Opinion
No. B174951
12-12-2006
STUART RUPP, et al, Plaintiffs and Appellants, v. BUENAVENTURA MEDICAL GROUP, INC., Defendant and Appellant.
Rice & Bloomfield, Todd J. Bloomfield for Plaintiffs and Appellants. Ryan Datomi & Flores, Richard J. Ryan and Dawn Cushman for Defendant and Appellant.
Stuart Rupp, Amy Rupp, and Laurel Rupp-Ferreira, surviving family members of Nancy Rupp, appeal an order of the trial court denying their motion for a partial judgment notwithstanding the verdict. (Code Civ. Proc., § 629.) We affirm.
All statutory references are to the Code of Civil Procedure.
Buenaventura Medical Group, Inc. ("BVMG") appeals an order of the trial court granting a motion for a partial new trial regarding causation and damages. (§ 657, subd. (6).) We affirm.
FACTS AND PROCEDURAL HISTORY
During the afternoon of March 9, 2001, an automobile struck Nancy Rupp as she walked in an Ojai crosswalk. Paramedics arrived and took her to the Ojai Hospital. An emergency room physician examined Nancy and found that she had a fractured left leg, a severely bruised right hand, and a sprained right wrist. The fracture involved a crack or a chip in Nancys left knee. The emergency room physician placed a knee immobilizer upon her left leg. Nancys hand injury precluded her effective use of crutches, and her husband Stuart obtained a wheelchair for her use.
To ease the readers task and not from disrespect, we shall refer to the parties by their first names.
As recommended by the hospital physician, Nancy obtained a referral from her primary care physician, Doctor James Estes of BVMG, for orthopedic treatment. The orthopedist directed Nancy to remove the knee immobilizer from time to time and to flex her calf muscles. During the week following the accident, Nancy removed the immobilizer at times, but generally remained sedentary.
On March 14, 2001, five days following the accident, Nancy experienced symptoms of anxiety, back pain, light-headedness, tightness in her chest, and racing heartbeat. In telephone calls with her daughters Laurel and Amy over the next five days, Nancy related these symptoms and remarked that she had a "really strange feeling." On Sunday, March 18, Nancy sounded "really depressed" and was too tired to speak with Laurel. Stuart also noticed that Nancy was anxious and fatigued, although he did not notice other symptoms.
On Monday morning, March 19, 2001, Nancy telephoned Doctor Estes and spoke with Peggy Harwood, his medical assistant, for approximately 10 minutes. Harwood believed that Nancy telephoned because "[s]he needed some reassurance" regarding anxiety following her crosswalk accident. Nancy stated that she was anxious after the traumatic experience, but did not relate any physical symptoms such as light-headedness, shortness of breath, back pain, or an increased heart rate. Harwood did not specifically inquire regarding physical symptoms because she believed the "issue was [Nancys] anxiety from being run over by a car [and] [t]hats what she wanted to talk . . . about." Nancy spoke in complete sentences and Harwood did not hear any rapid breathing or detect a shortness of breath. Harwood scheduled an appointment for Nancy to see Doctor Estes the following morning. She did not retrieve Nancys medical record, make a written record of the telephone call, or discuss Nancys call with Doctor Estes.
BVMG employed Harwood for seven years as a medical assistant. She was neither a physician nor a registered nurse. Doctor Estes provided oral guidelines regarding her duties, which include scheduling patient appointments and "assess[ing] the situation." Harwood testified that her duties involved the application of common sense and that she sometimes inquired if a patient had other symptoms. She did not perform triage duties, however, because she was not a registered nurse. Harwood stated that she had three options regarding patient calls: offer the patient an appointment, recommend the patient telephone paramedics, or transfer the call to Doctor Estes.
The following morning, Stuart prepared to drive Nancy to Doctor Estess office. She appeared "extremely agitated," however, and suggested that Stuart telephone the doctors office. He did so and obtained a prescription for anxiety medication. An hour later, Stuart telephoned Doctor Estess office again because he was unable to place Nancy inside the automobile. As he was on the telephone, Nancy waved to him and then slumped in the wheelchair. Stuart hurried to Nancy, but she was then lifeless.
An autopsy revealed that Nancy died from a pulmonary embolism caused by a deep vein thrombosis emanating in the vein below her injured knee. Nancys lungs also contained a significant clot burden and necrotic tissue.
Expert Witness Testimony
Doctor Jonathan Cole testified as an expert witness for plaintiffs, and Doctor Lee Kissel testified as an expert witness for VMG. The two witnesses disagreed regarding the standard of care of a medical assistant, but agreed at trial that immediate medical treatment before March 20, 2001, might have saved Nancy.
Doctor Cole, a board-certified internal medicine physician, testified that a sedentary patient with an immobilized limb is at risk of deep vein thrombosis. He explained that a blood clot could travel to the heart and then to the smaller veins of the lungs. Symptoms of a pulmonary embolism include shortness of breath, chest pain, coughing, rapid heart rate, anxiety, nausea, and fatigue. Symptoms could occur intermittently and might differ among patients. Upon diagnosis of a pulmonary embolism, treatment is "very effective" and the risk of death minimal.
Doctor Cole opined that the standard of care for a medical assistant in assessing a patients condition requires inquiry into the patients present health condition and the history of injury. He stated that anxiety is a constellation of symptoms and a medical assistant should inquire "what [the patient] mean[s] by anxiety." Specifically, he opined that Harwood had a duty to inquire of Nancys symptoms and then to refer her to emergency care or to Doctor Estes immediately because shortness of breath is a serious condition that demands immediate medical attention. Doctor Cole opined that if Nancy had received medical treatment immediately following her telephone call to Harwood, she would have survived.
Doctor Kissel, a board-certified family medicine physician, testified that the risk factors of deep vein thrombosis include patient immobility and trauma, among other causes. He opined that Nancy died from an embolism caused by her sedentary behavior and compression from the knee immobilizer.
Doctor Kissel opined that Harwood met the standard of care for a medical assistant by scheduling a next-day appointment for a patient with a complaint of anxiety. He described the standard of care as "[a] medical assistant needs to listen to what the patient says and respond to that using reasonable judgment and common sense." Kissel opined that Harwoods acts met the standard of care because "a patient being hit by a car ten days ago would be an explanation of the anxiety." He testified that the standard of care did not require Harwood to question Nancy regarding her accident injuries or a change in her health. Kissel stated that it is not reasonable to "expect[] [a] medical assistant to operate at the level that [a physician] operate[s]." He described a medical assistant as "a secretarial function." Kissel opined that the standard of care permitted a medical assistant to generally rely upon the symptoms volunteered by the patient. He opined that the responsibility for Nancys death "doesnt rest on [Harwoods] shoulders" because Nancys ten minute interaction with Harwood was not substantial.
Doctor Kissel also testified that "there is more than a 51-percent chance" that Nancy would have survived had she received medical treatment on March 19, the day that she telephoned and spoke with Harwood.
The Rupps brought this action for professional negligence and wrongful death against BVMG and others. Stuart testified at trial that no physician, nurse, or other person had warned that Nancy was at risk of developing a pulmonary embolism.
During deliberations, the jury answered two special interrogatories. It found that BVMG employee Harwood was negligent "in her interactions with Nancy," but that her negligence was not a substantial cause of Nancys death. The Rupps then requested the trial court to enter a partial judgment notwithstanding the verdict, or alternatively, to grant a new trial. The trial court denied the partial judgment notwithstanding the verdict, but granted a new trial limited to issues of causation and damages. In ruling, the trial court set forth this brief statement of reasons: "Having found negligence, there is no evidentiary basis for the determination that said negligence was not a substantial factor in causing [Nancys] death."
The Rupps appeal and contend that the trial court erred by denying their motion for partial judgment notwithstanding the verdict. BVMG also appeals and contends that 1) the trial court did not sufficiently specify its reasons for granting a partial new trial, and 2) the trial court abused its discretion by limiting the new trial issues to causation and damages.
DISCUSSION
I.
The Rupps argue that the trial court erred by not ordering a partial judgment notwithstanding the verdict because insufficient evidence supports the verdict regarding causation. They rely upon the opinions of the two expert witnesses that Nancy probably would have survived had she received immediate medical treatment after speaking with Harwood. The Rupps assert that any other inference regarding causation is unreasonable.
Section 629 requires the trial court to "render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made." In deciding a motion for judgment notwithstanding the verdict, the trial court cannot weigh the evidence, judge the credibility of witnesses, or choose among several reasonable inferences. (Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 343.) "The purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jurys deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation." (Howell v. Ducommon Metals & Supply Co. (1950) 101 Cal.App.2d 163, 167.)
Upon review of an order denying a motion for judgment notwithstanding the verdict, the appellate court determines whether any substantial evidence, contradicted or uncontradicted, supports the jurys decision. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1058.) To establish causation in a negligence action, a plaintiff must establish that defendants act or omission was a substantial factor in causing plaintiffs injury. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314.) Plaintiff meets his burden by proving that it is more probable than not that defendants act caused the harm. (Ibid.)
Here the jury found negligence but no causation. Is this possible? Could be. The Rupps argue that the jury was required to base its decision only upon the theories presented by the expert witnesses. At trial, the theory of negligence was the medical assistants failure to ask sufficient probing questions of Nancy to determine her symptoms and illness. The Rupps also argue that the jury finding of negligence necessarily constitutes a finding of causation, thus entitling them to a judgment notwithstanding the verdict. But it is possible for the jury to have found negligence without causation.
For example, Doctor Kissel, the defense expert witness, testified at his deposition that Nancy would have died even if she had obtained medical treatment on the day of her telephone call to Harwood. At trial, Kissel testified that he had changed his mind; he opined that Nancy would not have died had she obtained medical treatment that day. The jury could have disbelieved a portion of Kissels testimony, however, and decided that Nancy would have died the prior day had she engaged in "significant movement" to obtain medical treatment. The autopsy results revealed a significant clot burden and lung tissue necrosis, conditions that likely existed for a week in the opinion of Doctor Cole.
We do not suggest the jury in fact viewed the evidence in this manner. Our example illustrates, however, how it is possible for the jury to have found negligence here without causation. Thus there is sufficient evidence that Harwoods negligence was not a substantial factor causing Nancys death. The trial court did not err by denying the motion for a partial judgment notwithstanding the verdict.
II.
BVMG contends that the trial courts order granting a limited new trial does not satisfy the requirements of section 657 because it is a statement of ultimate fact. (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 888 [specification of reasons for new trial insufficient "if simply couched in the form of conclusions or statement of ultimate fact"]; Oberstein v. Bisset (1976) 55 Cal.App.3d 184, 187 [statement reciting that the court "finds there is no evidence to indicate anything other than a very minor type of strain or injury" inadequate].) It adds that the specification of reasons here does not describe the specific evidence that the trial court found more convincing. (Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 404 ["It is helpful if the court declares what witnesses it believed, what testimony was to be disregarded or the value of any impeachment."].) BVMG asserts that we must reinstate the judgment because the Rupps appealed only the trial courts order denying a judgment notwithstanding the verdict. (Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1366-1367 [reversal of an order granting a new trial leaves the judgment as though no order had been made; the original judgment is restored to full force].)
Section 657 requires the trial court to "specify the ground or grounds upon which [a new trial] is granted and the courts reason or reasons for granting the new trial upon each ground stated." The requirement of a written statement of reasons encourages careful deliberation by the trial court and creates an adequate record for appellate review. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 420; Twedt v. Franklin (2003) 109 Cal.App.4th 413, 419.) If the ground for a new trial concerns insufficiency of the evidence, the trial court must briefly recite the respect in which the evidence is inadequate, and identify the evidence that convinces the court that the jury should have reached a different verdict. (Mercer v. Perez (1968) 68 Cal.2d 104, 116.) The content of a specification of reasons will necessarily vary according to the circumstances of each case. (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 60.)
Under the circumstances, the specification of reasons is sufficient because it satisfies the purposes underlying section 657. (Twedt v. Franklin, supra, 109 Cal.App.4th 413, 419 [purposes of rule mandating specification of reasons include promoting trial courts deliberation upon new trial motion and providing appellate record for review of new trial motion].) The specification states that "there is no evidentiary basis for the determination that [Harwoods] negligence was not a `substantial factor in causing [Nancys] death." The only evidence at trial regarding causation involved the opinions of the two medical expert witnesses. In part, the expert witnesses agreed that Nancy would have survived had she received immediate medical treatment following her telephone call with Harwood. The trial court accepted the agreed-upon expert testimony and concluded that "no" evidence supported the jurys verdict regarding causation. No further explanation of "no" evidence would be helpful or possible. Thus the order provides the ground (insufficiency of the evidence) and the reason (lack of evidence to support a finding of no causation).
Romero v. Riggs (1994) 24 Cal.App.4th 117, is factually similar. There, the jury found that defendant optometrist had been negligent, but that such negligence did not cause plaintiffs vision loss. The trial court granted a new trial because it disagreed with the verdict regarding causation. It issued a brief statement of reasons stating that "overwhelming evidence" established that defendants failure to diagnose and treat plaintiffs glaucoma caused his vision loss. (Id., at p. 121.) The reviewing court concluded that the specification of reasons was adequate because it was "fully adequate both to guide our review and to supply a substantial basis for the order." (Id., at p. 124.)
III.
BVMG argues that the trial court abused its discretion by granting a limited new trial. (Liodas v. Sahadi (1977) 19 Cal.3d 278, 286 [trial court abuses its discretion by granting a limited new trial if prejudice results to either party].) It asserts that the parties disputed the standard of care and liability, the jury split nine to three regarding negligence, and the jury returned a defense verdict concerning causation. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1346 [retrial upon all issues required where liability sharply contested, jury awards inadequate damages, and divided verdict exists].) BVMG adds that the issues of breach of the duty of care, causation, and damages are inextricably related.
Circumstances may exist "where the issues are so interwoven that a partial retrial would be unfair to the other party." (Hamasaki v. Flotho (1952) 39 Cal.2d 602, 608-609.) It is an abuse of discretion to grant a partial new trial "when liability is close, the damages are inadequate, and the jury returns a nine-to-three verdict," indicating that the verdict was probably the result of a compromise of the liability issue. (Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 841.)
Here the trial court did not abuse its discretion by ordering a retrial limited to issues of causation and damages. In passing upon the new trial motion, the trial court considered and weighed the evidence and the possibility of prejudice to BVMG. The expert medical witnesses disagreed at trial whether Harwoods ten-minute telephone call with Nancy constituted a breach of the standard of care. The jury decided the issue in favor of Nancy. There is no injustice to BVMG from a limited issue retrial because the issues of standard of care and causation are not inextricably interwoven here. Failure of the defendant to warn plaintiff is one thing, but the consequences to plaintiff of that failure are another.
The order denying a motion notwithstanding the verdict is affirmed. The order granting a limited retrial is also affirmed. Each side shall bear its own costs.
We concur:
YEGAN, J.
PERREN, J.