S.A. v. Freedman

Filed 1/30/07 S.A. v. Freedman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. James A. Bascue, Judge. Affirmed in part, reversed in part and remanded.

Gary M. Schneider for Plaintiffs and Appellants.

Greines, Martin, Stein & Richland, Robin Meadow and Jens B. Koepke for Defendant and Respondent.

______________________________________

Plaintiffs and appellants Sean A., a minor, and his mother S.A.,^[1]as guardian ad litem, sued defendant and respondent Andrew Freeman, M.D., for medical malpractice, alleging that Dr. Freedman negligently performed a hydrocelectomy on Sean, causing the boy to lose one of his testicles. Plaintiffs case was submitted to the jury under dual theories of general negligence and conditional res ipsa loquitur, giving the jury the option of finding Dr. Freedman negligent either because the surgery was performed below the standard of care expected of urologists in similar circumstances (general negligence) or because Seans injury ordinarily would not have occurred in the absence of Dr. Freedmans negligent performance (res ipsa loquitur).

The jury found Dr. Freedman negligent and that his negligence was a substantial factor in causing Seans injury. Damages against Dr. Freedman were fixed at a total of $305,678. The trial court, however, granted Dr. Freedmans motions for judgment notwithstanding the verdict (JNOV) and for a new trial, primarily on the ground of insufficient evidence of negligence as to both theories.

Plaintiffs timely appeal raises two issueswhether the trial court erred in granting Dr. Freedmans motion for JNOV and whether the trial court abused its discretion in ordering a new trial for insufficient evidence. As to the first issue, our independent review discloses substantial evidence of negligence based on res ipsa loquitur to support plaintiffs verdict. Nevertheless, our deferential review finds support for the trial courts discretionary new trial order. We therefore reverse the trial courts entry of a judgment notwithstanding the verdict, but affirm the granting of the new trial motion.

STATEMENT OF FACTS

Plaintiffs Case

In order to participate on his high school track team, 15-year-old Sean was required to have a medical examination. On January 29, 2003, a pediatrician examined Sean, discovered that Seans left testicle was larger than the right one, and advised that Sean see a urologist. Sean visited Dr. Freedman the following day, who ruled out a tumor and diagnosed Sean as having a hydrocele, which is an abnormal collection of fluid around the testicle.^[2] Dr. Freedman explained that the condition was not urgent and could be remedied by a very simple surgical procedure (a hydrocelectomy), which would require no more than a two-day recovery. Dr. Freedman did not mention the surgery as entailing a risk of Sean losing a testicle. Seans surgery was scheduled for the following summer on June 17, 2003, after Sean participated on the track team without experiencing any difficulties related to the hydrocele. According to Sean, on the morning of the surgery, Dr. Freedman assured Sean that the surgery was a simple, commonplace procedure and that he would be fine in a day.

Dr. Freedman, called by plaintiffs, testified that he had recommended surgery because the hydrocele, if left alone, would tend to enlarge and eventually cause problems. After Seans initial visit, Dr. Freedman did not see Sean until the day of surgery. Prior to performing the surgery, Dr. Freedman informed plaintiffs that the procedure entailed risks of bleeding, infection, anesthetic complications, and recurrence. He mentioned neither testicular torsion (a rotation in the spermatic cord such that it severs the blood supply to the testicle)^[3] nor loss of a testicle because they are not known risks of the procedure. Dr. Freedman never heard of any patient who had suffered a testicular torsion as a complication of a hydrocelectomy. He was not aware of any medical study or other authority describing loss of a testicle as a risk of the procedure.

Sean was not suffering from testicular torsion at the time of the surgery. Dr. Freedman carefully inspected the testes during the procedure and saw no such abnormality. As part of the surgery, Dr. Freedman removed the testicle and its surrounding sac from the scrotum, opened the sac, folded the sacs edges behind the testicle, and sutured them together to prevent a recurrence of the hydrocele. After the suturing, Dr. Freedman replaced the testicle and sac in the scrotum.

After the surgery, according to plaintiffs, Dr. Freedman told them that the procedure went well and that Sean would be able to leave the hospital that day. Dr. Freedman instructed Sean to limit his activities that day and prescribed Tylenol with codeine for Sean to take as needed. S. took him home early that afternoon, and he rested on the couch. He was in a great deal of pain that night and had difficulty sleeping; he found it very painful to stand or walk. In the early morning of June 18, S. called Dr. Freedman, who assured her that Seans pain was not cause for serious worry. Dr. Freedman told her that he was leaving for a vacation and that she should call his office if she had any further concerns. Seans pain did not subside that day. S. had to assist him to use the toilet. Sean had little appetite for food.

Sean felt no better on June 19. On the morning of June 20, S. called Dr. Freedmans office and spoke to Dr. Yurkanin, who said he did not understand why Sean would be in such pain after the surgery, but he told her that she could bring him in, if doing so would make [her] feel any better. S., believing there was nothing seriously amiss, decided not to do so. Sean was in pain and feverish that evening. S. called Dr. Yurkanin, who told her to take Sean immediately to the hospitals emergency room, where they arrived at approximately 9:30 p.m. The two emergency room physicians who examined Sean found that his testicle was grossly swollen and concluded that it was dead. Dr. Yurkanin was called. When he arrived later that night, Dr. Yurkanin told plaintiffs the ultrasound examination showed that blood was not flowing to his testicle. Dr. Yurkanin believed emergency surgery was necessary, but it was unlikely they could save the testicle.

Seans second surgery was performed in the early morning hours of June 21 by Drs. Gerhard Fuchs and Yurkanin. Dr. Yurkanin reported the surgery was successful; the testicle was saved and Sean should be fine. Sean stayed overnight in the hospital and was discharged the next day with instructions to rest in bed and to regularly change the drainage to his wound. Sean remained in serious pain, however. On June 23, S. told Dr. Yurkanin that Seans condition had not improved. Dr. Yurkanin instructed her to take Sean to the doctors office. Sean was unable to walk. An ultrasound examination was performed. According to S., Dr. Yurkanin informed them that it showed the testicle was alive and was receiving blood flow.^[4] He advised continued bed rest, prescribed a more powerful oral pain medication, and requested Sean return in three days.

Sean remained in pain and was unable to walk without assistance over the next few days. On June 26, Dr. Yurkanin examined Sean and told plaintiffs the testicle was healing and everything was fine. Dr. Yurkanin prescribed an oral antibiotic for Sean to take three times a day. He also instructed that Seans wound should be cleaned and bandaged three times a day. Sean took the medicine as prescribed, and his condition seemed to improve. On July 1, Sean was examined by Dr. Freedman. Dr. Freedman said everything was fine and Sean was recovering well. Dr. Freedman observed that Sean was feeling much better and was able to walk and bathe; his surgical wound appeared to be healing. A few days later, Sean attended the rehearsal for his mothers wedding, but he had great difficulty walking and standing. At the wedding on the next day, Sean was in intense pain.

On July 9, Seans condition had not improved. His grandfather took him to see a new physician, Milton Krisiloff, M.D., who determined that Sean must undergo another emergency surgery because his testicle was dead. Dr. Krisiloff also testified as plaintiffs medical expert. He confirmed the only significant risk or complication of a hydrocelectomy is post-operative bleeding, which can cause a lot of swelling. Testicular torsion is not a known risk or complication of the procedure. Such torsion, which can impede or cut off the blood flow to the testicle, most commonly occurs spontaneously. Unless the torsion is corrected within 24 hours, the testicle will die.

Sean was in a great amount of pain when examined by Dr. Krisiloff on July 9. Dr. Krisiloffs examination revealed a black area on Seans scrotum consistent with gangrene that could become septic. He believed emergency surgery was necessary and performed the surgery that night. With his first incision, Dr. Krisiloff discovered that Seans testicle was necrotic and in the process of being extruded from the scrotum. Dr. Krisiloff proceeded to remove the dead testicle. Seans condition was dramatically better after the surgery; he was practically free from pain. Within two months, Seans wound had healed and everything was back to normal.

At that time, based on the medical history provided by Seans family, Dr. Krisiloff believed the testicles demise was caused by testicular torsion following the initial surgery by Dr. Freedman. Dr. Krisiloff subsequently reviewed the medical records from the June 17 hydrocelectomy, the emergency room and surgery records for the June 21 operation by Drs. Fuchs and Yurkanin, Dr. Freedmans records, and the ultrasound reports of June 20 and June 23. Dr. Krisiloff maintained his opinion that the testicular torsion resulted from the manner in which Dr. Freedman performed the hydrocelectomy. According to Dr. Krisiloff, at one step during the procedure, the surgeon purposefully twists the testicle, creating a testicular torsion in order to facilitate the suturing of the Tunica Vaginalis membrane. It is critical for the surgeon to untwist the testicle before replacing it in the scrotum. If the surgeon forgets, the testicle would be inserted in an improper positionwith a 360-degree torsion.

At trial, Dr. Krisiloff opined to a reasonable medical probability that Dr. Freedman must have made that mistake in the June 17 surgery, thereby causing Seans testicular torsion. The expert had never heard of a patient suffering testicular torsion after hydrocelectomy surgery. Performing the procedure incorrectly so as to create a testicular torsion that severs the blood supply to the testicle would be beneath the standard of medical care. Based on his experience and knowledge of the medical literature, a testicular torsion cannot result from a hydrocelectomy unless the surgeon was negligent. [I]t has never happened and it wont happen unless the surgeon puts the testicle back in the wrong positionat torsed state, as the expert described it.

As additional support for his opinion that Sean suffered a testicular torsion during Dr. Freedmans surgery, Dr. Krisiloff identified the pain Sean experienced following the hydrocelectomy as being consistent with impeded blood flow.^[5] He also pointed to the ultrasound reports before and after the emergency surgery by Drs. Fuchs and Yurkanin that indicated a lack of blood flow, and to the doctors preoperative report, in which Dr. Yurkanin referenced a likely testicular torsion. Further, in the postoperative report, Dr. Yurkanin referred to the testicles dark blue coloring, which indicated lack of blood flow consistent with testicular torsion. Dr. Krisiloff did not believe that the kind of bleeding typically associated with a hydrocelectomy could have caused the total interruption of blood flow indicated by the ultrasound reports. As additional evidence of testicular torsion, Dr. Krisiloff pointed out that Dr. Yurkanin had described untwisting and repositioning the spermatic cord in order to restore blood flow during the emergency surgery.

In Dr. Krisiloffs opinion, the window of opportunity to save Seans testicle would have closed 24 hours after the June 17 hydrocelectomy. Accordingly, Dr. Krisiloff was dubious of Dr. Yurkanins observations and conclusion that the June 21 emergency surgery had restored blood flow to the testicle. To Dr. Krisiloff, restoring blood flow approximately 92 hours after the testicular torsion just doesnt make sense.

Dr. Krisiloff opined that it was unlikely the spermatic cord could have become twisted spontaneously after Dr. Freedmans surgery. The expert gave two reasons for his opinion. First, the step in the surgical procedure in which the surgeon purposefully twists the testicle in order to facilitate suturing the membrane creates the possibility that the surgeon will neglect to untwist it, thereby replacing the testicle in an improper position.^[6] Second, the expert relied on the lack of any medical evidence that a hydrocelectomy increases the likelihood of spontaneous rotation [of the testicle] . . . in the postoperative period. Given the large number of hydrocelectomies performed every year, if there were such a danger, there would be some occurrences reported and doctors would be instructed to take precautionary measures. For similar reasons, Dr. Krisiloff did not believe there was a legitimate scientific basis for attributing Seans injury to a hematoma. Scrotal bleeding with a lot of swelling is common after a hydrocelectomy, but a resulting hematoma that caused testicular torsion has never happened before. In addition, Dr. Krisiloff noted that Dr. Fuchs did not describe the hematoma discovered during the July 21 surgery as being especially large.

On cross-examination, Dr. Krisiloff continued to maintain that Dr. Freedman breached the applicable medical standard of care by replacing Seans testicle in a torsed condition at the conclusion of the hydrocelectomy. He based that opinion on the assumption that Dr. Freedman performed the surgery in the manner Dr. Krisiloff had describedthat is, purposefully creating a testicular torsion by twisting the spermatic cord. Dr. Krisiloff, however, did not know whether Dr. Freedman used that same procedure, and he admitted that it could be performed in other ways. At one point, defense counsel asked: If your assumption is wrong that Dr. Freedman does the surgery the way you do the surgery and he doesnt create a torsion at the time of the hydrocele repair, your theory is wrong, isnt it? Dr. Krisiloff replied: That would be correct. If he didnt put it back in a torsed state, then my theory is wrong. Because the expert was not present during the surgery, he could not know whether Dr. Freedman had actually completed the procedure with Seans testicle in a torsed condition.

Nevertheless, Dr. Krisiloff denied that his opinion was wholly contingent on the assumption that Dr. Freedman used the same procedure as the expert. Dr. Krisiloff testified that even if he assumed Dr. Freedman never purposefully created a testicular torsion as part of the hydrocelectomy, he might have replaced the testicle in a torsed position. According to the expert, the standard of care is replacing the testicle in the proper position so torsion does not occur. We dont know if he put it back in a torsed state or not. . . . The only thing a reasonable surgeon can do is make sure the testicle is put back properly. The expert admitted he did not know whether Dr. Freedman put the testicle back improperly. As he explained on redirect examination, however, Dr. Krisiloff assumed Dr. Freedman made that error based on the evidence that Sean had a testicular torsion at the time he went to the emergency room on June 20. Dr. Krisiloff demonstrated to the jury how a surgeon might become confused during a hydocelectomy and replace the testicle with the spermatic cord twisted 360 degrees. The expert insisted that Seans testicular torsion following the hydrocelectomy could not have happened in the absence of Dr. Freedmans negligence.

Defense Case

Dr. Freedman described in detail the manner in which he performed Seans hydrocelectomyat no time did it involve the twisting of the testicle or spermatic cord. He testified that it would be difficult to inadvertently twist the testicle around during the procedure because a testicles front looks different from its back. In addition, if he had inadvertently created a testicular torsion, the testicle would have turned blue and he would have noticed it. Dr. Freedman emphasized that his manner of performing the hydrocelectomy differed from Dr. Krisiloffs, in that Dr. Freedman did not purposefully twist the testicle.

Dr. Yurkanin recalled that he examined Sean on the evening of July 20. He reviewed the ultrasound report, which indicated a lack of blood flow to the testicle. Dr. Yurkanin concluded that exploratory surgery was necessary to determine what was wrong with Sean. Among the possible diagnoses was testicular torsion. Dr. Fuchs was the primary surgeon; Dr. Yurkanin assisted. While conducting the exploratory part of the surgery, they found a blood clot they thought had caused a partial twisting of the spermatic cord. Dr. Yurkanin did not observe a complete testicular torsioni.e., a 360-degree rotation. Rather, very little untwisting was required. According to Dr. Fuchs, there was no untwisting at all; it was just a matter of pulling the cord straight. There was no diagnosable testicular torsion. After removing the blood clot, the testes returned to a normal position and proper coloring was quickly restored (from an unhealthy dark blue to a healthy rose color), indicating restored blood flow. According to Dr. Fuchs, it was the blood clot that had restricted the blood flow and caused the spermatic cord to become bunched up.

Doppler testing was performed during the surgery to insure that blood was flowing into the testicle. Dr. Fuchs also did an incision to verify that blood was flowing into the testicle. As a prophylactic measure, he also performed an orchiopexy (suturing the testicle to the scrotal wall to stabilize it). The doctors believed these efforts had restored blood flow and would likely save the testicle. Their observations were not consistent with Dr. Krisiloffs opinion that Dr. Freedmans surgery had resulted in a complete testicular torsion.

When Dr. Yurkanin examined Sean in the hospital ten hours after the surgery, Sean appeared improved. He had no fever, and there was less bruising and swelling of the scrotum. When Dr. Yurkanin examined Sean at his next office visit on June 23, he reviewed an ultrasound report done that day. Based on the doctors prior surgical observations and his present clinical examination, he believed Sean was recovering normally, despite the reports indication of lack of blood flow.

George W. Kaplan, M.D., testified as defendants medical expert. According to Dr. Kaplan, testicular torsion in adolescents occurs spontaneously in males with the anatomic variation called a Bell Clapper Deformity. Dr. Kaplan had never heard of an instance in which a patient lost a testicle within three weeks of a hydrocele repair. He opined that Dr. Freedmans performance with regard to the hydrocele repair was not below the appropriate standard of care. The method Dr. Freedman said he used was standard. Contrary to Dr. Krisiloffs opinion, Dr. Kaplan opined that it would have been immediately recognizable if Dr. Freedman had inadvertently created a testicular torsion before replacing the testicle in the scrotum. Unless the testicle is rotated 360 degrees, the blood supply will not be cut off.

Blood clotting or hematoma is a common risk of hydrocele repairs. The hydrocele repair, however, could cause a temporary replication of the Bell Clapper Deformity in the few days following the surgery. This would not be the result of negligence on the surgeons part. Dr. Kaplan also opined that a hematoma could have formed after the second operation, cutting off the blood supply and causing the testicle to die.

Verdict and Post-trial Motions

Having been instructed on alternative theories of negligencegeneral negligence for medical specialists pursuant to CACI 502^[7]and res ipsa loquitur for medical malpractice cases pursuant to CACI 518^[8]the jury returned a special verdict, finding Dr. Freedman negligent and his negligence was a substantial factor in causing Seans harm. The verdict form, however, did not require the jury to indicate whether its negligence finding was based on general negligence or res ipsa loquitur.

Dr. Freedman moved for a judgment notwithstanding the verdict on the ground that plaintiffs evidence of negligence was insufficient as a matter of law to support the verdict. He separately moved for a new trial on the grounds that there was insufficient evidence of negligence to support the verdict, that it was legal error to instruct the jury on res ipsa loquitur, and the special verdict form erroneously and prejudicially omitted a finding of whether the jurys negligence finding was based on general negligence or res ipsa loquitur The trial court granted both motions. It entered a judgment notwithstanding the verdict based on its findings that (1) plaintiffs failed to present substantial evidence of negligence both as to general negligence and res ipsa loquitur, (2) the res ipsa loquitur instruction was legally inadequate because it did not define plaintiffs burden of proof, and (3) the verdict form erroneously failed to include a special finding as to which of the two negligence theories the jury relied on. It granted the new trial motion because its weighing of the evidence as a whole, including its finding that plaintiffs medical expert was wholly lacking in credibility, supported a defense verdict.

As we explain, plaintiffs expert testimony that Seans injury would not have occurred in the absence of Dr. Freedmans negligencealthough subject to impeachmentrose above the level of speculation such that the jury could legitimately rely upon it to find negligence. On the other hand, given that the evidence of negligence was so strongly contested, the trial court acted well within its discretion in ordering a new trial.

DISCUSSION

Judgment Notwithstanding The Verdict

We first assess whether the trial court erred in granting the JNOV. The rules applicable to judgments notwithstanding the verdict for defendant are well settled . . . . Such a motion may be granted, properly, only when, disregarding the conflicting evidence, and indulging in every legitimate inference in favor of the plaintiff, the result is a determination that there is no evidence of substantial nature to support the verdict. The trial court, on such motion, is not permitted to weigh the evidence, and on an appeal from the judgment entered on the granting of such a motion, the appellate court must read the record in the light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit of all reasonable inferences in support of the judgment. (Quintal v. Laurel Grove Hospital (1965) 62 Cal.2d 154, 159 (Quintal); see People v. Ault (2004) 33 Cal.4th 1250, 1266 [appellate review of trial court orders granting nonsuits, directed verdicts, or judgments notwithstanding the verdictorders that finally terminate claims or lawsuitsis quite strict. All inferences and presumptions are against such orders].)

Thus, we review the evidence in the light most favorable to plaintiffs to determine whether substantial evidence supports the jury verdict. [Citation.] (Ajaxo, Inc. v. E*TRADE Group, Inc. (2005) 135 Cal.App.4th 21, 49.) When the question is whether there is no substantial evidence to support a factual finding, an appellate courts power is limited to determining whether there is any substantial evidence contradicted or uncontradicted to support the finding of fact. (Ibid.)  It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding offact.  (Id. at pp. 49-50, quoting Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

Here, the crucial question is whether the trial court erred in finding no substantial evidence to support a jury determination of negligence based on the res ipsa loquitur doctrine. In California, the doctrine of res ipsa loquitur is defined by statute as a presumption affecting the burden of producing evidence. (Evid. Code, 646, subd. (b).) (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825 (Brown).) A presumption affecting the burden of producing evidence require[s] the trier of fact to assume the existence of the presumed fact unless the defendant introduces evidence to the contrary. (Evid. Code, 604; see also id., 646, subd. (c).) (Brown, supra, 4 Cal.4th at p. 825.) In plaintiffs case, the presumed fact would be that Dr. Freedmans negligence was a proximate cause of Seans injury, which would shift the burden to Dr. Freedman to produce substantial evidence that he was not negligent or that any negligence on his part was not a proximate cause of Seans injury. (Id. at p. 826.)

The question we must resolve is whether plaintiffs presented substantial evidence to support the res ipsa loquitur inference. It is settled law in this state that the doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible. [Citations.] [Citation.] According to the classic and oft-repeated statement, there are three conditions for the application of the doctrine: (1) the accident must be of a kind which ordinarily does not occur in the absence of someones negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. [Citations.] The existence of one or more of these conditions is usually a question of fact for the jury. [Citations.] (Newing v. Cheatham (1975) 15 Cal.3d 351, 359 (Newing); Brown, supra, 4 Cal.4th at p. 825.)

In essence, Dr. Freedman argues that plaintiffs failed to present substantial evidence of the first two res ipsa conditions because the opinion of plaintiffs expert Dr. Krisiloff amounted to mere speculation. Consistent with the trial courts reasoning, Dr. Freedman asserts there was no substantial evidence of the first condition because Dr. Krisiloff admitted that the overwhelming majority of testicular torsions occur spontaneously, meaning that they happen on their own, without external intervention. As such, Dr. Freedman asserts that Seans injury could not be considered an accident that ordinarily occurs in the absence of a surgeons negligence. Along those same lines, Dr. Freedman contends that because Dr. Krisiloff admitted two potential causes of Seans injury other than Dr. Freedmans negligencespontaneous twisting of the spermatic cord and a blood clothe failed to present reliable evidence that the most probable cause was Dr. Freedmans negligence in replacing Seans testicle in a torsed state. As support for both these arguments, Dr. Freedman points out that Dr. Krisiloffs opinion was initially premised on his assumption Dr. Freedman purposefully created a testicular torsion during a stage of the procedurea premise that Dr. Freedmans testimony contradicted.

As we explain, while these arguments certainly diminish the strength of plaintiffs evidence of negligence, the applicable standard of review proscribes us from weighing the competing evidence of negligence. Although this case is a close one, we hold plaintiffs evidence of negligence was not speculative and the jury was entitled to rely on Dr. Krisiloffs opinion that Dr. Freedmans negligence was the most probable cause of Seans injury.

The governing law is well established. The fact that a particular injury rarely occurs does not in itself justify an inference of negligence unless some other evidence indicates negligence. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 944 (Blackwell); Clark v. Gibbons (1967) 66 Cal.2d 399, 412 (Clark) [proof that when due care is exercised an injury rarely occurs, accompanied by other evidence indicating negligence, may be sufficient to warrant an instruction on conditional res ipsa loquitur]; Hale v. Venuto (1982) 137 Cal.App.3d 910, 918-919 (Hale) [evidence of rarity, together with some other evidence indicating negligence, may warrant a conditional res ipsa instruction, particularly where the injury resulted from a commonplace procedure rather than from a complex or unusual operation], citing Clark, supra, 66 Cal.2d at pp. 412-413, Quintal, supra, 62 Cal.2d at pp. 165-166.) That is, for res ipsa loquitur instructions to be justified, plaintiffs must have presented some substantial evidence which, if believed by the jury, would entitle it to draw an inference of negligence from the happening of the accident itself. (Blackwell, supra, 46 Cal.App.4th at p. 944, quoting Kerr v. Bock (1971) 5 Cal.3d 321, 324.)

Therefore, on the one hand, the res ipsa loquitur doctrine is inapplicable where the only basis for it was evidence that the injury suffered by the patient rarely occurs as a result of the surgical procedure. (Clark, supra, 66 Cal.2d at p. 413; see also, e.g., Blackwell, supra, 46 Cal.App.4th at p. 945.) To permit an inference of negligence under the doctrine of res ipsa loquitur solely because an uncommon complication develops would place too great a burden upon the medical profession and might result in an undesirable limitation on the use of operations or new procedures involving an inherent risk of injury even when due care is used. (Siverson v. Weber (1962)57 Cal.2d 834, 839 (Siverson); Hale, supra, 137 Cal.App.3d at pp. 918-919.)

On the other hand, where there is evidence of a low incidence of accidents when due care is used and evidence of the kind of negligence by the defendant that could have caused the particular accident, the likelihood of a negligent cause may be sufficiently great that the jury may properly conclude that the accident was more probably than not the result of someones negligence. (Clark, supra, 66 Cal.2d at p. 413; see also Blackwell, supra, 46 Cal.App.4th at p. 945; Hale, supra, 137 Cal.App.3d at p. 919.) Our Supreme Court has emphasized the limited nature of judicial review in this context: The conclusion that negligence is the most likely explanation of the accident, or injury, is not for the trial court to draw, or to refuse to draw so long as plaintiff has produced sufficient evidence to permit the jury to draw the inference of negligence even though the court itself would not draw that inference; the court must still leave the question to the jury where reasonable men may differ as to the balance of probabilities [citation]. (Seneris v. Haas (1955) 45 Cal.2d 811, 827.) Indeed, [t]he inference of negligence is not required to be an exclusive or compelling one. . . . The existence of the conditions upon which the operation of the doctrine is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved [citations]. (Ibid.; see also, e.g., Newing, supra, 15 Cal.3d at pp. 359-360; Blackwell, supra, 46 Cal.App.4th at p. 944 [Where reasonable persons may differ as to the balance of probabilities, the court must leave the question to the jury].)

Turning to the record in this case, and having disregarded the conflicting evidence from defendant and indulged in every legitimate inference in favor of the plaintiffs (see Quintal, supra, 62 Cal.2d at p. 159), we find substantial evidence supported Dr. Krisiloffs negligence opinion. Specifically, we find there was substantial evidence of surgical negligence in addition to the evidence that the loss of a testicle would rarely result from a hydrocelectomy in the absence of negligence. The jury was entitled to credit Dr. Krisiloffs testimony that: (1) testicular torsion causes the strangulation of a testicle within approximately 24 hours; (2) Sean was not suffering from testicular torsion at the time the hydrocelectomy began; (3) testicular torsion will not result from a hydocelectomy unless the surgeon negligently replaces the testicle in a torsed state, which is beneath the standard of care expected of urologists who perform the procedure; and (4) Sean suffered from testicular torsion immediately after his hydrocelectomy, based on Dr. Krisiloffs opinion that the degree of pain and fever Sean experienced after the hydrocelectomy was symptomatic of testicular torsionan opinion that was bolstered by the June 23 ultrasound report showing no blood flow to the testicle and Dr. Yurkanins testimony that he untwisted the spermatic cord during the June 23 emergency surgery. Certainly, those propositions support the reasonable inference that it was Dr. Freedmans negligence in replacing Seans testicle at the conclusion of the surgical procedure that resulted in testicular torsion, which caused the loss of Seans testicle.^[9]

Dr. Freedman does not challenge the first two propositions and can only present contradictory evidence from defense witnesses as to the fourth. As to Dr. Krisiloffs third proposition (and contrary to the trial courts finding), Dr. Krisiloffs opinion did not stand or fall on the assumption that Dr. Freedmans hydrocelectomy protocol included the purposeful twisting of the spermatic cord. Rather, Dr. Krisiloff maintained that his negligence opinion was premised on the assumption that the most likely, if not the only, way that testicular torsion could result from a hydrocelectomy was if the surgeon replaced the testicle in a torsed state. Even assuming Dr. Freedman never purposefully twisted the testicle, plaintiffs expert testified that Dr. Freedman might nevertheless have inadvertently (and negligently) replaced the testicle in such a torsed position. According to Dr. Krisiloff, the standard of care applicable to all hydrocelectomies includes the requirement that the surgeon must make sure the testicle is put back properly. Dr. Krisiloff demonstrated to the jury how a surgeon might become confused during a hydocelectomy so that he replaced the testicle with the spermatic cord twisted 360 degrees. In any event, [t]here is no absolute requirement that the plaintiff explain how the accident happened. Res ipsa may apply where the cause of the injury is a mystery, if there is a reasonable and logical inference that defendant was negligent, and that such negligence caused the injury. [Citation.] (Quintal, supra, 62 Cal.2d at p. 165, quoting Fowler v. Seaton (1964) 61 Cal.2d 681, 687.)

Nor does Dr. Krisiloffs admission that testicular torsions occur spontaneously in the great majority of cases serve to invalidate his opinion or reduce it to mere speculation. Dr. Krisiloffs negligence opinion concerned testicular torsions resulting from a particular surgical procedure, not how the condition typically occurred. The expert offered uncontradicted testimony that there was no medical evidence that a hydrocelectomy increases the likelihood of spontaneous rotation [of the testicle] . . . in the postoperative period. Dr. Krisiloffs concession that Seans injury could have been caused by spontaneous twisting of the spermatic cord or a blood clot did not render his opinion speculative. Dr. Krisiloff offered a plausible medical basis for opining that those explanations were unlikely in Seans circumstances. While scrotal bleeding and attendant swelling commonly occur after a hydrocelectomy, the medical literature had not documented a case in which such a hematoma caused testicular torsion. Dr. Krisiloff also pointed out that according to Dr. Fuchss postoperative report, the hematoma discovered during the July 21 surgery was not especially large.

Moreover, [i]n order that a plaintiff be entitled to the benefit of the doctrine of res ipsa loquitur, he need not exclude every other possibility that the injury was caused other than by defendants negligence [citation]. (Seneris v. Haas, supra, 45 Cal.2d at p. 826; see also Newing, supra, 15 Cal.3d at p. 360 [It need not be concluded that negligence is the only explanation of the accident, but merely the most probable one].) As our Supreme Court explained in Quintal: Here we have an injury which is very rare. It is an injury that could result from negligence, or could result without negligence. Is it more probable than not that it was the result of negligence? That is the question. The plaintiffs . . . proved that the injury could occur as a result of negligence. There is also evidence that the injury could occur without negligence. In such circumstances the jury should be instructed that if they find certain facts to be true they should apply the inference involved in res ipsa. (Quintal, supra, 62 Cal.2d at p. 164.)

Our courts have found res ipsa loquitur instructions appropriate in cases that cannot be meaningfully distinguished from this one. For instance, in Hale, the defendant orthopedic surgeon performed corrective surgery called a Hauser procedure on plaintiffs knee. Following the surgery, plaintiff suffered from combined peroneal and tibial palsy of her left foot, a condition evidenced by numbness in her big toe and three adjoining toes, the numbness extending about half way up her foot on both the top and the bottom. (Hale, supra, 137 Cal.App.3d at p. 915.)

As in Seans case, there was no direct evidence that the defendant surgeon did the negligent act attributed to him by the plaintiffs expert. In Hale, plaintiffs medical expert opined that the risk of combined peroneal or tibial palsy following the performance of a Hauser procedure was statistically nonexistent. (Hale, supra, 137 Cal.App.3d at p. 916.) The experts review of the medical records led him to conclude that, although no definitive diagnosis of plaintiffs condition was ever made, the most probable cause of plaintiffs injury was external pressure either from the tourniquet used during surgery or from the application of tight bandages after the operation, both of which were the responsibility of the defendant. (Ibid.) The expert testified that from his experience tourniquet pressure ordinarily does not result in damage to the peroneal and tibial nerves unless it is incorrectly applied or it is applied over a bony prominence or the tourniquet itself is defective.  (Id. at pp. 916-917.) The expert opined that while nothing in the record indicated that defendant did anything wrong during the surgery, he was of the opinion defendant was below the usual and customary standard of care as such result does not generally occur without some untoward action of the surgeon.  (Id. at p. 917.)

In reversing the trial courts nonsuit order and holding that the case should have been submitted to the jury, the Hale court found that the testimony by plaintiffs medical expert was sufficient to bring the res ipsa loquitur doctrine into play. In so doing, it rejected the argument that the experts opinion was without basis because the expert was not able upon reviewing the medical records to point to any particular act improperly done by the defendant. (Hale, supra, 137 Cal.App.3d at p. 919.) Expert testimony relied upon to establish probability of negligence need not be in any particular language. It need only afford reasonable support for an inference of negligence from the happening of the accident alone. (Tomei v. Henning [(1967)] 67 Cal.2d 319, 322-323)Evidence necessary to form the basis for the application of the res ipsa loquitur doctrine need not establish the actual negligent procedures followed by defendant; it is sufficient if it supports an inference of negligence from the fact that the injury occurred. (Hale, supra, 137 Cal.App.3d at p. 919.)

Similarly, in Quintal, our Supreme Court found sufficient evidence to support res ipsa loquitur instructions where plaintiff suffered a cardiac arrest after administration of a general anesthetic. The Quintal court held that an instruction on conditional res ipsa loquitur was proper even though the medical experts testified that a cardiac arrest, although a rare occurrence, is a known and calculated risk in the giving of a general anesthetic and though there was no expert testimony that when cardiac arrests do occur, they are more likely than not the result of negligence. There was evidence that a method of meeting the unusual risk existed. Experts testified that when due care is used, cardiac arrests do not ordinarily occur, and, in addition, evidence was presented of fever and apprehension of the patient before administration of the anesthetic which tended to show that the cardiac arrest in that case was caused by negligence of the doctors. (Clark, supra, 66 Cal.2d at p. 412.)

The authorities on which Dr. Freedman seeks to rely are unavailing. For instance, in Siverson, our Supreme Court found the res ipsa loquitur doctrine was inapplicable in a medical malpractice case involving the rare occurrence of a fistula developing after a hysterectomy. However, the Siverson court explained: No medical witness testified that in the rare cases where fistulas occur they are more probably than not the result of negligence. As we have seen, the testimony was that they are considered an inherent risk of the operation and that they may occur where the operation is performed carefully and in accordance with proper practice. (Siverson, supra, 57 Cal.2d at p. 839.) As shown above, the testimony of Dr. Krisiloff was entirely different.

Similarly, in Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, the appellate court found the trial court properly refused to instruct on res ipsa loquitur in a case involving damages resulting from a fire. In that case, the evidence of causation from both parties was equally speculative, and there was no evidentiary basis on which the jury could find defendant was in control of one of the two equally plausible causes. (Id. at p. 77.) Nor is Crawford v. Sacramento County (1966) 239 Cal.App.2d 791 helpful to Dr. Freedman, as it also concerns a trial in which the evidence of the defendants negligence was entirely speculative. After reviewing the plaintiffs case, the Crawford court concluded that not a single finding of [the plaintiffs medical witness] pointed to a cardiac arrest as a result of anything the [defendant] anesthetist did or failed to do. On the contrary, such meager facts ascertained relevant to the unsolved problem of this womans death pointed away from any fault of the anesthetist. (Id. at p. 796.)

In sum, as plaintiffs presented nonspeculative testimony from a qualified medical expert that Seans injury would not result from a hydrocelectomy in the absence of the surgeons negligence, the jury was entitled to find Dr. Freedman negligent under the res ipsa loquitur doctrine. Accordingly, the trial court erred in granting Dr. Freedmans motion for JNOV.

New Trial Motion

The standards for reviewing an order granting a new trial are well settled. After authorizing trial courts to grant a new trial on the grounds of [e]xcessive . . . damages or [i]nsufficiency of the evidence, [Code of Civil Procedure] section 657 provides: [O]n appeal from an order granting a new trial upon the ground of the insufficiency of the evidence . . . or upon the ground of excessive or inadequate damages, . . . such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons. (Italics added.) Thus, we have held that an order granting a new trial under section 657 must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial courts] theory. [Citation.] Moreover, [a]n abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached . . . . [Citation.] In other words, the presumption of correctness normally accorded on appeal to the jurys verdict is replaced by a presumption in favor of the [new trial] order. [Citation.] (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 411-412 (Lane); see also Quintal, supra, 62 Cal.2d at p. 168.) Because the trial court sits as an independent trier of fact when ruling on a new trial motion, its factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jurys factual determinations. (Lane, supra, 22 Cal.4th at p. 412.) The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons. (Ibid.)

Here, the trial court properly recited the standard for determining defendants new trial motion and granted it based on insufficiency of evidence of negligence both as to general negligence and res ipsa loquitur. As to the first theory, the trial court found Dr. Krisiloff was destroyed by cross-examination when it turned out that the surgical technique on which his opinion was based (the purposeful twisting) had no support in the record. The trial concluded that plaintiffs had absolutely no evidence of defendants negligence. Regarding res ipsa loquitur requirement, the trial court found Dr. Krisiloff refuted his own opinion when he admitted that the overwhelming majority of testicular torsions occur spontaneously without any negligence. Seans injury therefore did not appear to be the kind of accident that ordinarily arises from negligence. Based on that reason and on Dr. Krisiloffs failure to come up with an alternative theory as to Dr. Freedmans negligence, the trial court found it more likely than not that Seans testicular torsion occurred spontaneously after the hydrocelectomy, which was not something within Dr. Freedmans control.

We hold the trial courts factual findings as to Dr. Krisiloffs credibility were supported by substantial evidence. A reasonable trier of fact could find Dr. Krisiloffs credibility as an objective medical expert was strongly undercuteven destroyed as stated by the trial courtwhen it turned out that Dr. Freedman apparently did not use the surgical technique Dr. Krisiloff had painstakingly demonstrated to the jury as the foundation of his negligence opinion. Although Dr. Krisiloff would return with an alternative explanation, the trial court could reasonably conclude that the experts fallback position sounded more of partisanship than objectivity. Similarly, a reasonable trier of fact could find that Dr. Krisiloffs credibility was further diminished by his concession that most, if not all, documented cases of testicular torsion occurred spontaneously. That concession would certainly provide strong support for rejecting the res ipsa loquitur inference.

Plaintiffs argue the trial courts findings are not entitled to deference because they were based on the erroneous determination that Dr. Krisiloffs testimony failed as a matter of law to support an inference of negligence. We do not read the trial courts order so narrowly. Although the trial court did not perfectly distinguish its new trial motion findings from those in support of its JNOV, we think it clear that the trial court based the former ruling on its credibility findings as to plaintiffs expert and the latter on its conclusion that the experts evidence was insufficient as a matter of law to support a negligence finding.

Our finding of legal error with regard to the trial courts JNOV ruling is not determinative as to the trial courts new trial order. When reviewing a JNOV, the standard of review requires that all inferences and presumptions run against such an order. In turning to the new trial motion, that standard is replaced with a presumption in favor of the trial courts ruling. (See Lane, supra, 22 Cal.4th at p. 416; People v. Ault, supra, 33 Cal.4th at p. 1266.) Our JNOV determination simply recognizes that a jury could find negligence under the res ipsa loquitur theory; we do not hold that the trier of fact must do so. Our determination that the jury was entitled to credit Dr. Krisiloffs opinion despite the problems identified by the trial court does not proscribe the trial court from finding the experts testimony wholly lacking in credibility. As our summary of the defense evidence made clear, the evidence of Dr. Freedmans negligence was strongly contested and would have supported a defense verdict. [S]o long as the outcome is uncertain at the close of trialthat is, so long as the evidence can support a verdict in favor of either partya properly constructed new trial order is not subject to reversal on appeal. (Lane, supra, 22 Cal.4th at p. 414.) As that was the case here, we affirm the granting of the new trial motion. (Quintal, supra, 62 Cal.2d at pp. 168-169.)

DISPOSITION

The order granting judgment notwithstanding the verdict is reversed. The order granting defendants new trial motion is affirmed. The matter is remanded for a new trial. The parties are to bear their own costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J. ARMSTRONG, J.

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^[1] We refer to plaintiffs by their first names not out of disrespect, but to preserve their privacy.

^[2] More specifically, as Dr. Milton Krisoloff, plaintiffs medical expert, described it, a hydrocele is a common condition in which a membrane called the Tunica Vaginalis surrounding testicle secretes fluids, causing a cyst.

^[3] Dr. Paul Yurkanin, an associate of Dr. Freedman, defined testicular torsion as the rotation of the testicle causing the twisting of the spermatic cord, which supplies blood to the testicles; the twisting can restrict or prevent blood flow.

^[4] The ultrasound report itself indicated that no blood flow to the testicle was detected. It appeared that Dr. Yurkanin discussed the findings with the radiologist and determined the ultrasound was not determinative on that point.

^[5] On cross-examination, Dr. Krisiloff admitted that a doctors report that Seans pain was intermittent was inconsistent with his having suffered a testicular torsion during the hydrocelectomy repair.

^[6] As we explain post, however, this basis for his opinion largely evaporated when Dr. Krisiloff admitted the surgery can be performed without creating a testicular torsion, and Dr. Freedman offered uncontradicted testimony that Seans surgery was not performed in that manner.

^[7] The trial court modified the standard instruction to identify the type of medical specialist as a urologist: A urologist is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful urologists would use in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as the standard of care. Pursuant to the same pattern instruction, the trial court instructed that the jury must determine the standard of care for a urologist under these circumstances based only on the testimony of the expert witnesses including Andrew Freedman, M.D.[,] who have testified in this case.

^[8] The trial court modified the pattern instruction as follows: In this case, Sean Atalla may prove that Andrew Freedmans negligence caused his harm if he proves all of the following:

1. That Sean A[.]s harm ordinarily would not have occurred unless someone was negligent[.] In deciding this issue, you must consider only the testimony of the expert witnesses;

2. That the harm occurred while Sean A[.] was under the care and control of Andrew Freedman; and

3. That Sean A[.]s voluntary actions did not cause or contribute to the events that harmed him.

If you decide that Sean A[.] did not prove one or more of these three things, then you must decide whether Andrew Freedman was negligent in light of the other instructions I have read.

If you decide that Sean A[.] proved all of these three things, you may, but are not required to, find that Andrew Freedman was negligent or that Andrew Freedmans negligence was a substantial factor in causing Sean A[.]s harm, or both.

You must carefully consider the evidence presented by both Sean A[.] and Andrew Freedman before you make your decision. You should not decide in favor of Sean A[.] unless you believe, after weighing all of the evidence, that it is more likely than not that was negligent and that his negligence was a substantial factor in causing Sean A[.]s harm.

^[9] A party may rely upon reasonable inferences from the evidence to support a verdict. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established. (Evid. Code, 600.) (Ajaxo, Inc. v. E*TRADE Group, Inc., supra, 135 Cal.App.4th at p. 50.)