Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 26-46305
MARGULIES, J.
Plaintiff Lorenzo Cunningham, a state prison inmate, sued defendant Jason T. Huffman, a surgeon, for medical malpractice. The trial court ultimately granted summary judgment after plaintiff failed to provide expert testimony refuting defendant’s expert’s conclusion that defendant’s treatment of plaintiff was within the professional standard of care. Plaintiff contends the trial court erred in failing to appoint counsel and an expert for him, the trial judge should have recused herself because a lawyer in the law firm representing defendant had represented the judge’s mother, and the court should have denied summary judgment through application of the doctrine of res ipsa loquitur. We affirm.
I. BACKGROUND
Plaintiff is an inmate in state prison who has suffered for nearly 20 years from back pain. In 2001, he had surgery to remove discs and fuse vertebrae in his spine, and a device was inserted in his back to stimulate bone growth. Despite the surgery, plaintiff continued to suffer pain, which increased over time.
In 2007, plaintiff consulted defendant. After viewing a CT scan, defendant recommended exploratory surgery to remove the hardware, determine the efficacy of the prior surgery, and if necessary, utilize a treatment to stimulate any incomplete fusion. When defendant performed the surgery in October 2007, he found that a fracture in plaintiff’s spine had not healed properly, and he inserted hardware to stabilize the fracture, without removing the hardware inserted in 2001.
Although defendant recovered well from the surgery, over the course of the following year he developed increasing pain, particularly in the area of the hardware. Defendant recommended another CT scan, which was performed in November 2008. When plaintiff returned to defendant’s office for a follow-up consultation in February 2009, plaintiff terminated his relationship with defendant. He sued defendant for medical malpractice in February 2009.
In July 2009, defendant filed a case management statement in which he revealed that one of the lawyers in the law firm representing him had undertaken to represent “a relative” of the trial judge “in a deposition coverage case [sic].” No further information pertaining to this matter is contained in the appellate record. Plaintiff concedes he did not ask the trial judge to recuse herself or otherwise challenge her continued involvement in his case, explaining he was concerned such a request would prejudice the judge against him.
Defendant’s counsel states in the respondent’s brief that a member of the law firm representing defendant was retained to represent the trial judge’s mother at a deposition given under subpoena. The attorney had no involvement in representing defendant in this lawsuit. At a case management conference, the trial judge acknowledged the representation but concluded it did not create a disqualifying conflict of interest. Because this information is not contained in the appellate record, we do not consider it.
Defendant moved for summary judgment on plaintiff’s claims in April 2010, arguing his treatment complied with the standard of care. In support, he submitted a declaration from a board-certified orthopedic surgeon, who reviewed the various treatment decisions facing defendant and concluded defendant’s choices were competent. The surgeon concluded, “Plaintiff had two major surgeries before [defendant] treated him, and with each successive surgery, the chance of having any significant improvement significantly decreases.... Therefore, the fact that Plaintiff continues to suffer from back pain is not indicative of any negligence on the part of [defendant].”
Plaintiff, appearing pro se, filed a cross-motion for appointment of counsel and an expert to assist in his defense, arguing the issues were too complex for him to handle without help. In addition, plaintiff argued in opposition to the motion for summary judgment that he should be allowed to assert the doctrine of res ipsa loquitur to compensate for his failure to present an expert declaration in response to defendant’s motion.
Plaintiff also apparently filed his own motion for summary judgment. The documents associated with the motion are not contained in the appellate record, but there is an order of the trial court denying it.
The trial court denied plaintiff’s motion for appointment of counsel, explaining “there is no right to appointed counsel in civil actions, ” and granted defendant’s motion for summary judgment on the ground plaintiff failed to present an expert declaration to controvert the opinions of defendant’s expert.
II. DISCUSSION
Plaintiff contends the trial court (1) erred in failing to appoint counsel and an expert for him, (2) was required to recuse itself, and (3) should have denied summary judgment on the theory of res ipsa loquitur.
A. Failure to Appoint Counsel and an Expert Witness
In Payne v. Superior Court (1976) 17 Cal.3d 908 (Payne), our Supreme Court held that a state prisoner who is joined as a defendant in civil litigation that threatens his or her “protection of property” is entitled to meaningful access to the courts to defend that interest. (Id. at p. 916.) In Payne and the subsequent decision Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 203–205 (Yarbrough), the court suggested that an incarcerated civil defendant is entitled to the appointment of counsel if there is no other means to secure the prisoner’s access to the courts.
Although Payne and Yarbrough were unambiguously limited to incarcerated civil defendants (see Yarbrough, supra, 39 Cal.3d at p. 205), subsequent Court of Appeal decisions, beginning with Wantuch v. Davis (1995) 32 Cal.App.4th 786 (Wantuch), have extended the right of meaningful court access to incarcerated plaintiffs as well, reasoning that because inmates have a statutory right to file civil lawsuits, it follows they must have the right to meaningful court access to pursue those claims. (Id. at p. 792.) Wantuch held that civil trial courts must make accommodations for the restricted freedoms of inmates to ensure that, despite these restrictions, they are not deprived of the opportunity to prosecute a civil lawsuit. The court listed a variety of courtroom procedures that could be adopted to ensure incarcerated plaintiffs are not deprived of the opportunity to participate in litigation, including the appointment of counsel as a last resort, and noted that the choice of an appropriate remedy depends on the particular circumstances, including “the prisoner’s literacy, intelligence and competence to represent himself or herself.” (Id. at p. 793.) Ultimately, the court held, the choice of remedy lies in the discretion of the trial court. “A prisoner does not have the right to any particular remedy. A prisoner may not, for example, compel a trial court to appoint counsel. [Citations.] The right of an indigent prisoner to appointed counsel in a civil action arises only when there is a bona fide threat to his or her personal or property interests and no other feasible alternative exists. [Citations.] Nor may a prisoner ordinarily compel his or her appearance in court.” (Id. at pp. 793–794, fn. omitted.)
Applying these principles, Wantuch and subsequent cases reversed dismissals of inmate lawsuits on procedural grounds that resulted from the trial courts’ failure to accommodate the restrictions imposed upon the inmates by virtue of their incarceration. (See Jameson v. Desta (2009) 179 Cal.App.4th 672, 675 (Jameson) [reversing dismissal for inmate’s nonwillful failure to appear for telephone conference]; Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1485 (Apollo) [reversing summary judgment granted when plaintiff inmate was late for telephone conference]; Wantuch, supra, 32 Cal.App.4th at p. 794 [reversing dismissal of inmate’s action for failure to appear for status conference].)
There is no indication plaintiff was denied meaningful access to the court in connection with this lawsuit. On the contrary, the record contains abundant evidence of plaintiff’s energetic pursuit of his claims, including several rounds of written discovery, telephonic court hearings in which plaintiff was a full participant, and plaintiff’s own motion for summary judgment. In contrast to the plaintiffs in Jameson, Apollo, and Wantuch, plaintiff appears to have been afforded appropriate accommodations that made it possible for him to litigate his claims. It is no accident plaintiff did not seek the appointment of counsel until defendant’s filing of the summary judgment motion. Up until that point, he was doing fine on his own.
Nor, again in contrast to the cited cases, was the grant of summary judgment against plaintiff premised on procedural grounds that resulted from restrictions related to his incarceration. Summary judgment was granted because plaintiff failed to refute defendant’s evidentiary showing that his claims were without foundation. That is, of course, a common substantive basis for granting summary judgment, having no relation to plaintiff’s status as an inmate.
Wantuch and its progeny are intended to ensure that incarcerated plaintiffs are placed on the same, or at least, a similar footing as any other civil plaintiff by providing them the same opportunity to participate in the procedures of litigation. By requesting the appointment of an attorney and an expert in the hope of avoiding summary judgment, plaintiff was seeking more than this type of opportunity to participate. Plaintiff was seeking the court’s assistance in the prosecution of his case by purchasing for him the services of an attorney and expert witness-expenses that, in our civil legal system, are ordinarily the responsibility of the litigant. The trial court had no obligation to provide such assistance, just as it has no obligation to purchase counsel and expert witness services for non-incarcerated pro se civil plaintiffs. Plaintiff’s status as an inmate does not give him the right to court assistance beyond the rights of other non-incarcerated litigants, but only an equal opportunity to participate in court proceedings. Accordingly, the trial court did not abuse its discretion in denying his request for appointment of counsel and an expert medical witness.
Plaintiffs in medical malpractice lawsuits ordinarily retain counsel who accept the representation on the basis of a contingent fee, and there are many lawyers who make their living in this manner. There is no evidence plaintiff ever attempted to obtain the services of a personal injury lawyer.
B. Recusal of the Trial Judge
Plaintiff contends the trial judge should have recused herself when it was revealed a member of the law firm representing defendant had represented the judge’s mother at a deposition.
Under Code of Civil Procedure section 170.1, a trial judge can be disqualified for a number of specific reasons, primarily involving a personal or family connection to the matter, the parties, or potential witnesses. Although none of these specific categories are applicable in this case, there is an additional, more general provision. Under subdivision (a)(6)(A)(iii) of section 170.1, a trial judge shall be disqualified if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” This standard for disqualification is an objective one. “ ‘If a reasonable member of the public at large, aware of all the facts, would fairly entertain doubts concerning the judge’s impartiality, disqualification is mandated. The existence of actual bias is not required.’ [Citations.] ‘The challenge must be to the effect that the judge would not be able to be impartial toward a particular party.’ ” (People v. Panah (2005) 35 Cal.4th 395, 446.)
Plaintiff’s disqualification claim was waived when he failed to raise it in the trial court. Code of Civil Procedure section 170.3, subdivision (c) contains a detailed procedure for seeking the disqualification for cause of a trial judge, including the filing of a statement of disqualification “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” (Id., subd. (c)(1).) The failure to follow the requirements of section 170.3, including the failure to seek disqualification in a timely manner in the trial court, results in the waiver of a disqualification claim. (People v. Williams (1997) 16 Cal.4th 635, 652; Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337–1338.) Because plaintiff concededly failed to seek the trial judge’s disqualification in the trial court, he has waived his claim.
Plaintiff explains he did not pursue disqualification because he did not want to offend the trial judge. Allowing such a concern for the judge’s sensitivities to excuse a failure to pursue a mandatory remedy would render the remedy pointless. In any event, there is no reason to believe the trial judge would have been offended by the assertion of a for-cause disqualification claim, which does not require an accusation of actual bias.
Defendant relies heavily on People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, but it is neither relevant nor persuasive. Gulbrandsen involved a request to disqualify a sentencing judge upon resentencing following appeal, a circumstance not governed by Code of Civil Procedure section 170.1. (Gulbrandsen, at p. 1562.) In any event, the court in Gulbrandsen refused to order disqualification on the circumstances presented. (Id. at p. 1563.)
C. The Doctrine of Res Ipsa Loquitur
Plaintiff argues he should have been permitted to invoke the doctrine of res ipsa loquitur to prove defendant’s failure to meet the standard of professional care because his back pain worsened after defendant’s treatments.
“In California, the doctrine of res ipsa loquitur is defined by statute as ‘a presumption affecting the burden of producing evidence.’ [Citation.] The presumption arises when the evidence satisfies three conditions: ‘ “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s 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.” ’ [Citation.] 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. [Citations.]... If the defendant introduces ‘evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, ’ the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence.” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825–826.)
Because of the technical nature of professional negligence cases, the res ipsa loquitur doctrine sees only limited application. “ ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.” [Citations.]’ [Citations.] The ‘common knowledge’ exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson ‘is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.’ [Citation.] The classic example, of course, is the X-ray revealing a scalpel left in the patient’s body following surgery. [Citation.] Otherwise, ‘ “expert evidence is conclusive and cannot be disregarded. [Citation.]” ’ ” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. omitted (Flowers).)
Plaintiff’s argument fails for two reasons. First, the expectations for spinal surgery are not a matter within the common knowledge and observation of a layperson. Res ipsa loquitur is normally not applied in medical malpractice cases unless the observed result cannot be explained otherwise than as the result of carelessness-for example, as noted in Flowers, a surgeon leaving a surgical tool inside a patient. (See similarly Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1392 [res ipsa appropriate when a surgical sponge was left inside patient].) In cases, such as this one, that concern the appropriateness of a particular course of treatment, res ipsa loquitur is normally found to be inapplicable, even though to a layman the medical outcome appears wholly unexpected or preventable. (E.g., Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 802 [res ipsa inappropriate when patient suffered partial blindness as a result of spinal surgery]; Elcome v. Chin (2003) 110 Cal.App.4th 310, 318 [res ipsa inappropriate when patient suffered upper body pain after lower extremity surgery]; Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 944 [res ipsa inappropriate when patient inhaled a dental crown during oral surgery].) Medical procedures are subject to too many risks, complications, and uncertainties to permit professionals to be presumed negligent merely because the outcome of a treatment is not the one desired or intended.
This situation is no exception. If there is a “common knowledge” regarding medical interventions to alleviate back pain, it is that the interventions often leave patients no better or even worse off. Given the uncertain prospect of success of such treatments, there is no reason to presume a doctor has been negligent merely because his attempt to cure back pain has failed-or, as appears in this case, was only a temporary success. The matter is simply too complicated for a trier of fact to conclude professional negligence has occurred without expert testimony to that effect.
Second, plaintiff would not have been able to defeat summary judgment even if the doctrine had been invoked. As noted above, application of res ipsa loquitur merely establishes an evidentiary presumption with respect to the matter at issue-in this case, defendant’s failure to comply with the professional standard of care. If a defendant introduces evidence to controvert the issue, “the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence.” (Brown v. Poway Unified School Dist., supra, 4 Cal.4th at p. 826.) Defendant produced expert testimony concluding that his conduct had complied with the standard of care. In so doing, he overcame any presumption that would have been established by the doctrine of res ipsa loquitur and shifted the burden to plaintiff to come forward with expert testimony suggesting professional negligence. Because plaintiff failed to do so, application of the doctrine of res ipsa loquitur would not have prevented summary judgment.
Because we affirm the court’s grant of summary judgment, we need not consider plaintiff’s request that the case be transferred to another county upon remand.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: MARCHIANO, P.J., BANKE, J.