriate inquiries about the infection rate of ticks in the particular geographic area of Marin County where the bite occurred, and did not obtain an accurate history of the time of attachment, evidence of attachment, manner of removal, and kind of tick.[5] Given Duzaks flawed and incomplete understanding of the disease, he also breached the standard of care by failing to seek additional information or to counsel with other physicians.

Although Fugaro did not claim that Duzak necessarily breached the standard of care by failing to prescribe antibiotics, he did opine that in a case like this, where antibiotics might be given for prevention, or they might not, . . . . [i]ts important to take into account patient preferences. Given the collaborative role between practitioner and patient in these circumstances, Fugaro was troubled that Duzak gave Conser false reassurance by telling her it was unlikely she had the disease and that he failed (according to Consers testimony) to give her critical advice about the signs and symptoms she should be looking for. According to Fugaro, if Duzak did not prescribe antibiotics, he should at least have given her detailed advice about the signs and symptoms to look for and then either scheduled a follow-up visit in 30 days to make sure she was doing well, or ordered antibody tests after 30 or 45 days.

B. Verdict and Post-trial Motions

After a three-week trial, the jury found by special verdict that Duzak was not negligent in his diagnosis and treatment of Conser. Judgment in favor of defendants was entered thereafter and notice of entry of judgment was served on April 21, 2005.

On May 6, 2005, Conser filed a combined notice of motion for partial JNOV and for a new trial, but did not file or serve a memorandum of points and authorities or other supporting documents with the notice. Defendants filed an ex parte application to strike the portion of the notice pertaining to a partial JNOV based on Consers failure to file and serve moving papers. The court denied the ex parte application but directed defendants to renew their procedural objections at the hearing on the combined motions. Conser thereafter filed and served a memorandum of points and authorities in support of her motion for a partial JNOV on May 16, 2005. Defendants renewed their request that the court strike the partial JNOV motion and opposed that motion and Consers motion for new trial on the merits.

The trial court denied Consers partial JNOV and new trial motions. The courts written order did not specify whether the court denied the partial JNOV motion on substantive grounds or based on defendants procedural objection.

Conser also filed a motion for cost-of-proof sanctions on the grounds that defendants unreasonably denied Consers requests for admissions that (1) she was suffering from late-stage Lyme disease, and (2) she contracted the disease from a tick bite that she received on or about February 16, 2000. The trial court denied the motion on the grounds that Conser failed to prove the truth of the matters asserted in the request for admissions because she never submitted these factual issues to the jury.

Conser appeals from the judgment and from the order denying her motion for cost-of-proof sanctions.

II. DISCUSSION

A. Breach of Legal Duty re Informed Consent

Conser contends that the judgment must be reversed and either a partial judgment entered in her favor or, alternatively, a new trial granted on the issue of breach of duty. According to Conser, the undisputed evidence shows that Duzak breached his legal duty when he deprived Conser of her right to make her own informed decision to undergo treatment with antibiotics to prevent a Lyme disease infection.

Preliminarily, we reject defendants contention that Consers claims with regard to her partial JNOV motion may be disposed of on procedural grounds. While the statement of facts in Consers opening brief was less than entirely fair or complete, we decline to hold that her breach of the duty to fairly summarize the facts in light of the judgment was so egregious she must be deemed to have waived the issue of whether the trial court properly denied her partial JNOV motion. (Cf. Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 49.) Defendants further claim that Consers partial JNOV motion was untimely is also not meritorious because the motion was deemed to have been made upon the filing of the notice of motion. (Code Civ. Proc.,  1005.5.) Consers claims regarding her entitlement to a JNOV or new trial must therefore be addressed on their merits.

Conser calls our attention to a long line of California cases holding that doctors have a legal duty toward their patients to provide a reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each and that, with this information, it is the prerogative of the patient, not the physician, to determine for himself the direction in which he believes his interests lie. (Cobbs v. Grant (1972) 8 Cal.3d 229, 242, 243 (Cobbs).) Cobbs held that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment. (Id. at p. 242.)

Based on this legal foundation, Conser reasons that Duzaks refus[al] to let her make her own decision about undergoing [antibiotic treatment] was a clear breach of his duties. According to Conser, the fact that Duzak did not offer her the option of antibiotic treatment, and in fact recommended against it, cannot be used as a reason to deny her the right to be reasonably informed about and to make her own evaluation and choice regarding that option. Conser maintains that if the ultimate decision about treatment is by law reserved for the patient, a decision to withhold treatment has to be viewed as part of a treatment plan over which the patient must retain decision-making authority.

Similar contentions have been uniformly rejected in other cases. The plaintiff in Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064 (Vandi) claimed that the trial court erred in failing to instruct the jury that the defendant physicians could be liable for failing to advise him of the availability and possible advantage of conducting a CT scan on the weekend after the plaintiffs first seizure, even if the defendants had no duty to perform the scan under the applicable standard of care. (Id. at pp. 1067, 1068.) The most significant advantage of an immediate CT scan over the MRI that the doctors ordered was that it could detect a large brain abscess. (Ibid.) The evidence established that among the causes of first-time grand mal seizures, brain abscesses are extremely rare, and the plaintiff displayed none of the symptoms or medical history that would be associated with the possibility of a brain abscess. (Id. at p. 1067.)The Vandi court held that the duty of disclosure is predicated upon a recommended treatment or diagnostic procedure and that the failure to recommend a procedure must be addressed under ordinary medical negligence standards. (Id. at pp. 10691070, italics added.)

The court in Vandi went on to explain the impracticality of the plaintiffs liability theory as follows: One difficulty with the rule proposed by plaintiff is that it is inherently and irrevocably wedded to medical hindsight. After a medical condition has been discovered it may be relatively easy to look back and identify a diagnostic procedure which would have revealed the condition but which was not medically indicated at the time. But in treating a patient a physician can consider only what is known at the time he or she acts. . . . Under plaintiffs proposed theory the doctor would be required to explain each and every possible diagnostic procedure regardless whether he or she believes it to be medically indicated. . . . [] Another difficulty with the rule proposed by plaintiff is that it tends to suggest that a physician should defer his or her medical judgment to the patients wishes. A physician obviously cannot compel a patient to undergo a recommended medical procedure and must accede to the patients decision in that regard. [Citation.] But a physician should not prescribe a procedure which is not medically indicated simply because the patient desires it. [Citations.] (Vandi, supra, 7 Cal.App.4th at pp. 10701071, italics added.)

The holding in Vandi is echoed in other cases. (See Townsend v. Turk (1990) 218 Cal.App.3d 278, 287 (Townsend) [consulting specialist who acted within the applicable standard of care was not required to provide information about tests he did not think were necessary]; Scalere v. Stenson (1989) 211 Cal.App.3d 1446, 14491453 (Scalere) [physician has no duty of disclosure with respect to procedures he or she is not recommending].) We perceive no meaningful distinction between these cases and the case before us. As in Vandi, the infection for which the nonrecommended treatment could have made a difference is rare and the key factors in Consers historywhere and when she received the bite, the fact that the tick fell or was brushed off, the condition of the bite wound, and the absence of signs or symptoms showing an earlier infectionwere all inconsistent with the presence of such an infection.

The cases have recognized that there might be a duty of disclosure concerning a nonrecommended procedure when there are two divergent schools of thought about the best procedure to follow. (Scalere, supra, 211 Cal.App.3d at p. 1451.) This exception is based on dictum in Jamison v. Lindsay (1980) 108 Cal.App.3d 223 (Jamison), proposing such a possible exception. (Id. at p. 231.) It is limited to cases in which the evidence establishes that disclosure of the different schools of thought is required for competent practice within the medical community. (Vandi, supra, 7 Cal.App.4th at p. 1071.) Here, there was no evidence of such a divergence or duty of disclosure. All major medical organizations, including the CDC, IDSA, American Academy of Pediatrics, American Academy of Family Practitioners, and the American College of Physicians recommended against the routine prophylactic use of antibiotics. Consers expert did not dispute this and did not claim there was another equally accepted school of thought on the subject. Given the information Duzak possessed about the circumstances of the bite, it was also not a matter of medical dispute whether Consers case should be classified as so exceptional that antibiotics should be recommended despite the presumption against their routine use. This case comes within the general rule of Vandi, Scalere, and Townsend, not the exception proposed in Jamison.

Consers proposed jury instructions were also properly rejected. Conser asked that the jury be instructed in relevant part that (1) [a] family nurse practitioner must explain the risks of not being treated with antibiotics in language the patient can understand . . . including any risk that a reasonable person would consider important in deciding not to have antibiotic treatment, and (2) a reasonable person in [Consers] position would have agreed to the antibiotic treatment if he or she had been fully informed about these risks. For the reasons stated, Duzak was under no legal duty to provide disclosure concerning a procedure he was not recommending. A physician may have a duty to provide information about the risks of not undergoing a procedure that was (or should have been) recommended to her by her physician. (See Truman v. Thomas (1980) 27 Cal.3d 285, 289, 291.) But the same duty does not exist when the treatment is not recommended and not medically indicated under the applicable standard of care. The trial court was not required to give the legally erroneous instruction requested by Conser.

Accordingly, Conser is not entitled to a partial JNOV or new trial based on the theory that Duzak breached a duty to allow her to make an informed treatment decision.

B. Breach of Standard of Care

Citing assertedly undisputed expert testimony and Duzak s own asserted admissions, Conser maintains that Duzak breached the standard of care in all of the following respects: (1) failing to weigh protection against Lyme disease as a treatment advantage of prescribing antibiotics, (2) failing to seek out information about the risk of infection in Marin County, (3) failing to consult a physician before deciding on a treatment plan, (4) failing to schedule a required follow-up, and (5) failing to warn Conser of the symptoms of early Lyme disease.

Regarding Duzaks alleged failure to consider protection against Lyme disease as a treatment advantage, Conser misconstrues the trial record. Our reading of Duzaks testimony and his medical notes is he did consider protection against Lyme disease as an advantage of antibiotic treatment, but assigned little weight to that advantage due to the low probability that Conser had, in fact, been infected with the disease. In fact, absent a potential advantage to antibiotic treatment there would have been no reason for Duzak to evaluate the probability that Conser had contracted Lyme disease or consider the disadvantages of such treatment. These factors were logically irrelevant to Duzaks treatment decision unless he believed that antibiotic treatment would offer a material advantage under certain circumstances, i.e., circumstances in which it was more likely she had been infected. We therefore reject as unsupported by the record Consers claim that Duzak failed to consider protection against Lyme disease as an advantage of antibiotic treatment.

We find no undisputed evidence in the record that Duzaks failure to seek out specific data about the prevalence of Lyme disease in Marin County fell below the standard of care. Contrary to Consers suggestion, Duzak did not simply assume there was a low risk of disease in Marin County. He specifically (and correctly) recalled that the incidence was low based on previous conversations with physicians, textbooks he had read, and lectures he had attended. Furthermore, defendants expert, Dr. Busch, did not opine that it was part of Duzaks standard of care to obtain data about the prevalence of Lyme disease in the specific part of the Bay Area where the tick bite occurred before deciding on a treatment plan. He merely stated that knowing the prevalence of Lyme disease in the general geographic area would be useful information for the practitioner to have. Duzak had that information. He was not required to have the precise numbers or the most current data at his fingertips in order to meet his standard of care.

Duzak was also not required to consult another physician. He felt fully competent to deal with the medical issue presented by Conser. There was no doubt or ambiguity in his mind about the proper course of treatment to follow. Consers trial counsel did manage to get Duzak to admit on cross-examination that there was an ambiguity in the situation because the patient was demanding a different treatment plan than the one Duzak was recommending. But attempting to equate that ambiguity with an ambiguity or uncertainty in Duzaks mindabout which treatment option to recommend is just semantic gamesmanship.

Conser claims Duzak breached the standard of care by failing to arrange for follow-up care within the next 30 to 45 days. Although Consers expert testified that follow-up care must be arranged in cases where no antibiotic is prescribed at the initial consultation , defendants expert did not join in that view. On cross-examination, Dr. Busch testified that if Duzak had said nothing to Conser about the signs and symptoms of Lyme disease to look for, then it would have been a breach of the standard of care to fail to arrange for follow-up care. Contrary to Consers claims, Busch did not opine that follow-up care arrangements had to be offered regardless of whether the provider warned Conser about the signs and symptoms to look for. In fact, Busch stated the opposite: I do not believe a follow-up appointment is specifically required.

Finally, Conser argues that no substantial evidence existed that Duzak warned Conser of the specific signs and symptoms of early Lyme disease. Conser testified that Duzak gave her no such warnings, and the medical record Duzak created does not reflect any such discussion. However, Duzak did testify that he was trained to and had a regular habit and custom of providing his patients with information about the signs and symptoms they should watch for and about the need to return to the clinic if the symptoms developed. He further testified that he did not always document his advice to patients to watch for signs and symptoms of illness. Such habit and custom evidence, if properly admitted, was substantial evidence that Duzak did give Conser the required information and warnings.

Conser argues that the trial court should have excluded Duzaks testimony on this subject as speculation or improper propensity or character evidence. We review the trial courts evidentiary rulings for abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) In our view, the trial court did not abuse its discretion in this case.

Evidence Code section 1105 provides, Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom. A persons habit is his regular or consistent response to a repeated situation, while the term custom refers to the routine practice of a group or organization that is equivalent to the habit of an individual. (People v. Memro (1985) 38 Cal.3d 658, 681, fn. 22.) Evidence very similar to that presented here was allowed in Dincau v. Tamayose (1982) 131 Cal.App.3d 780 (Dincau) to show that the physician defendants in that medical malpractice case exercised due care. (Id. at pp. 793795.) Dincau provides an apt precedent for the trial courts ruling here.

The plaintiffs in Dincau sued two physicians for their delay in diagnosing their infant with spinal meningitis. (Dincau, supra, 131 Cal.App.3d at pp. 785786.) The trial court permitted evidence of the habitual response of the doctor and his staff to telephone calls about minors conditions, including the doctors habits and instructions as to the circumstances in which the parents would be requested to bring the child in, when prescriptions would be given over the telephone, and when the doctor or his stand-in would be called based on conditions described by the caller. (Id. at p. 793.) The Court of Appeal affirmed the trial courts evidentiary ruling under Evidence Code section 1105, observing that [i]n California [habit and custom] evidence can be used to show due care on a particular occasion, and that [e]vidence of custom may be introduced to show that it was unlikely that a defendant was negligent on a particular occasion. (Dincau, at p. 794.) The appellate court held that in the face of contrary evidence about whether the doctor exercised due care in the particular instance in issue, it was for the jury to decide whether the doctor acted according to his habit in that instance. (Id. at p. 795.)

We perceive no meaningful distinction between the trial courts ruling in this case and the ruling upheld in Dincau. Consers alternative claimthat it was inherently unfair to allow Duzak to testify about his habits and custom without permitting Conser to have access to the medical records of other patients seen by Duzak at the clinicis also misplaced. Conser had many effective ways of challenging Duzaks testimony. She offered direct testimony that he had not in fact warned her about the signs and symptoms of Lyme disease. Conser was able to exploit the fact that Duzak had made no notation reflecting that he had spoken to her about that subject. Consers counsel cross-examined Duzak at some length about his asserted habit of giving patients information about signs and symptoms to look for and about his recall of the Consers visit. Given the inherent sensitivity of allowing discovery of third party medical records, and in view of the other tools available to Conser, we cannot say that the trial court abused its discretion in denying her discovery of such records.

For all of these reasons, we find no basis in the record for overturning the jurys finding that Duzak was not negligent in his treatment of Conser.

C. Cost-of-proof Discovery Sanctions

Code of Civil Procedure section 2033.420 provides in relevant part as follows: (a) If a party fails to admit . . . the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves . . . the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorneys fees. [] (b) The court shall make this order unless it finds any of the following: [] (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. [] (2) The admission sought was of no substantial importance. [] (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. [] (4) There was other good reason for the failure to admit.

After judgment was entered in this case, Conser filed a motion for cost-of-proof sanctions asserting that defendants unreasonably denied Consers requests for admissions that (1) she was suffering from late-stage Lyme disease, and (2) she contracted the disease from a tick bite that she received on or about February 16, 2000. The trial court denied the motion on the grounds that Conser failed to prove the truth of the matters asserted in the request for admissions because she never submitted these factual issues to the jury. Conser maintains that nothing in the sanctions statute requires a jury determination of the truth of the facts the opposing party had been requested to admit, and that the trial court erred as a matter of law in denying her motion on that ground.

Conser reasons that since a party may win sanctions after proving facts on summary judgment (Barnett v. Penske Truck Leasing Co. (2001) 90 Cal.App.4th 494), the court must have the authority to determine what is proven for purposes of Code of Civil Procedure section 2033.420 in the absence of a special jury verdict. Based on the procedural posture of this case, however, the trial court did not err in denying Consers motion.

The Evidence Code defines proof as the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. (Evid. Code,  190.) The California Law Revision Commissions comment to section 190 states that [t]he disjunctive reference to the trier of fact or the court is needed because, even when the jury is the trier of fact, the court is required to determine preliminary questions of fact on the basis of proof. (Cal. Law Revision Com. com., Deerings Ann. Evid. Code (2004 ed.) foll.  190, p. 21.) Here, Conser demanded a jury trial when she filed the operative complaint in this action. By doing so, she impliedly demanded that all disputed material factual issues were to be determined by the jury, not by the court. (See Evid. Code,  312, subd. (a) [except as otherwise provided by law, where the trial is by jury . . . [] . . . all questions of fact are to be decided by the jury].) Although a court may decide certain fact issues that do not warrant a trial by jury, Conser did not avail herself of any of those procedures. Thus, regarding the matters for which she sought cost-of-proof sanctions, Conser did not at any point in the proceedings file a motion (such as a motion for summary judgment or summary adjudication) seeking a determination from the court that no rational jury could decide those issues against her.

In fact, such a motion would almost certainly have been denied. Defendants offered substantial evidence at trial that, if credited by the jury, would have supported jury findings contradicting both of the subject facts. Dr. Busch testified, among other things, that he could not have made a diagnosis of Lyme disease at any time between February 2000 and 2004, and that for the period after 2004 he would need additional information before he would make such a diagnosis. There was also evidence in the record that Conser has exhibited since childhood the symptoms she now attributes to Lyme disease, that she went to multiple doctors in order to obtain a Lyme disease diagnosis, and that she provided the Lyme literate doctors who ultimately did give the diagnosis with false information about her signs and symptoms. Although Conser also offered evidence that, if credited by the jury, would have supported findings in her favor on whether she contracted Lyme disease in February 2000, she did not seek any type of special verdict form or jury interrogatory that would have established whether the jury believed her evidence or defendants on that point.

In this posture of the case, it was not sufficient for Conser to submit a sanctions motion to the court and expect the court to make its own factual determination, solely for the purpose of deciding the sanctions motion, as to whether she had contracted Lyme disease as she alleged. We find nothing in the text of Code of Civil Procedure section 2033.420 or in the case law construing it that requires the court to engage in its own factfinding after a jury trial is concluded to resolve fact questions that could have been put to the jury by special interrogatory.

In any event, even assuming for the sake of analysis that the trial court committed procedural error in the manner in which it disposed of Consers motion, we would regard any such error as harmless on the record before us. It is evident from the conflicting evidence in the record that defendants had reasonable ground to believe they could disprove Consers claims with regard to her medical condition and its origin. (Code Civ. Proc.,  2033.240, subd. (b)(3).) Defendants presented considerable evidence from which a rational jury could have concluded that Conser did not have late-stage Lyme disease and/or that she did not contract the disease from a tick bite in February 2000. Even if the trial court found that the evidence supporting Consers allegations was stronger than defendants, it could not have fairly sanctioned defendants under section 2033.240 for unreasonably refusing to admit those allegations.

The trial courts ruling denying cost-of-proof sanctions was proper.

III. DISPOSITION

The judgment and order appealed from are affirmed.[6]

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Margulies, J.

We concur:

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Marchiano, P.J.

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Swager, J.

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[1]Buehler v. Sbardellati (1995) 34 Cal.App.4th 1527, 1531, footnote 1.

[2] The CDC is a federal agency responsible for the evaluation and control of infectious diseases in the United States. Defendants medical expert, Dr. David Busch, testified that doctors routinely rely on medical information disseminated by the CDC and that the American Academy of Pediatrics, the American Academy of Family Practitioners, and the American College of Physicians have adopted treatment recommendations for tick bites that are similar to the CDCs.

[3] A notation in Consers medical chart indicated that she was in fact allergic to the specific antibiotic she had requested. Duzak, however, was aware of at least one other antibiotic that was available to treat Lyme disease prophylactically.

[4] Conser testified that she did not recall Duzak telling her to seek a second opinion.

[5] Conser denied that she received the bite while walking her dog on the morning of her clinic visit. She testified that she first noticed the tick bite while taking a shower immediately after waking up at 8:00 a.m. that morning. She pulled at it with her fingers and it gave some resistance before it popped off. She saw that it was black with a red back and black legs. Before going to the clinic, she looked up information about Lyme disease on the CDCs Web site. She saw a picture of the type of tick that had bitten her and read that Lyme disease was found in Marin County. She also read something about taking antibiotics for two weeks early in the disease would help prevent Lyme Disease.

[6] This opinion does not affect case No. A112178, which has a bankruptcy stay.