Dayeh v. Oso Family Medical Group

Filed 6/25/07 Dayeh v. Oso Family Medical Group CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert H. Gallivan, Judge. Affirmed.

Maryam Dayeh, in pro. per., for Plaintiff and Appellant.

Carroll, Kelly, Trotter, Franzen & McKenna and David P. Pruett for Defendants and Respondents.

Labor Code section 6409, subdivision (a), requires a physician who examines a patient for an occupational injury or illness to file a form Doctors First Report of Occupational Injury or Illness (hereafter, Doctors First Report) within five days of that initial examination. Maryam Dayeh sued T.A. Ross, M.D., and his medical practice, Oso Family Medical Group (hereafter, referred to collectively and in the singular as Ross), for negligence contending Rosss delay in completing a Doctors First Report delayed her receipt of workers compensation benefits and treatment for a shoulder injury. A jury returned a verdict in favor of Ross. Dayeh appeals from the judgment and raises numerous evidentiary errors, none of which have merit. We affirm the judgment.

FACTS AND PROCEDURE

Dayeh, a surgical technician, was injured on the job in 1991 when she was accidentally stabbed in the finger with a scalpel. She eventually had surgery on her finger. When Dayeh returned to work on May 6, 1993, she had a panic attack, was taken to the hospital emergency room, and then referred by her employer to Ross. Ross prescribed anti-anxiety and anti-depressant medications including Ativan.

On July 2, 1993, while taking Ativan, Dayeh passed out, fell, and injured her shoulder. She returned to Rosss medical clinic, where she was seen by a different doctor who diagnosed her with an ear infection and prescribed antibiotics.

The gist of Dayehs case is that her fall was the result of taking Ativan, which had been prescribed due to a work-related condition. Therefore, the injury to her shoulder from the fall was an occupational injury for which she was entitled to receive treatment and benefits through workers compensation. She contends Ross failed to timely complete a Doctors First Report, resulting in her not receiving timely benefits and delaying treatment for her injured shoulder. She also contends Ross wrongfully withheld and falsified her medical records, further delaying her benefits and treatment.

We already considered this case in two prior appeals. In the first, Dayeh v. Oso Family Medical Group et al. (Aug. 3, 2001, G023875 [nonpub. opn.]), we concluded the trial court improperly determined Dayehs entire lawsuit was time-barred. She had sued on two primary rights: the right to receive immediate proper medical treatment for her injury and the right to later pursue further treatment and benefits under the Workers Compensation Act (Lab. Code,  3200 et seq.). Although her complaint as to the former primary right was time-barred, the latter was not.

In our second opinion, Dayeh v. Oso Family Medical Group et al. (Oct. 9, 2003, G031119 [nonpub. opn.]), we affirmed the trial courts order granting nonsuit on Dayehs fraud cause of action, but concluded it had improperly refused to permit her to proceed on her negligence cause of action. We reversed and remanded with directions Dayeh be permitted to proceed with one negligence cause of action-relating to [her] allegation the respondents negligently delayed her acquisition of workers compensation benefits and treatment.  [] . . . Because no evidence has been presented on this negligence cause of action, we will comment only on Dayehs right to pursue it and not on whether we believe it has merit. (Id. at p. 8.)

At trial, Dayeh testified that after her July 2, 1993, fall, she was seen by Dr. Gregory Joy at Rosss medical clinic and then seen by Ross on a follow-up visit. Ross did not order an X-ray, and Dayeh last saw him on July 15, 1993, at which time he deemed her to be permanent and stationary and released her to work. When Dayeh saw her hand doctor in August, he initially declined to treat her shoulder as no treatment had been authorized by the workers compensation insurance carrier, but he then ordered physical therapy and other conservative treatment for her shoulder from the fall of 1993 through 1994. In February 1994, Ross prepared a Doctors First Report concerning the July 2, 1993, fall.

Dayeh was examined by Dr. James Murphy, a workers compensation agreed medical examiner (AME), in June 1994. But, Murphy had not been provided with any of the medical records from Ross, or the Doctors First Report. In his July 1994 report, Murphy concluded Dayehs injury was not work related. Dayeh saw Murphy again in August 1995. Dayeh had subpoenaed Rosss records and brought them with her to the second examination. After that examination, Murphy concluded Dayehs shoulder injury was possibly work related.

Throughout 1994 and 1995, Dayeh continued to be treated by two other doctors for her shoulder injury. Both of those doctors considered the injury to be work related. There was discussion, and disagreement between those doctors and Murphy about whether surgery was appropriate. Dayeh conceded her private health insurance would have covered surgery during that time period had it been ordered.

In December 1996, a workers compensation judge concluded Dayehs shoulder injury was not an occupational injury. In January 1997, Dayeh had shoulder surgery, but the outcome was not particularly good. Sometime after that surgery she was again examined by Murphy, the AME, and in his October 3, 1997, report, he concluded the injury was work related.

Dayeh presented testimony from two expert witnesses who opined Rosss delay in filing the Doctors First Report fell below the standard of care, resulted in a delay in Dayehs receipt of treatment during the critical first few months after her injury, and contributed to the further deterioration of her shoulder and the lack of a good outcome when she finally had surgery.

Ross presented expert testimony the timely filing of the Doctors First Report had absolutely nothing to do with a physicians standard of care, but was strictly a billing issue. Rosss expert opined Dayeh was properly receiving an appropriate conservative course of treatment during the first several months following her fall. And any delays in filing the Doctors First Report had absolutely no impact on Dayehs ultimate condition or outcome. The jury returned a verdict against Dayeh on her negligence cause of action.

DISCUSSION

1. Standard of Review

Dayehs issues on appeal all pertain to the admissibility of evidence at trial. Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion. [Citation.] Even where evidence has been erroneously excluded, the judgment or decision shall not be reversed unless the reviewing court is of the opinion that the error resulted in a miscarriage of justice. (Evid. Code, 354; Cal. Const., art. VI, 13.) (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516.)

We comment at the outset on a few basic principles concerning appellate presumptions and burdens. The [appellant] must affirmatively show error by an adequate record. [Citations.] Error is never presumed. It is incumbent on the [appellant] to make it affirmatively appear that error was committed by the trial court. [Citations.] . . . [Citations.] . . . [Citation.] A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . . [Citation.] (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.)

When discretionary trial court rulings are challenged on appeal, the appellant must establish an abuse of discretion and prejudice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331; Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) That means, at a minimum, the appellant must provide an adequate record and articulate, with proper citations to the record and pertinent authority, the specific manner in which the trial courts discretion was abused and why that abuse resulted in a miscarriage of justice.

Our review is hampered by the lack of an adequate record. Dayeh elected to proceed by way of an appellants appendix that contains only a few documents

essentially just the complaint, our prior opinions, the rulings that were the subject of our prior opinions, and the judgment. Additionally, none of the trial exhibits (those admitted into evidence or offered but refused) are before us. The exhibits were returned to the parties at the conclusion of trial, but neither party has requested their transmittal to us. (See Cal. Rules of Court, rule 8.224(a)(1) [requires a party wanting the reviewing court to consider any original exhibits that were admitted in evidence to timely serve and file the proper notice in superior court designating those exhibits].) Where exhibits are missing we will not presume they would undermine the judgment. (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291; see also Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 925, fn. 1.)

Our review is further hampered by a dearth of legal analysis or citation to pertinent legal authority in Dayehs brief. Most of Dayehs claims of error are not supported with reasoned argument, discussion of legal authority, and adequate citation to the record. That Dayeh is representing herself on this appeal, does not entitle her to special treatment. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) An appellants failure to affirmatively demonstrate prejudicial error waives the issue. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115‑1116 (Guthrey); Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 (Kim).)

2. Exclusion of Murphys Deposition

Dayeh contends the trial court abused its discretion by excluding from evidence the entire transcript of the March 17, 1997, deposition of Murphy, the AME. Murphy was deceased at the time of trial. Accordingly, Dayeh contends his deposition was admissible under Code of Civil Procedure section 2025.620, subdivision (c)(2)(C).

We have reviewed the reporters transcript and must agree with Rosss assessment that at no time did Dayeh seek to introduce Murphys March 17, 1997, deposition into evidence. Her attorney did make references to Murphys multiple depositions, asking various expert witnesses if they had reviewed those depositions in forming their opinions. But, as the trial court noted in a discussion after both sides had rested, Dayeh never sought to have the deposition (or any particular portions of it) read into the record or admitted into evidence. A party cannot complain about the exclusion of evidence it never sought to have admitted.[1] (Evid. Code,  354.)

3. Murphys October 3, 1997, Report

Dayeh contends the court erred by excluding from evidence the last report written by Murphy dated October 3, 1997. She asserted the report was relevant because in it Murphy finally concluded her shoulder injury was indeed work related. Ross objected the report contained inadmissible hearsay and the trial court agreed. Dayeh offered no exception to the hearsay rule, and conceded both her experts had been permitted to testify about the conclusions Murphy reached in his October 3, 1997, report.

We decline to consider Dayehs argument concerning the October 3, 1997, report for two reasons. First, Dayeh offers no legal analysis as to why the exclusion of the report constituted an abuse of discretion. The court excluded the report because it was hearsay. Dayeh offered no explanation below or on appeal as to why it was admissible. (Guthrey, supra, 63 Cal.App.4th at pp. 1115‑1116 [waiver]; Kim, supra, 17 Cal.App.4th at p. 979 [waiver].) The contention is further waived by the lack of an adequate record. The report is not before us. (See ante, fn. 1.) We have no way of assessing if the court properly found it to constitute inadmissible hearsay or if Dayeh was prejudiced by its exclusion.

4. Rosss Testimony About Joys Examination on July 2, 1993

Dayeh contends the trial court erred by allowing Ross to testify his colleague, Joy, who examined Dayeh on July 2, 1993 (the day of her fall), reported Dayeh likely had vertigo due to bilateral serous otitis media (i.e., fluid in the middle ear) possibly aggravated by Ativan[,] and prescribed antibiotics to her. She asserts the evidence was irrelevant, inadmissible, and barred by the statute of limitations and [her] second appeal[,] but offers absolutely no reasoned legal analysis of her claim of error. (See Guthrey, supra, 63 Cal.App.4th at pp. 1115‑1116 [waiver]; Kim, supra, 17 Cal.App.4th at p. 979 [waiver].)

Dayeh complains the testimony was inadmissible because Joy misdiagnosed her and Rosss testimony about Joys findings and treatment gave the jury the wrong impression that she had an ear infection. We note Dayeh did not object to Rosss testimony concerning Joys diagnosis and treatment. It was only when Ross subsequently testified he thought Joy was probably correct in assessing [it] as a middle ear thing[,] that Dayehs counsel objected. The court sustained the objection and struck the statement.

Dayehs failure to object to the questions about Joys findings precludes her from asserting error on appeal. (Evid. Code,  353.) Furthermore, we cannot fathom how Dayeh can possibly believe she was prejudiced by the testimony about which she now complains. She herself gave almost identical testimony at the very beginning of the presentation of her case when she explained Joy told her she had an ear infection, vertigo possibly as a result of the Ativan, and he prescribed antibiotics.

5. Expert Testimony of Dr. Brautbar

Dayehs next argument is somewhat confusing. The heading states she is assigning error to the trial courts disallowing testimony from her expert, Nachman Brautbar, M.D., concerning whether Rosss treatment fell below the standard of care and whether he was negligent in his treatment of her. She then goes on to set forth the extensive testimony Brautbar gave concerning what he believed were deficiencies in Rosss medical records, Rosss duty to timely complete a Doctors First Report, his breach of that duty, and why Brautbar believed the delay in filing the report damaged Dayeh. Dayeh then quotes a question asked by her counsel to which the court sustained an objection, Based on your 30 years of experience, and based on your review of [] Rosss medical records . . . do you find his recordkeeping met or breached the standard of care.

Dayeh apparently believes the court erred in sustaining the objection and should have permitted Brautbar to answer her attorneys question. She provides no legal analysis of her claim. We have reviewed the record. The question Dayeh refers to was the last question her attorney asked Brautbar on redirect. We note that by the time the question was asked, Brautbar had already thoroughly testified he believed Rosss failure to timely complete a Doctors First Report breached the duty of care he owed Dayeh and caused her injury by delaying services. We simply cannot see that Brautbar was in any way limited in his testimony concerning his opinion of Rosss record keeping or report filing and its effect on Dayehs treatment.

To the extent Dayeh is suggesting Brautbar should have been allowed to testify as to his opinion concerning Rosss medical treatment of Dayeh (i.e., whether he was negligent in prescribing Ativan or in treating her after she blacked out and fell), that argument would fail. Our prior opinions restricted Dayeh to one negligence cause of action-relating to [her] allegation the respondents negligently delayed her acquisition of workers compensation benefits and treatment.

6. Rosss Testimony Concerning Filing a Doctors First Report

Dayeh contends the court erred by allowing Ross to falsely testi[fy] it was not his responsibility to prepare a Doctors First Report. Under examination by Dayehs attorney, Ross displayed a lack of familiarity with the standard form Doctors First Report. Ross testified he was unfamiliar with the form because he has office staff that prepare and file such forms. Labor Code section 6409, subdivision (a), Dayeh points out, requires the physician to complete the Doctors First Report. She complains Ross should not have been allowed to insinuate it was someone elses responsibility. Dayeh has not articulated any error for us to consider. Her argument is devoid of any analysis or citation to authority. (See Guthrey, supra, 63 Cal.App.4th at pp. 1115‑1116 [waiver]; Kim, supra, 17 Cal.App.4th at p. 979 [waiver].) The testimony about which she complains was elicited by her counsel. She points to no question her counsel was not allowed to ask. (Evid. Code,  354.) She points to no testimony admitted over her objection. (Evid. Code,  353.) Accordingly, we decline to consider the point further.

7. Evidence Regarding a Medical Board Fine Against Ross

In Hinson v. Clairemont Community Hospital (1990) 218 Cal.App.3d 1110, 1122 (Hinson), disapproved on another ground in Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1228, footnote 10, the court held evidence of a defendant physicians prior negligence is generally inadmissible. Dayeh contends the court misunderstood this case in excluding evidence of a $1,000 fine levied against Ross by the California Medical Board. We find no discernable error.

Dayeh called Ross as a witness under Evidence Code section 776. Her first question to him was youve been fined by the medical board of California for failing to keep accurate and adequate medical records; isnt that true? Ross replied it was true. Her second question was to ask Ross if he had lost Dayehs original chart. Ross replied he had. There were no objections by Rosss counsel to either question and no further questions concerning either point.

After Dayeh had rested her case, on a subsequent court day, there was some discussion on the record concerning questions submitted by jurors. (The limited appellants appendix does not contain any written juror questions.) Apparently, a juror had inquired as to how much Ross had been fined. Rosss counsel wanted the court to respond because it went to Rosss credibility. Counsel represented to the court the fine was for $1,000, which was the smallest fine the medical board could issue. He suggested recalling Ross to have him testify as to the amount of the fine and that it was the smallest fine the board would levy. Dayehs counsel objected to that approach as being hearsay, but offered to stipulate the fine was for $1,000. Rosss counsel commented telling the jury the amount, in a vacuum, could be unduly prejudicial.

The court and counsel then engaged in a discussion about whether Dayeh should have even inquired of Ross about the fine in the first place, with the court concluding that under the Hinson case, the inquiry was probably improper. Apparently, before trial, the court had granted Rosss motion in limine to exclude evidence of other medical malpractice cases as improper character evidence. But, Dayehs counsel believed that order did not extend to medical board decisions. After some discussion, Dayehs counsel agreed to the court responding to the jury inquiry by reading to it the information about the fine taken from the medical board Web site and telling it the amount of the fine. Accordingly, the jury was told, A citation and/or fine has been issued for a minor violation of the law. This is not considered [a] disciplinary action under California law, but it is an administrative action. Payment of the fine amount represents [a] satisfactory resolution of this matter. And the fine was, indeed, $1,000. So weve answered a question, weve told you what the fine was about.

In view of the foregoing, Dayehs contention the court erred by excluding evidence of the medical board fine is meritless. The evidence she argues was not allowed in, plainly was allowed in. The only question her attorney asked about the fine was answered without objection, and her attorney specifically agreed to the courts response to the jury concerning the nature of the fine.

DISPOSITION

The judgment is affirmed. The Respondents are awarded their costs on appeal.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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[1] Dayeh filed a motion to augment the appellate record with the transcript of Murphys March 17, 1997, deposition and Murphys October 3, 1997, report. Although she included copies of the deposition, she failed to include copies of the report. The motion to augment is denied.