Opinion
NOT TO BE PUBLISHED
Barry T. LaBarbera, Judge Superior Court County Super. Ct. No. CV040468 of San Luis Obispo
Vern Kalshan, in pro. per., for Appellant.
Hall, Hieatt & Connely, Mark B. Connely and Julie C. Grebel, for Respondent.
PERREN, J.
Vern Kalshan appeals a judgment after jury verdict denying his claim for damages for medical malpractice against respondent Richard G. Pollak. He asserts several errors in jury instructions. We affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The evidence at trial established the following facts. On March 14, 2003, at approximately 7:00 p.m., appellant Vern Kalshan experienced an episode of partial blindness. An ambulance was called. Prior to arrival of the ambulance at his home, Kalshan took one 325 milligram aspirin tablet. He arrived at the emergency room at French Hospital Medical Center at 8:02 p.m. He was placed in an emergency room bed and was attended by nurse Fogelson. Kalshan complained of a right temporal headache or soreness and loss of vision in the left field of both eyes. Fogelson summoned respondent, Dr. Richard G. Pollak. He examined Kalshan at approximately 8:10 p.m.
Kalshan told Dr. Pollak that he had a similar problem four or five years ago, but it went away before he was able to get to the emergency room. He also said he had an MRI ordered by Dr. Darius Soleimany and was told he had had several previous strokes. At approximately 8:30 p.m., Dr. Pollak ordered a CT scan to rule out brain tissue hemorrhage. At 8:35 p.m., Kalshan indicated that his vision was improving and that he had no new complaints.
At 8:45 p.m., nurse Fogelson noted in the record that Kalshan was "out to CT scan." At 9:10 p.m., Kalshan had returned from having the CT scan. His pain was noted as decreasing and he had no new complaints. At 10:00 p.m., Kalshan indicated that he felt slightly better but that his vision remained affected.
The results of the CT scan were received shortly after 10:00 p.m. The CT showed no mass, hemorrhage or shift. At approximately 10:10 p.m., immediately after Dr. Pollak received the results of the CT scan, he called Dr. Soleimany, Kalshan's treating neurologist and the hospital's on-call neurologist. Dr. Soleimany recommended that Dr. Pollak give Kalshan prednisone in case he had temporal arteritis, instruct him to continue taking aspirin in case he was having a small stroke, and to call Dr. Soleimany the following day if he was not feeling better and the following Monday if he was feeling better.
At approximately 10:45 p.m., Kalshan was sleeping in the emergency room with respirations even and unlabored. He was discharged at 1:25 a.m. after he reported a significant decrease in pain. He was given a prescription for prednisone, told to take aspirin and to follow up with Dr. Soleimany.
Kalshan called Dr. Soleimany later that morning. Dr. Soleimany instructed Kalshan to meet him at the emergency room. After examining him, Dr. Soleimany admitted Kalshan to the emergency room. A CT scan performed on March 17, 2003, three days after the initial scan, showed a non-hemorrhagic infarction involving the right occipital lobe. Kalshan was hospitalized for six days for stroke.
Kalshan filed a complaint for medical malpractice against Dr. Pollak. After a six-day trial, at which medical experts testified for both parties, the jury by a vote of 11-1 found that Dr. Pollak was not negligent in the diagnosis and care of Kalshan.
In this appeal Kalshan asserts that several instructional errors require reversal of the judgment.
DISCUSSION
Standard of Review
A judgment may not be reversed on appeal unless, after examination of the entire cause, it appears the error caused a miscarriage of justice. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Trial error is usually deemed harmless and does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. (Ibid.) "Probability" in this context means a reasonable chance, more than an abstract possibility. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
When the alleged error concerns a jury instruction, we do not view the evidence in a light most favorable to the prevailing party. Rather, to assess the instruction's prejudicial impact, we assume the jury might have believed appellant's evidence and, if properly instructed, might have decided in appellant's favor. (Mayes v. Bryan (2008) 139 Cal.App.4th 1075, 1087.)
The Court Did Not Err in Denying Kalshan's Request For an Instruction on Abandonment
"'"[P]arties have the 'right to have the jury instructed as to the law applicable to all their theories of the case which were supported by the pleadings and the evidence, whether or not that evidence was considered persuasive by the trial court.' [Citation.] 'A reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable since the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented. . .' . . ." . . .'" (Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal.App.4th 1350, 1358.)
Kalshan requested that the following jury instruction on abandonment be given: "Kalshan claims Dr. Pollak was negligent because he did not give Kalshan enough notice before withdrawing from the case. To succeed, Kalshan must prove both of the following: [¶] 1. That Dr. Pollak withdrew from Kalshan's care and treatment; and [¶] 2. That Dr. Pollak did not provide sufficient notice for Kalshan to obtain another medical practitioner. [¶] However, Dr. Pollak was not negligent if he proves that Kalshan consented to the withdrawal or declined further medical care." (CACI No. 509.) The trial court rejected the request on the ground that Kalshan had not provided evidence that Dr. Pollak abandoned him in the emergency room.
The relationship between a patient and doctor continues until the parties mutually consent to end it, the patient dismisses the doctor, or the doctor gives due notice of an intent to terminate and an ample opportunity for the patient to secure a substitute. (Payton v. Weaver (1982) 131 Cal.App.3d 38, 45; 3 Levy et al., Cal. Torts (2006) Liability of Physicians, § 31.42, p. 31-69.)
Dr. Pollak contends and we agree that the trial court did not err in refusing to give an abandonment instruction because there was no evidence of abandonment. Kalshan cites no authority and we have found none that supports his position. The undisputed evidence shows that Dr. Pollak discharged Kalshan only after he examined him, ordered a CT scan, consulted Dr. Soleimany and informed Kalshan of Dr. Soleimany's recommendations to follow up with him the next day. The evidence clearly shows that Kalshan was not discharged until continuing care by his treating physician was assured. No abandonment occurred here. (Compare Hongsathavij v. Queen of Angels/Hollywood Presbyterian Medical Center (1998) 62 Cal.App.4th 1123 [physician found to have abandoned patient when patient was discharged from emergency room without any orders for care and treatment].)
The Alleged Error in Failing to Instruct the Jury Sua Sponte on Multiple Causation
The California Rules of Court require that an appellate brief "support each point by argument and, if possible, by citation of authority." (Cal. Rules of Court, rule 8.204(a)(1)(B).) Kalshan's brief violates this rule. His brief contains only a recitation of the jury instruction on multiple causation and the standard of review. Kalshan offers no argument or authority that the trial court had a sua sponte duty to give such an instruction on appeal. Because a trial court's judgment is presumed correct and the burden is on appellant to demonstrate the court's error, we do not consider the issue on this appeal. (Spitler v. Children's Institute International (1992) 11 Cal.App.4th 432, 442; see also Ward v. Litowsky (1970) 5 Cal.App.3d 437, 439 [claim of error based on improper jury instructions without further statement and unsupported by authority or argument is deemed to be a point raised without foundation and requiring no discussion by the appellate court]; In re Marriage of Olivarez (1986) 188 Cal.App.3d 336, 341, fn. 3 [claim of error unsupported by argument or authority is deemed to be without merit].)
The Alleged Errors in Instructing the Jury on"Success Not Required" and "Alternative Methods of Care"
Kalshan's brief concerning errors in instructing on "success not required" and "alternative methods of care" consists of reciting the jury instruction and the assertion that the instruction is misleading "because there was uncontradicted evidence that there are national standards of care for emergency room physicians." Kalshan does not support his argument with citations to the record or legal authority. For the reasons stated above, we will not review these issues on appeal.
The Alleged Error in Giving the Substantial Factor Instruction
Kalshan asserts the jury instruction for substantial factor was incorrect and misleading. The following instruction was given to the jury: "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] [Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]" (CACI No. 430.)
Kalshan argues for the first time on appeal that there were concurrent independent causes of harm and the bracketed language of the instruction should not have been given to the jury. He asserts the following were concurrent causes: Dr. Soleimany failed to see Kalshan in the emergency room, Dr. Soleimany prescribed medication over the telephone, nurse Fogelson failed to provide oxygen to Kalshan and did not advise him orally of his right to be transferred to another hospital rather than being sent home, and the radiology department delayed in reporting the CT scan results to Pollak.
The problem with this argument is that at trial Kalshan proceeded on the theory that Dr. Pollak was the sole cause of his injury. He cannot change his theory of relief on appeal. (Phillippe v. Shapell Industries (1987) 43 Cal.3d 1247, 1256; City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685.)
Kalshan Failed to Demonstrate Prejudice
As the appellant, Kalshan has the burden of establishing prejudicial error. (Department of Personnel Admin. v. California Correctional Peace Officers Assn. (2007) 152 Cal.App.4th 1193, 1201.) In a civil case an instructional error is prejudicial reversible error only if it is reasonably probable the appellant would have received a more favorable result in the absence of such error. (Mayes v. Bryan, supra, 139 Cal.App.4th at pp. 1087-1088.) Again, Kalshan's brief contains no argument or authority supporting his contention of prejudice. For the reasons stated above, we decline to review the issue.
The judgment is affirmed. Respondent shall recover costs.
We concur: GILBERT, P.J., YEGAN, J.