Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC036453. Joseph E. Diloreto, Judge.
Law Offices of George T. Kelly, George T. Kelly and Jeany A. Duff for Plaintiff and Appellant.
Bonne, Bridges, Mueller, O’Keefe & Nichols, Margaret M. Holm and Nicole E. Wurscher for Defendant and Respondent.
COOPER, P. J.
Plaintiff Amber Decker appeals from a judgment on special verdict, in favor of defendant Dennis H. Chen (Dr. Chen), in a suit for medical negligence. She contends there was prejudicial error in (1) allowing hypothetical testimony about negligence, including that of other physician defendants who had settled the case; (2) utilizing a special verdict form that inquired into absent defendants’ comparative fault, and (3) the jury’s posing inquiries about the absent defendants, which plaintiff terms misconduct. We find no prejudicial error and affirm the judgment.
FACTS
Given the nature of plaintiff’s contentions, it is unnecessary to summarize the proceedings and evidence at length. Plaintiff brought this action following orthopedic surgery, at the end of which a piece of a wooden tongue depressor, used to extract an anesthesia tube, broke off and lodged in her trachea. Named as defendants were Dr. Chen, the anesthesiologist who had handled the wooden instrument, Dr. Young-Nguyen, the orthopedic surgeon, Dr. Yoshpe, an ear, nose, and throat specialist whom the others had consulted before discharging plaintiff, and Long Beach Memorial Medical Center (hospital), the site of plaintiff’s surgery and treatment.
Before trial, the hospital obtained summary judgment, plaintiff dismissed Dr. Young-Nguyen, and Dr. Yoshpe settled with plaintiff. The trial court ruled that settlement to be in good faith, under Code of Civil Procedure section 877.6. Subsequently, the court ruled that Dr. Chen could not claim or assert comparative fault by Dr. Yoshpe.
The episode of which plaintiff first complains occurred during the testimony of Dr. Sweeny, an anesthesiologist and expert witness for Dr. Chen. Defense counsel posed the following hypothetical question: assuming, as plaintiff had testified, that beginning the day after her surgery she had a series of symptoms including coughing, spitting up blood, and shortness of breath, and that over the next 10 days she reported these symptoms, which became more aggravated, “would the failure of anybody to do something and make this an emergency situation have been negligence?” Plaintiff’s counsel objected, stating, “ . . . Your Honor, there’s no basis for this question and it’s in violation of the court’s in limine rulings.” The court replied, “Well it’s not, really. [¶] All right, you can answer it.” Dr. Sweeny responded that “if those were her complaints, knowing what Dr. Chen told her on discharge, yes, they acted way below the standard of care . . ., if those were her complaints when she came back in knowing she was at some risk for this, then, yes, I would say that’s true.” In answer to a follow-up question. Dr. Sweeny stated that to his knowledge there had been no contact with Dr. Yoshpe after plaintiff’s discharge.
Plaintiff’s second complaint is that the special verdict form submitted to the jury included questions about the fault of other, absent defendants. The verdict first asked whether Dr. Chen was negligent. (Ultimately the jury answered that question negatively, and no further answers were required.) After further questions about causation and damages, the verdict also inquired, “Were any other healthcare providers negligent?” If so, and if that negligence was a substantial factor in harm to plaintiff, the final question was, “What percentage of responsibility for [plaintiff’s] harm do you assign to the following?” There followed a table containing Dr. Chen’s name, with other names to be filled in.
Plaintiff’s final contention, of jury misconduct, refers to the fact that just before delivering their verdict, the jury posed the following questions to the court simultaneously: “(1) If we fill out question #4 with other parties will the other parties be taken to court and/or pay damages? (2) Can we see the decisions of why LB Memorial, Dr. Yoshpe and Dr. Young-Nguyen are not culpible? (3) May we have Dr. Yosphe’s deposition?” (Sic.) Before the court could respond to the inquiries, the jury returned a verdict for Dr. Chen, by a vote of 10-2.
DISCUSSION
Plaintiff first contends that the allowance of Dr. Sweeny’s hypothetical opinion about negligence in plaintiff’s post-discharge treatment erroneously violated the court’s ruling precluding evidence or claim of comparative negligence by Dr. Yoshpe. The trial court, who was in the best position to construe and apply its order, disagreed, and that ruling was not an abuse of discretion. Dr. Chen’s question was directed to the conduct of “anybody,” not Dr. Yoshpe, and Dr. Sweeny’s subsequent answer strongly implied, if not affirmed, that he had not been referring to Dr. Yoshpe in his original answer. Finally, plaintiff has not documented her claim of prejudice from the testimony.
In her reply brief, plaintiff argues that the testimony was inadmissible because it exceeded the scope of Dr. Sweeny’s expertise. This objection is doubly untimely, both in its manner of presentation here and, more basically, in that it was not made at trial when the question was posed.
Plaintiff next claims error in the verdict form’s inclusion of questions concerning comparative fault of medical providers. From the standpoint of prejudice, the jury was never called upon to consider these questions, in light of their exoneration of Dr. Chen. But there also was no error in including the questions. Their relevance stemmed from Proposition 51, Civil Code section 1431 et seq., which abolished joint and several liability for noneconomic damages (id., § 1431.2, subd. (a)). Plaintiff’s reliance on Klemme v. Hoag Memorial Hospital Presbyterian (1980) 103 Cal.App.3d 640, which disapproved as irrelevant a verdict form assessing comparative fault of defendants, is mistaken. Klemme was decided six years before the enactment of Proposition 51, and on grounds that “concurrent tortfeasors remain jointly and severally liable for payment of the entire judgment.” (Id. at p. 644.)
Plaintiff’s third claim of error, also concerning the fault of former codefendants, is that the jury committed misconduct by inquiring about whether those parties could suffer liability, and the basis for their discharge. Plaintiff asserts that these questions evinced noncompliance with the court’s instruction not to speculate why Doctors Young-Nguyen and Yoshpe, and the hospital, were no longer involved in the case. But while the jury’s second question involved that subject matter, the question was never answered, and its posing indicated that the jurors had not impermissibly speculated about the subject. Hence, there was no showing of misconduct.
Plaintiff also cites her counsel’s declaration, on motion for new trial, that two jurors had told him they had voted for Dr. Chen out of concern about the liability of the other physicians. This testimony, however, not only was hearsay but also was barred by Evidence Code section 1150, subdivision (a), which prohibits evidence “concerning the mental processes by which [the verdict] was determined.”
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.