Opinion
B284258
05-17-2021
BRUCE GILBERT et al., Plaintiffs and Appellants, v. JASON SNIBBE, M.D. and DAREN FILSINGER, M.D., Defendants and Respondents.
Law Offices of Harold J. Light, Harold J. Light for Plaintiffs and Appellants Bruce Gilbert and Scott Gilbert Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, and Zena Jacobsen for Defendants and Respondents Jason Snibbe, M.D. and Daren Filsinger, M.D. Packer, O'Leary & Corson, Robert B. Packer for Defendant and Respondent Jason Snibbe, M.D. Carroll Kelly Trotter Franzen Mcbride & Peabody, Richard F. Carroll, and Jennifer A. Cooney for Defendant and Respondent Daren Filsinger, M.D.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. No. BC481372) APPEAL from judgment of the Superior Court of Los Angeles County, Ernest Hiroshige, Judge. Affirmed. Law Offices of Harold J. Light, Harold J. Light for Plaintiffs and Appellants Bruce Gilbert and Scott Gilbert Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, and Zena Jacobsen for Defendants and Respondents Jason Snibbe, M.D. and Daren Filsinger, M.D. Packer, O'Leary & Corson, Robert B. Packer for Defendant and Respondent Jason Snibbe, M.D. Carroll Kelly Trotter Franzen Mcbride & Peabody, Richard F. Carroll, and Jennifer A. Cooney for Defendant and Respondent Daren Filsinger, M.D.
INTRODUCTION
Mildred Gilbert died after undergoing a hip replacement surgery at Cedars Sinai Medical Center (Cedars). Her sons, plaintiffs and appellants Bruce Gilbert and Scott Gilbert (collectively, plaintiffs) brought this malpractice and wrongful death action against defendants and respondents Jason Snibbe, M.D. and Daren Filsinger, M.D. (collectively, defendants). Plaintiffs also sued Cedars, but dismissed it with prejudice before trial.
The jury returned a verdict in favor of defendants. Plaintiffs appeal from the final judgment, contending the trial court erred by: (1) denying their motion in limine to preclude defendants from proffering evidence that any person or entity other than defendants caused Mrs. Gilbert's death; (2) denying their motion in limine to preclude the jury from allocating fault to Cedars or its nursing staff; (3) admitting certain testimony by one of plaintiffs' own expert witnesses; and (4) refusing to give two of plaintiffs' proposed jury instructions. Plaintiffs also contend defendants' counsel committed ethical violations by acquiring work product communications, and defendants' counsel must be disqualified if the case is retried. We disagree with plaintiffs' contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 16, 2010, Mildred Gilbert, an 82-year-old woman, was admitted to the cardiac intensive care unit at Cedars after complaining of pain "emanating from . . . her legs." A few days later, Mrs. Gilbert met with Dr. Snibbe, an orthopedic surgeon, who informed Mrs. Gilbert she was "eligible" to have a hip replacement surgery. On January 4, 2011, Dr. Snibbe performed the hip replacement surgery on Mrs. Gilbert. Dr. Filsinger was the anesthesiologist during the surgery.
As part of the hip replacement, Dr. Snibbe had to "dislocate the ball of the femur from the hip socket[.]" During this part of the operation, Mrs. Gilbert suffered a left femur fracture, which prolonged the surgery from the average 60 to 90 minutes to over four hours. Because of the fracture and the anticipated prolonged surgery, Dr. Filsinger converted from spinal anesthesia to general anesthesia.
After the surgery, Dr. Filsinger transferred Mrs. Gilbert to the Post-Anesthesia Care Unit (PACU). He noted in his postanesthesia assessment notes that Mrs. Gilbert was "awake and stable upon transfer of care to" the PACU nurse. Before transferring Mrs. Gilbert to the PACU, Dr. Snibbe and Dr. Filsinger discussed whether, after her stay in the PACU, Mrs. Gilbert should be transferred to the orthopedic floor for further recovery or to the intensive care unit (ICU). Dr. Filsinger told Dr. Snibbe that as long as Mrs. Gilbert's recovery in the PACU was uneventful, she could be transferred to an orthopedic floor bed. Dr. Filsinger wrote in Mrs. Gilbert's postoperative anesthesia orders that she was to be discharged from the PACU to the orthopedic floor.
Mrs. Gilbert was later transferred from the PACU to a bed on the orthopedic floor. While Mrs. Gilbert was recovering, the nurses were to follow post-surgical pain management orders written by Jennifer Cabrera, Dr. Snibbe's physician assistant (the Pain Orders). The Pain Orders were divided into two sections: Part "A" for parenteral medication (medicine by a route other than by mouth) and Part "B" for oral medication. Under Part B, Cabrera made two orders "if [the] patient is able to take oral pain medication" as follows: Tylenol extra strength for mild pain and Ultram for moderate pain. Under Part A, Cabrera made orders for Dilaudid to be administered intravenously as needed every two hours "if [the] patient is unable to take oral medication" in the following doses: two milligrams for severe pain; one milligram for moderate pain; and 0.5 milligrams for mild pain.
While in post-surgical recovery on the orthopedic floor, an internist, Sasan Massachi, M.D., examined Mrs. Gilbert at about 11:00 p.m. Mrs. Gilbert was able to communicate. Dr. Massachi noted that Mrs. Gilbert had "no complications" post-surgery; she had "no chest pain" or "shortness of breath." She was mildly nauseous. Based on his exam and her vital signs, Dr. Massachi determined Mrs. Gilbert was "stable."
At 11:27 p.m., Letisha Smith, R.N. (Nurse Smith) administered two milligrams of Dilaudid intravenously to Mrs. Gilbert. Mrs. Gilbert was able to take oral medication at that time.
At 2:10 a.m. the following day, a nurse changed Mrs. Gilbert's I.V. At that time, no one reported that Mrs. Gilbert was suffering from any respiratory depression.
At approximately 4:30 a.m., Nurse Smith found Mrs. Gilbert unresponsive, with "pulseless electrical activity," and initiated a code blue. Her heartbeat, but not her brain function, was restored. Mrs. Gilbert was removed from life support and died the following day on January 6, 2011. The autopsy report concluded "no definitive anatomic cause of death was found."
On March 27, 2012, Mrs. Gilbert's two sons, Bruce Gilbert and Scott Gilbert, filed this action for wrongful death and negligence against Cedars, Dr. Snibbe, and Dr. Filsinger, alleging claims for lack of informed consent, wrongful death and negligence, and respondeat superior liability.
Before trial, plaintiffs filed a motion in limine to preclude defendants from presenting evidence that any other person or entity was responsible for Mrs. Gilbert's death. They also filed a motion to preclude defendants "from offering testimony, documents . . . or any other form of statements or references in any way (including by verdict form) to have the jury allocate fault to former defendant [Cedars] and/or its nursing staff for the death of Mrs. Gilbert." The court denied both motions.
At trial, plaintiffs' orthopedic surgeon expert, Thomas Grogan, M.D., testified Dr. Snibbe's "decision to discharge Mrs. Gilbert to the floor following a surgery of this magnitude and complexity that also incorporated an order for a pain medication known as Dilaudid at 2 milligrams to be pushed for severe pain, that specific area only fell below the standard of care." He further testified Dr. Snibbe's failure to satisfy the standard of care was a substantial factor in causing Mrs. Gilbert's death: "The fact that the Dilaudid medication of 2 milligrams was given to Mrs. Gilbert on the floor in an unmonitored situation based upon her physiologic status at the end of this operative procedure was a substantial factor in causing her death." He explained: "I believe that given Mrs. Gilbert's physiologic status with the blood loss at the time of the surgery coupled with the blood loss she suffered in the [PACU] put her in a vulnerable state if given that 2 milligram I.V. dose. [¶] I believe that after that I.V. dose of 2 milligrams of Dilaudid, it depressed her respiration status certainly enough for her to develop what we call acidosis. She started to retain [carbon dioxide]. [¶] That acidosis caused a metabolic chain effect of other problems and complications, ultimately leading to her being found unresponsive at 4:30 in the morning in an arrythmia called pulseless electrical activity."
On cross-examination, however, Dr. Grogan testified he would not expect significant respiratory depression to first occur in a patient as late as three to four hours after she was given an injection of Dilaudid. And, he "could not identify a principal factor as the cause of death in this case." Dr. Grogan further testified he could not say "to a reasonable degree of medical probability" that a transfer to the ICU or to a monitored bed would have given Mrs. Gilbert a greater chance of avoiding the cardiac arrest.
Regarding the Pain Orders, in response to whether Mrs. Gilbert would not have died if the orders were followed exactly as written, Dr. Grogan responded: "Meaning she would have been given the oral medication first, yes." He then agreed with the statement "[a]nd then [the nurse] would never have been able to give the 2 milligrams because there's nothing on there that says jump straight to 2 milligrams . . . ." Dr. Snibbe's counsel further asked Dr. Grogan: "If you assume that [the Pain Orders were] followed pursuant to an instruction that Part A is to be used when the patient is unable to take oral pain medication and Part B is to be used when a patient is able to take oral pain medications, do you believe that the patient would have survived and not died?" Dr. Grogan responded: "You mean if she was given oral pain medication instead of parenteral medication?[¶] . . . [¶]No, I believe she would not have died." Dr. Grogan also testified it is reasonable for an orthopedic surgeon to expect that his nursing postoperative orders will be followed, and that it is not foreseeable that a surgeon's orders would not be followed.
The jury returned a verdict in favor of defendants. The jury determined that neither Dr. Snibbe nor Dr. Filsinger was negligent. The jury also determined Mrs. Gilbert gave her informed consent for the hip replacement surgery. The trial court entered judgment in favor of defendants. Plaintiffs appealed from the final judgment.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion By Denying Plaintiffs' Motion in Limine No. 1
Plaintiffs contend the trial court erred by denying their motion in limine to preclude defendants from proffering evidence that any other person and/or entity other than the defendants caused Mrs. Gilbert's death. We review the trial court's evidentiary ruling for abuse of discretion. (Diamond v. Reshko (2015) 239 Cal.App.4th 828, 841-842.) We discern none.
A. Background
Shortly after filing their complaint, plaintiffs served defendants with Form Interrogatory No. 16.1, which asked do "YOU contend that any PERSON, other than YOU or plaintiff, contributed to the occurrence of the INCIDENT or the injuries or damages claimed by Plaintiff?" Dr. Filsinger responded in part: "[T]his interrogatory is premature . . . . [R]esponding party reserves the right to make such contentions upon the completion of investigation and discovery, up to and including the day of trial. Further, this interrogatory violates the . . . work-product doctrine and requests expert opinions in contravention of Code of Civil Procedure § 2034. . . . Without waiving these objections, responding party responds: Responding party does not make such a contention one way or the other at this point in time." Dr. Snibbe responded in pertinent part: "Objection. This interrogatory seeks information that is protected by the . . . work product doctrine . . . . [T]his request is improper as it seeks information subject to the time limitations of Code of Civil Procedure § 2034.410 et seq. Without waiving any of these objections and subject thereto, defendant responds as follows: not as of yet."
The following year, plaintiffs served a supplemental interrogatory, requesting defendants to "[p]lease review your response to each interrogatory previously served . . . . If any response is no longer correct and complete, identify the response and provide all information necessary to make your response correct and complete as of the date of your response to this supplemental interrogatory." Dr. Filsinger responded: "Without waiving the previous objections defendant responds: None." Dr. Snibbe responded: "Defendant has no further supplemental responses other than information which may be obtained during the course of expert discovery governed by [Code of Civil Procedure section] 2034, et seq."
After the close of discovery, counsel for Dr. Snibbe notified plaintiffs' counsel that he needed to take Nurse Smith's deposition because her testimony was "crucial to establish the liability of Cedars, if any." Plaintiffs subsequently filed a motion in limine on the grounds that defendants: (1) failed to disclose that any other person or entity was responsible for Mrs. Gilbert's death in their written discovery responses; and (2) such evidence would be "unduly prejudicial" and "subject plaintiffs to unfair surprise[.]" Defendants opposed the motion, arguing their affirmative defenses and discovery responses preserved their right to maintain another party and/or entity caused or contributed to Mrs. Gilbert's death. They further argued our Supreme Court's decision in Rashidi v. Moser (2014) 60 Cal.4th 718 (Rashidi), decided after the close of discovery, made it defendants' "affirmative obligation" to prove that settling defendants were negligent to obtain a setoff of noneconomic damages awarded under Civil Code section 1431.2; thus, they argued, it would be unfair to prohibit them from offering expert testimony regarding Cedars' alleged negligence.
Civil Code section 1431.2 provides, in relevant part: "(a) In any action for . . . wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault . . . ."
Plaintiffs submitted supplemental briefing, arguing they "were given no opportunity to conduct any discovery into defendants' allegations against Cedars because those allegations were unknown to plaintiffs before the discovery cut-off date." Defendants countered plaintiffs were aware that Dr. Filsinger had retained and designated a "nursing expert, Dawn Padley, R.N., M.N. [(Nurse Padley)]," on the standard of care, as early as July 11, 2013 (before the discovery cut-off and years before trial). Plaintiffs chose, however, not to depose Nurse Padley before the expert discovery cutoff date.
The trial court denied plaintiffs' motion, holding "that on account of the expert witness disclosure(s) identifying nurse Dawn Padley as an expert witness on the 'standard of care', [defendants] are not precluded from offering testimony . . . or any other form of statements or references regarding the contention that former defendant in this litigation, [Cedars] has comparative fault for the death of . . . [Mrs.] Gilbert[.]" It granted plaintiffs' request, however, to depose Nurse Padley, and reopened discovery. Specifically, the trial court: (1) continued the trial from February 10, 2016 to May 11, 2016; (2) reopened discovery for the limited purpose of allowing plaintiffs to rebut the argument that Cedars is comparatively liable for the death of Mrs. Gilbert; (3) permitted plaintiffs to take the deposition of Nurse Padley, and to subpoena the depositions of other Cedars nurses; and (4) after taking the deposition of Nurse Padley, plaintiffs were permitted to bring an ex parte application seeking leave to augment and/or amend their expert witness list and declaration to designate an expert witness to address issues related to Cedars' alleged failure to comply with the standard of care.
B. Analysis
On appeal, plaintiffs contend Rashidi, supra, 60 Cal.4th 718 did not change the law regarding a defendant's burden to establish the comparative fault of another to obtain a setoff of noneconomic damages. Thus, they argue, Rashidi does not excuse defendants' failure to notify plaintiffs before the discovery cutoff of their theory that Cedars' nurses were comparatively liable for Mrs. Gilbert's death. But even if we agreed with plaintiffs that Rashidi did not create new law on the Civil Code section 1431.2 setoff issue, we are not persuaded the trial court abused its discretion. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957 ["[T]here is no abuse of discretion requiring reversal if there exists a reasonable or fairly debatable justification under the law for the trial court's decision or, alternatively stated, if that decision falls within the permissible range of options set by the applicable legal criteria. [Citations.]"].) The trial court denied plaintiffs' motion not only based on Rashidi, but on its finding that defendants' expert designation put plaintiffs on notice of defendants' intention to demonstrate Cedars' nurses contributed to Mrs. Gilbert's death. We agree with the trial court that even if the expert designation was ambiguous, plaintiffs' counsel should have further inquired with defendants' counsel: plaintiffs' counsel should have written defendants' counsel "an e-mail [stating] 'You said that Nurse [Padley] is going to testify to the standard of care. . . . What standard of care would that be and about who? Do you think you can answer that? Because that may tell me whether I should take her deposition immediately.'"
At minimum, Rashidi clarified the law on the noneconomic damages setoff issue. Our Supreme Court explained: "In professional negligence actions against health care providers, recovery of noneconomic damages is capped at $250,000. (Civ. Code, § 3333.2, enacted as part of the Medical Injury Compensation Reform Act of 1975 (MICRA).) In any action, liability for noneconomic damages is several only, so that defendants pay in proportion to their share of fault. (§ 1431.2, part of the Fair Responsibility Act of 1986, enacted by passage of Prop. 51.) [¶] Here we consider whether a jury's award of noneconomic damages, reduced by the court to $ 250,000 under MICRA, may be further diminished by setting off the amount of a pretrial settlement attributable to noneconomic losses, even when the defendant who went to trial failed to establish the comparative fault of the settling defendant. The Court of Appeal held that such a further reduction is required by the MICRA cap. [¶] We disagree. It would be anomalous to allow a defendant to obtain a setoff against damages for which he is solely liable. Neither the text nor the history of section 3333.2 reflects such an intent." (Rashidi, supra, 60 Cal.4th at p. 720, fns. omitted.)
In any event, plaintiffs were not prejudiced. The court continued the trial, and plaintiffs deposed Nurse Padley. Plaintiffs were also given the opportunity to subpoena the depositions of other Cedars nurses, and to seek leave to augment and/or amend their expert witness list. Thus, even if we were to find error, plaintiffs failed to satisfy their burden to show prejudice. (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 347 ["[A]n appellant has the burden to show not only that the trial court erred but also that the error was prejudicial. [Citations.]"].)
2. The Trial Court Did Not Abuse Its Discretion By Denying Plaintiffs' Motion in Limine No. 4
After taking Nurse Padley's deposition, plaintiffs filed Motion in Limine No. 4 to preclude defendants "from offering testimony, documents . . . or any other form of statements or references in any way (including by verdict form) to have the jury allocate fault to former defendant [Cedars] and/or its nursing staff for the death of Mrs. Gilbert." Plaintiffs argued defendants lacked competent medical testimony to establish that the alleged substandard care Nurse Smith (or any other Cedars nurse) provided to Mrs. Gilbert was a substantial factor in causing her death. In opposition, defendants argued Nurse Padley's deposition testimony was sufficient to establish Cedars' liability when considered in conjunction with both plaintiffs' and defendants' experts' testimony. After requesting additional briefing, the trial court denied plaintiffs' motion, holding defendants established the anticipated testimony of plaintiffs' experts (Dr. Grogan and Howard Rosen, M.D.) and Dr. Filsinger's expert (Richard Ruffalo, M.D.) "will create at least a triable issue of fact as to whether [Cedars'] nursing staff was negligent and a legal cause, at least proportionately, of the death of Mrs. Gilbert."
We frankly find it difficult to decipher from plaintiffs' opening brief what evidence and/or testimony was permitted at trial based on the denial of Motion in Limine No. 4 (as opposed to Motion in Limine No. 1). Nurse Padley did not testify at trial. And, the jury form neither identified Cedars nor requested that the jury determine whether fault should be allocated to Cedars and/or its nursing staff for Mrs. Gilbert's death. Nevertheless, plaintiffs raise the same argument on appeal as they did below: Because defendants failed to take Nurse Smith's deposition, defendants could only speculate that Nurse Smith's alleged negligence was a substantial factor in causing Mrs. Gilbert's death. It follows, according to plaintiffs, evidence purporting to demonstrate Cedars' nursing staff was negligent and contributed to Mrs. Gilbert's death should have been excluded. But, as stated above, plaintiffs fail to point to any evidence they believe was erroneously admitted at trial based on the denial of Motion in Limine No. 4.
Defendants presume a statement made during cross-examination of Dr. Grogan (i.e., had the Pain Orders been followed exactly as written, Mrs. Gilbert would not have died) is the evidence plaintiffs claim was erroneously admitted based on the denial of Motion in Limine No. 4. Plaintiffs raise a distinct contention on appeal with respect to this testimony, however. We address whether the trial court erred by admitting Dr. Grogan's Pain Orders testimony in Section 3, below.
Moreover, plaintiffs claim "the defense knew [Nurse] Padley's opinions were insufficient to establish [Nurse] Smith's purported substandard care of [Mrs. Gilbert] was a substantial factor in causing [Mrs. Gilbert's] death" and "[t]hat is why they did not call [Nurse] Padley to testify at trial[.]" But even assuming the truth of this claim, plaintiffs' portrayal of defendants' trial strategy has no bearing on whether the trial court abused its discretion. In denying plaintiffs' motion, the trial court relied on defendants' "detailed presentation regarding . . . expert witness testimony." For example, Dr. Grogan testified at his deposition that assuming Mrs. Gilbert could take oral pain medication, the nurse should have followed the Pain Orders for oral pain medication (as opposed to administering Dilaudid intravenously) and failure to do so "is below the nursing standard of care." Similarly, Dr. Rosen, plaintiffs' designated anesthesiologist expert, testified at his deposition that the order for 2 milligrams of Dilaudid for postoperative pain was "way off the mark," but had Nurse Smith followed the order for oral pain medications, assuming Mrs. Gilbert could take oral medication, she would not have died. Further, Dr. Ruffalo, Dr. Filsinger's designated anesthesiologist expert, opined that had Nurse Smith followed the Pain Orders, complied with the policies and procedures of Cedars for nursing care, and used good nursing judgment, Mrs. Gilbert would likely not have died when she did. He stated: "if you want to blame anybody, the nurse killed her.[¶] That's the issue. That's causation."
Based on this record, we conclude the trial court's conclusion that defendants demonstrated a triable issue of fact concerning whether Cedars' nursing staff was negligent and a legal cause of the death of Mrs. Gilbert was not error, and its denial of Motion in Limine No. 4 was an appropriate exercise of its discretion.
3. The Trial Court Did Not Abuse Its Discretion By Admitting Dr. Grogan's Pain Order Testimony
Next, plaintiffs contend the trial court erred by admitting the following testimony of their expert, Dr. Grogan: (1) had Nurse Smith followed the Pain Orders as written, Mrs. Gilbert would not have died; and (2) it is reasonable for an orthopedic surgeon to expect his nursing postoperative orders will be followed (collectively, the Pain Order testimony). They argue the Pain Order testimony was "in contravention of the [trial court's] pretrial ruling" and "objectionable on [Evidence Code section] 352 grounds." We disagree.
A. Background
Before trial, plaintiffs filed written objections to defendants proffering testimony from the physician experts that the care Nurse Smith provided fell below the standard of care on the grounds that: (1) the defense did not designate the physicians as nursing standard of care witnesses; (2) the physicians were not qualified to offer nursing standard of care testimony; and (3) any causal connection between Nurse Smith's care of Mrs. Gilbert and her death would be based on speculation. The court issued a tentative ruling sustaining plaintiffs' objections, stating the expert physicians "cannot testify to whether [Nurse Smith] or any other nurses were negligent and therefore acting below the Standard of Care" because they "did not testify as to their knowledge about the Nursing Standard of Care[.]" At a later hearing on the objections to testimony, the trial court confirmed its tentative ruling, but on a different ground. The trial court explained it was "exercising [its] discretion" under Evidence Code section 723, and concluded the expert physicians could not "testify about the standard of care for a nurse because the defense already has Nurse Padley who will be testifying to that."
Evidence Code section 723 states: "The court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party."
During trial, defendants elicited the Pain Order testimony on cross-examination of Dr. Grogan. Plaintiffs objected, and the trial court called for a sidebar. Plaintiffs' counsel argued: "This is directly violative of the pre[trial] order. They're trying to establish with Dr. Grogan that the nursing staff at Cedars did something wrong. They're trying to go around Nurse Padley who is their expert witness on the nursing standard of care. It's totally inappropriate." Defendants' counsel countered defendants were entitled to show it was not the Pain Orders, but implementation of the incorrect amount of pain medication, that caused Mrs. Gilbert's death (if the jury is persuaded that Dilaudid caused her death). The trial court overruled plaintiffs' objection, and permitted defendants' counsel to pose the hypothetical regarding whether Mrs. Gilbert would have died if the Pain Orders were followed as written.
Plaintiffs then filed a motion to "preclude defendants . . . from arguing to the jury that nonparty [Nurse Smith] . . . was a cause of the death[.]" Specifically, they sought to exclude Dr. Grogan's testimony "that Nurse Smith did not have a pain management order allowing her to 'jump straight' to two milligrams of Dilaudid[.]" Plaintiffs argued Dr. Grogan's testimony amounted to nursing standard of care testimony and the trial court already ruled the parties' physician experts were prohibited from offering such testimony. At the hearing on plaintiffs' motion, plaintiffs' counsel stated he did not have a problem with the defense arguing that "the giving of the Dilaudid, was a substantial factor in causing [Mrs. Gilbert's] death[,]" but defendants should be precluded from arguing "it was the failure of Nurse Smith to follow the order and [instead] give the Dilaudid" that caused Mrs. Gilbert's death. The trial court ruled it would not strike Dr. Grogan's Pain Order testimony, but defendants could not argue "anything in the context that the nurse improperly gave this order somehow or gave the Dilaudid and that it was somehow her fault."
B. Analysis
As an initial matter, we disagree with plaintiffs' contention that the Pain Order testimony violated the trial court's pretrial ruling. As stated above, the trial court ruled the physician experts could not testify about nursing standard of care based on Evidence Code section 723 because the testimony would be duplicative of Nurse Padley's testimony. But Nurse Padley did not testify at trial. Nor did defendants offer Nurse Padley's deposition testimony. Thus, Dr. Grogan's testimony could not have been cumulative or duplicative of Nurse Padley's testimony.
In any event, the trial court did not abuse its discretion by failing to exclude the Pain Order testimony. Evidence Code section 801, subdivision (a) provides that expert testimony is admissible when it "[r]elate[s] to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact[.]" Evidence Code section 720, subdivision (a) states: "A person is qualified to testify as an expert if he [or she] has special knowledge, skill, experience, training, or education sufficient to qualify him [or her] as an expert on the subject to which his [or her] testimony relates."
Plaintiffs contend defendants "never qualified Dr. Grogan as a nursing standard of care expert" and thus, "it was an abuse of discretion by the [c]ourt to allow Dr. Grogan's Pain Orders testimony to come into evidence." Dr. Grogan did not opine, however, on the nursing standard of care (i.e., whether Nurse Smith was negligent). Instead, he opined, based on his experience as an orthopedic surgeon and his knowledge of pain orders, that Mrs. Gilbert would not have died assuming the facts in defendants' counsel's hypothetical. This testimony went to the issue of causation - a necessary element of a negligence action. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-1315.) To defeat the element of causation in a medical malpractice action, a defendant need only demonstrate that an injury was caused by something other than his negligence, but not that such cause was itself negligence or fell below the standard of care. (See, e.g., Leal v. Mansour (2013) 221 Cal.App.4th 638, 646 [a defendant is not precluded from presenting "relevant evidence related to a causative factor for which there is no culpable party."].) Further, Dr. Grogan's opinion that it is reasonable for an orthopedic surgeon to expect his nursing postoperative orders will be followed was based on his experience as an orthopedic surgeon, not the nursing standard of care. Thus, plaintiffs have not demonstrated a "clear showing of abuse." (See, e.g., Cahdock v. Cohn (1979) 96 Cal.App.3d 205, 208 ["The determination of the expert's qualifications is ordinarily a matter addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of abuse. [Citation.]"].)
The following is the full hypothetical posed, and answers given: "Dr. Grogan, if you assume that this order was followed pursuant to an instruction that Part A is to be used when the patient is unable to take oral pain medication and Part B is to be used when a patient is able to take oral medications, do you believe that the patient would have survived and not died? [Answer] You mean if she was given oral pain medication instead of parenteral pain mediation? [Question] Yes. [Answer] No, I believe she would not have died."
Moreover, it was within the trial court's discretion to admit the Pain Order testimony under Evidence Code section 352. That section provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Whether Mrs. Gilbert would have died if the Pain Orders were followed as written (i.e., the cause of Mrs. Gilbert's death) is undeniably relevant in a medical malpractice action, and its probative value is not substantially outweighed by any potential prejudice. (See Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1369 ["Evidence is not prejudicial simply because it undermines the opponent's position or shores up that of the proponent. [Citation.]"].)
4. Defendants' Counsel's Purported Misconduct Does Not Warrant Reversal
Alternatively, plaintiffs contend the judgment must be reversed based on defendants' counsel's purported misconduct. Plaintiffs argue defendants' counsel concealed, and then used at trial, communications between Dr. Filsinger and Thomas Einstein, M.D. (an anesthesiologist plaintiffs interviewed for possible retention as an expert witness at trial). And, they argue, that "evidently in light of the [Dr.] Filsinger/Dr. Einstein communication, Dr. Grogan had been completely compromised."
We agree with defendants that plaintiffs forfeited this argument by failing to raise it in the trial court either by way of a motion for mistrial or a motion for new trial. (See, e.g., Baugh v. Garl (2006) 137 Cal.App.4th 737, 746 ["Points not raised in the trial court may not be raised for the first time on appeal."].) Instead, plaintiffs waited until their post-judgment reply brief in support of their motion to tax costs to submit a declaration of plaintiffs' counsel, in which plaintiffs' counsel declared he had a confidential consultation with Dr. Einstein. He further declared he directed Dr. Grogan to send Dr. Einstein Mrs. Gilbert's medical charts, and Dr. Einstein ultimately notified plaintiffs' counsel he was not comfortable testifying in favor of a plaintiff against another anesthesiologist. But a post-judgment declaration in support of a reply brief is insufficient to preserve the issue. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 501 ["[I]t would be inappropriate to allow a party not to object to an error of which the party is or should be aware, 'thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.' [Citation.]"].)
In any event, we reject plaintiffs' argument on the merits for two reasons. First, there is no evidence that any privileged communication or attorney work product was shared with Dr. Einstein or obtained by defendants' counsel. Thus, plaintiffs' reliance on Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067 (Shadow Traffic) is misplaced. There, the Court of Appeal held "communications made to a potential expert in a retention interview can be considered confidential and therefore subject to protection from subsequent disclosure even if the expert is not thereafter retained as long as there was a reasonable expectation of such confidentiality." (Id. at p. 1080, fn. omitted.) In Shadow Traffic, the attorney and the potential expert had several conversations in which the attorney explained the theories of her case, how she anticipated the expert testimony would fit in both at trial and in helping with trial preparation, and they agreed their conversations would be confidential. (Id. at p. 1073.) The attorney further declared that she and the potential expert "extensively discussed our litigation and trial strategies, our theories and legal analysis of this litigation, what assistance we desired from [the expert] to help us prepare for trial, how we expected the expert testimony to fit in at trial, and what charts and graphs we wanted them to prepare." (Ibid., emphasis omitted.) Here, however, plaintiffs do not point to evidence that they shared their litigation, trial, or damages strategy with Dr. Einstein. Nor do they point to evidence demonstrating a reasonable expectation of confidentiality. Rather, the record indicates that, at the direction of plaintiffs' counsel, Dr. Grogan sent Dr. Einstein Mrs. Gilbert's medical chart for review. Dr. Einstein reviewed Mrs. Gilbert's medical chart, and later informed plaintiffs' counsel he was "not comfortable testifying in favor of a plaintiff against another anesthesiologist." These communications and documents are not protected by the attorney-client privilege or the work product doctrine. (See Shadow Traffic, supra, 24 Cal.App.4th at pp. 1078-1079 [the attorney-client privilege protects "statements from counsel to the expert which disclose confidential information communicated by the client when disclosure is reasonably necessary to further the attorney's representation of the client's interest(s)[,]" and the work product doctrine protects "reports prepared by an expert as a consultant . . . until the expert is designated as a witness. [Citation.]"].)
Second, plaintiffs blame Dr. Grogan's unfavorable trial testimony on the "[Dr.] Filsinger/Dr. Einstein communication." But there is no evidence linking the communication between Dr. Einstein and Dr. Filsinger with Dr. Grogan's testimony at trial. Indeed, plaintiffs fail to point to any evidence demonstrating Dr. Grogan was aware that Dr. Einstein spoke with Dr. Filsinger. That Dr. Grogan may have changed his opinion after consulting with Dr. Einstein does not establish any ethical violations on the part of defendants' counsel.
According to plaintiffs' counsel, Dr. Einstein called Dr. Filsinger and told Dr. Filsinger that he did not "feel that the plaintiff had a meritorious case against [him]."
5. The Trial Court Did Not Abuse its Discretion by Declining to Give Plaintiffs' Proposed Jury Instructions
Finally, plaintiffs contend the trial court abused its discretion by refusing to give two of their requested jury instructions: (1) modified CACI 533 regarding defendants' alleged failure to obtain informed consent for Mrs. Gilbert's postoperative care; and (2) Special Instruction No. 3 regarding Dr. Filsinger's duty of care. We disagree.
"A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) A party is not entitled, however to instructions that incorrectly state the applicable law (see, e.g., Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335), or instructions that are confusing or misleading. (Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 209.) When a proposed instruction is erroneous, misleading or incomplete, the trial court may properly reject the instruction and is not required to modify or correct it. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1673.)
Plaintiffs' proposed version of CACI 533 stated: "Bruce Gilbert and Scott Gilbert claim that Dr. Snibbe or Dr. Filsinger, or both of them, was or were negligent, because he or they issued orders sending Mildred Gilbert, after her replacement surgery and an intraoperative femur fracture, back to the orthopedic floor in an unmonitored bed without a heightened level of care for the postoperative management and treatment of her case before first obtaining Bruce Gilbert's informed consent." Plaintiffs argued defendants not only had an obligation to obtain informed consent for the hip replacement surgery, but also for "the postoperative plan of care in light of her comorbidities."
Defendants countered there was no evidence in the record that they had a duty to advise the patient of risks of being transferred to the orthopedic floor after the PACU. Dr. Snibbe's counsel explained: "The state of the testimony is the decision where to go after the [PACU] is based upon the patient's then-existing clinical condition. It's not a matter of consent. [¶] They may have an arguable case that standard of care required her to go to a higher level of care than the orthopedic floor because there's disagreement on whether she was stable, but no one said that that is a matter of consent." We agree with defendants. (See, e.g., Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1388 [affirming court's rejection of plaintiff's proposed jury instruction on informed consent where the defendant doctor did not inform plaintiff of "the risks and benefits of not treating a bacterial infection because he ruled out such diagnosis," and noting the trial court properly allowed testimony and argument under "a theory of ordinary medical negligence"].) Similarly, here, whether defendants fell below the standard of care by transferring Mrs. Gilbert from the PACU to the orthopedic floor, as opposed to the ICU, is a claim for "ordinary medical negligence." (Ibid.) Accordingly, plaintiffs were entitled to an instruction on medical negligence (see CACI 502), but substantial evidence and case law does not support an instruction on informed consent for postoperative care.
The trial court did instruct the jury on informed consent for the hip replacement surgery: "Bruce Gilbert and Scott Gilbert claim that Dr. Snibbe was negligent because he performed a total left hip replacement on Mildred Gilbert without first obtaining her informed consent. To establish this claim, Bruce Gilbert and Scott Gilbert must prove all of the following: [¶] 1. That Dr. Snibbe performed a total left hip replacement operation on Mildred Gilbert; [¶] 2. That Dr. Snibbe did not disclose to Mildred Gilbert the important potential results and risks of, and alternatives to, the total left hip replacement operation; [¶] 3. That a reasonable person in Mildred Gilbert's position would not have agreed to the total left hip replacement operation if he or she had been adequately informed; and [¶] 4. That Bruce Gilbert and Scott Gilbert were harmed by a result or risk that Dr. Snibbe should have explained."
We also reject plaintiffs' contention that the trial court abused its discretion by failing to give their proposed Special Instruction No. 3: "An anesthesiologist who accepts responsibility for transfer of the care of his patient from the [PACU] is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful anesthesiologists would use in the same or similar circumstances."
First, we agree with defendants that "transfer of the care of his patient from the PACU" is ambiguous and confusing. (See Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 209 [a party is not entitled to instructions that are confusing or misleading].)
Second, the proposed instruction is repetitive of CACI 502, which the court used to instruct the jury on the standard of care owed by Dr. Filsinger as an anesthesiologist: "An anesthesiologist is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful anesthesiologists would use in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as 'the standard of care.' [¶] You must determine the level of skill, knowledge, and care that other reasonably careful anesthesiologists would use in similar circumstances based only on the testimony of the expert witnesses including Daren Filsinger M.D. who have testified in this case." Thus, Special Instruction No. 3 would have unduly overemphasized the issue. (See Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735, 743 ["'[I]t is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition. . . . "[e]rror cannot be predicated on the trial court's refusal to give a requested instruction if the subject matter is substantially covered by the instructions given."' [Citation.]"].) We therefore conclude the trial court properly refused to give Special Instruction No. 3.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.