Opinion
A099214. A101680.
11-25-2003
MARY LUZANO, Plaintiff and Appellant, v. ROGER MANN et al., Defendants and Respondents.
In these consolidated matters, Mary Luzano (appellant) appeals after a jury found in favor of defendants Roger Mann, M.D. (respondent); Jeffrey Mann, M.D. (Dr. Jeffrey Mann); and The Surgery Center in appellants medical malpractice action. In the first appeal, she contends the trial court erred in failing to grant her motions for directed verdict and judgment notwithstanding the verdict (JNOV) as to her medical negligence, fraud, and battery causes of action, and that the court erred in granting the defendants motion for partial nonsuit as to her battery cause of action. She further contends the trial court erred by admitting expert opinion testimony over her Kelly-Frye objection, by denying her motion to inspect respondents computerized medical records, and by denying her motion during trial to file an amended complaint.
People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v. United States (D.C. 1923) 54 App.D.C. 46, 293 F. 1013 (Frye).
In the second appeal, appellant challenges the trial courts order awarding costs, including expert witness fees, to respondent. Appellant contends the trial court did not have jurisdiction to make the costs order because appellant had already filed her notice of appeal from the underlying judgment when the costs order was entered.
We shall affirm the judgment and the trial courts cost order.
PROCEDURAL BACKGROUND
On November 24, 1997, appellant filed a complaint for damages against respondent; Dr. Jeffrey Mann; and The Surgery Center, alleging a single cause of action for medical malpractice. The complaint alleged that respondent and Dr. Jeffrey Mann negligently recommended inappropriate bunion surgery and performed surgery improperly in that they negligently left a screw protruding from appellants foot and cut her extensor hallucis longus (EHL) tendon.
Dr. Jeffery Mann is respondents son.
The Surgery Center was dismissed without prejudice on June 24, 1998 and Dr. Jeffrey Mann was dismissed with prejudice on April 8, 2002, during trial.
With the trial courts permission, on August 27, 1999, appellant filed a first amended complaint containing causes of action for (1) medical malpractice, (2) battery, (3) fraud, and (4) battery for failure to provide informed consent. The second and third causes of action alleged that respondent had represented that he would be appellants surgeon, but that in fact Dr. Jeffrey Mann performed the surgery. The fourth cause of action alleged that appellant was not informed preoperatively of the risks from the surgery that her EHL tendon might be severed and that she might develop a transfer lesion (a callus) under her foot.
On October 26, 1999, the trial court, inter alia, sustained the defendants demurrer to the fourth cause of action in the first amended complaint, finding the cause of action was "duplicitous [sic] of other causes of action alleged in Complaint." On November 2, 1999, appellant filed a second amended complaint, deleting the fourth cause of action for battery.
On December 2, 1999, appellant attempted to amend her complaint again to add the fourth cause of action for battery for failure to provide informed consent. The court denied her motion for leave to file a third amended complaint, again finding it duplicative of the first cause of action for negligence.
On March 4, 2002, the parties appeared for the jury trial. On March 5, 2002, appellant again moved for leave to file a "fifth" amended complaint. The court never ruled on that motion.
There never were any third or fourth amended complaints.
On March 26, 2002, during trial, appellant moved for leave to file a "sixth" amended complaint. The proposed "sixth" amended complaint was identical to the proposed "fifth" amended complaint, except that it added a new fifth cause of action for malicious and intentional concealment of a material fact.
On April 3, 2002, during a hearing on the motion, counsel stipulated that appellant had alleged the same cause of action, regarding battery, in the second cause of action of the operative second amended complaint. Based on the parties stipulation, the trial court denied as moot the motion to amend to add a proposed fourth cause of action for battery. With respect to the proposed fifth cause of action for intentional concealment, the trial court took the matter under submission and later granted the motion as to the fifth cause of action.
On April 3, 2002, the trial court denied appellants motion for a directed verdict.
On April 9, 2002, the jury rendered its verdict in favor of respondent on the medical negligence and fraud causes of action. On May 3, 2002, the trial court entered judgment. Also on May 3, 2002, the trial court entered its order granting respondents motion for partial nonsuit on appellants medical battery claim. On May 7, 2002, defense counsel served a notice of entry of judgment.
On June 13, 2002, the trial court denied appellants motion for JNOV.
On June 21, 2002, appellant filed a notice of appeal from the judgment.
On February 13, 2003, appellant filed a notice of appeal from the trial courts order awarding costs, including expert witness fees, to respondent.
A more detailed procedural history of the costs matter will be set forth in part VII, A, post.
FACTUAL BACKGROUND
Appellant had been experiencing pain in her feet due to bunions for approximately one year before she first went to see respondent. She read articles about bunion surgery and talked to friends who had bunions. She went to respondent after a friend who worked in respondents office highly recommended him as a famous person who had written books on the foot and ankle, conducted seminars internationally, and treated famous athletes.
Appellant went to respondents office for the first time on July 10, 1996. She met first with Julia Kahan, who was working as respondents fellow at the time. Dr. Kahan examined appellant and took notes regarding her medical history. Appellant then met with respondent. Respondent testified that he examined appellant and reviewed her x-rays with her. Based on his evaluation, respondent concluded that appellant had a hallux valgus deformity, i.e., she had bunions. He described the problem to appellant and told her how it could be corrected. He explained that, with surgery, her bone would be cut and a screw would be inserted. He also discussed the possible benefits, risks, and complications of surgery versus more conservative alternative treatments.
Appellant testified that respondent examined her, took x-rays, explained the problems with her foot and described the operation, which would involve straightening the right toe and shaving the bone on the side of her foot. She did not recall what he told her about possible complications, though he did talk about complications in general. She did not recall him telling her that her bone would be cut or that a screw would be put in her foot, but said it was possible that she was so nervous while respondent was describing the procedure that she did not hear it. Respondent never told her there was a teaching program going on at his office. Respondent may have mentioned that she could have a lesion under the second toe, but she may have been too nervous at the time to hear. Appellant did not remember if respondent told her that she might have shooting pains in her foot. Finally, she recalled that respondent did talk about alternatives to surgery, including the use of pads in her shoes.
Appellant decided to have the bunion surgery on her right foot within a week of her initial appointment. On July 18, 1996, respondents office sent her a written confirmation of her scheduled surgery that included the estimated fees for both the surgeon and an assistant surgeon.
On September 12, 1996, appellant went to The Surgery Center for her operation. She signed a surgical consent form beforehand, authorizing respondent "and any needed assistants to perform the above-named operation." Dr. Jeffrey Mann testified that he then introduced himself and told appellant that he was a fully trained orthopedic surgeon, had gone to medical school, had done a residency, was seeking additional training in a fellowship with respondent, and would be assisting at the surgery. He also asked if she had any questions about the procedure or what was going to happen. He did not tell appellant which part of the surgery he would be performing because that was something respondent would decide at the time of the surgery. Dr. Jeffrey Mann then took appellants history and performed a physical examination.
Appellant testified that she did not ask Dr. Jeffrey Mann any questions about his role in the surgery; nor did she object to his assisting in the surgery.
Dr. Jeffrey Mann testified that he had been a licensed physician for six years at the time of appellants surgery. He had become a specialist in orthopedic surgery, completing a five-year orthopedic surgery residency in 1995. He is board certified by the American Board of Orthopedic Surgeons and has written numerous articles and book chapters and given presentations on the subject of orthopedic surgery.
Dr. Jeffrey Mann became respondents fellow in mid-July 1996 when Dr. Kahan left. Respondent had worked with fellows, for six months at a time, for over 20 years. Dr. Jeffrey Mann had learned the basics of surgery during medical school and his five-year residency. He had performed hundreds of osteotomies. He had also participated in 15 to 20 metatarsal crescentic osteotomies, and in approximately 10 of them had performed the complete procedure. The purpose of the fellowship program was to immerse himself in the specialty and learn even more about the field. During operations, respondent would direct and supervise the surgery, and would decide what part of the operation the assistant would perform.
Appellants surgery involved a proximal metatarsal crescentic osteotomy to correct a right hallux valgus or bunion. During the operation, an incision was made into the first web space as well as along the side of the big toe, over the bunion or bony prominence. The bony prominence was then removed with an osteotome (chisel). An incision was made over the tarsal metatarsal joint, the EHL tendon was retracted, and an osteotomy was performed using a crescentic saw blade. The metatarsal was rotated so that it was in line with the rest of the metatarsals and a screw was inserted into the bone to hold the metatarsal in place. The most critical part of the surgery performed on appellant was to set the first metatarsal and align the toe. Respondent successfully performed that portion of the surgery on appellant.
During the surgery, Dr. Jeffrey Mann assisted respondent. Under respondents direction and supervision, Dr. Jeffrey Mann performed non-critical parts of the procedure, including cutting the proximal metatarsal with a saw. In the course of the osteotomy, appellants EHL tendon, which respondent had retracted, was inadvertently cut by the dull side of the saw blade. Respondent pointed this fact out to Dr. Jeffrey Mann after the osteotomy was completed, and repaired the tendon. In retrospect, respondent and Dr. Jeffrey Mann understood that the EHL tendon was cut because it had not been retracted sufficiently. At the time of the osteotomy, it was not apparent that there was inadequate retraction. That is because the saw bumps against the tendon in more than half the cases, but only rarely—less than one percent of the time—actually cuts the tendon.
On September 13, 1996, appellant went to respondents office because she was in excruciating pain. Dr. Jeffrey Mann told her that her EHL tendon had been cut. This information upset her. Appellants counsel stipulated at trial that, after the surgery, appellants tendon worked perfectly. However, she had ongoing pain, including a painful bump on her foot, pain where the screw was placed, pain at the front of her toes, and numbness on the side of her foot. Appellant went to additional follow-up appointments at respondents office on September 24, 1996, October 15, 1996, March 21, 1997, and June 2, 1997.
On May 22, 1997, appellant first met with Dr. Michael DiGiacomo, a podiatrist. On July 14, 1997, Dr. DiGiacomo performed surgery on appellants foot, removing the screw, sutures, and tissue. He concluded that the painful bump on her foot was due to the way the sutures were cut during her surgery with respondent. A pathologist tested tissue from appellants foot and found abnormal nerve tissue in the tissue from the screw and from the medial eminence area. Based on these findings, Dr. DiGiacomo opined that the initial bunion surgery was performed by a "beginner," rather than by a skilled orthopedic surgeon.
Appellants foot problems slowly improved after the July 1997 surgery. By December 1997, she could work out for an hour before she would start to feel pain and throbbing in her foot at the site of a callus under her second toe. She also still had shooting pain and a throbbing sensation in her foot, as well as pins and needles feelings on the side of her big toes, a tugging and tightness on the bump, and cramping at night and while driving.
DISCUSSION
I. Medical Negligence Claim
Appellant contends the trial court erred in refusing to find, in response to appellants motions for a directed verdict and JNOV, that respondent committed medical negligence, as a matter of law, by (1) severing her EHL tendon and (2) failing to obtain her informed consent regarding the participation of Dr. Jeffrey Mann in the surgery and regarding the risk of a known medical complication.
Preliminarily, we disagree with appellants assertion that liability for medical negligence in this case can be found as a matter of law. "[T]he general rule concerning medical negligence is that such liability may not be found as a matter of law. In most instances there is the need for expert testimony on the subject of just what constitutes medical negligence, because the average judge or juror does not possess the necessary level of knowledge about medical practice and procedure to decide on his own whether the doctor was negligent. Therefore, it is usually a question of fact, for the triers of fact, as to whether the doctor was negligent based upon the expert testimony that was received into court. . . . [¶] However, as stated in Prosser on Torts (4th ed. 1971) section 32, pages 164-65, `Where the matter is regarded as within the common knowledge of laymen, as where the surgeon saws off the wrong leg, or there is injury to a part of the body not within the operative field, it has been held that the jury may infer negligence without the aid of any expert." (Barton v. Owen (1977) 71 Cal.App.3d 484, 493-494.)
This case is one to which the general rule applies in that expert testimony was required, and the trial court was not in a position to determine medical negligence as a matter of law.
Moreover, on appeal, the correct standard of review is whether the courts rulings were supported by substantial evidence. (See Carrau v. Marvin Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 289 [scope of appellate review of denial of motion for JNOV "`"`is to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jurys conclusion and where so found, to uphold the trial courts denial of the motion" [Citation.]"]; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631 [denial of a motion for directed verdict is reviewed under substantial evidence standard].) Hence, "[i]t is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." (Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631, emphasis in original.)
A. Severing the EHL Tendon
Appellant argues the trial court should have found that respondent committed medical negligence by severing her EHL tendon during surgery.
Respondent testified that during a crescentic osteotomy, the dull side of the saw bumps the tendon in more than half of cases, but in less than one percent of cases does the bumping cause a problem. He has performed this procedure some 1,000 times, and has cut the tendon once and nicked it half a dozen times. The procedure, therefore, is quite safe.
During appellants surgery, respondent retracted appellants EHL tendon. He saw the tendon being cut by the saw during the surgery. In retrospect, respondent believed there had been inadequate retraction of the tendon. At the time, however, he felt that the tendon was moved far enough away that there would not be a problem with it. If he had felt the tendon was going to be harmed, he would have extended the incision to retract the tendon further. After setting appellants bone, respondent repaired the tendon.
Appellants sole expert at trial was Dr. Michael DiGiacomo, a board certified podiatrist. He had been a practicing podiatrist for 25 years. He had never performed a crescentic osteotomy until trial, when he performed one on an amputated leg as a demonstration for the jury. Dr. DiGiacomo offered his opinion that respondent performed below the applicable standard of care when he cut appellants EHL tendon.
Carol Frey, M.D., who testified as an expert witness for respondent, is a board certified orthopedic surgeon. She was on the faculty of the Department of Orthopedic Surgery at the University of Southern California for five years, where she ran the foot and ankle surgery department. She currently is in private practice and also is an assistant clinical professor at the University of California, Los Angeles. She is a spokesperson for the American Academy of Orthopedic Surgeons and is "probably the number one expert on womens shoe wear and womens foot problems." Dr. Frey is familiar with the standard of care applicable to orthopedic surgeons practicing in the San Francisco Bay Area in 1996 and 1997. Dr. Frey performs crescentic osteotomies and has published on the subject of crescentic osteotomies for hallux valgus surgery.
Dr. Frey testified that, in her opinion, the inadvertent cutting of appellants EHL tendon in this case did not breach the standard of care for orthopedic surgeons. That is because, even when retracting the tendon as much as appears necessary and making sure the saw is in the right position, it is not unusual for the dull side of the saw to hit the tendon during the surgery. The tendon is very resilient, so even with the saw bumping the tendon, it is very rare that it would cause a rupture. It is possible, however, that, with the surgeon using good judgment, the saw can cause enough of a nick in the tendon to cause a rupture. Dr. Frey also concluded that, in this case, the tendon was repaired appropriately, consistent with the applicable standard of care.
Respondent also testified as an expert in orthopedic surgery. His practice for the previous 23 years had been limited to the foot and ankle. He also is an associate clinical professor of medicine at University of California, San Francisco, and has published and lectured on the subject of foot and ankle surgery. Like Dr. Frey, respondent opined that, during appellants surgery, he complied with the applicable standard of care for orthopedic surgeons in all respects.
Appellant argues that the defense never offered any reasonable explanation at trial as to why respondent permitted the saw to sever the EHL tendon. The evidence at trial, however, was that respondent believed at the time that he was retracting the tendon sufficiently, that he did not know the tendon would be cut until he saw it happen, that only in retrospect did he realize that the retraction was insufficient, and that had he known the tendon would be harmed, he would have retracted it further.
The fact that respondent realized in retrospect that he had made an error in judgment and that the retraction was insufficient does not necessarily mean he was negligent. (See Scarano v. Schnoor (1958) 158 Cal.App.2d 612, 622 ["Negligence is not to be determined by hindsight nor by what a party subsequently learns."]; BAJI No. 6.02 ["A physician is not necessarily negligent because [he] errs in judgment or because [his] efforts prove unsuccessful."].) Both defense experts in this case—respondent and Dr. Frey—concluded that respondent used good judgment when he retracted the tendon and that he did not breach the applicable standard of care when he cut the tendon.
Moreover, that the trial court gave the jury instructions regarding res ipsa loquitur does not mean that respondent was negligent as a matter of law. (See BAJI Nos. 4.02, 6.35, 6.36.) Rather, as appellant states, the doctrine of res ipsa loquitur may be applied to create an inference that the proximate cause of a plaintiffs injury was some negligence on the part of the defendant. (See Brown v. Poway Unified School District (1993) 4 Cal.4th 820, 825-826.) The instructions create a rebuttable presumption of negligence that is dispelled by the defendants introduction of evidence that would support a finding that he or she was not negligent, in which case the jury determines the question of negligence from the evidence, without regard to the presumption. (See Evid. Code, §§ 604, 646, subd. (c).)
Here, the cited defense evidence dispelled any presumption of negligence, and the record contains substantial evidence supporting the jurys conclusion that respondent was not negligent with respect to the cutting of appellants EHL tendon. (See Brown v. Poway Unified School District, supra, 4 Cal.4th at pp. 825-826 Carrau v. Marvin Lumber & Cedar Co., supra, 93 Cal.App.4th at p. 289; Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631.)
B. Alleged Lack of Informed Consent
Appellant argues the trial court should have found that respondent committed medical negligence by failing to obtain her informed consent regarding the participation of Dr. Jeffrey Mann in the surgery and regarding the risk of developing a callus under her toe.
In Cobbs v. Grant (1972) 8 Cal.3d 229, 240, the California Supreme Court recognized a medical negligence cause of action for failure to obtain informed consent. This rule of informed consent does not require full disclosure. (Id . at pp. 243-244.) Rather, "a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur. Beyond the foregoing minimal disclosure, a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances. [¶] . . . [T]he test for determining whether a potential peril must be divulged is its materiality to the patients decision. [Citation.]" (Id . at pp. 244-245.)
The trial court instructed the jury regarding informed consent pursuant to BAJI No. 6.11, which provides: "Except as hereinafter explained, a physician has a duty to disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment.
"Material information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patients position when deciding to accept or reject a recommended medical procedure. To be material a fact must also be one that is not commonly appreciated.
"The physician does not have a duty to make disclosure of risks when the patient requests that [he] [or] [she] not be so informed or where the procedure is simple and the danger remote and commonly understood to be remote.
"Likewise, there is no duty to discuss minor risks inherent in common procedures, when those procedures very seldom result in serious ill effects.
"However, when a procedure inherently involves a known risk of death or serious bodily harm, the physician has a duty to disclose to the patient the possibility of such an outcome and to explain, in lay terms, the complications that might possibly occur. [The physician or surgeon must also disclose such additional information as would be called for by the standard of skill and care required of the defendant under the same or similar circumstances.]
"[A physician has no duty of disclosure beyond that called for by the standard of skill and care required of the defendant under circumstances when [he] [or] [she] relied upon facts which would demonstrate to a reasonable person that the disclosure would so seriously upset the patient that the patient would not have been able to rationally weigh the risks of refusing to undergo the recommended [treatment] [operation].]
"Even though the patient has consented to a proposed treatment or operation, the failure of the physician to inform the patient as stated in this instruction before obtaining consent is negligence. This negligence renders the physician subject to liability for any injury caused by the [treatment] [operation] if a reasonably prudent person in the patients position would not have consented to the [treatment] [operation] if [he] [or] [she] had been adequately informed of all the significant perils[.] [, unless the patient would have consented even though a reasonable person would not have done so.]"
In Arato v. Avedon (1993) 5 Cal.4th 1172, 1190-1191, our Supreme Court explained that expert opinion testimony is often relevant to determine the duty to disclose matters other than the risk of death or serious harm and significant potential complications.
1. Dr. Jeffrey Manns Participation in the Surgery
Well before her surgery, appellant received a written confirmation of the scheduled surgery that included the estimated fees for a surgeon and an assistant surgeon. On the day of her surgery, appellant signed a consent form authorizing respondent "and any needed assistants to perform the above-named operation." That same day, appellant also met Dr. Jeffrey Mann, who told her that he was a fully trained orthopedic surgeon seeking additional training in a fellowship with respondent, and that he would be assisting in appellants surgery.
Respondent testified that he told appellant that he and his fellow would be performing the surgery together. In fact, Dr. Jeffrey Mann performed only as an assistant during appellants surgery, with respondent directing and supervising. Respondent decided what his assistant would do during the surgery as the operation progressed.
Appellant testified that Dr. Jeffrey Mann told her prior to her surgery that he would be assisting respondent in the surgery. Appellant did not ask him any questions about his role or object to his assisting at her surgery. Although appellant did not know the difference between a primary and an assistant surgeon, she believed an assistant was like a nurse and should not do the primary part of the surgery.
Dr. Frey testified that an assistant surgeon in orthopedic surgery is someone who could perform all critical parts of the operation. She believes that it is very difficult to perform the surgery that was performed on appellant without a second pair of hands. "The best scenario is if you can get an assistant surgeon to help you with this case because there are many parts to it that need to be controlled and need to be done with a surgeons expertise. Sometimes you cant get an assistant surgeon for various reasons and you can perform the operation. Ive always found it to be much more difficult to do that way."
Dr. Frey also opined that respondent obtained appellants informed consent for the surgery even if he did not advise appellant of the specific portions of the operation that Dr. Jeffrey Mann would perform. The standard of care applicable to orthopedic surgeons does not require that the surgeon advise the patient of the assistant surgeons precise role because the surgeon often decides this question during the operation, depending on what happens with the patient.
Dr. Frey also testified that an orthopedic surgeon learns to cut bone and use a screwdriver during the first year of his or her orthopedic residency; these are very straightforward and basic procedures. The cutting of the bone in a proximal metatarsal crescentic osteotomy is not technically challenging. The most critical part of such an operation is the positioning of the two pieces of bone. If this part is not done properly, the most common complications occur, including failure to correct the deformity, overcorrection, or malunion. Respondent testified that he had successfully performed this part of the surgery on appellant.
The record contains substantial evidence that appellant was adequately advised of and consented to the participation of Dr. Jeffrey Mann in her surgery as an assistant surgeon. (See Carrau v. Marvin Lumber & Cedar Co., supra, 93 Cal.App.4th at p. 289; Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631.) Appellant was informed, prior to her surgery, that an assistant surgeon would be participating in the surgery. Moreover, the testimony of Dr. Frey provides substantial evidence that the standard of care did not require that appellant be informed of precisely what the assistant surgeon would do during the surgery. (See Arato v. Avedon, supra, 5 Cal.4th at pp. 1190-1191.)
We find unpersuasive appellants comparison of the present situation with teaching hospitals, in which patients must sign a release after being informed that their surgery is being used for teaching purposes. Here, Dr. Frey explained the difference between a resident, who is a student, and a fellow, who is a fully trained and qualified surgeon who wants to fine-tune his or her philosophy and thinking process in a given specialty. She also testified that it is far preferable for a surgeon to perform the surgery in question with an assistant surgeon than to perform it alone or with a scrub nurse. Finally, the evidence showed that Dr. Jeffrey Mann assisted in the surgery under the direction and supervision of respondent, and he only performed those parts of the surgery that were straightforward and in which he had a great deal of experience. This situation is not analogous to that encountered in a teaching hospital.
2. The Risk of Developing a Callus
Appellant developed a callus (also known as a transfer lesion) under her right second toe. Dr. DiGiacomos medical records first mention the callus on December 1, 1999, several years after her surgery with respondent. Appellants expert, Dr. DiGiacomo, testified that development of a callus does not constitute "serious bodily harm." He also acknowledged that a callus could develop in the absence of surgery, noting that appellant has the same type of callus under her left second toe as well.
Respondent testified that he probably told appellant about the unlikely possibility of developing a callus as a result of the surgery because it was his habit and custom to do so. He also testified that in surgery performed under his direction, the risk of developing a callus is very low in a patient like appellant, and the standard of care did not require that he advise her of that risk.
In his deposition, respondent had initially stated that he did not inform appellant of the risk because it occurs very rarely. He further stated that the callus occurs in two to three percent of patients, and that it usually does not bother them very much.
Respondents expert, Dr. Frey, testified that respondent obtained informed consent for the surgery even if he did not advise appellant of the possibility of a callus under her second toe. Dr. Frey also opined that appellants callus was not caused by respondents surgery, especially given that it was not observed until over one year after that surgery. Instead, it was caused by the fact that appellant has an extra bone (a sesamoid) under her second joint area. There also is a smaller callus under her left second toe; the sesamoid in her left foot is smaller than the one in her right foot. (See part IV, post, for a discussion of the admissibility of this expert testimony regarding the presence and significance of appellants accessory sesamoid bones.)
We find appellants extremely abbreviated argument on this point unpersuasive. The testimony, including the expert testimony, in this case provides substantial evidence that respondent obtained appellants informed consent to perform the surgery regardless of whether he told her about the possibility that a callus might develop under her right second toe. (See Carrau v. Marvin Lumber & Cedar Co., supra, 93 Cal.App.4th at p. 289; Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631; see also Arato v. Avedon, supra, 5 Cal.4th at pp. 1190-1191.)
II. Fraud Claim
Appellant further contends the trial court erred in refusing to find, in response to appellants motions for a directed verdict and JNOV, that respondent committed fraud, as a matter of law, by intentionally misleading her regarding the fact that Dr. Jeffrey Mann would be performing her surgery and that she was being used as a teaching tool. As previously discussed, the question here is whether there is substantial evidence in the record to support the jurys verdict in favor of respondent on this cause of action. (See Carrau v. Marvin Lumber & Cedar Co., supra, 93 Cal.App.4th at p. 289; Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631.)
In more egregious cases, a fraud theory may be pursued where the doctor is alleged to have intentionally misled the patient and the "facts go beyond either negligence or battery . . . ." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 635.) As already set forth in part I, B, 1. ante, of this opinion, in which we addressed appellants claim of medical negligence due to lack of informed consent regarding Dr. Jeffrey Manns participation in appellants surgery, the evidence at trial showed that appellant knew, at the time of her surgery, that there would be an assistant surgeon participating in the surgery and that the assistant would be Dr. Jeffrey Mann, who was a fully qualified orthopedic surgeon seeking additional training in a fellowship with respondent. The evidence also showed that Dr. Jeffrey Mann performed only as an assistant during the surgery, under the direction and supervision of respondent.
Thus, substantial evidence supports the jurys verdict in favor of respondent on this ground and appellants motions for directed verdict and JNOV were properly denied. (See Carrau v. Marvin Lumber & Cedar Co., supra, 93 Cal.App.4th at p. 289; Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631.)
III. Battery Claim
Appellant contends the trial court erred in granting respondents motion for partial nonsuit as to appellants battery cause of action on statute of limitations grounds. According to appellant, the one-year statute of limitations was tolled because no one told her about Dr. Jeffrey Manns involvement in her surgery, the operative report was silent as to his participation, and she, therefore, did not learn of his involvement until years later. Appellant argues that the trial court should instead have found that respondent committed battery as a matter of law by permitting Dr. Jeffrey Mann to perform part of the surgery without her consent, and should have granted her motion for directed verdict as to this claim.
Former Code of Civil Procedure section 340, subdivision (3), applicable to appellants battery claim, provided a one-year statute of limitations for a battery cause of action. A cause of action for battery accrues upon commission of the act, and the limitations period begins to run at that time. (See Sonbergh v. MacQuarrie (1952) 112 Cal.App.2d 771, 773-774; 3 Witkin, Cal. Procedure (4th ed. 1997) Actions, § 511, p. 642.) This running of the statute of limitations is delayed only in cases where fraud, concealment, or duress on the part of the defendant prevented the plaintiff from discovering his or her injury. (Sonbergh v. MacQuarrie, supra, 112 Cal.App.2d at p. 774.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Appellant filed her original complaint on November 24, 1997. She alleges that she did not learn that Dr. Jeffrey Mann had performed any part of her surgery until February 1999, when she read respondents deposition testimony, in which respondent testified that he thought appellants tendon had been cut by the edge of the saw used by Dr. Jeffrey Mann. She then moved to amend her complaint on July 16, 1999 to add claims for battery and fraud. The court granted the motion and appellant filed the first amended complaint on August 27, 1999.
Again, the evidence in this case showed that appellant knew on September 12, 1996, the day of her surgery, that there would be an assistant surgeon participating in the surgery and that the assistant would be Dr. Jeffrey Mann. On that date, she signed a consent form authorizing any needed assistants to perform her operation.
In addition, appellant testified that the day after her surgery, on September 13, 1996, Dr. Jeffrey Mann told her, "`We cut the tendon but we fixed it." Appellants daughter, Leilani Luzano, who was 23 years old at the time of trial, testified that she was present when Dr. Jeffrey Mann evaluated appellant the day after the surgery. Leilani Luzano heard him tell appellant that he had performed the surgery and had accidentally cut the tendon. She recalled that appellant was shocked and upset to learn that Dr. Jeffrey Mann had performed the surgery and cut the tendon.
Dr. Jeffrey Mann testified that on September 13, 1996, he advised appellant that the tendon had inadvertently been cut. He did not recall the specific words he used, but regardless of whether he used the word "we" or "I," he told appellant that he was involved in the surgery and the injury to the tendon.
The evidence presented at trial thus demonstrated that appellant suffered the alleged battery on September 12, 1996, and that she had information by September 12 and September 13, 1996, regarding Dr. Jeffrey Manns participation in her surgery and in the severing of her tendon. In her original complaint, filed on November 24, 1997, appellant alleged that both respondent and Dr. Jeffrey Mann had negligently performed her surgery and that both had cut her EHL tendon. Accordingly, appellant cannot claim her discovery of the alleged battery was delayed until after respondents deposition in this case due to fraud on the part of respondent or Dr. Jeffrey Mann. (See Sonbergh v. MacQuarrie, supra, 112 Cal.App.2d at p. 774.)
Even assuming the relation-back doctrine is applicable here (see Garrison v. Board of Directors (1995) 36 Cal.App.4th 1670, 1678 [amended complaint relates back to original complaint, for statute of limitations purposes, "when recovery under an amended complaint is sought on the same basic set of facts as the original pleading"]), appellants battery claim still would be time-barred since she filed her original complaint more than 14 months after the date of the surgery.
Appellants battery claim, first presented in the first amended complaint filed on August 27, 1999, was time-barred and the trial court properly granted respondents motion for partial nonsuit as to this cause of action. (See former § 340, subd. (3).)
IV. Admission of Evidence over Appellants Kelly-FryeObjection
Appellant contends the trial court erred when it admitted the expert opinion testimony of respondent and Dr. Frey, over appellants Kelly-Frye objection, that the cause of the callus under appellants right second toe was an accessory sesamoid bone, not the surgery in question. Appellant requests that we use this case to decide the scope of the Kelly-Frye rule, which she asserts has never been fully addressed by the California courts.
Appellants expert, Dr. DiGiacomo, testified that appellant has lesions or calluses—which he defined as "compacted skin; that is where a bone is compacting the skin down"—under both feet. Appellant first complained to Dr. DiGiacomo of pain under her right toe in December 1999. He could not say with probability that the callus was there before December 1999 because he did not have it in his records before that date. Dr. DiGiacomo acknowledged that some people are more prone to develop calluses than others and that calluses could develop in the absence of surgery. On February 20, 2002, he performed an experiment, in which he put ink on appellants calluses, had her step on paper, and then outlined her feet.
At trial, respondents expert, Dr. Frey, testified that, in her opinion, the calluses on the bottom of both of appellants feet were unrelated to the September 12, 1996 surgery, but, instead, were related to appellants anatomy. Her opinion was based on the facts that while the surgery was performed only on appellants right foot, appellant had the callus on both feet and that there was no mention of the calluses until over a year after the surgery in question. Dr. Frey believed the calluses were caused by an extra bone, called a "sesamoid," in each foot, located under appellants second joint area. When Dr. Frey placed transparencies showing tracings of appellants feet that had been prepared by appellants expert, Dr. DiGiacomo, over x-rays of appellants feet, the markings showing the location of the calluses were directly under the sesamoid bones, not under the second toes. Dr. Frey explained that the sesamoid bone causes a callus because it is an extra bone, and the body responds to the prominence caused by the bone by thickening the skin beneath it. Finally, Dr. Frey noted that the callus on appellants left foot was smaller than the one on her right foot because the sesamoid bone on the left foot was smaller than the one on the right foot.
During his testimony, respondent also superimposed the tracings of appellants feet over x-rays of her feet. In addition, respondent examined the calluses on the bottom of appellants feet for the first time during trial. When respondent last examined appellants feet, almost five years earlier, he did not note the presence of any calluses. The calluses are located between the first and second toes, directly under the sesamoid bones, not under the second toe. He opined that the calluses on appellants feet are due to the presence sesamoid bones on each foot and have nothing to do with the surgery he performed. The difference in size between the two calluses is due to a difference in size in the sesamoid bones in each foot.
Appellant argues that this evidence regarding the relationship between the calluses and the accessory sesamoid bones, which first became apparent during trial when Dr. Frey and respondent compared the tracings with the x-rays and respondent examined appellants feet, should have been excluded under the Kelly-Frye rule as a new theory unsupported by the medical community. We disagree.
In Kelly, the California Supreme Court held the admissibility of expert testimony based on a new scientific technique requires proof of its reliability. (Kelly, supra, 17 Cal.3d at p. 30.) The purpose of the rule is "to protect the jury from techniques which, though `new, novel, or `"experimental," convey a `"misleading aura of certainty." (People v. Stoll (1989) 49 Cal.3d 1136, 1155-1156, quoting Kelly, supra, 17 Cal.3d at pp. 30-32.) "`The Kelly test is intended to forestall the jurys uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate. In most other instances, the jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them. (People v. Venegas (1998) 18 Cal.4th 47, 80 . . . .)" (Wilson v. Phillips (1999) 73 Cal.App.4th 250, 254; accord People v. Mitchell (2003) 110 Cal.App.4th 772, 783.)
In Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 584-589, the United States Supreme Court explained that the Frye decision has been abrogated by the Federal Rules of Evidence. But in People v. Leahy (1994) 8 Cal.4th 587, 591, our Supreme Court concluded "that the Kelly-Frye formulation (or now more accurately, the Kelly formulation) should remain a prerequisite to the admission of expert testimony regarding new scientific methodology in this state."
"[A]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly/Frye. . . . [That is because] `[w]hen a witness gives his personal opinion on the stand—even if he qualifies as an expert—the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible. . . . [¶] . . . We have never applied the Kelly/Frye rule to expert medical testimony . . . ." (People v. Stoll , supra, 49 Cal.3d at p. 1157; accord People v. Ward (1999) 71 Cal.App.4th 368, 373 ["`California distinguishes between expert medical opinion and scientific evidence; the former is not subject to the special admissibility rule of Kelly-Frye. [Citation.] Kelly-Frye applies to cases involving novel devices or processes, not to expert medical testimony . . . ."]; People v. Mitchell, supra, 110 Cal.App.4th at p. 783.)
The California Supreme Court thus has made clear that except in very unusual circumstances, expert medical opinion is not subject to Kelly-Frye. In the present case, the expert testimony of Dr. Frey and respondent regarding appellants accessory sesamoid bones plainly did not involve a new scientific technique, regardless of whether there was literature on the subject. (Kelly, supra, 17 Cal.3d at pp. 30-32.) Nor did the testimony contain any "special feature" that would "effectively blindside the jury." (See People v. Stoll, supra, 49 Cal.3d at p. 1157.) Rather, their testimony simply reflected their personal medical opinions, based on examination of appellants feet and a comparison of x-rays and transparencies of her feet, regarding the cause of appellants calluses. It was up to the jury to then decide whether their explanation for the callus under appellants right toe was believable. (See People v. Stoll, supra, 49 Cal.3d at p. 1157.)
Appellant makes much of the fact that it was not until after appellants surgery and after she filed a lawsuit that respondent mentioned, in the seventh edition of his textbook, Surgery of the Foot and Ankle, the possibility of a callus on the bottom of the foot being caused by an accessory sesamoid bone. Because we conclude the Kelly-Frye rule is inapplicable here, the prior existence of literature validating the experts medical opinions is not relevant. It was for the jury to decide whether their testimony was credible.
Appellant cites a sentence in People v. Stoll, supra, 49 Cal.3d 1136, in support of her assertion that the expert testimony in question was subject to Kelly-Frye. In People v. Stoll, our Supreme Court stated, "Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law." (49 Cal.3d at p. 1155, emphasis in original.) According to appellant, the courts use of the word "theory" shows that the rule is applicable in this case, in which the experts presented a theory that is new to science regarding the reason for appellants callus. We find unconvincing appellants attempt to use this word to transform Kelly-Frye into a rule that would apply regularly to expert medical opinion testimony, since medical experts often theorize in a manner not documented in textbooks about, for example, the cause of an injury.
We conclude the trial court properly permitted the defense experts to testify regarding their opinions as to the cause of appellants callus without subjecting their proposed testimony to the Kelly-Frye rule.
V. Denial of Appellants Motion to Inspect Respondents Computerized Records
Appellant contends the trial court erred when it denied her motion to inspect respondents and Dr. Jeffrey Manns computerized records.
On March 20, 2002, in the midst of trial, appellants counsel made an oral motion, pursuant to section 1987, subdivision (c), requesting that the court order that a computer specialist inspect respondents computer for any records related to appellant that the defense had failed to provide during discovery. Counsel based his request on allegations that the defense had previously turned over incomplete records, claimed that records were missing, and otherwise attempted to avoid complying with appellants discovery requests.
For purposes of ruling on the motion, the trial court accepted as true the representations of appellants counsel regarding the basis for the motion. The trial court nonetheless denied the motion, first, because it believed the motion was in fact a very late discovery motion and that appellant could have addressed this issue before the discovery cut-off. Second, there was no evidentiary foundation for assuming that there was evidence on respondents computer that would have any bearing on appellants claims of a discrepancy in records produced during discovery. The court concluded that appellant had not demonstrated good cause to allow the requested relief in the midst of trial.
Appellants counsel twice requested that the trial court reconsider its ruling, and the court reaffirmed its previous ruling both times. The court did note, however, that appellant was not precluded from offering evidence at trial of any alleged discrepancies in the medical records.
Appellant claims the trial courts ruling was in error in that appellants motion was an authorized trial motion to enforce a trial subpoena under section 1987, subdivision (c). We agree with the trial court that the motion was in reality a delayed discovery motion and that appellant failed to show good cause for permitting late discovery. Appellant offers no authority to the contrary. There was no abuse of discretion.
VI. Denial of Appellants Motion for Leave to File a "Sixth" Amended Complaint
Appellant contends the trial court abused its discretion when it denied her motion for leave to file a "sixth" amended complaint during trial to add causes of action for battery and intentional concealment. Appellants contention is without merit.
The trial court denied appellants motion to add a fourth cause of action for battery on the ground that it was moot in light of the parties stipulation that appellant had alleged the same cause of action in the second cause of action of the operative second amended complaint. The court took under submission appellants request to add a fifth cause of action for intentional concealment. The record reflects that the motion was later granted as to this cause of action, and the jury was instructed on fraud by concealment. (See BAJI No. 12.35.) Appellants contention is unwarranted.
VII. The Trial Courts Order Awarding Costs to Respondent
In her second appeal, appellant contends the filing of a notice of appeal of the judgment in this case deprived the trial court of jurisdiction to rule on appellants motion to tax costs and on respondents motion for an award of expert witness fees as costs under section 998, subdivision (c)(1).
Section 998, subdivision (c)(1), provides: "If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendants costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant."
A. Trial Court Background
On May 8, 2002, respondents counsel served respondents memorandum of costs; the cost list was filed on May 10, 2002. The list included $29,850.20 in expert witness fees under section 998. On May 28, 2002, appellant served her motion to strike or tax costs; the motion was filed on June 7, 2002. On June 13, 2002, respondent filed and served his motion for an award of costs, including expert witness fees under section 998. He based his request for expert witness fees on the fact that he had served three offers to compromise during the pendency of the action, none of which had been accepted by appellant.
On June 21, 2002, appellant filed a notice of appeal from the underlying judgment in this case.
On August 16, 2002, the trial court issued its order denying appellants motion to strike, with exceptions, and granting respondents motion for an award of costs, with exceptions. On November 15, 2002, the trial court entered its order related to costs and, on December 20, 2002, respondents counsel served a notice of order regarding the order on costs; the notice was filed on December 23, 2002.
The order reduced respondents claimed expert witness fees by $15,000.
On February 13, 2003, appellant filed her notice of appeal from the costs order.
B. Analysis
With certain exceptions, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order." (§ 916, subd. (a).) The filing of a notice of appeal does not deprive the trial court of jurisdiction to award costs post trial and, accordingly, does not stay any proceedings to determine the question of costs. (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368, 369.) That is because an award of costs—such as, in Bankes, attorney fees awarded as costs—is a collateral matter that is embraced in the action but is not affected by the order from which the appeal is taken. (Ibid., citing § 916, subd. (a).)
In the present case, because the costs motions involved matters collateral to the judgment being appealed, the trial court had jurisdiction to issue its order regarding costs.
Appellant has asked that we "admonish defendant from taking any action with respect to the collection of costs until this court renders its decision." She asserts that a judgment for costs alone is automatically stayed without bond pending appeal. However, while enforcement of an award of routine costs is automatically stayed by an appeal, enforcement of an award of expert witness fees as costs, awarded pursuant to section 998, is not stayed pending appeal unless an undertaking is given. (§ 917.1, subd. (a)(2); see also Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 805 [holding codified in § 917.1, subd. (a)(2)].) Appellant has shown us no basis for admonishing respondent.
Appellants reliance on Olson v. Superior Court (1969) 274 Cal.App.2d 311, 313-314, is misplaced in that Olson involved the filing of an amended cross-complaint by the defendant after the trial court had granted judgment on the pleadings on the cross-complaint and the defendant had appealed that ruling. The appellate court properly concluded that the trial court had no jurisdiction to grant the motion to file an amended cross-complaint in that situation, which is wholly dissimilar to the present one.
DISPOSITION
The judgment is affirmed. The trial courts order awarding costs to respondent is affirmed. Costs on appeal are awarded to respondent, Roger Mann, M.D.
We concur: Lambden, J., Ruvolo, J.