Halbleib v. McComb

Filed 8/29/06 Halbleib v. McComb CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Ann Murphy, Judge. Affirmed.

Law Offices of Ray B. Bowen, Jr., and Ray B. Bowen, Jr., for Plaintiff and Appellant.

Bonne, Bridges, Mueller, O’Keefe & Nichols, Raymond L. Blessey, Vangi M. Johnson; Taylor Blessey and Raymond L. Blessey for Defendants and Respondents.

______________________________

Plaintiff was born with acrodysostosis, an extremely rare disorder characterized by abnormally short and malformed bones of the hands and feet. He also suffers from spinal stenosis, a narrowing of the spinal canal that causes compression of the nerve roots.

On September 6, 2002, when plaintiff was 17 years old, defendants performed surgery on his spine (a laminectomy), allegedly resulting in permanent paraplegia. On September 5, 2003, plaintiff filed this medical malpractice action, alleging negligence in his diagnosis, treatment, and care.[1]

In early 2005, the case was tried to a jury over a period of one month. The jury returned a unanimous verdict for defendants after deliberating for five hours. Plaintiff moved for a new trial, which was denied. A timely appeal followed.

Plaintiff complains about evidentiary rulings, jury instructions, and the verdict form. But his briefs do not adequately explain the background of the case or the evidence presented by either side. Rather, he focuses narrowly on the circumstances of each alleged error, describing it in a vacuum.

In light of plaintiff’s briefs, we conclude that the trial court did not err in any respect, but if error occurred, it was harmless. We therefore affirm.

I

DISCUSSION

“It is the duty of the appellant to present an adequate record to the court from which prejudicial error is shown. . . . Also, the appellant must present argument and authorities on each point to which error is asserted, or else the issue is waived.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865, citation omitted.) We review a trial court’s rulings on evidentiary matters, jury instructions, and verdict forms for an abuse of discretion. (See Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078 [evidence]; Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235, 1245 [jury instructions]; Stone v. Foster (1980) 106 Cal.App.3d 334, 350 [verdict forms].) “The burden of demonstrating error rests on the appellant.” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)

Absent prejudice, an evidentiary or instructional error is not grounds for reversal. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 354; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574; Taylor v. Varga (1995) 37 Cal.App.4th 750, 759, fn. 9.) To establish prejudice, an appellant must show a reasonable probability that, in the absence of the error, he would have obtained a more favorable result. (See Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570, 574.)

And because “[t]here is no duty on this court to search the record for evidence which will serve to overturn the judgment” (Belli v. Curtis Pub. Co. (1972) 25 Cal.App.3d 384, 394, fn. 5), we disregard any factual contentions not supported by correct, page-specific citations to the record (see Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1154; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856).

A. Verdict Form

The trial court used the BAJI special verdict form for “Medical Malpractice” (No. 16.01). According to plaintiff, the trial court should have used the special verdict form for “Lack of Informed Consent” (No. 16.01.1) either alone, in addition to, or combined with the Medical Malpractice form, as plaintiff requested at trial. We disagree.

The Medical Malpractice verdict form asked the jury to determine whether defendants were “negligent in the medical, hospital, diagnosis, care and treatment of plaintiff.” The Lack of Informed Consent verdict form asks whether a defendant provided the plaintiff with adequate information about the risks of the surgery and whether the plaintiff would have had the surgery if he or she had been fully informed. (See BAJI No. 16.01.1 (2006) p. 1042.)

Plaintiff sought to impose liability not only for an alleged failure to obtain consent but also for negligence (1) during the surgery by, for example, failing to use the proper equipment, performing the operation too quickly, failing to maintain proper blood pressure, and allowing excessive blood loss; and (2) after the surgery by, for example, failing to prevent or properly treat an infection of the surgical incision (back wound). These alleged mistakes, including the failure to obtain consent, were premised on a single legal theory of professional negligence (medical malpractice) with alternate factual grounds for liability. (See Arato v. Avedon (1993) 5 Cal.4th 1172, 1182-1186; Cobbs v. Grant (1972) 8 Cal.3d 229, 239-241; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997-999.)

“[The] selection of a . . . special verdict form was well within the trial court’s discretion.” (Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1488.) Here, the Medical Malpractice verdict form subsumed the Lack of Informed Consent form. Both forms are based on the same legal theory: professional negligence. Given that plaintiff presented several alternative factual theories of liability -- only one of which was lack of consent -- the trial court did not abuse its discretion by using the medical malpractice verdict form, which covered all of them.

And, assuming the trial court erred, defendants state that plaintiff thoroughly explained the lack of consent theory in closing argument, and the trial court instructed the jury on the issue (see BAJI No. 6.11). If this statement is correct, any error would be nonprejudicial. But the record contains only a small portion of plaintiff’s closing argument (the rebuttal) and does not contain the jury instructions as given (only a list of jointly requested instructions). Thus, plaintiff’s failure to provide an adequate record on appeal precludes us from determining whether the alleged error was prejudicial. He bears the burden of establishing prejudice and, accordingly, has not done so.

B. Jury Instructions

Plaintiff faults the trial court for using BAJI jury instructions instead of CACI instructions. (See Cal. Rules of Court, rule 855(e) [use of CACI instructions is “strongly encouraged”].) But plaintiff stipulated to the use of BAJI instructions and thereby waived this ground for appeal. (See Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1089-1090.)

At the case management conference, the trial court ordered counsel to meet and confer 30 days before the final status conference and agree on a set of jury instructions. At the final status conference, defense counsel stated that no such meeting had taken place; plaintiff’s attorney said it had. Either way, the parties clearly had not made a serious effort to reach agreement on jury instructions. Plaintiff unilaterally filed a set of CACI instructions before the final status conference.

Because the parties had not reached agreement on a set of instructions, the trial court issued an order to show cause regarding sanctions and stated it was considering postponing the trial if counsel did not hold a meet and confer. The court commented that such a postponement would penalize plaintiff, not defendants, so “I’m not sure I’m going to do that.” At a break during the final status conference, counsel met in the hallway and discussed jury instructions. Afterward, plaintiff’s attorney informed the trial court that all counsel had agreed to use BAJI instructions. The court responded, “I don’t care if somebody wants to request a CACI and, if they conflict, I’ll make the call. That’s my job. I’m not going to tell you what to request.”

On appeal, plaintiff contends the trial court improperly failed to use CACI instructions and coerced him into using BAJI instructions. The record, as set forth above, does not support this contention. If the parties’ counsel had been unable to agree on whether to use BAJI or CACI instructions, the trial court would have resolved the impasse. Further, plaintiff’s concerns about postponing the trial -- for example, he might die due to his “proclivity for pneumonia” -- are not supported by any citation to the record. And plaintiff cites no authority for the proposition that the failure to use CACI instructions is an abuse of discretion.

Alternatively, plaintiff provides no analysis or authority for the proposition that the use of the BAJI instructions was prejudicial. He does not discuss in what respects the CACI instructions differed from the BAJI instructions or how those differences might have affected the jury’s verdict.

C. Testimony of Plaintiff’s Mother

Plaintiff proffered the testimony of his mother that, after the spinal surgery, members of the nursing staff catheterized him without washing their hands or using sterile gloves. The trial court sustained defendants’ objection to this testimony for the reason that it was irrelevant in light of the earlier testimony of one of plaintiff’s experts, Dr. Stephanie Rifkinson-Mann, a neurosurgeon.

On direct examination, Dr. Rifkinson-Mann testified that, after the surgery, the Hospital did not provide a sufficiently clean environment, exposing plaintiff’s back wound to infection. She stated that, in addition, the Hospital did not provide sanitary techniques or sterile conditions when catheterizing plaintiff’s bladder, causing a urinary infection. According to Dr. Rifkinson-Mann, the infections of the back wound and the bladder were among the causes of plaintiff’s “injuries.”

On cross-examination, Dr. Rifkinson-Mann testified that more likely than not, plaintiff had suffered a permanent spinal cord injury, but she admitted she did not know when the injury became permanent and irreversible. Defense counsel then asked, “You cannot testify to a reasonable degree of medical probability that any postoperative event was a substantial factor in causing injury to [plaintiff], correct?” She answered, “Incorrect.” Defense counsel then read from Dr. Rifkinson-Mann’s deposition as follows:

“‘Question: Then you cannot say, within a reasonable medical probability that any postoperative event was a substantial factor in producing permanent injury to this child, correct?

“‘Answer: A substantial factor in producing permanent injury? No. But in perhaps compromising the amount of recovery, possibly. It’s speculation, if you want an answer.

“‘Question: Speculation, correct?

“‘Answer: For that particular phrase I just uttered.’”

Thus, Dr. Rifkinson-Mann testified that postoperative events were not a substantial factor in causing any permanent injury, and whether they had affected the degree of recovery was speculative. The proffered testimony about postoperative catheterization was therefore irrelevant and speculative.

Plaintiff counters that Dr. Rifkinson-Mann’s testimony addressed permanent injury while his mother’s proffered testimony concerned nonpermanent injury. But, according to plaintiff’s opening brief, he sued defendants for permanent paraplegia. It follows that evidence about the catheterization was properly excluded. (See Evid. Code, § 350; United Farm Workers v. Agricultural Labor Relations Bd. (1993) 16 Cal.App.4th 1629, 1640-1641.)

Finally, plaintiff has not established that the exclusion of the proffered evidence, if in error, was prejudicial. He simply asserts that the alleged error was prejudicial without providing any analysis. We therefore consider the point abandoned. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699700.) Indeed, nowhere in plaintiff’s appellate briefs does he discuss or summarize the nature and substance of the evidence presented by the parties. He does not identify the witnesses, describe their testimony, or discuss the documentary evidence. He does not tell us anything about defendants’ theory of the case or the evidence they presented that would tend to support the verdict. In these circumstances, we cannot determine whether the proffered testimony, if admitted, would have created a reasonable probability that the jury would have returned a verdict in his favor. (See Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570, 574.)

D. Credibility of Individual Defendant

Dr. McComb, one of the two individual defendants, was a defendant in a prior malpractice suit. In that action, he signed a declaration in support of a summary judgment motion after being told by his attorneys, “Sign it and you’re out of the lawsuit.” After signing the declaration, Dr. McComb learned that some of the statements in it were untrue. He did not know about or suspect the falsity at the time of signing. During the trial in the prior suit, Dr. McComb was questioned about these inaccuracies.

At trial in the present action, plaintiff sought to impeach Dr. McComb by asking him questions about the declaration and using the transcript of his prior trial testimony. More specifically, plaintiff wanted to ask Dr. McComb a total of nine questions on this subject. Five of the proposed questions, though variously phrased, expressly assumed that Dr. McComb had signed the declaration knowing it to be false. Three of the remaining questions got into the specifics of the medical diagnosis and treatment of the earlier patient. The trial court permitted plaintiff to ask only one of the proposed questions: “[H]ave you ever signed a declaration under penalty of perjury in a prior proceeding because your lawyer said: Sign it and you are out of the lawsuit?” Dr. McComb answered, “Yes.”

Evidence Code section 780 allows a jury to determine the credibility of a witness by considering a prior inconsistent statement (Evid. Code, § 780, subd. (h)) or an admission of untruthfulness (id., subd. (k)). As the trial court correctly pointed out, however, the evidence from the prior trial did not show that Dr. McComb knew or believed that any portion of the declaration was false when he signed it. As a result, the evidence did not constitute either an inconsistent statement or an admission of untruthfulness. Further, the three questions that referred to the prior medical diagnosis and treatment would have disclosed to the jury that Dr. McComb had previously been sued for malpractice. The trial court therefore acted within its discretion in concluding that such a disclosure would have been more prejudicial than probative (see Evid. Code, § 352).

And again, plaintiff has made no showing that this alleged error was prejudicial. For all we know, the jury could have disbelieved Dr. McComb’s testimony in its entirety and still have returned the same verdict based on other evidence.

E. Exclusion of Testimony About Exhibits

Plaintiff complains the trial court did not permit him to question Dr. McComb about the substance of certain exhibits that were admitted into evidence after both sides had rested (Nos. 35, 36, 38, 40-42, and 46). The substance of the exhibits, according to plaintiff, contradicted Dr. McComb’s testimony.

In his appellate briefs, plaintiff does not describe the nature or substance of the exhibits or the testimony given by or sought from Dr. McComb. In essence, we know nothing about Dr. McComb’s participation in plaintiff’s treatment, his role at the trial, or the relevance of the exhibits. Thus, plaintiff has not adequately argued this point, and we deem it waived. (See Kurinij v. Hanna & Morton, supra, 55 Cal.App.4th at p. 865; Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at pp. 699-700.)

According to defendants, the exhibits at issue were not authored by Dr. McComb and did not involve the part of the surgery he performed. The exhibits therefore appeared to lack foundation and to be irrelevant, as the trial court ruled at the time. Eventually, toward the end of Dr. McComb’s testimony, plaintiff asked him about another exhibit, No. 47, which he had signed as the attending physician, certifying he had “reviewed the entire content of this medical record of [plaintiff] and to the best of my knowledge it is accurate and complete.”

A week later, after both sides had rested, plaintiff moved to admit the exhibits at issue based on Dr. McComb’s certification that the content of plaintiff’s medical chart was accurate and complete. The trial court admitted the exhibits.

Plaintiff argues before this court that he should have been allowed to question Dr. McComb about the content of the exhibits. But he did not lay a foundation for the exhibits until the end of Dr. McComb’s testimony. And, at that point, he made no attempt to question Dr. McComb about their substance. Accordingly, plaintiff cannot complain that, up until that time, the trial court precluded questions about whether Dr. McComb agreed with the content of the exhibits.[2]

Further, plaintiff has provided no basis for concluding that the trial court’s ruling, if in error, was prejudicial. For one thing, we do not know how Dr. McComb’s testimony fit into the scheme of things, that is, how did the substance of his testimony relate to other evidence in the case? For another, the exhibits in dispute were admitted after Dr. McComb testified. Thus, plaintiff could have argued to the jury that Dr. McComb’s testimony was inconsistent with the exhibits (medical records) notwithstanding that the doctor did not have an opportunity to explain any inconsistencies. (We do not know whether such an argument was made because, as stated, the record contains only a portion of plaintiff’s closing.) It is quite possible that, by admitting the exhibits in this way, the trial court actually benefited plaintiff. In short, plaintiff has failed to show prejudice.

F. Impeachment of Plaintiff’s Experts

1. Dr. John Toton

Dr. John Toton, an orthopedic surgeon, testified as an expert for plaintiff. Without the trial court’s approval, the parties had agreed that Dr. Toton could be deposed after the discovery cut-off. (See Code Civ. Proc., former § 2024, subd. (d) [discovery cut-off for expert witnesses], repealed effective July 1, 2005; id., subd. (e) [trial court’s approval needed to extend cut-off].) The parties did not enter into a stipulation with respect to the use of the transcript. Dr. Toton was deposed on January 6, 2005, and testified at trial on January 27, 2005.

At trial, defendants objected to Dr. Toton’s testimony based on what he had said at the deposition. Plaintiff responded that the deposition could not be used because Dr. Toton had had only one day to review and make corrections in the transcript. (See Code Civ. Proc., former § 2025, subd. (q)(1) [witness has 30 days to make corrections], repealed effective July 1, 2005; id., subd. (u) [governing use of deposition at trial].) The trial court ruled that, because the parties had “freely and voluntarily decided that you would take depos after the cutoff date,” “there’s no bar on using this deposition.”

The following day, plaintiff argued again that Dr. Toton had not had sufficient time to make corrections in the transcript. The trial court ruled that Dr. Toton could testify as to when he received the transcript, state whether the court reporter had made an error in transcribing his deposition testimony, and indicate whether he was making a change in the deposition testimony. If Dr. Toton changed the testimony, defendants would be allowed to comment on it. On redirect, Dr. Toton testified that he wanted to change one of his deposition answers. He was permitted to do so.

On appeal, plaintiff argues the trial court erred in permitting the deposition to be used in this way. This argument is baseless. Without court approval, the parties agreed to depose Dr. Toton after the discovery cut-off. In doing so, they effectively removed the deposition process, and the use of the deposition at trial, from the provisions of the Code of Civil Procedure. Plaintiff did not inform the trial court of the timing problem in reviewing the transcript until the moment defense counsel sought to use the deposition at trial. The trial court was taken by surprise but nevertheless resolved the dispute in a manner that was fair to both sides.

And plaintiff fails to state how the use of the deposition transcript prejudiced his case, if at all. Plaintiff does not describe a single instance in which the transcript was used for impeachment purposes. Accordingly, plaintiff has failed to establish prejudice.

2. Dr. Rifkinson-Mann

At trial, Dr. Rifkinson-Mann testified that, in or around 1986, she took the written portion of the examination to become board certified in pediatric neurosurgery. She passed it. She further testified that, in 1990, she took the oral portion of the exam but failed it. She took the oral exam a second time in around 1991 and failed it again.

Over plaintiff’s objection, defendants were allowed to impeach Dr. Rifkinson-Mann with a deposition from another case in which, according to the transcript, she said she did not take the oral portion of the exam. Plaintiff objected to this evidence on the ground it was intended to establish a character trait. (See Evid. Code, §§ 786-787.) The trial court overruled the objection, concluding that the evidence constituted a prior inconsistent statement and could be used for impeachment. (See id., §§ 780, subd. (h), 1235.)

On redirect, Dr. Rifkinson-Mann stated that the court reporter had made a mistake in transcribing her deposition testimony; she had been instructed not to review or correct the transcript until the deposition had been completed; the deposition had never been completed; and she had never been given an opportunity to review or correct the transcript.

Plaintiff argues on appeal that the trial court erred in permitting defendants to use the unread, uncorrected deposition transcript to impeach Dr. Rifkinson-Mann. But the incomplete nature of the deposition was not brought out until redirect, after the trial court had properly overruled plaintiff’s “character trait” objection. We therefore find no error. Further, given that Dr. Rifkinson-Mann explained the circumstances of her deposition testimony, no prejudice has been shown.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

I concur:

ROTHSCHILD, J.

I concur in the judgment only.

VOGEL, J.

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[1] Defendants and respondents are J. Gordon McComb, M.D., Vernon T. Tolo, M.D., University Children’s Medical Group, Inc., and Childrens Hospital Los Angeles (Hospital). Defendants were separately represented below but are jointly represented by new counsel on appeal. Our references to “defense counsel” mean trial counsel. For simplicity, we do not distinguish among the various defense attorneys.

[2] At oral argument, plaintiff’s counsel stated that the admissibility of the exhibits and the importance of exhibit No. 47 were discussed with the trial court before Dr. McComb testified. However, counsel did not provide us with a citation to the record. His appellate briefs did not make this point at all.