Opinion
B317654
05-08-2024
JENNIFER L. SHANNON-YEGANHE, Plaintiff and Appellant, v. CEDARS-SINAI MEDICAL CENTER, Defendant and Respondent.
Jennifer Shannon-Yeganhe, in pro. per., for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Gregory G. Lynch, Caroline E. Chan and Kristi K. Hedrick for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment and an order of the Superior Court of Los Angeles County, No. BC518996 Theresa M. Traber, Judge. Affirmed.
Jennifer Shannon-Yeganhe, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Gregory G. Lynch, Caroline E. Chan and Kristi K. Hedrick for Defendant and Respondent.
SEGAL, ACTING P. J.
INTRODUCTION
In this medical malpractice action, Jennifer L. Shannon-Yeganhe appeals from the judgment entered after the trial court granted a motion by Cedars-Sinai Medical Center for nonsuit on the ground Shannon-Yeganhe did not prove Cedars-Sinai caused Shannon-Yeganhe's damages. Shannon-Yeganhe also appeals from the trial court's order denying her motion to reopen her case to call a treating neurologist, whom she had not designated as an expert witness, to testify on causation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Trial Court Grants Cedars-Sinai's Motion for Summary Judgment, and We Reverse
Shannon-Yeganhe filed this action for medical malpractice against Cedars-Sinai and two doctors. Shannon-Yeganhe alleged the defendants did not provide her proper medical care when, while undergoing surgery at Cedars-Sinai, she "went into anaphylactic shock from a reaction to [A]ncef [an antibiotic] that resulted in anoxic brain injury secondary to intraoperative hypotension."
"[A]noxic refers to the lack of oxygen." (In re RJF Internat. Corp. for Exoneration from or Limitation of Liability (1st Cir. 2004) 354 F.3d 104, 105.) "'[H]ypotension' is '[s]ubnormal arterial blood pressure.'" (Reaves v. Department of Correction (D.Mass. 2016) 195 F.Supp.3d 383, 401, fn. 15.).
The trial court granted motions by the doctors and Cedars-Sinai for summary judgment, and Shannon-Yeganhe appealed. (Shannon-Yeganhe v. Cedars-Sinai Medical Center (Apr. 12, 2018, B266199) [nonpub. opn.].) We affirmed the judgments in favor of the doctors, but reversed the judgment in favor of Cedars-Sinai. We concluded there were triable issues of material fact whether Cedars-Sinai breached the standard of care, whether Cedars-Sinai caused Shannon-Yeganhe's injury, and whether the statute of limitations barred her action. (Ibid.)
B. Shannon-Yeganhe Presents Her Case to a Jury
The trial court bifurcated the trial. After a court trial the court ruled against Cedars-Sinai on its statute of limitations defense. A jury trial began on the remaining issues. Dr. Richard Kroop, Dr. Alan Waxman, and Christina Thielst testified as expert witnesses for Shannon-Yeganhe.
Dr. Kroop was Shannon-Yeganhe's internal medicine doctor. He testified that, according to the anesthesia flow sheet from Shannon-Yeganhe's surgery, her blood pressure dropped from 100/60 to 60/30 and did not return to its presurgical level for one hour, which he described as a "significant decrease in blood flow to the brain." (On cross-examination, Dr. Kroop agreed Shannon-Yeganhe was "technically hypotensive" for less than 15 minutes.) He stated "there had been a significant time period when [Shannon-Yeganhe's] brain had not received [the] right amount of blood flow or oxygenation." Before the surgery Shannon-Yeganhe did not complain about any cognitive problems, but after the surgery she had problems with memory and focus. Dr. Kroop referred Shannon-Yeganhe to a neurologist, who ordered a SPECT scan. After he read the neurologist's report, Dr. Kroop concluded Shannon-Yeganhe "had suffered anoxic brain injury."
"[A] single photon emission computed tomography (SPECT) scan [is] a nuclear imaging test that employs glucose injected with radioactive material to measure brain activity." (People v. Banks (2014) 59 Cal.4th 1113, 1136, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) "A SPECT scan is a type of nuclear imaging test, using a radioactive substance and a special camera to create 3-D pictures. While imaging tests like X-rays can show what the structures inside the body look like, a SPECT scan produces images that show how the organs work." (Brooks v. Commissioner of Social Sec. (M.D. Fla., Sept. 2, 2014, No. 2:13-cv-179-FtM-29CM) 2014 WL 4346903, at p. 8, fn. 17.).
When counsel for Shannon-Yeganhe asked Dr. Kroop whether he formed "any opinion about what should have been done by hospital staff" after Shannon-Yeganhe's blood pressure returned to its presurgical level, counsel for Cedars-Sinai objected, and the court called the attorneys to a sidebar conference. Counsel for Cedars-Sinai stated counsel for Shannon-Yeganhe intended to "elicit an opinion that the operation should not have gone forward." Counsel for Shannon-Yeganhe made an offer of proof Dr. Kroop would testify that "they should have woken up the patient, assessed her mental state, and/or they should have stopped the operation" and that "anybody in the operating room could have stopped the operation." The trial court sustained the objection and ruled that, because Dr. Kroop did not perform surgeries and rarely observed them, he could not give an opinion on the "standard of care in a hospital surgical room." Shannon-Yeganhe does not challenge this ruling.
Dr. Alan Waxman, a nuclear medicine physician, testified he read Shannon-Yeganhe's SPECT scan when it was done in October 2013. Dr. Waxman stated the scan showed a "marked decrease in activities throughout the frontal lobes" and "moderate decreases in the watershed regions" of the brain. He testified the findings were consistent with lupus and Lyme disease. Dr. Waxman stated that he could not say whether the scan was consistent with hypoxic brain damage and that a SPECT scan was not an appropriate tool for determining whether a patient had experienced a hypoxic brain injury.
The trial court granted Cedars-Sinai's motion in limine to preclude Dr. Waxman from testifying on the standard of care and causation because Shannon-Yeganhe did not designate him as a retained or nonretained expert witness. The court ruled Dr. Waxman could only testify about SPECT scans and his report on Shannon-Yeganhe's scan. Shannon-Yeganhe does not challenge this ruling.
Christina Thielst, an expert in hospital administration, testified Cedars-Sinai's policies and procedures were inadequate because they did not address allergic reactions to a medication before or during a surgical procedure. She testified that, after Shannon-Yeganhe had the allergic reaction, the surgical team should have held a "mini-timeout" to discuss concerns about continuing the surgery. On cross-examination Thielst admitted that she had no clinical background, that there was no evidence the nursing personnel in the operating room knew Shannon-Yeganhe's blood pressure dropped, and that she could not state to a reasonable degree of medical probability the surgeon and the anesthesiologist would have done anything differently had the nursing personnel recommended not proceeding with the surgery. Finally, Thielst testified she could not state the nursing personnel caused any harm to Shannon-Yeganhe.
C. The Trial Court Grants Cedars-Sinai's Motion for Nonsuit and Denies Shannon-Yeganhe's Motion To Reopen
At the end of Shannon-Yeganhe's case, Cedars-Sinai moved for a nonsuit on the ground Shannon-Yeganhe had not presented any evidence Cedars-Sinai personnel caused Shannon-Yeganhe any injury. Counsel for Cedars-Sinai argued that, although Thielst testified that Cedars-Sinai's policies and procedures were deficient and that nursing staff should have asked for a "timeout" to decide whether to continue with the surgery, there was no expert testimony that proceeding with the surgery (as opposed to the presurgery drop in blood pressure) caused Shannon-Yeganhe any brain injury. Counsel for Shannon-Yeganhe argued it was "implicit" in Dr. Kroop's testimony that "the brain damage just continued" when the surgical team proceeded with the surgery. The court granted the motion, ruling that, "while there is evidence of a breach of a standard of care and there is evidence sufficient to go to the jury on damage, there's an absence of any evidence on causation."
Counsel for Shannon-Yeganhe made a motion to reopen her case to call Dr. Elizabeth Yoo, a neurologist, to testify on causation. Cedars-Sinai objected that Shannon-Yeganhe had not designated Dr. Yoo as an expert witness and that a neurologist was not qualified to testify on operating room procedures. The court denied the motion to reopen her case on the ground Shannon-Yeganhe had not designated Dr. Yoo as an expert witness. Shannon-Yeganhe timely appealed from the ensuing judgment and the order denying the motion to reopen.
DISCUSSION
A. Shannon-Yeganhe Forfeited Her Arguments by Failing To Cite to Any Evidence or Authority
Cedars-Sinai argues Shannon-Yeganhe forfeited her arguments because she did not cite to the record or to legal authorities in her opening brief. Cedars-Sinai is correct.
"[A]n appellant must do more than assert error and leave it to the appellate court to search the record and the law books to test his claim. The appellant must present an adequate argument including citations to supporting authorities and to relevant portions of the record." (L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 619-620; see Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 589 ["An appellant who fails to cite accurately to the record forfeits the issue or argument on appeal that is presented without the record reference."]; Cal. Rules of Court, rule 8.204(a)(1)(B) &(C) [an appellate brief must "support each point by argument and, if possible, by citation of authority" and "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) Although whenever possible we will not strictly apply technical rules of appellate procedure in a manner that deprives a self-represented litigant of a hearing, we nevertheless must apply the procedural and substantive principles and rules of appellate review to a selfrepresented litigant's arguments on appeal, just as we would to arguments by litigants represented by attorneys. (See In re Marriage of Furie (2017) 16 Cal.App.5th 816, 824; Hopkins &Carley v. Gens (2011) 200 Cal.App.4th 1401, 1413-1414.)
Shannon-Yeganhe's opening brief contains no citations to the record or to legal authority, makes arguments Shannon-Yeganhe did not present at trial, and refers to facts outside the appellate record. In addition, Shannon-Yeganhe does not address the reasons the trial court granted Cedars-Sinai's motion for nonsuit and denied her motion to reopen her case. Therefore, she has forfeited her arguments the trial court erred in making either of these rulings.
B. The Trial Court Properly Granted Cedars-Sinai's Motion for Nonsuit
Her arguments also fail on the merits. "A trial court may grant a motion for nonsuit if the plaintiff's evidence would not support a jury verdict in the plaintiff's favor." (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1013; see IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 650.) "'In determining whether plaintiffs evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.'" (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214.) We review an order granting a motion for nonsuit de novo, using the same standard as the trial court. (Crouch, at p. 1013; see Castaneda, at p. 1214 ["On review of a judgment of nonsuit, as here, we must view the facts in the light most favorable to the plaintiff."].)
"'"[I]n any medical malpractice action, the plaintiff must establish: '(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'"'" (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310; see Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2.) "Opinion testimony from a properly qualified witness is generally necessary to demonstrate the elements for medical malpractice claims." (Borrayo, at p. 310; accord, Avivi, at p. 467.)
A plaintiff must prove causation "'within a reasonable medical probability based upon competent expert testimony.'" (Kline v. Zimmer, Inc. (2022) 79 Cal.App.5th 123, 129; see Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) "'A possible cause only becomes "probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.'" (Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 577; see Jones, at p. 403.)
The trial court did not err in granting Cedars-Sinai's motion for nonsuit because none of Shannon-Yeganhe's expert witnesses testified anything Cedars-Sinai did or failed to do caused her injury. Thielst testified Cedars-Sinai breached its duty of care by having inadequate protocols for treating a patient who has an allergic reaction to medication before surgery. She also testified Cedars-Sinai nursing personnel breached their duty of care by not suggesting to the surgeon and anesthesiologist that they stop the surgery. But Thielst admitted she could not testify about causation. She testified she could not state to a reasonable degree of medical probability that, if the nursing personnel suggested to the doctors that they reconsider proceeding with the surgery, the doctors would have agreed. Thielst further testified she could not state to a reasonable degree of medical probability "that the nursing personnel did anything or failed to do anything that caused Ms. Yeganhe any injury, any damage, any loss, or any harm."
Dr. Kroop and Dr. Waxman testified on damages. Dr. Kroop opined that, based on the neurologist's report and Shannon-Yeganhe's complaints after the surgery, Shannon-Yeganhe suffered anoxic brain injury when her blood pressure dropped before surgery. But Dr. Kroop did not testify that proceeding with surgery after Shannon-Yeganhe's blood pressure returned to normal caused any brain injury. Dr. Waxman testified Shannon-Yeganhe's postsurgery SPECT scan was abnormal, but he did not testify the scan showed hypoxic brain damage, let alone what caused it.
Counsel for Shannon-Yeganhe did not even ask Dr. Kroop that question. During the hearing on the nonsuit motion, counsel for Shannon-Yeganhe claimed the trial court precluded him from asking Dr. Kroop his opinion on causation. But after reviewing the transcript, the court stated it had sustained an objection to a question seeking Dr. Kroop's opinion on the issue of the standard of care in the operating room, not causation.
C. The Trial Court Did Not Abuse Its Discretion in Denying Shannon-Yeganhe's Motion To Reopen
After the court granted Cedars-Sinai's motion for nonsuit, counsel for Shannon-Yeganhe made an oral motion to reopen her case to call Dr. Elizabeth Yoo, a treating neurologist, to testify on causation. The court denied the motion. The court stated: "The issue here is primarily that Dr. Yoo is not designated as a retained expert. She was not designated as a nonretained expert. And her appearance on the witness list is insufficient to give notice to the defendants about the need to depose her and prepare for trial, particularly for what is . . . one of the most central elements of the plaintiff's case." The court did not abuse its discretion in denying the motion to reopen.
"In response to a motion for nonsuit, a plaintiff has the right, upon request, to reopen its case to remedy defects raised by the nonsuit motion." (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 886.) A trial court has broad discretion in ruling on a motion to reopen. (Horning v. Shilberg (2005) 130 Cal.App.4th 197, 208.) "A trial court does not abuse its discretion when its refuses to reopen a case for new evidence that will not produce a different result. [Citations.] A motion to reopen is also subject to a diligence requirement." (Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1222.) We review an order denying a motion to reopen for abuse of discretion. (Horning, at p. 208.)
"A party must identify its expert witnesses before trial in response to a demand for exchange of expert witness information under [Code of Civil Procedure] section 2034.210. This requirement applies to both retained and nonretained experts." (Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 139; see Code Civ. Proc., §§ 2034.210, subd. (a), 2034.260, subd. (b)(1).) A treating physician who is not retained as an expert "may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience. This may well include opinions regarding causation and standard of care because such issues are inherent in a physician's work." (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 39; see Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 245 [a treating physician "'may provide both fact and opinion testimony'"].)
A "party who intends to call a treating physician as an expert must identify that physician in her designation of experts" (Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1423; accord, In re Marriage of Zucker (2022) 75 Cal.App.5th 1025, 1029), and must do so by name (Kalaba, at p. 1423; see Code Civ. Proc., § 2034.260, subd. (b)(1)). Simply designating "'all past or present examining and/or treating physicians'" does not comply with Code of Civil Procedure section 2034.260. (Kalaba, at p. 1423.) The "trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to . . . [¶] . . . [¶] [l]ist that witness as an expert under Section 2034.260." (Code Civ. Proc., § 2034.300, subd. (a).)
In response to Cedars-Sinai's demand for exchange of expert witness information, Shannon-Yeganhe identified two retained experts and two nonretained experts. As counsel for Shannon-Yeganhe conceded at the hearing, Shannon-Yeganhe did not identify Dr. Yoo as either a retained or nonretained expert. Shannon-Yeganhe's general reference to "all other health care providers that examined, evaluated, and/or treated" her was insufficient to designate Dr. Yoo as a nonretained expert. (See Kalaba v. Gray, supra, 95 Cal.App.4th at p. 1423.)
Shannon-Yeganhe did not state in the trial court, and does not state on appeal, any reason she did not identify Dr. Yoo as an expert witness before trial. The trial court acted within its discretion in denying Shannon-Yeganhe's motion to reopen her case to call Dr. Yoo as an expert. (See Kalaba v. Gray, supra, 95 Cal.App.4th at p. 1423 ["the trial court acts within its discretion when it excludes expert testimony by . . . non- designated doctors"]; Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 428 ["denial of a motion to reopen will be upheld if the moving party fails to show diligence"].)
DISPOSITION
The judgment is affirmed. The order denying Shannon-Yeganhe's motion to reopen is affirmed. The parties are to bear their costs on appeal.
We concur: MARTINEZ, J. RAPHAEL, J. [*]
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.