Wah v. Sharp Healthcare

Filed 4/12/07 Wah v. Sharp Healthcare CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.

A jury found in favor of defendant Sharp Memorial Hospital (Sharp) in Plaintiffs Candace and Wayne Wah's negligence action against Sharp. On appeal, the Wahs contend (1) the court's order excluding standard of care testimony by the treating physician and (2) its modification of jury instructions without notice to the parties were prejudicial errors.

FACTUAL AND PROCEDURAL BACKGROUND

Dr. Richard Braun performed thoracic outlet decompression surgery on Mrs. Wah at the hospital operated by Sharp. After the surgery, Mrs. Wah developed subcutaneous emphysema and other conditions caused by air leakage in the pleural cavity and surrounding area. Although experts regard the surgery a success, Mrs. Wah still experiences pain and disability.

Mrs. Wah and her husband sued Sharp for negligence, alleging the nursing staff did not follow Dr. Braun's postoperative orders. Before trial, the court granted in part Sharp's motion to exclude expert opinion testimony of Dr. Braun, permitting him to testify as to causation but not as to the standard of care.

At trial, the Wahs' attorney remarked to the jury during closing argument that "if you make a decision in this case that favors the hospital, there will be smirks walking out of the courthouse, smirks in the board room of that hospital." In instructing the jury that the attorneys' questions and arguments are not evidence, the court mentioned that the Wahs' attorney's comment about the board room was not evidence.

The jury found Sharp not negligent. The court denied the Wahs' motion for a new trial.

DISCUSSION

The trial court has discretion to exclude evidence (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640) and clarify jury instructions (Martin v. Pacific Gas & Elec. Co. (1962) 204 Cal.App.2d 316, 322). We will interfere with the trial court's exercise of discretion only when we conclude that considering all the circumstances most favorably in support of the court's action, no judge could have reached the challenged result. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)

I

Dr. Braun's Excluded Testimony

"The court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party." (Evid. Code,  723.) Only relevant testimony is admissible (Evid. Code,  350), and cumulative evidence may be excluded as taking an undue consumption of time. (Evid. Code,  352, subd. (a); Horn v. General Motors Corp.(1976) 17 Cal.3d 359, 371.) Further, the Superior Court of San Diego County, Local Rules, rule 2.1.11 provides "[i]t is the policy of the court that parties are limited to one expert per field of expertise per side." Although a treating physician is not a retained expert for purposes of discovery disclosure and may testify on causation and standard of care (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 39), the number of expert witnesses allowed to testify remains a matter within the trial court's discretion. (Horn, at p. 371.)

Nothing in Schreiber required admission of the standard of care opinions of Dr. Braun, the treating physician. Schreiber merely holds that unlike a retained expert, a treating physician's opinions as to standard of care or causation need not be disclosed to the opposing party under Code of Civil Procedure section 2034.260, subdivision (c). (Schreiber v. Estate of Kiser, supra, 22 Cal.4th at p. 39.) The Wahs chose to designate Dr. Vance, not Dr. Braun, as their expert witness to testify as to issues regarding causation and the standard of care of the nurses employed by Sharp to treat Mrs. Wah. Dr. Braun testified as a percipient witness and as an expert as to causation of Mrs. Wah's continuing pain. Dr. Vance testified as to causation and the standard of care applicable to the nurses employed by Sharp. The court did not abuse its discretion by not permitting the Wahs to present testimony of an additional expert witness on the issue of Sharp's standard of care.

Where the treating physician's opinion is irrelevant to the issues presented at trial, it is subject to exclusion under Evidence Code section 350. The Wahs' negligence action was against Sharp, not Dr. Braun, and alleged the nurses', not Dr. Braun's, actions fell below the standard of care. Because the Wahs did not provide a complete reporter's transcript of the trial, we are unable to ascertain whether the standard of care for Dr. Braun was ever at issue. However, based on the parties' closing arguments (of which we do have the transcript), Dr. Braun's standard of care was irrelevant and immaterial and therefore any expert testimony on Dr. Braun's standard of care was properly excluded.

Finally, even were we to assume that Dr. Braun's testimony was improperly excluded, there would still be no grounds for reversal. The existence of an error does not necessarily amount to reversible error. We would have to examine the entire trial transcript to determine whether the Wahs would have prevailed had the court permitted Dr. Braun's standard of care testimony as to himself or Sharp's nurses. Without the complete transcript, we cannot conduct a complete review.

II

Jury Instructions

In reviewing comments made by the court while instructing the jury, "[c]onsiderable latitude must be given; too critical analysis should not be made or too rigid rules asserted at the appellate court level, to interfere with an honest effort by trial judges to give meaning by illustration to their charges to the jury." (Martin v. Pacific Gas & Elec. Co., supra, 204 Cal.App.2d at p. 322.) If "the jury was fully and fairly instructed on all of the basic issues involved, . . . any minor errors that may have crept into the instructions could not possibly have been prejudicial." (Guay v. American President Lines (1947) 81 Cal.App.2d 495, 513.)

Code of Civil Procedure section 608 requires the court, upon request, to furnish the parties a statement of the points of law contained in jury instructions. The statute does not require the court to notify counsel of illustrations or other helpful information the court chooses, in its discretion, to provide the jury. Moreover, the court is free to comment on evidence. (Cal. Const., art. VI, 10.)

Here, the Wahs challenge the following comment of the court to the jury:

What the attorneys say during the trial is not evidence. In their opening statements and closing arguments the attorneys talked to you about the law and the evidence. What the lawyers say may help you understand the law and the evidence, but their statements and arguments are not evidence.

You'll recall yesterday there was some argument about a mention of a board room. There is no evidence whatever in this case and none exists about a board room, and so it would be improper for you to consider that argument as evidence.

The Wahs assert the court's comments were argumentative, improper absent prior notice to their counsel, and showed the jury the court's bias against the Wahs. We consider the comments as an effort to give the abstract principles of law in the jury instructions greater clarity through illustration. The court is not required to give notice to counsel if it sees a need for contemporaneous clarification of jury instructions. Furthermore, we are not convinced the jury could have reasonably interpreted the court's single comment, in its appropriate context, as a rebuke of the Wahs, their counsel, or their case.

DISPOSITION

The judgment is affirmed. Sharp is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

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