Peled v. Bohn

Filed 10/18/07 Peled v. Bohn CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, William Fahey, Judge. Affirmed.

Law Offices of Richard T. Lobl and Richard T. Lobl for Plaintiffs and Appellants.

La Follette, Johnson, De Haas, Fesler & Ames, Robert B. Packer and David J. Ozeran for Defendants and Respondents.

___________________________________

Plaintiff and appellant Leon Peled,^[1]through his guardian ad litem Karen Peled, appeals from a judgment following a jury trial in favor of defendants and respondents Mark Dwight, M.D., and Yvonne Bohn, M.D. (collectively the doctors) in this action for wrongful life. Leon contends: (1) the trial court erroneously instructed the jurors that they had to agree on a specific disability that could have been diagnosed of two stated disabilities; (2) the same instruction should have included a third disability; (3) a special instruction on abortion was unnecessary and prejudicial; (4) an instruction on alternative methods of treatment was unsupported by the evidence and potentially misleading; (5) the trial court erred by excluding evidence of a subsequent remedial measure; (6) the trial court should have excluded cumulative expert testimony; and (7) the trial court erred by awarding costs against Leons parents. We affirm the judgment against Leon.

FACTS AND PROCEDURAL BACKGROUND^[2]

Karens Prenatal Care

Karen was living in San Francisco when she became pregnant in 2003. She had two abortions earlier in her life, prior to her marriage to Roee Peled. This pregnancy was planned. Karen visited a local doctor for prenatal care during her first trimester. However, she planned to deliver the baby in Los Angeles and live in Los Angeles after the birth. A family friend recommended obstetrician gynecologist Dr. Margaret Bates at Spectrum Womens Health Care Medical Group, Inc. Karen made an appointment with Dr. Bates for July 21, 2003, and faxed her prenatal records from her doctor in San Francisco to Spectrum.

Karen and Roee attended the appointment on July 21, 2003. Karen was 16 and a half weeks pregnant. She brought a copy of her prenatal records with her to the visit as well. Dr. Bates was unavailable, so Karen was seen by another doctor in the practice, Dr. Dwight. The information written in her chart included the date of her last menstrual period and an estimated date of delivery. Karen and Dr. Dwight discussed her menstrual history and he used a wheel-shaped device to estimate a different date of delivery than the date that had been estimated by her previous doctor. Dr. Dwight performed a physical examination and an ultrasound. Karen had not previously had an ultrasound and she had no knowledge about what to expect.

In 2003, the American College of Obstetrics and Gynecology recognized three levels of ultrasound examinations: limited, basic and comprehensive. A limited ultrasound is performed for specific purposes. A basic examination includes an assessment of the anatomy of the fetus, the position of the fetus, the location of the placenta, the amount of amniotic fluid, and measurements of the baby including the biparietal diameter, the head circumference, the abdominal circumference, and the femur length. A comprehensive ultrasound is a targeted examination in which the doctor studies a specific finding noticed on a basic examination more extensively.

The gestational age of the fetus and the date of delivery can be estimated from the biparietal diameter of the fetus. However, Dr. Dwight did not perform Karens ultrasound to determine the estimated date of delivery or to look at the health of the fetus. He does not routinely perform an ultrasound to determine the gestational age of the fetus and date of delivery. He performs an ultrasound to determine the gestational age of the fetus only when it is indicated by a discrepancy based on the last menstrual period or uterine size.

Dr. Dwight does not remember Karens July 21, 2003 visit. Based on his custom and practice, if he performed an ultrasound that was not intended to verify the estimated date of delivery, then he performed it to verify that the fetus was viable, located in the uterus, and a single pregnancy. Dr. Dwight clarified during cross-examination that he meant viable in that it was located in the uterus and had a heartbeat. He also testified that viability of the fetus, meaning that the baby would survive if it was delivered, was at 24 weeks. He believed the baby was male and noted the gender on Karens record with a question mark. He gave Karen and Roee a copy of the ultrasound images. Dr. Dwight did not take any measurements of the fetus , nor did he look at whether the brain appeared symmetrical. If he had seen an abnormality, he would have referred Karen to a specialist to confirm or negate the presence of abnormalities. His custom and practice during his first visit with a pregnant patient is to inform her of the various tests available to assess the fetus, including an extended ultrasound. If the patient wants an extended ultrasound, he refers the patient to a specialist.

Karen had blood drawn that day for an Alpha-Fetoprotein (AFP) screening test to check for three specific genetic defects. Patients are usually given a booklet produced by the State of California with a consent form for the test. The booklet states that if the AFP test is negative and [i]f you do not have a family history of birth defects and are under the age of 34 at the time of delivery, have not taken medication known to cause birth defects and have not been exposed to alcohol during pregnancy, you are at a low risk for birth defects. Having a normal ultrasound examination at 18 weeks would be reassuring as well. You then will have done everything available to prevent and identify birth defects, and you should be reassured. Dr. Dwight testified that he does not know what a normal ultrasound is. Karen does not recall receiving a copy of the booklet or any other paperwork that day. The results of Karens AFP screening were negative.

Karens next prenatal visit at Spectrum was on August 11, 2003, when she was 20 weeks pregnant. Dr. Bates was in surgery. After waiting several hours, Karen was seen by Dr. Bohn. Karen raised a concern during the appointment about her menstrual cycle and the estimated delivery date, because she had to give notice to her office, and her parents intended to fly in from Australia for the birth. Dr. Bohn looked at the wheel device and said that based on the date Karen had given for her last menstrual period, the estimated date of delivery was the date provided by Dr. Dwight. Dr. Bohn did not suggest that she could perform an ultrasound to verify the estimated delivery date.

Dr. Bohn noticed that Dr. Dwight had placed a question mark next to the gender of the fetus. She performed an ultrasound to confirm the sex of the baby. She pointed out the head, the arms, and the legs. Karen testified that Dr. Bohn commented during the ultrasound that the baby had a very big head. The machine was out of paper and Dr. Bohn did not know where the paper was kept. The Peleds declined to wait to get copies of the images to take with them. Dr. Bohn did not take any measurements during the ultrasound. Dr. Bohn did not think a basic ultrasound was indicated, because Karen had a low risk for birth defects, her AFP screening was normal, and the gestational age of the fetus, based on Karens reported last menstrual period, corresponded with the physical examination. Dr. Bohns custom and practice is to tell patients that she would refer them to a perinatologist for a basic ultrasound examination.

Dr. Bohn told Karen to return in four weeks. Karen continued to schedule appointments with Dr. Bates, but she saw Dr. Bohn on September 15, October 20, and November 3. Dr. Bohn did not perform an ultrasound during any of the visits. Karen finally saw Dr. Bates for one appointment on November 17, 2003, when she was 34 weeks pregnant. Karen asked about her estimated delivery date and Dr. Bates explained that the delivery date could be estimated based on either the last menstrual period or an ultrasound. Karen asked for an ultrasound, but none was performed. Karen saw Dr. Bohn on December 4, 2003, but Dr. Bohn did not perform an ultrasound.

Dr. Bohn delivered Leon on December 14, 2003. The baby had a grossly enlarged head. A magnetic resonance imaging (MRI) performed a few days after Leons birth revealed several abnormalities, including hemimeganecephaly (half of the brain is enlarged) characterized by an asymmetry of the head, an enlarged lateral ventricle (a collection of fluid in the brain that was correspondingly enlarged), and agenesis of the corpus callosum (an absence of the corpus callosum, which is a large group of fibers that traverse between the sides of the brain). Leon suffers from seizures and severe mental retardation, as well as vision problems.

The Instant Action

On November 2, 2004, Karen, Roee, and Leon, through Karen as his guardian ad litem, filed an action against Spectrum and Drs. Bohn, Dwight and Bates for negligence. On January 4, 2005, the Peleds filed an amended complaint alleging causes of action for professional negligence, wrongful life, and wrongful birth. Dr. Bates filed a motion for summary judgment which the Peleds did not oppose. Spectrum was apparently also dismissed from the action prior to trial.^[3]

Jury instructions were filed with the court in January 2006. The instructions requested jointly by the parties included an instruction in the language of Judicial Council of California Civil Jury Instructions (2006-2007) CACI No. 513. The parties version of CACI No. 513 provided that to establish negligence, Leon had to prove the doctors negligently failed to diagnose and warn Karen that her baby would likely be born with hemimeganencephaly, and in fact, Leon was born with hemimeganencephaly. A jury trial began on June 26, 2006. At the time of trial, Leon had been diagnosed with proteus syndrome.

Karen testified that Dr. Dwight and Dr. Bohn never explained the ultrasound procedure, such as the difference between a limited ultrasound and a basic ultrasound, and they never suggested that she could have a more complete ultrasound with a specialist. She also stated that if she had been told during the August 11, 2003 ultrasound that the babys brain was malformed, she would have terminated the pregnancy.

Expert radiologist Roy Filly, M.D., testified to the following. The term limited ultrasound is not well-defined. Common examples are ultrasounds performed during an emergency, as part of labor management, or as an adjunct to another procedure. The standard of care does not permit a doctor to perform a limited ultrasound simply to verify that the fetus is located in the uterus or to determine gender. If an ultrasound is indicated, or if the doctor chooses to perform an ultrasound even though there is no indication, the standard of care requires the doctor to perform a basic ultrasound. The term comprehensive ultrasound is also not well-defined, but it is performed almost exclusively to look for anomalies in fetal development based on fetal indications. A comprehensive ultrasound is performed by a doctor with additional training.

Dr. Filly formerly advocated that a pregnant woman have a basic ultrasound only when there was a concern or a finding that indicated an ultrasound was required. He now advocates that every pregnant woman, regardless of risk factors, should have a basic ultrasound. The measurements taken during a basic ultrasound performed under 20 weeks provide the best evidence for determining gestational age. In addition, the measurements provide a baseline for physicians to compare to subsequent measurements in order to assess fetal growth.

Dr. Filly testified that there was no indication an ultrasound was necessary on July 21, 2003, and the standard of care did not require that an ultrasound be performed on that date. However, once Dr. Dwight undertook to perform an ultrasound on July 21, 2003, he fell below the standard of care by failing to perform a basic ultrasound examination on July 21, 2003.

Dr. Filly would not expect anyone practicing general obstetrics and gynecology to conclude that the July 21, 2003 ultrasound was abnormal. The disproportionality of Leons brain was visible to Dr. Filly in the image from the ultrasound performed by Dr. Dwight. However, had Dr. Dwight performed a basic ultrasound, it was likely that the measurement of the biparietal diameter would have been normal. Dr. Filly did not think Dr. Dwight should have recognized the asymmetry of Leons head. One characteristic of hemimeganencephaly is that there are too few folds, known as gyri, on one side of the brain. However, this symptom would not be recognizable to a reasonable degree of medical certainty until 30 weeks and there was no recognizable gyri abnormality at the time of the July 21, 2003 ultrasound. The standard of care did not obligate Dr. Dwight to refer Karen to a perinatologist for a more advanced ultrasound or to schedule another ultrasound. Dr. Filly stated that Dr. Dwight did not fail to warn the patient of any diagnosis or genetic defect.

Dr. Filly also was of the opinion that no ultrasound was required on August 11, 2003, but once Dr. Bohn undertook to perform an ultrasound, she fell below the standard of care by failing to perform a basic ultrasound. If Dr. Bohn had performed a basic ultrasound, it would have been obvious that the growth of the head was abnormally great, and the measurements of the head compared to other body parts like the femur would have been disproportionate. There would have been a marked difference in the asymmetry of the brain on August 11, 2003, and it would have been clear that the two sides of the brain were not symmetrical.

Dr. Bohn was not obligated to diagnose hemimeganencephaly, but she was required to diagnose that the brain was not normal. She should have told Karen and Roee that the fetus had a significant abnormality of the brain that could result in diminished function. She was required to refer Karen to a specialist for a comprehensive examination. Dr. Filly could not be certain that the specialist would have diagnosed hemimeganencephaly. However, the specialist would have seen the thickness of the brain tissue was remarkably greater on one side and the ventricle on the abnormal side was enlarged. In other words, to a reasonable degree of medical probability, a comprehensive ultrasound would have shown one side of the brain was too large and abnormally developed. The fetus also had other abnormalities which might have come to light in the comprehensive examination, at a minimum hydronephrosis, which is an abnormal back-up of urine into the system that drains to the bladder.

The trial court ruled that Roee could not testify as to his state of mind with respect to abortion, nor could he testify as to any hearsay statements made by Karen. After the courts ruling, Karen and Roee dismissed their causes of action against the doctors with prejudice.

Testimony of Defense Experts

Obstetrician gynecologist Michael Nageotte, M.D., has a subspecialty in maternal fetal medicine, also known as perinatology. Dr. Nageotte testified that the standard of care does not require that every pregnant woman have a basic ultrasound. An ultrasound is required only where there is an indication for one. Although the medical community has attempted to establish certain standards for a limited ultrasound and a limited ultrasound should usually be performed only after a woman has already had a basic ultrasound, Dr. Nageotte speculated that practitioners perform limited ultrasounds every day for the purpose of answering specific questions without performing a basic ultrasound. He did not believe a doctor who performed a limited ultrasound in response to a patients request for information fell below the standard of care as long as it was very clear what the doctor was doing.

Dr. Nageotte opined that a basic ultrasound performed on July 21 or August 11, 2003, would not have disclosed hemimeganencephaly. The asymmetry between the hemispheres of the brain on the July 21, 2003 ultrasound image was simply a result of the manner in which the image was projected. An enlarged lateral ventricle is the first finding in a progression to Leons condition and the lateral ventricle did not appear enlarged in the image from the ultrasound performed by Dr. Dwight. Moreover, the basic ultrasound does not measure the ventricles. A basic ultrasound prior to 24 weeks also would not have diagnosed agenesis of the corpus callosum. He believed it was speculative to extrapolate based on Leons MRI that an ultrasound on August 11 would have shown a marked difference in the brain size compared to July 21, 2003, because the rate of growth of the brain is not linear.

However, if a patient was referred for a comprehensive ultrasound examination, the ventricles and the corpus callosum are specifically examined. An enlarged lateral ventricle raises concern because it is associated with an increased risk for subsequent abnormality of the brain and associated with an increased risk for chromosome abnormality as well.

Dr. Nageotte stated that a diagnosis of hemimeganencephaly is typically made after birth. He acknowledged if Dr. Bohn had performed a basic ultrasound that had shown one-half of the brain was markedly larger than the other half, and a follow-up comprehensive examination had additionally shown one ventricle was larger and agenesis of the corpus callosum, in addition to other problems the child had which could be identified through the comprehensive examination, it would have been appropriate for Dr. Bohn to discuss the potential for problems with the child with Karen. The list of potential diagnoses in order of decreasing likelihood would have included chromosomal abnormalities, an infection in utero that resulted in hydrocephalus, a brain hemorrhage, a tumor, or a very rare entity such as the one that occurred in this case. Asymmetrical growth of the brain is not a common finding; it is an abnormal finding associated with an increased risk for mental retardation and seizures.

Dr. Nageotte agreed that the large majority of women in 2003 had basic ultrasounds as part of their prenatal care. If a basic ultrasound is performed at 16 weeks, it is not usually necessary to perform a basic ultrasound at 20 weeks.

Geneticist and pediatrician John Graham, M.D. testified that hemimeganencephaly is a specific neuropathological diagnosis. A diagnosis of hemimeganencephaly means half of the brain is enlarged and the organization of the cerebral cortex is very abnormal. Hemimeganencephaly is typically associated with a very serious seizure disorder called hypsarrhythmia. Hemimeganencephaly can be an isolated problem in an otherwise normal child without any associated birth defects, or it can be part of a broader pattern of other birth defect syndromes, including proteus syndrome. As the cerebral cortex becomes thicker, it folds, which is the development of the gyri. Abnormalities in the gyri pattern in the cortex develop during the third trimester and could be diagnosed with an MRI. Abnormal growth of the folds of the brain would not be seen at 20 weeks, because the brain is smooth at 20 weeks. Neither hemimeganencephaly nor proteus syndrome could be diagnosed prenatally until after 26 weeks, because the abnormality of the cerebral cortex does not develop in hemimeganencephaly until after 26 weeks, at which time the diagnosis is made only by MRI. Moreover, hemimeganencephaly has not previously been diagnosed prenatally and in a number of cases of proteus syndrome associated with hemimeganencephaly in which ultrasounds had been performed, it was missed.

Dr. Graham did not believe that an ultrasound performed at 20 weeks would have shown hemimeganencephaly. However, an ultrasound on August 11, 2003, would have shown an asymmetry in the size of the ventricles between the two sides, and in this case, the right side would be abnormal and enlarged. He would expect the asymmetry in the size of the ventricles to remain obvious, but not progress. The corpus callosum is developed by 20 weeks and could be seen in a comprehensive ultrasound. He also testified that a woman could terminate a pregnancy up to 24 weeks in California.

In cases that Dr. Graham has seen, the majority of the children with one ventricle larger than the other were identified at birth as having problems, either progressive hydrocephaly or some other defect. Of the 20 or 30 cases in which Dr. Graham had seen enlarged ventricles, two or three at birth had ventricles that were no longer enlarged and several children who had enlarged ventricles at birth had normal neurological findings. However, Dr. Graham has never seen a significant unilateral enlarged lateral ventricle reverse or improve. A unilateral enlarged lateral ventricle is a significant finding.

Obstetrics expert Stephen Hebert, M.D.^[4]testified that a basic ultrasound is usually scheduled in advance for a patient and requires between 20 and 40 minutes. The standard of care does not require routine basic ultrasounds in pregnancy. A basic ultrasound is required only if there is an indication for one. Dr. Dwight and Dr. Bohn were not required to perform a basic ultrasound, because Karens pregnancy was progressing normally. In fact, Dr. Hebert opined that Dr. Dwights ultrasound to verify the location of the fetus in the uterus went above the standard of care, because Karens pregnancy was progressing normally enough such that the likelihood of the pregnancy being outside the uterus was not very high. Moreover, in Dr. Heberts opinion, the standard of care did not require the doctor to explain to the patient that a limited ultrasound was being performed and not a basic ultrasound. He opined that it was well within the standard of care for Dr. Dwight to tell Karen that the baby was a boy and her pregnancy looked fine and to schedule her to return in four weeks for her next prenatal visit. At 20 weeks, the indications were that Karens pregnancy was developing normally and it would have been appropriate to reassure her that her pregnancy appeared normal.

Dr. Hebert testified that it could not be concluded from the limited information in the ultrasound image taken by Dr. Dwight that the fetal brain was abnormal. Dr. Hebert opined that it was appropriate for Drs. Dwight and Bohn to perform ultrasounds for the limited purposes of verifying the location of the fetus in the uterus, documenting viability, determining whether there was a single fetus, or determining the sex of the baby. In Dr. Heberts opinion, both Dr. Dwight and Dr. Bohn fully complied with the accepted standard of practice in the community with regard to Karens prenatal care. An obstetrician practicing in the community would not be expected to detect an abnormality from the ultrasound that Dr. Dwight performed, a measurement of the biparietal diameter would have been normal on that date, and no referral to a perinatologist was required under the standard of care. Moreover, had Dr. Dwight performed a basic ultrasound on July 21, 2003, there would have been no requirement for Dr. Bohn to have performed a basic ultrasound on August 11, 2003. Dr. Hebert opined that one could not extrapolate from a post-birth MRI to determine what an ultrasound performed by Dr. Bohn would have revealed, because one does not know what the growth rate or pattern of the fetal brain would be in this disease condition.

All of Dr. Heberts patients are offered a basic ultrasound as part of their prenatal care and most women choose to have it performed.

Jury Instructions and Verdict

On July 3, 2006, the trial court and the parties discussed jury instructions. Leons counsel asked for a modification of CACI No. 513 to conform to the proof at trial of a series of brain abnormalities, including hemimeganencephaly, an abnormal lateral ventricle and agenesis of the corpus callosum. The doctors counsel argued that CACI No. 513 required finding the doctors failed to diagnose and warn the Peleds of a particular diagnosis. The doctors counsel also argued that the parties had agreed on the instruction and the case had been tried based on that agreement. Leons counsel requested that the instruction simply identify abnormal brain formation, which would include hemimeganencephaly, agenesis of the corpus callosum, and enlarged lateral ventricle. He explained Leons theory was that the doctors should have recognized there was disproportion in the brain, which would have led to a comprehensive ultrasound and advice for the parents. The court ruled that it would add agenesis of the corpus callosum to the parties version of CACI No. 513. The court declined to add enlarged ventricle, but told the parties they could discuss the matter again later.

On July 5, 2006, after Leons counsel had presented a significant portion of his closing argument, the trial court and the parties discussed the jury instructions again. Counsel for the doctors objected to any modification of the wrongful life instruction, and if there were a modification, requested that the instruction mention the three specific defects at issue. The trial court refused to include enlarged lateral ventricle in the instruction, because the court did not believe there was evidence of that diagnosis or that an expert said it could have been discovered via an ultrasound before birth. After further argument, the trial court stated, I will add to 513 . . .agenesis of the corpus callosum, and I will further add the language that with nine jurors agreeing thereto. [] So the jury is going to have to find a particular diagnosis and that it was diagnosable[.] Leons counsel objected that the jurors did not need to agree on a specific injury and the new language created a different burden than required under the law.^[5]

The jury returned a special verdict on July 6, 2006, finding neither doctor was negligent in the medical care and treatment of the plaintiff. On July 14, 2006, the trial court entered judgment in favor of Drs. Dwight and Bohn as against Leon. Spectrum and Drs. Bohn and Dwight filed a memorandum of costs on August 1, 2006, listing costs of $92,523.22, including witness fees of $78,093.30.

On August 14, 2006, Leon filed a notice of appeal from the judgment entered on July 6, 2006. That same day, the Peleds filed a motion to tax costs. Leon filed a notice to clarify that the appeal was from the judgment entered on July 14, 2006. On October 3, 2006, the trial court granted the motion to tax costs in part by reducing one cost item, and in all other respects, the motion was denied. The order further stated: Defendants are awarded costs against plaintiffs Karen Peled, Roee Peled and Leon Peled, jointly and severally, pursuant to [Code of Civil Procedure sections] 1032 [subdivision] (a)(4) and 1032 [subdivision] (b).

On December 12, 2006, the trial court entered a stipulation by the parties to amend the order awarding costs. The Peleds and Drs. Dwight and Bohn stipulated that an error had been made as to the amount of costs and set forth the correct amount. The parties expressly preserved substantive issues, including whether costs were properly awarded against Karen and Leon jointly and severally. The parties further stipulated, That plaintiffs reserve on appeal the issues presented in the Motion to Tax Costs, the ruling and order thereon and only the amount of the costs changed pursuant to the stipulation.

DISCUSSION

Instructional Errors

A. Standard of Review

When the sole contention on appeal concerns a jury instruction, we do not view the evidence in a light most favorable to the prevailing party. Rather, to assess the instruction's prejudicial impact, we assume the jury might have believed appellants evidence and, if properly instructed, might have decided in appellants favor. [Citation.] Accordingly, we state the facts most favorably to the party appealing the instructional error alleged, in accordance with the customary rule of appellate review. [Citation.] [Citations.] [] Still, [i]n a civil case an instructional error is prejudicial reversible error only if it is reasonably probable the appellant would have received a more favorable result in the absence of the error. [Citations.] [Citation.] . . . Hence, when evaluating the evidence to assess the likelihood that the trial courts instructional error prejudicially affected the verdict, we must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsels arguments, and (4) any indications by the jury itself that it was misled. [Citation.] (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1087-1088.)

B. Modification of Wrongful Life Instruction

Leon contends the trial courts modification of the wrongful life instruction required the jury to reach a consensus as to the disability that Leon was born with and whether that disability could have been diagnosed by a comprehensive ultrasound. Leon was born with multiple disabilities, and he contends he only needed to prove that any of the conditions could have been diagnosed. Leon also argues the instruction should have included enlarged ventricle as one of the conditions that the doctors could have diagnosed and with which Leon was born. We conclude that even if the instruction were incorrect, it was not prejudicial.

At the time of the trial in this case, CACI No. 513 provided: [Name of plaintiff] claims that [name of defendant] was negligent because [he/she] failed to inform [name of plaintiff]s parents of the risk that [he/she] would be born [genetically impaired/disabled]. To establish this claim, [name of plaintiff] must prove all of the following: [] 1. That [name of defendant] negligently failed to diagnose and warn [name of plaintiff]s parents that their child would probably be born with a [genetic impairment/disability]; [] 2. That [name of plaintiff] was born with a [genetic impairment/disability]; [] 3 That if [name of plaintiff]s parents had known of the hereditary ailment or disability, [his/her] mother would not have conceived [him/her] [or would not have carried the fetus to term]; and [] 4. That [name of plaintiff] will have to pay extraordinary medical or training expenses because of [his/her] [genetic impairment/disability].

In this case, the trial court instructed the jury on the essential elements of medical negligence. The trial court also defined the standard of care for a medical specialist: An obstetrician is negligent if he or she fails to exercise the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful obstetricians would possess and use in similar circumstances.

The trial court further instructed the jury that in order to establish liability, Leon had to show: 1. That Defendants negligently failed to diagnose and warn Ms. Peled that Leon Peled would probably be born with hemimeganencephaly or agenesis of the corpus callosum. [] 2. That Plaintiff was born with hemimeganencephaly or agenesis of the corpus callosum with nine jurors agreeing to the particular disability [] 3. That if Ms. Peled had known of the disability, [she] would have had a legal abortion.

CACI No. 513 contemplates that a trial court will select between the general terms genetic impairment and disability. The instruction does not require the trial court to insert the name of a specific disability and does not require the jury to agree as to a specific disability. In this case, Leon claimed the doctors failed to perform one act, namely, to conduct a basic ultrasound, which Leon claimed would have shown an asymmetry of the head requiring the doctors to refer Karen for a comprehensive ultrasound that would have revealed multiple abnormalities, any one of which was sufficient to support the cause of action. The special verdict form asked the jury whether the doctors had been negligent. The jurors had to agree that the elements of the cause of action had been proven, but they did not need to agree on exactly how each particular element of the cause of action was proved. (Cf. Stoner v. Williams (1996) 46 Cal.App.4th 986, 1002.) The instruction was also ambiguous, because it was unclear whether the requirement to reach a consensus applied only to the condition with which Leon was actually born, or whether the jurors had to also agree on the disability that the doctors failed to diagnose. However, we conclude that any error was harmless.

The jury returned a special verdict that Dr. Dwight and Dr. Bohn were not negligent. The case presented only two possible means of finding the doctors negligent: (1) for failing to perform a basic ultrasound; or (2) for failing to recognize Leons abnormal brain size during the limited ultrasound and referring Karen for a comprehensive ultrasound. The jury would only reach the issues of what specific condition should have been discovered if it first found negligence, which it did not. Because the jury determined that the doctors were not negligent, any error in instructing on two specific conditions, and not instructing on a third, and requiring nine jurors to agree, was necessarily nonprejudicial.

We also note there was no evidence of negligence as to Dr. Dwight. There was disputed evidence as to whether the standard of care required Dr. Dwight to perform a basic ultrasound on July 21, 2003, rather than the level of ultrasound that was performed. However, the evidence was undisputed that if Dr. Dwight had performed a basic ultrasound on July 21, 2003, it would not have revealed any abnormality that he should have recognized. Leons expert testified that Dr. Dwight was not required to recognize an asymmetry of Leons brain and would not have been required to refer Karen for a comprehensive ultrasound. Under these circumstances, the asserted instructional error was necessarily nonprejudicial as to Dr. Dwight.

C. Special Instruction on Abortion

Leon contends the trial court erred by giving a special instruction on abortion proposed by the doctors, because it was unnecessary and unduly emphasized the emotional and sensitive issue of abortion. In addition, Leon contends it was error to give the instruction because no evidence was presented to explain the terms viable or risk to the health of the mother. We find that Leon has not demonstrated any prejudicial error occurred.

The trial court instructed the jury as follows: A woman cannot have an abortion in California where the fetus is viable and the pregnancy does not pose a risk to the life or health of a pregnant woman. [] A fetus is generally considered viable at and after 24 weeks of gestation. [] A physician has no duty to disclose information regarding treatment that is not legally available to a patient in California.

An instruction explaining legal abortion in California was properly given in this case. The evidence showed that Karen visited Dr. Bohn on four occasions after August 11, 2003, and Dr. Bohn did not conduct an ultrasound at any of those visits. In fact, Karen requested an ultrasound in her third trimester during a visit with Dr. Bates, none was scheduled and Dr. Bohn did not perform an ultrasound at the following visit. Dr. Filly testified that an ultrasound at 30 weeks gestation could have detected that there were too few folds on the side of Leons brain that was underdeveloped. Since several abnormalities were potentially visible from an ultrasound performed after the time that Karen could obtain a legal abortion based on the evidence, it was proper to give the instruction. Moreover, the cause of action for wrongful birth required the jury to find that Karen would have had an abortion. The issue of abortion was not unduly emphasized by instructing the jury as to when an abortion was legal.

The term viable as used in the instruction was defined during the trial. Dr. Dwight testified that he performed an ultrasound to verify that Karens fetus was viable, but he clarified that he meant viable because it was located in the uterus and had a heartbeat. He explained that the term viable was also used to mean a fetus that would survive if it was delivered and he testified that a fetus was viable in that context at 24 weeks. Dr. Graham also testified that a woman could terminate a pregnancy up to 24 weeks. There was no evidence that the fetus presented a risk to Karens health, including her mental health, and therefore, no additional definition of risk to the mothers health was required.

D. Instruction on Alternative Medical Treatments

Leon contends an instruction on medically accepted alternative methods of treatment was not appropriate because there was no evidence that the doctors engaged in any alternative methods of treatment or diagnosis. We disagree.

The instruction stated: An obstetrician is not necessarily negligent just because he or she chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been the better choice.

In this case, the doctors presented evidence that an ultrasound performed for a specific purpose, such as to verify the location or the gender of the fetus, and a basic ultrasound to obtain the same information were both medically accepted methods of treatment for a pregnant patient. If the jury concluded that an ultrasound performed simply to ascertain the location or the gender of the fetus fell within the standard of care, then they were instructed not to find that the doctors were negligent simply because a basic ultrasound might have been a better choice. It was proper to give the instruction in this case.

Evidentiary Errors

A. Standard of Review

Evidence Code section 353 provides: A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.

Evidence Code section 354 provides: A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [] (a)  The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [] (b) The rulings of the court made compliance with subdivision (a) futile; or [] (c) The evidence was sought by questions asked during cross-examination or recross-examination.

A miscarriage of justice should be declared only when the appellate court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Peoplev. Watson (1956) 46 Cal.2d 818, 836.)

B. Exclusion of Impeachment Evidence

Leon contends that the trial court erroneously excluded evidence of a subsequent remedial measure that was admissible for impeachment purposes. We conclude the trial court properly excluded the evidence under Evidence Code section 352 based on Leons insufficient offer of proof.

Dr. Bohn testified at trial that informing Karen of her ultrasound findings and telling her that she should see someone else if she needed an anatomical survey was sufficient and safe for Karen and the baby. Leons counsel attempted to introduce evidence that a document was created to give patients stating something about ultrasounds. Outside the presence of the jury, Leons counsel argued Dr. Bohn had testified in deposition that after Leons birth and the institution of the instant action, the office began giving patients a written document regarding referral to a perinatologist. Leons counsel did not have a copy of the document. The trial court found the proffer was insufficient and excluded the evidence under Evidence Code sections 1151 (subsequent remedial measure) and 352 (undue consumption of time).

Evidence Code section 1151 states: When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.

Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

The trial court properly excluded evidence of a document created or modified to inform patients about ultrasounds. Leons offer of proof was insufficient to determine whether the document impeached Dr. Bohns testimony at trial. Leons counsel did not have a copy of the document and could not provide information as to who wrote it, who directed or authorized it to be disseminated to patients, and what the document said, other than that it somehow discussed ultrasounds or referral to a perinatologist. It was also proper to exclude the document under Evidence Code section 352, because it would have required an undue consumption of time to allow questioning that should have been pursued during discovery to determine whether the document was relevant to the issue of impeachment. The trial court did not abuse its discretion by excluding evidence of the document.

C. Cumulative Evidence

Leon contends the trial court erred by admitting cumulative expert testimony on the standard of care and the ability of ultrasounds to detect the brain abnormalities that Leon suffered. However, he does not identify any particular cumulative testimony that was objectionable through citation to the record. [T]rial courts are not required to exclude all cumulative evidence and if evidence has substantial relevance to prove material facts which are hotly contested and central to the case, it is not merely cumulative. [Citations.] (People v. Lang (1989) 49 Cal.3d 991, 1016.) The three experts called by the defense testified as to different substantive areas. The trial court denied the doctors request to adjust the trial schedule to allow for the testimony of a fourth expert. Leon has not demonstrated a miscarriage of justice occurred in this case based on cumulative evidence.

Award of Costs

Leon contends the trial courts order awarding costs against the Peleds jointly and severally was erroneous, because no judgment of dismissal has been entered against his parents. The award of costs against Leon was proper. He has not provided any authority that he has standing to appeal the award of costs against his parents. Karen and Roee are not named as appellants in the notice of appeal and they are not parties to this appeal. There are no issues as to the award of costs against Leon.

DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

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^[1] Because more than one party in the instant case has the last name Peled, they will be referred to individually by their first names.

^[2] The facts have been stated in the light most favorable to Leon based on the standard of review for claims of instructional error. (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1087-1088.)

^[3] Although no judgment of dismissal as to Spectrum is part of the record on appeal, the doctors state in their brief that Spectrum was dismissed prior to trial, and on June 26, 2006, counsel for the doctors informed the trial court that Spectrum had judgment entered in its favor.

^[4] Leons counsel objected several times that Dr. Heberts testimony was cumulative to the testimony of other expert witnesses. The trial court overruled the objections.

^[5] A copy of the post-birth MRI was provided as an exhibit to the jury. One of the findings shown on the MRI was agenesis of the corpus callosum.