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Holley v. Cassidy Medical Group

California Court of Appeals, Fourth District, First Division
Apr 15, 2009
No. D051981 (Cal. Ct. App. Apr. 15, 2009)

Opinion


WENDY LYNN HOLLEY, Plaintiff and Appellant, v. CASSIDY MEDICAL GROUP, Defendant and Respondent. D051981 California Court of Appeal, Fourth District, First Division April 15, 2009

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. GIN053109, Lisa Guy-Schall, Judge.

HALLER, J.

Wendy Holley sued Cassidy Medical Group (Cassidy), alleging that its employee, Erik Luansing, a physician's assistant, was negligent in failing to test for, and diagnose, Holley's diabetic ketoacidosis condition. The jury found Holley failed to prove Luansing was negligent, and the court entered judgment in defendant's favor.

On appeal, Holley contends the court erred by permitting a defense expert to testify and by refusing to permit Holley to call an additional expert witness in rebuttal. Holley also contends the court erred in denying her motion for judgment notwithstanding the verdict (JNOV). These contentions are without merit, and we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Based on the issues raised on appeal, our factual summary focuses on the evidence relevant to the standard of care issue, and not on the facts pertaining solely to causation or damages. Under established appellate principles, we summarize the evidence in the light most favorable to the jury verdict. We shall set forth additional relevant facts when discussing the legal issues raised by the parties.

On a Sunday morning, February 20, 2005, Holley went to defendant's urgent care facility, and was seen by Luansing, a physician's assistant. Holley said she believed she was having a panic attack, and had been vomiting and was having trouble breathing. Holley's medical history showed she had been previously diagnosed with Type II diabetes. After an examination and further discussion, Luansing diagnosed Holley with an anxiety/panic attack, and gave her a Valium pill and prescriptions for antianxiety and antinausea medications. Luansing told Holley she should go to the emergency room if her symptoms worsened.

Holley went home, fell asleep, and then became extremely ill and unresponsive in the middle of the night. After waiting several hours, Holley's husband called 911. The paramedics transported Holley to the emergency room, where she was admitted into the intensive care unit. She was diagnosed with a lung infection and diabetic ketoacidosis with kidney complications, and placed in a medically induced coma for about one week. After Holley was discharged from the hospital, she suffered no long-term physical or cognitive effects from the diabetic ketoacidosis or the coma.

Holley sued Cassidy, alleging Luansing was negligent in failing to perform a rapid blood sugar test during her February 20 urgent care visit. Holley claimed the blood sugar test would have revealed an abnormally high blood sugar level and thus that she was suffering from diabetic ketoacidosis, a life-threatening complication in diabetic patients.

At trial, Holley's expert, physician's assistant Laurie Michlin, opined that Luansing's conduct fell below the standard of care because the standard requires a physician's assistant to perform a rapid blood sugar test whenever a diabetic patient is ill and this test was particularly critical in this case because Holley had several symptoms of diabetic ketoacidosis, including a fast heartbeat, nausea, and difficulty breathing. Holley also called an endocrinologist, who opined that if Luansing had performed the blood sugar test, Luansing would have known she was in a diabetic ketoacidosis condition, and thus Luansing would have given her appropriate treatment and Holley would not have gone into a coma.

Defendant countered that Luansing's treatment of Holley was proper and appropriate. In support, defendant called its designated standard-of-care expert, Dr. Ned Chambers, a family medicine specialist, who opined that Luansing's treatment did not fall below the standard of care. Dr. Chambers stated that although Holley had some symptoms of diabetic ketoacidosis, she did not present a classic case of this condition and he did not believe Holley suffered from this condition at the time of her February 20 urgent care visit with Luansing.

Before Dr. Chambers testified, Holley's counsel moved to bar the testimony based on counsel's assertion that he had been unaware Dr. Chambers would be testifying at trial and thus did not take Dr. Chambers's deposition before trial. The court overruled this objection, finding Dr. Chambers had been timely designated as an expert witness, and defendant was not responsible for Holley's counsel's failure to take Dr. Chambers's deposition. After the court made this ruling, Holley's counsel said she might call a rebuttal expert witness. Defense counsel objected. After a brief discussion, the court deferred ruling on the issue until after Dr. Chambers testified and Holley could explain the basis for the rebuttal evidence. However, after Dr. Chambers testified, Holley's counsel said he had nothing more to offer and counsel did not reassert his request to call a rebuttal witness.

During deliberations, the jury delivered a note stating it wanted to "see the qualifications" of the two standard of care expert witnesses, Michlin and Dr. Chambers. The court responded by giving the jury copies of the curriculum vitae of Michlin and Dr. Chambers, and reading back certain portions of the trial testimony pertaining to these experts' qualifications.

After further deliberations, the jury reached a verdict. The first question on the verdict form asked the jury to decide whether Luansing was "negligent in his care and treatment of [Holley]." On a nine-to-three vote, the jury answered "No," and returned the verdict form. The court later denied Holley's motion for a judgment notwithstanding the verdict.

DISCUSSION

I. Holley's Motion to Exclude Dr. Chambers's Testimony

Holley contends the court erred in permitting Dr. Chambers to testify as an expert witness on standard-of-care issues, and in refusing to permit her counsel to depose Dr. Chambers during trial.

A. Background Facts

Before trial, plaintiff designated three standard-of-care expert witnesses: Laurie Michlin (a physician's assistant), Dr. Bernard Michlin (an internal medicine physician), and Dr. Paul Bronston (an emergency room physician). Dr. Michlin and Dr. Bronston were also designated to testify on causation and damage issues. Holley later designated an endocrinologist to testify on causation issues.

We shall refer to Laurie Michlin as "Michlin" and Dr. Bernard Michlin as "Dr. Michlin."

In its first expert designation, defendant identified Dr. Chambers, a family practice doctor, and Dr. Herbert Rettinger, an endocrinologist, to testify on standard-of-care, causation, and damage issues. After receiving Holley's expert designation, defendant served Holley with a second expert designation identifying Julia Caputo, a physician's assistant, as an additional expert on standard-of-care, causation, and damages issues. Holley's counsel initially noticed the depositions of all three expert witnesses, but he ultimately deposed only Caputo and withdrew the deposition notices for Dr. Chambers and Dr. Rettinger.

On the morning of the third day of trial, Holley's counsel told the court, outside the jury's presence, that he had recently learned defendant would be calling Dr. Chambers as its standard-of-care expert, and requested the court to exclude the testimony. Holley's counsel said he had believed Dr. Chambers would not be testifying because defendant had also designated a physician's assistant (Julia Caputo) to testify on the applicable standard of care and he had taken Caputo's deposition. Holley's counsel stated that Matthew Anderson, an associate from defense trial counsel's law firm, had told him that Caputo would be testifying on the standard-of-care issue, and counsel had agreed before trial there would be no "overlapping" expert opinions. Relying on this information, Holley's counsel said he had assumed Dr. Chambers would not be testifying.

Defense counsel responded that he was prepared to call Dr. Chambers as his standard-of-care and causation expert, and that Dr. Chambers was fully qualified to testify as to the standard of care for both a physician and a physician's assistant, and "[t]here [has] been no effort to deceive here whatsoever. We had a clear designation, and by his choice, [Holley's counsel] decided not to depose [Dr.] Chambers." Defense counsel produced a pretrial letter written by Anderson confirming that Holley's counsel had decided to take Dr. Chambers's deposition "off calendar."

The court denied Holley's motion, noting that although the local rules do not permit multiple expert designations on a single subject, Holley had also designated multiple witnesses on the standard-of-care topic. The court also emphasized that Holley did not challenge defendant's multiple expert designations before trial. The court stated that if Holley had raised the issue of duplicative witnesses in an in limine motion, "I would have turned to [defense counsel] and said 'make an election.' " The court also stated that Holley could have brought a pretrial motion asking the court to direct counsel to make an election, and "[t]hat would have narrowed to who it is you would have known to depose."

With respect to Holley's counsel's assertions that defense counsel had made a pretrial representation that Dr. Chambers would not testify, the court stated, "I need to have a paper trail,... [¶] What [counsel does] in commentary with each [other] or orally over the phone, if you don't memorialize it in writing.... [¶]... [Defense counsel] designated him. I don't have a paper [trail] where someone says 'yeah, right, this is what we agreed to.' " The court further noted that defendant's trial counsel represented that neither he nor his associate had communicated that Dr. Chambers would not testify, and "[h]e's the trial attorney. I'm going to go with what his recollection is of what things are.... I will allow you great latitude since you didn't depose [Dr. Chambers], but that's it. He's going to go forward. He's going to testify. [¶]... [Holley's objection to the testimony] in the middle of trial now just is not going to work. So... we're done. I've got the jury waiting."

Holley's counsel then noted that Dr. Chambers was not scheduled to testify until the next day, and asked whether it would be possible for him to take Dr. Chambers's deposition that evening. The court declined to order a last minute deposition, and stated the deposition could take place only if defense counsel agreed to it. Defense counsel refused to agree, stating that Dr. Chambers was not available.

B. Court Did Not Abuse Discretion in Permitting Dr. Chambers to Testify

On appeal, Holley contends the court's refusal to grant her motion to bar Dr. Chambers's testimony violates Rule 2.1.11 of the Superior Court of San Diego County, Local Rules (Local Rule 2.1.11).

Local Rule 2.1.11 provides in relevant part: "Parties will be permitted to designate only those experts they in fact intend to call at trial. It is the policy of the court that parties are limited to one expert per field of expertise per side, pursuant to section 723 of the Evidence Code, absent a court order to the contrary." (Italics added.) Evidence Code section 723 provides: "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." A trial court has broad discretion to rule on the admissibility of an expert witness, including the number of expert witnesses to be called by any party. (See People v. Ramos (1997) 15 Cal.4th 1133, 1175; Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371.)

In this case, the court recognized that the local rule permitted parties to designate only one expert on each subject matter, and that both parties had violated this rule. But the court declined to impose a sanction on defendant in the form of not permitting defendant to call its intended expert witness, Dr. Chambers. This ruling did not constitute an abuse of discretion.

First, the court had a reasonable basis to find that Holley's objection to Dr. Chambers's testimony was not timely. Because defendant had designated Dr. Chambers as an expert witness, Holley was on notice before trial of the potential that Dr. Chambers could be called as a witness. If Holley wanted to raise the issue of the rule violation and/or compel defendant to make a choice between Caputo and Dr. Chambers, Holley could have raised the issue before trial. In ruling on the parties' in limine motions, the court made clear that it would strictly adhere to a rule allowing each party to present only one expert on a particular subject matter, and that it would not permit overlapping expert opinions. Yet Holley's counsel never raised the issue of the potentially duplicative standard-of-care witnesses, and waited until the third day of a jury trial to ask the court to bar defendant from calling its intended expert witness.

Holley argues that her counsel could not have raised the issue earlier because he was "shocked" to learn that Dr. Chambers was going to be called to testify and thus could not have asserted a more timely objection. However, in ruling on Holley's motion, the court made a factual finding that Holley's counsel, and not defense counsel, was responsible for any lack of awareness pertaining to the identity of the expert witness.

The court had a reasonable basis to reach this conclusion. Defendant's trial counsel denied Holley's counsel's claim that there had been an agreement between counsel that Dr. Chambers would not testify at trial. The court found this assertion believable, noting that if defense counsel had told Holley's counsel that Dr. Chambers (a designated expert witness) would not testify at trial, it is reasonable to assume Holley's counsel would have memorialized this understanding in a letter. The court also reviewed a letter in which defense counsel confirmed during discovery that Holley's counsel had decided to take Dr. Chambers's deposition off calendar.

The court had before it two conflicting versions of counsels' pretrial communications pertaining to Dr. Chambers, and the court found defense counsel's version more credible. As an appellate court, we are bound by the court's factual finding in this regard. We thus reject as factually unsupported Holley's repeated claims in her appellate brief that she was "sandbag[ged]" by defense counsel or that the defense engaged in " 'bait and switch' " tactics.

Holley also argues that her counsel reasonably believed Dr. Chambers would not be testifying because during Caputo's deposition, Caputo said she was the defense expert on the standard of care regarding Luansing's treatment and would be testifying at trial. However, on our review of the record, Caputo merely stated she had been designated as an expert to provide an opinion on the standard of care of a physician's assistant, and would be available at trial. As the trial court noted, the fact that an expert testifies to her understanding of the scope of her expertise does not mean she is testifying as to whether the party will be offering any other expert testimony on the subject.

C. Court Did Not Abuse its Discretion in Refusing to Order Deposition During Trial

Holley alternatively contends the court erred in refusing to order defendant to produce Dr. Chambers at a deposition on the evening before his scheduled trial testimony. This argument is without merit. A party who fails to timely depose a designated expert witness before trial does not have an unqualified right to depose the witness during trial. The court has broad discretion in determining whether to order additional discovery during trial, and may consider the extent to which the requesting party was diligent in his or her preparation and any prejudice to the opposing party. Applying these factors, there was no abuse of discretion here.

Holley contends that "California courts routinely permit the deposition of an expert witness who was either not designated or was designated late as a means of overcoming the potential for prejudice to the offended party." (See Sprague v. Equifax (1985) 166 Cal.App.3d 1012, 1038-1039 ; see also Fatica v. Superior Court (2002) 99 Cal.App.4th 350, 353; Kennemur v. State of California (1982) 133 Cal.App.3d 907, 920.) We agree with this principle, but it is inapplicable here. In this case, the court made a factual finding that Dr. Chambers had been a disclosed expert witness, and his expected testimony was within the scope of the pretrial expert designation. Thus, there was no basis for a finding that Holley had been deprived of an opportunity to prepare for the expert testimony.

II. Court Did Not Err in Ruling on Rebuttal Expert Witness

Holley next contends the court erred in refusing to allow her to call Dr. Michlin to rebut Dr. Chambers's testimony.

A. Relevant Facts

Several hours after the court denied Holley's motion to exclude Dr. Chambers's testimony, the court and counsel discussed scheduling matters. During the discussion, defense counsel said he would be calling Dr. Chambers the next day, and that he expected the testimony to take less than one hour and the defense would rest after the testimony. Holley's counsel responded: "I may or may not bring in Dr. Michlin to rebut anything that Dr. Chambers may say on the stand." Defense counsel objected, stating that a party is not permitted to call an expert as a rebuttal witness merely to provide an additional expert opinion.

The court responded that Dr. Michlin had been one of Holley's designated expert witnesses, and if Holley had wanted to offer his opinions, Holley should have called him in her case-in-chief. Holley's counsel replied "[M]y suggestion is, if Dr. Chambers comes in and gives any kind of opinion testimony away from physician assistants, such that rebuttal testimony is required, I believe I can bring Dr. Michlin in." The court then interrupted stating: "Better show me some authority. [¶]... [¶]... You can't put your expert on after his, just because he may give different opinions [than] your [expert].... [¶] Remember, he was not designated in that regard. He was designated to causation and damages. And we aren't allowing cumulative opinions. So show me how he constitutes a true rebuttal witness for purposes of testifying post-[Dr.] Chambers. Look at it. We've got time, so I'll look at it when I see you." (Italics added.) Holley's counsel responded: "Thanks, your honor."

After Dr. Chambers testified the next day, the court asked defense counsel whether he had "[a]ny further witnesses...." Defense counsel responded "No, Your Honor." The court then turned to Holley's counsel and asked "[a]nything further from the plaintiffs?" Holley's counsel said: "No, Your Honor." The court then excused the jury for its morning recess, and had a discussion with counsel. During this time, Holley's counsel never raised the issue of wanting to call a rebuttal witness. Later that afternoon, the court instructed the jury and counsel gave their closing statements.

B. Analysis

Holley contends the court erred in not permitting her to call Dr. Michlin as a rebuttal witness. The contention is without merit.

Most fundamentally, Holley never gave the court the opportunity to rule on the admissibility of the witness's testimony. When Holley's counsel first raised the issue, the court said that if counsel wanted to call Dr. Michlin as a rebuttal witness, he should raise the issue after Dr. Chambers's testimony and the court would give Holley's counsel time to elaborate on the issue and to present authority supporting the right to call this rebuttal witness. However, after Dr. Chambers testified, Holley's counsel did not ask to call Dr. Michlin, nor did he explain how Dr. Michlin's proposed testimony was admissible under rules applicable to expert rebuttal evidence (see Code Civ. Proc., § 2034.310). By failing to obtain a ruling on the issue, Holley waived her right to assert error on appeal. (See Electronic Equip. Express v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 856-857.)

Further, even if Holley had properly requested Dr. Michlin to be called as a rebuttal witness and the court had denied the request, there is no showing of error. A trial court has broad discretion as to whether to permit rebuttal testimony. (People v. Harris (2005) 37 Cal.4th 310, 335; Johnston v. Brewer (1940) 40 Cal.App.2d 583, 588.) When Holley's counsel mentioned the possibility of calling Dr. Michlin, counsel stated that he may want to call him "to rebut anything that Dr. Chambers may say on the stand." However, when an expert seeks to impeach the testimony of an expert through rebuttal, the impeachment is limited to testimony relevant to "the falsity or nonexistence of any fact used as the foundation for" the expert opinion. (Code Civ. Proc., § 2034.310.)

In this case, there was no showing that Dr. Michlin would testify to the "falsity or nonexistence" of a fact relied upon by Dr. Chambers. Thus, even if Holley had sought to call Dr. Michlin, it would not have been error to exclude this testimony. Holley was required to make an offer of proof that Dr. Michlin would provide proper rebuttal testimony, not simply cumulative standard-of-care testimony. Holley's counsel made no such showing. On appeal, Holley argues that Dr. Michlin would have been a proper rebuttal witness on the issue whether the standard of care is different in an urgent care setting than at a doctor's office or an emergency room. However, Holley never clearly informed the court this was the intended purpose of the rebuttal testimony. On appeal, Holley also focuses on the court's statement that Dr. Michlin was not designated as a standard-of-care expert, and notes that this statement was erroneous. However, Holley does not provide any basis for concluding the court's mistaken impression as to the nature of Dr. Michlin's original expert designation affected the rebuttal witness issue.

III. The Court Did Not Err in Denying the JNOV Motion

Holley next challenges the sufficiency of the evidence supporting the jury's finding that Luansing was not negligent. Holley contends the court erred in denying her JNOV motion on this issue.

A. Legal Principles

On appeal from the denial of a JNOV motion challenging the sufficiency of the evidence, an appellate court must review the record de novo and make an independent determination whether there is any substantial evidence to support the jury's findings. (Paykar Construction, Inc. v. Spilat Construction Corp. (2001) 92 Cal.App.4th 488, 494; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1058.) This review is limited to determining whether there is any substantial evidence, contradicted or not, to support the jury's verdict. (Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 72.) The court must accept as true the evidence supporting the verdict, disregard conflicting evidence, and indulge every legitimate inference to support the verdict. (Ibid.) The court does not weigh the evidence or judge the credibility of the witnesses. (See Tognazzini, supra, 86 Cal.App.4th at p. 1058.) If sufficient evidence supports the verdict, a reviewing court must uphold the court's denial of the JNOV motion.

B. Summary of Facts Relevant to Negligence Issue

During her February 20 urgent care visit, Holley told Luansing she had been vomiting "once or twice" and that she believed she was having an anxiety or panic attack. Holley said she thought the attack was triggered by her anxiety over elective surgery (bariatric surgery) scheduled for the following week. Holley said she experienced similar episodes in the past related to posttraumatic stress disorder. Holley also said it was possible the vomiting was the result of taking antibiotics for an ear infection. Holley reported a diagnosis of Type II diabetes and hypertension, but she did not suggest there was any problem with her blood sugar level. Holley did not tell Luansing (or anyone else at the urgent care) that the night before she had called paramedics to her home because of difficulty breathing, and that her blood sugar level was 400 at the time. In response to Luansing's question, Holley indicated her diabetes was under control.

After examining Holley, Luansing found that she had a fast heartbeat (tachycardia), appeared anxious, was hyperventilating, and appeared to be trying to slow down her breathing. Her lips were dry, but an examination of her mouth, throat, nose, and skin showed that she was not dehydrated. She did not appear "really sick," weak, lethargic or confused.

Based on Holley's statements and Luansing's examination and observations of Holley, Luansing diagnosed Holley as suffering from anxiety and a panic attack. Luansing found each of Holley's symptoms were highly characteristic of a panic/anxiety attack. Luansing did not believe Holley had diabetic ketoacidosis because she did not have many of the classic symptoms, including a "fruity smell" to her breath, urination symptoms, low blood pressure, dehydration, confusion, increased thirst, and appearing extremely sick. Additionally, Luansing was aware that diabetic ketoacidosis appears much more frequently in persons with Type I diabetes, and is an unusual diagnosis for a person with Type II diabetes. Although Holley had some signs of diabetic ketoacidosis (e.g., tachycardia and nausea), Luansing believed "the bar tipped more on the fact that [she was] anxious as opposed to suffering from diabetic ketoacidosis." He also said that although he did not conduct a rapid blood sugar test, he ruled out the diagnosis based on the subjective and objective information available to him. He emphasized that a patient's blood sugar level is affected by numerous factors, and is not generally constant.

After making the diagnosis, Luansing gave Holley a single Valium pill and had her take the pill when she was at the urgent care, to provide her immediate relief from the anxiety symptoms. Luansing also noted on the chart that he " 'reassured' " the patient during the visit. At trial, Luansing explained this note meant that he spoke with Holley and her husband about the diagnosis and he also told them of the need to go to the emergency room if her conditions worsened.

Holley's expert, physician's assistant Michlin, opined that Luansing breached the standard of care because the standard requires a doctor or a physician's assistant to perform a rapid blood sugar test "100 percent of the time," whenever a known diabetic presents to the office, especially if the patient is not feeling well or is reporting that he or she has been vomiting. Michlin further opined that Luansing breached the standard of care by not performing a rapid blood sugar test because Holley was suffering from several symptoms related to diabetic ketoacidosis, including " 'Kussmaul breathing,' " which is a deep and labored breathing pattern strongly associated with diabetic ketoacidosis. Michlin emphasized that the rapid blood sugar test is a simple test that takes only minutes to perform. She said a blood sugar level of more than 250 would be "extremely concerning," and the evidence showed Holley had a 400 blood sugar level the night before (although Holley did not report this at the urgent care). Michlin also opined that giving Holley Valium was dangerous because it could have caused Holley to fall asleep, masking the signs and symptoms of the diabetic ketoacidosis condition. On cross-examination, Michlin admitted she has never worked in an urgent care setting.

Dr. Chambers, a specialist in family medicine, reached different conclusions. Dr. Chambers had substantial experience as a medical doctor, and had previously founded and operated an urgent care facility. Dr. Chambers said the standard of care of a physician's assistant in an urgent care setting is the same standard applicable to a doctor.

Dr. Chambers opined that Luansing conformed to the applicable standard of care, and acted reasonable at all times. Specifically, Dr. Chambers opined that the standard of care did not require Luansing to perform a rapid blood sugar test when he saw Holley in the urgent care on February 20. Dr. Chambers based this opinion on several factors, including: (1) Holley's statement that she was having a panic attack and had a history of posttraumatic stress syndrome; (2) Holley did not have many symptoms of diabetic ketoacidosis, including a distinctive fruity smell, Kussmaul breathing, substantial thirst, dehydration, frequent urination, a "truly" sickly appearance, or the inability to interact with others; and (3) Holley reported only sporadic vomiting, which did not necessarily trigger the need for a blood sugar test.

Dr. Chambers "[c]ompletely disagree[d]" with Michlin's opinion that the applicable standard of care required a doctor to perform a rapid blood sugar test on every medical visit by a diabetic patient. He also disagreed with Michlin's opinion that Holley had Kussmaul breathing when she was in the urgent care. He explained that "Kussmaul respirations are when somebody is significantly acidotic; [is] drowsy and really heading toward almost unconsciousness. [It is] uncontrollable and that which one blows off trying to compensate for the acidosis. [¶]... [It is] deep, labored breathing with somebody who is significantly ill, and that [was] not the case... in this setting." Dr. Chambers also noted that the incidence of diabetic ketoacidosis in a Type II diabetes patient is uncommon.

Dr. Chambers opined that all of Holley's symptoms were fully consistent with anxiety and panic attack, and he did not believe Holley was in ketoacidosis at the time Luansing saw her in the urgent care. He further opined that Valium was a good choice because it promotes relaxation without "knock[ing]" out a patient or putting the person to sleep. He said that it was within the standard of care for Luansing to give Holley a single dose of Valium based on the appropriate diagnosis of a panic attack.

C. Analysis

Based on the testimony of Luansing and of Dr. Chambers, the jury could have reasonably found that Holley failed to prove Luansing acted below the standard of care in diagnosing Holley with a panic/anxiety attack. According to Luansing's observations, Holley did not have many diabetic ketoacidosis symptoms, and Dr. Chambers opined that under the circumstances, Luansing acted appropriately in diagnosing her with an anxiety attack, relieving her of the acute anxiety symptoms, sending her home, and telling her to go the emergency room if the symptoms worsened.

Holley argues that the court should have granted her JNOV motion because two statements made by Dr. Chambers during cross-examination constitute an admission that Luansing acted below the standard of care. First, Dr. Chambers stated that he agreed with Holley's counsel that "it would have made a difference" to him in diagnosing Holley if he was aware that Holley had a blood sugar level of more than 400 at the time of the urgent care visit. Second, Holley's counsel asked Dr. Chambers "[w]ould you agree with Mr. Luansing's own statement [at his deposition] that [a diagnosis of diabetic ketoacidosis] should have been ruled out in this case?" Dr. Chambers responded: "By 'ruled out,' I agree with what [Luansing] says. It's the presentation is not—not classic by any means. A rare—a rare finding and non-corroborating presentation."

Viewed in context, this testimony did not constitute an admission that Luansing was negligent. The fact that it would have made a difference to Dr. Chambers if Holley had a high blood sugar level does not mean he believed Luansing acted below the standard of care in the diagnosis. It is undisputed that Holley did not tell Luansing of her high blood sugar level when she checked her blood level the night before her visit. Moreover, because the evidence shows that Holley's blood sugar level was regularly at 400 without causing immediate problems, it is not certain whether a test result reflecting this blood level would have required a reasonable medical professional to reach a different diagnosis. Additionally, the fact that Dr. Chambers agreed with Luansing that diabetes ketoacidosis should be ruled out does not mean Luansing was negligent as matter of law. At trial, Luansing explained that he believed he had ruled out the condition based on Holley's objective and subjective symptoms, and thus that a rapid blood sugar test was unnecessary. In his testimony, Dr. Chambers indicated he agreed with Luansing's statements. This testimony does not necessarily defeat the jury's finding that Luansing was not negligent.

Further to the extent Dr. Chambers's testimony was internally inconsistent, the jury is the exclusive judge of a witness's credibility, and this rule applies to expert witness testimony. (Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal.App.3d 933, 940; People v. Loop (1954) 127 Cal.App.2d 786, 800.) Even internally inconsistent testimony from a single witness may support a judgment. (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 878.) "It is for the trier of fact to consider internal inconsistencies in testimony, to resolve them if this is possible, and to determine what weight should be given to such testimony." (Ibid.) We may reject the statements of a witness that the factfinder has believed only if they are " 'inherently improbable,' " that is, "physically impossible or obviously false without resorting to inference or deduction." (Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1293.)

Dr. Chambers's opinions cannot be rejected on this basis. His testimony that Holley did not present with the classic symptoms of diabetic ketoacidosis, and that it did not fall below the standard of care to rule out the condition without performing a blood sugar test was not so inherently irrational or illogical to be without any factual support. The legitimacy of Dr. Chambers's assumptions and the strength of the foundation for his testimony were matters for the jury to determine.

Viewing the record as a whole, there was substantial evidence supporting the jury's verdict that Luansing complied with the standard of care in treating Holley in the urgent care facility.

DISPOSITION

Judgment affirmed. Appellant to pay respondent's costs on appeal.

WE CONCUR: McCONNELL, P. J., McINTYRE, J.


Summaries of

Holley v. Cassidy Medical Group

California Court of Appeals, Fourth District, First Division
Apr 15, 2009
No. D051981 (Cal. Ct. App. Apr. 15, 2009)
Case details for

Holley v. Cassidy Medical Group

Case Details

Full title:WENDY LYNN HOLLEY, Plaintiff and Appellant, v. CASSIDY MEDICAL GROUP…

Court:California Court of Appeals, Fourth District, First Division

Date published: Apr 15, 2009

Citations

No. D051981 (Cal. Ct. App. Apr. 15, 2009)