Filed 9/25/17 Ramos v. THC Orange County CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Plaintiffs Michael Ramos, Lawrence Ramos, and Richard Ramos (collectively Ramos) appeal from a judgment following a jury verdict in favor of defendant THC Orange County, Inc., doing business as Kindred Hospital-Sacramento (Kindred), in this elder abuse action arising from the medical care and death of Stella Ramos (decedent).

On appeal, Ramos challenges the special verdict form, the jury instructions, the exclusion of evidence, and the conduct of the jury.

As we shall explain, most of these claims are forfeited, either because they were not preserved in the trial court or are not properly presented on appeal, or both. None of the claims we discuss on the merits succeeds. Accordingly, we shall affirm the judgment.[1]

BACKGROUND

Basic Facts

Decedent, wife of plaintiff Lawrence Ramos and mother of plaintiffs Michael and Richard Ramos, died at Kindred at the age of 81. She had been transferred from Stanford Hospital to Kindred while on a ventilator. She had chronic obstructive pulmonary disease and pneumonia. Upon admission to Kindred, her life expectancy was at most a “few months,” her chance of leaving the hospital was “darned close to zero” and she would never “continuously” be off a ventilator. According to one expert, her life expectancy at the time of her admission “would be a few months only if aggressive measures that most physicians would not conscience in a patient because of the pain and suffering it caused the patient. It only lasted for a few months because they persisted in care that I know they didn’t want to give.”

Because decedent was on a ventilator, her arterial blood gas had to be monitored. Kindred did this by using needles, not an arterial line (a fixed line inserted into an artery) from which blood could be tapped and then tested. Using needles was more difficult than in an ordinary patient because of decedent’s extreme bodily swelling. Ramos uses the term “blind sticks” to emphasize that often nurses had to stick decedent several times to find an artery, again, due to the extreme swelling, and asserts this inflicted unnecessary pain. But expert testimony showed inserting an arterial line would have required cutting into decedent and exposing her to infection--to which she was already woefully prone--and that the decision whether or not to use so-called “blind sticks” fell within a physician’s standard of care. Further, the decision did not harm decedent.

Because of her condition, decedent’s body would weep fluid, requiring replacement fluid to be given to maintain blood pressure and circulation. Ramos’s expert, Dr. Gorbaty, thought decedent was overloaded with fluids while at Kindred, and dialysis should have been started promptly after her admission to combat this problem. He called this “anasarca” or “Michelin Man syndrome,” and he was of the opinion this made further care “almost futile.” But he faulted the physicians for this, not Kindred. Also, there was testimony the amount of fluids given to decedent was the same she had received at Stanford, and any overload was due to the failure of her circulatory system and other problems.

Decedent’s weeping of fluid required frequent bedding changes, and repositioning. Ramos contended Kindred left her in wet bedding, but even Ramos’s expert, Dr. Gorbaty, conceded she had “bed sores” upon admission. Defense evidence showed that although decedent already had one severe bed sore upon admission to Kindred, she did not develop further sores. Further, her existing sore improved, showing she had been kept adequately dry.

She died on July 11, 2010, of septic shock due to pneumonia, with multiple organ failure.

Verdicts

The closing arguments were not transcribed and provided to us for review. “To the extent the record is incomplete, we construe it against [the appellant].” (Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498.) The instructions given and the special verdict form do inform us in part about the theories submitted to the jury. Ramos’s wrongful death claim was partly predicated on the medical negligence of all defendants, with Kindred’s liability based on a theory that one or more of the four physician defendants were Kindred’s employees. The jury rejected that theory, and also found all four doctor defendants were not negligent. As to the elder abuse claim, the jury was instructed that it had to find by clear and convincing evidence that one of Kindred’s employees failed to use reasonable care in assisting in personal hygiene or in the provision of food, clothing, or shelter. The jury found that Ramos did carry his burden to prove that this was true; however, there is no indication on the verdict form as to what acts or omissions this pertained. The jury found Ramos did not carry his burden to show that any such employee(s) acted with recklessness, malice, or oppression.[2]

Ramos timely appealed from the judgment on the verdict.

DISCUSSION

I

Preliminary Observations

A. Appellant’s Briefing and Forfeiture

The facts in the opening brief are blatantly partisan and composed in large part of testimony obviously not credited by the jury. The brief is replete with exclamation points, font changes, and interrobangs. On appeal, an appellant must state the facts fairly, in the light favorable to the judgment, or all evidentiary claims are forfeited. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.) When an exception to this rule applies, such as when a party contends the evidence justified an instruction (see, e.g., 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 258, pp. 311-313), the brief must indicate why those facts are not portrayed in the light favorable to the verdict, or clearly and fairly present both versions of the facts. Nowhere in Ramos’s briefing is there any coherent statement of the facts, or even a clear statement of the issues the jury decided. Ramos’s “brief is a mere challenge to respondents to prove that the [judgment] was right. . . . An appellant is not permitted to evade or shift his responsibility in this manner.” (Estate of Palmer (1956) 145 Cal.App.2d 428, 431.) Accordingly, we agree with Kindred that Ramos has forfeited any evidentiary claims he intended to make, and any legal claims dependent on his skewed view of the evidence. (RB 31-32) In those instances where we do address the merits of his claims, “we will not be drawn onto inaccurate factual ground.” (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291.)

B. Elder Abuse

We next explain an important legal point never clearly articulated in Ramos’s briefing. The primary theory of recovery at issue on appeal is for elder abuse rather than medical malpractice. The allegations at trial pertaining to elder abuse were that Kindred (or its alleged agents, the treating physicians) violated the Elder Abuse and Dependent Adult Civil Protection Act (Act) in various ways. (See Welf. & Inst. Code, § 15600 et seq.)[3] Under the Act, “a plaintiff who proves ‘by clear and convincing evidence’ that a defendant is liable for physical abuse, neglect, or financial abuse (as these terms are defined in the Act), and that the defendant has been guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of such abuse, may recover attorney fees and costs.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779, italics added; see Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336-337.) The Act does not use “neglect” to mean professional negligence (see Delaney v. Baker (1999) 20 Cal.4th 23, 30-32, 34-36, nor even gross negligence by health care providers (see Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88).[4] In fact, section 15657.2 effectively excepts medical malpractice from that definition of “neglect” by providing in part: “Notwithstanding this article, any cause of action for injury or damage against a health care provider . . . based on . . . alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action.”

Under the Act, plaintiff must prove the defendant’s conduct was reckless, oppressive, fraudulent, or malicious. (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406.) The plaintiff also must prove causation by clear and convincing evidence; that is, plaintiff must prove the conduct caused physical harm, pain, or mental suffering. (§§ 15610.07, 15657.)

“To trigger the enhanced remedies for neglect under the [Act], the plaintiff must allege, and prove by clear and convincing evidence, facts establishing that the defendant: (a) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene, or medical care; (b) knew of the conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (c) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult or with conscious disregard of the high probability of the injury; and (d) its denial or withholding of goods or services caused the elder or dependent adult to suffer physical harm, pain, or mental suffering.” (6 Witkin, Sum. of Cal. Law (10th ed. 2016 Supp.) Torts, § 1686, p. 252.)

The distinction between the special usage of “neglect” under the Act, and ordinary professional negligence, is important to bear in mind in this case.

II

Special Verdict Form

Appellants’ first headed argument is “The Court Erred In Adopting the Wrong Special Verdict Form for Elder Abuse.” However, what follows is a discussion about (1) different jury instructions, (2) the relevance, if any, of declaratory relief, and (3) the award of costs to the prevailing party. None of these three points is fairly embraced by the heading, and therefore they are each forfeited. (See Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9; Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482 (Tilbury); Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1291.)

As relevant to the verdict form, the subject of the headed claim, Ramos contends “the trial court erred in declining to give two separate and distinct verdict forms requested by” Ramos. But in support, Ramos provides record citations about the need for two different instructions, and does not show he requested different verdict forms. This omission is fatal. Nor does Ramos provide us with the purportedly requested verdict forms to review.

“A party who fails to object to a special verdict form ordinarily waives any objection to the form.” (Behr v. Redmond (2011) 193 Cal.App.4th 517, 530; see Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1287 [“because plaintiffs did not submit special verdict forms that addressed Peters’s negligence; the issue is waived on appeal”]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [“BMW waived any objection to the special verdict form by failing to object before the court discharged the jury”]; Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 700 [“failure to object to those verdict forms below waives the issue on appeal”].)[5] Because Ramos does not show that any other special verdict form was tendered, the claim on appeal that a different or separate form should have been used is not preserved.

In the reply brief, Ramos argues that the reason why a different special verdict should have been used--that it might have changed who was found to be the prevailing party--was discussed at trial. That does not constitute a legal excuse for not requesting a different or additional special verdict form.

Moreover, the trial court told the attorneys that the verdict forms would have to be discussed. Later, the trial court told them: “I’m going to charge you folks with trying to come up with verdict forms that correspond to my rulings that I just made, what’s in, what’s out. And basically all causes of action are in, but some may be limited to certain kind[s] of factual theories, and so you might want to reflect that on specific interrogatories on the verdict form. And we can bat that around later.” Still later, the trial court suggested there needed to be separate verdict forms for each defendant, and asked the parties to meet and try to agree on the forms.

But despite this clear instruction, Ramos’s counsel never submitted any proposed verdict forms. The record does show that at a reported break during closing arguments, Ramos’s counsel wanted “two different instructions,” including one for simple negligence to vindicate his clients’ view of the matter, “kind of a declaratory relief,” although that would not satisfy the Act’s standards of liability. But counsel did not offer a separate verdict form, and never replied to the trial court’s request for legal authority for such a procedure. Thus we have no way of knowing what proposals were offered or discussed, and we decline to speculate. Ramos did not preserve his claim.

Finally, Ramos’s claim of prejudice is unintelligible, a recurring theme in his briefing. He seems to argue that an ordinary negligence verdict in his favor was inevitable, and that might have led the trial court to reduce or deny Kindred’s recovery of costs as the prevailing party. But Ramos does not analyze prejudice appropriately. First, as we have noted, he has not stated the facts fairly. Second, he does not explain why the jury would have returned a special verdict finding ordinary negligence had two verdict forms been used. This failure to properly address the issue of prejudice forfeits a contention of error. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice”] (Paterno); Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77 [“Where any error is relied on for reversal, it is not sufficient for appellant to point to the error and rest there”].)[6]

III

Instruction on Blind Sticks

Ramos contends the trial court erred by failing to instruct the jury on a theory of commission of elder abuse by the use of blind sticks. His theory is that sticking decedent with needles to test her arterial blood gas caused her pain that could have been avoided had an arterial blood line been applied.

Apparently during Ramos’s counsel’s argument to the jury, which we were not provided, an objection was sustained and the jury was excused. The trial court then explained on the record an earlier ruling that “there was no evidence that the failure to give an arterial line was below the standard of care. In fact, even the expert put on by the plaintiff established that.” “Mr. Tinkerian now was apparently trying to argue, well, that the blind sticks still could cause pain and suffering; but, of course, that’s the flip side of the arterial line. And my ruling is, and I thought it was clear, is the blind sticks were simply a medical procedure that was integral to the medical care of the patient. There was no evidence establishing that that fell below the standard of care. So it’s really irrelevant, and no damages can be predicated upon getting the blood for that reason.”

We have no need to address the merits of Ramos’s claim that the trial court’s refusal to allow possible liability for blind sticks was error, because Ramos has not presented an appropriate prejudice argument. It is well-settled that “we may not reverse a judgment for ‘misdirection of the jury’ absent a miscarriage of justice. (Cal. Const., art. VI, § 13.) As stated in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581, we must evaluate ‘(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.’ ” (Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 393-394.) Instead, Ramos merely asserts the failure to instruct on blind sticks was prejudicial because it led to the exclusion of evidence, and “the jury would have come to a different conclusion” had the trial court instructed differently. But (1) Ramos does not explain the total body of evidence fairly; (2) Ramos does not mention, far less analyze, other relevant instructions; (3) the closing arguments were not transcribed; and (4) Ramos does not claim there is any indication the jury was misled or confused. Because Ramos has not addressed the factors for assessing prejudice from a claimed instructional error, he has forfeited the claim. (See Paterno, supra, 74 Cal.App.4th at p. 106.) In particular, because the jury found none of the physician-defendants were negligent or were Kindred’s employees, and the evidence, including his own expert’s testimony, showed that whether or not to order blind sticks instead of an arterial line was a physician’s decision, Ramos’s failure to articulate prejudice on this point is inexcusable.

IV

Instruction on Arterial Lines

In a claim related to the “blind sticks” claim, Ramos contends the trial court should have instructed the jury on elder abuse for the failure to install an arterial line.

The trial court, in discussing the admissibility of certain testimony (see Part V, post), pointed out that neither of Ramos’s experts had testified the failure to install an arterial line “had anything to do with medical negligence, bad outcome, or wrongful death,” and was of the view that elder abuse could not be predicated on providing medical care. In a key part of its ruling the trial court stated:

“So it’s absolutely irrelevant on medical negligence and the wrongful death causes of action. So the only real argument of relevance is that somehow constitutes elder abuse. And it just seems to me, classically, to fall into a medical modality. And I think the cases that suggest you cannot predicate an elder abuse based on providing care and whether it was negligent care or not. And so . . . I think we have to sort out, as I mentioned yesterday, how to make sure the jury doesn’t base a lot of its decisions on the arterial line.”

Accordingly, the jury was instructed not to consider the arterial line issue.[7] Given the evidence that whether or not to use an arterial line was a matter falling within the medical standard of care (see Part III, ante), we agree with the trial court that it had no relevance to Ramos’s elder abuse claim.

Again, Ramos asserts prejudice, but does not analyze it appropriately (cf. e.g., Buzgheia v. Leasco Sierra Grove, supra, 60 Cal.App.4th at pp. 393-394), resulting in a forfeiture of the claim (Paterno, supra, 74 Cal.App.4th at p 106).

V

Exclusion of Evidence

Ramos contends the trial court erroneously excluded the testimony of a respiratory nursing supervisor, Michelle Monchatre (sometimes spelled Monchantre), whose testimony he asserts would have turned the tide. We reject this claim.

Ramos does not dispute Kindred’s claim that Monchatre was never designated as an expert witness. And her proposed testimony would pertain to arterial lines, which counsel conceded were authorized by and installed by physicians (rather than Kindred). Therefore, the trial court tentatively ruled that Monchatre’s proposed testimony about nursing training or the ability to install an arterial line at Kindred was not relevant to the elder abuse claim.

After Monchatre was precluded from testifying as an expert, Ramos moved to allow her testimony to attack the credibility of Kindred’s CEO, alleging she would testify that--contrary to the CEO’s claim--Monchatre advised the CEO about the arterial line issue; further, Kindred did not want to pay for nurses to have adequate training to use arterial lines; finally, Monchatre would testify the CEO had a custom and practice of retaliating against any physician who would try to advocate for installation of “major medical procedures like dialysis or implementing an arterial line.” The trial court observed this was “largely irrelevant,” and her proposed evidence about Kindred’s practices would be no more than “impeachment on a collateral matter.”[8]

We initially observe that no matter what testimony Monchatre may have given, if we found its exclusion erroneous, we would have to measure the impact of the error against the evidence the jury did receive to assess prejudice. (See Evid. Code, § 354.) As we have explained, the trial evidence is not fairly presented by the briefing.

Moreover, Ramos contends we should review the trial court’s evidentiary ruling de novo, because the trial court misunderstood the law. We disagree. Evidentiary rulings are reviewed for an abuse of discretion, although a trial court may abuse its discretion by considering legally improper factors in the exercise of its discretion. “ ‘ “Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.” ’ [Citation.] The court’s ‘ “discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered.” ’ [Citation.] Even where a trial court improperly excludes evidence, the error does not require reversal of the judgment unless the error resulted in a miscarriage of justice. [Citation.] [The appellant] has the burden to demonstrate it is reasonably probable a more favorable result would have been reached absent the error.” (Saxena v. Goffney (2008) 159 Cal.App.4th. 316, 332)

Given the lack of any coherent explanation by Ramos of how anything Monchatre might have testified to would have made a difference, and his failure to explain and refute the trial court’s reasons for excluding the evidence, we find no abuse of discretion.

VI

Fraud Instruction

Ramos contends the trial court should have instructed on fraud.

As the trial court pointed out, fraud was not pleaded in the operative complaint. The operative fourth amended complaint captioned five theories of recovery: elder abuse, medical malpractice, assault, intentional infliction of emotional distress, and wrongful death. There are a few stray references to fraud. For example, there are allegations that Kindred was culpable for “[f]raudulently denying decedent to transfer to another hospital,” and “[f]raudulently omitting relevant information . . . as to family concerns of the poor quality of care . . . and [family’s] insistence that decedent be transferred to Mercy Hospital.” There are also conclusory legal allegations that Kindred’s conduct “was despicable, [abominable], wicked, atrocious, [contemptible], oppressive, malicious, fraudulent and reckless.” (Cf. 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 384, p. 521 [“It is generally held that allegations that an act . . . is ‘illegal,’ ‘unlawful,’ ‘unauthorized,’ ‘void,’ ‘wrongful,’ ‘without right,’ or ‘fraudulent,’ etc., are conclusions of law”], italics added.)

But apart from the failure to explicitly caption a fraud claim, fraud must be pleaded with particularity. (See Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) “This means: (1) general pleading of the legal conclusion of fraud is insufficient; and (2) every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading [e.g., on demurrer] will not usually be invoked to sustain a pleading that is defective in any material respect. [Citation.] ‘It is bad for courts to allow and lawyers to use vague but artful pleading of fraud simply to get a foot in the courtroom door.’ ” (Ibid.) [9] “The essential allegations for an action in fraud or deceit are false representation as to a material fact, knowledge of its falsity, intent to defraud, justifiable reliance and resulting damage.” (Ibid.) The stray usages of the term “fraud” or its derivatives in the complaint do not come close to articulating how Kindred’s conduct met these elements.

Accordingly, the trial court was right to conclude fraud had not been pleaded.

VII

Reckless and Oppressive Behavior

Ramos contends Kindred’s alleged failure to change decedent’s bedding more often was reckless and oppressive “as a matter of law.”

The trial court, with some reluctance, allowed this theory to go to the jury, although it seemed to be another iteration of simple medical negligence.

On appeal, Ramos merely points to favorable evidence on that point, failing to satisfy his duty as the appellant; therefore, the point is forfeited. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) We cannot assume the jury would have found Kindred did not adequately change decedent’s bedding; it was Ramos’s burden, as the appellant, to show that the evidence demonstrated Kindred acted negligently as defined under the Act. Moreover, Ramos ignores the testimony to the effect that if decedent’s bedding had not been properly changed, her bed sore would not have healed, as it did. Ramos’s refusal to acknowledge this clear evidence undermining his claim on appeal is inexcusable.

VIII

Jury Misconduct

Ramos contends the jury did not understand or follow the instructions because it did not initially answer a question about oppression. This argument is both very short and very confusing; it also lacks any merit when the record is consulted.

Ramos at first seems to claim this means the jurors resorted “to the determination of chance,” which he correctly points out would be grounds for a new trial. (Code Civ. Proc., § 657, subd. 2.) But he claims neither that he moved for a new trial, nor that the claimed error amounted to a decision by chance. Ramos also argues that because the foreperson answered some questions (which we describe below), Ramos was deprived of a full jury verdict. Any attorney who had read the record would know this contention is patently incorrect.

The verdict form asked separate questions as to whether any Kindred employee acted with recklessness (question 4), malice (question 5), or oppression (question 6).

When the verdict was returned, the trial court stated, “you answered two of them but didn’t answer a third one. [¶] And I see when we said if you answer no to any of them, what we probably should have said [was] to all of them.” When the trial court proposed to send the jury back to complete the verdict form, the foreperson said: “We did anticipate what you would ask and we did agree on that and the way it was worded,” and clarified that the answer was “no.”[10] The trial court, realizing this was essentially a clerical omission rather than a substantive failure of the jury to complete its duty, asked the foreperson to correct the verdict. Tellingly, Ramos did not object to this procedure. Then, the trial court polled the jurors on the entire verdict form, including separately asking them about the three levels of culpability, stating: “f you have a different answer as to either recklessness, malice or oppression, let me know.” The jury confirmed in open court that it found in favor of Kindred on each of those three points, with one juror disagreeing as to recklessness, and two disagreeing as to both recklessness and oppression. Thus, the polling showed the verdict was 9-3 for Kindred as to recklessness, 10-2 for Kindred as to oppression, and 12-0 for Kindred as to malice.

[i]Amending the Complaint

Ramos contends the trial court should have allowed an amendment to the complaint to add claims of “medical battery and/or informed consent.”

Ramos’s brief does not clearly explain the relevant procedural history. He does not state when he asked to amend the complaint, what reasons were given, what opposition Kindred presented, if any, or what reasons the trial court gave for not permitting an amendment to the complaint. These omissions forfeit the claim of error.

DISPOSITION[11]

The judgment is affirmed. Appellants shall pay respondent’s costs of this appeal. (See Cal. Rules of Court, rule 8.278(a).)

/s/

Duarte, J.

We concur:

/s/

Robie, Acting P. J.

/s/

Butz, J.