Opinion
E049799
08-12-2011
MARK MACKNET et al., Plaintiffs and Respondents, v. LOMA LINDA UNIVERSITY MEDICAL CENTER, Defendant and Appellant.
Horvitz & Levy, S. Thomas Todd, Julie L. Woods; Law Offices of Nancy Menzies Vaessen and Nancy Menzies Vaessen for Defendant and Appellant. Ward & Ward, Alexandra S. Ward; Law Office of Jeffrey S. Raynes and Jeffrey S. Raynes for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SCVSS131543)
OPINION
APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Affirmed.
Horvitz & Levy, S. Thomas Todd, Julie L. Woods; Law Offices of Nancy Menzies Vaessen and Nancy Menzies Vaessen for Defendant and Appellant.
Ward & Ward, Alexandra S. Ward; Law Office of Jeffrey S. Raynes and Jeffrey S. Raynes for Plaintiffs and Respondents.
Mark Macknet and his wife Danielle Macknet, plaintiffs and respondents (hereafter referred to individually by first name, and collectively as plaintiffs), sued Loma Linda University Medical Center, defendant and appellant (hereafter defendant, or defendant hospital), for negligence after Mark developed a methicillin resistant staphylococcus aureus (MRSA) infection following surgery at defendant hospital to repair a herniated disc. As a result of the MRSA infection, Mark had to undergo several additional surgeries, including one to remove nearly all of the disc, and another to fuse the vertebrae above and below the disc space. As a result of the disc fusion, Mark is in constant pain that seriously affects his ability to work as an anesthesiologist.
Plaintiffs' theory of liability was that an unsanitized surgical instrument supplied by defendant introduced the MRSA infection into Mark's disc space. Defendant, on the other hand, asserted that Mark acquired the MRSA bacteria outside the hospital and because it was on his skin, Dr. Bergey, the surgeon, introduced the infection into the deep wound space when he opened the surgical wound to clean out what then was a superficial infection. A jury, in a vote of 11-1, returned special verdicts in favor of plaintiffs after a four week trial.
Defendant raises only one claim in this appeal from the judgment—that the trial court erred when, over defendant's objection, it allowed Dr. Bergey to testify about other patients of his who had acquired an infection after undergoing surgery at defendant hospital. Defendant argues that evidence of other infections is inadmissible under Evidence Code section 1101, subdivision (a), which precludes the use of character evidence to prove negligence. Plaintiffs, in turn, contend defendant did not object under Evidence Code section 1101 in the trial court, and therefore defendant has forfeited the issue for review on appeal.
We conclude as we explain below that defendant did not object on the basis of inadmissible character evidence to Dr. Bergey's testimony regarding other instances of infection and has forfeited that issue. Defendant did raise the proper objection to Dr. Bergey's testimony regarding unsterile surgical instruments. We agree with defendant that the trial court erred when it overruled its objection to that evidence. However, that error was not prejudicial. Therefore, we will affirm.
FACTS
The pertinent facts are undisputed. Dr. Bergey, a spine surgeon with privileges at defendant hospital, performed a microdiscectomy on a herniated disc in Mark Macknet's back on November 4, 2004. Mark was 29 years old and an anesthesiology resident at defendant hospital at the time of the surgery. On November 8, 2004, Dr. Bergey performed a second microdiscectomy on Mark after the disc reherniated. The first surgery was performed at defendant's East Campus; the second surgery at defendant's main hospital. Several days after the second surgery, Mark's surgical wound began to drain a clear straw-colored liquid. Dr. Bergey opened the wound and packed it with sterile gauze pads to absorb the drainage. On November 16, Mark's brother, who is a dermatologist, took a culture of the surgical wound after Mark's wife, who is an obstetrician/gynecologist, noticed that the fluid draining from the wound looked milky or pus-like. The culture grew out a MRSA infection within two days.
Because they are undisputed, we take our statement of facts from the parties' respective briefs unless indicated otherwise.
On November 18, 2004, Dr. Bergey performed a third surgery on Mark's back, this one to clean out the infection. Although he had been released from the hospital and Danielle provided his follow-up care at home after the first two surgeries, after this third surgery, Mark remained in defendant hospital. Mark's condition initially improved after the third surgery, but by November 23, 2004, he had a fever and his condition began to deteriorate. A culture of blood drawn that day showed an enterococcus infection. Enterococcus is bacterium found in feces as well as in the urinary tract, digestive tract, and infected sinus cavities. Dr. Bergey ordered an MRI of Mark's back. That MRI showed subcutaneous fluid collection that suggested significant areas of infection.
To remove the infection, Dr. Bergey performed a fourth surgery on November 25, 2004. During this fourth surgery, Dr. Bergey found that the infection went all the way to Mark's disc space. The disc looked infected and felt mushy. A mushy disc, according to Dr. Bergey, is one that has been attacked or eaten away by bacteria. Dr. Bergey removed 90 percent of the disc; he also took a culture of the disc space. That culture showed Mark had both MRSA and enterococcus infections. Because Dr. Bergey removed the disc, he had to perform a fifth surgery on Mark to fuse the disc space. In order to keep the fused spine in place, Dr. Bergey used metal rods and screws that later had to be removed from Mark's back in a sixth surgery.
Mark completed his anesthesiology residency in May 2005 despite all the surgical procedures. At the time of trial he was employed as an anesthesiologist at defendant hospital. As a result of the various surgeries, Mark is in constant pain. He takes large doses of pain medication in order to function.
Additional facts pertinent to the issue defendant raises on appeal will be discussed below.
DISCUSSION
The only issue at trial, as previously noted, was how the MRSA infection got into Mark Macknet's disc space. Plaintiffs' theory, as previously noted, was that it was on surgical instruments supplied by defendant that Dr. Bergey used during the second surgery on November 8 to repair the disc after it reherniated. Defendant's only contention in this appeal is that the trial court committed prejudicial error when it permitted plaintiffs to present evidence of breaches of sterility and other infections contracted by patients at defendant hospital. Defendant contends that such evidence is inadmissible under Evidence Code sections 1101, subdivision (a) and 1104. Plaintiffs contend defendant did not object in the trial court based on either of the cited Evidence Code sections and therefore has not preserved the issue for review on appeal. Plaintiffs are correct in part.
1.
ADDITIONAL RELEVANT FACTS
The record discloses that defendant made numerous pretrial in limine motions including ones to exclude evidence of (1) peer review committee investigations of other infections that had occurred at defendant hospital, (2) newspaper articles and other publicity regarding a State of California Department of Health Services (DHS) investigation of defendant after a patient acquired an infection because a nurse failed to turn on the autoclave during a flash instrument sterilization procedure, and (3) the DHS report on that investigation. The trial court granted each of those motions but also ruled that Dr. Bergey could testify to his personal experience with infections at defendant hospital. In the trial court's view, that evidence was relevant to show the basis for Dr. Bergey's opinion regarding the source and cause of Mark's MRSA infection.
As a result of the trial court's ruling, Dr. Bergey testified in pertinent part that in his opinion Mark's infection "began in the disc space initially. And the reason why is because if it had been a superficial infection, the first surgery [to clean the wound] would have cured it. It would have cleaned it out. It would have solved the problem. But this process continued on. And it continued on from the deep spaces, that I had to go back in and clean out to get rid of the infection. [¶] It was started there, and it continued there despite doing everything else around it. Because the second surgery, or the first irrigation and debridement, I did everything that I did the second time, except I didn't go into the disc space, because I didn't want to put any bacteria in there. [¶] And if there wasn't any bacteria in there, then everything should have cleaned up and cleared up just like it did after this surgery. The only thing different between this surgery and the one before it was that I took out the bad disc."
In Dr. Bergey's opinion, the MRSA infection was introduced into Mark's disc space by a contaminated surgical instrument during the second surgery on November 8, 2004, to repair the disc after it reherniated. Dr. Bergey added that in thinking about it in the weeks and months that followed Mark's surgery, "there were other infections there at Loma Linda that I personally experienced on my patients that caused me to believe that that's the way it happened." When defense counsel objected, "Irrelevant as to after," the trial court overruled that objection.
Dr. Bergey explained that he personally experienced other infections with his own patients in particular and he "had another deep infection that seemed to be - that had a disastrous result on a patient, and he had a bad infection. [¶] He did the same thing: He went home, had a fine course in the hospital. It was a different kind of surgery, but he went home, then came back about a week/ten days later with an infectious process that I had to wash out, clean up, take back twice, and had a horrible time getting rid of the infection." Dr. Bergey later testified that he believed the patient "had a deep seeded infection with the same kind of bacteria, MRSA." He also confirmed that the patient had contracted the infection while at defendant hospital.
2.
ANALYSIS
Evidence Code section 353 states in pertinent part that a judgment shall not be reversed based on "the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353.)
A.
Forfeiture
Defendant effectively concedes that it did not expressly assert an objection under Evidence Code section 1101, subdivision (a) to any aspect of Dr. Bergey's testimony in the in limine motions. Instead, defendant contends that it did not raise the issue in pretrial motions because Dr. Bergey did not testify in any of his depositions that he had personal experience with infections at the hospital. Defendant argues that the in limine motions were directed at evidence of prior infections at the hospital, and that evidence necessarily includes Dr. Bergey's personal experience with infections. Defendant's argument begs the dispositive issue which is whether defendant actually asserted an objection in the trial court to evidence of prior infections on the ground that such evidence was inadmissible character evidence under Evidence Code section 1101, subdivision (a). Although defendant did object to Dr. Bergey testifying about infections at the hospital, it did so on the ground of hearsay or lack of personal knowledge.
Defendant contends it did assert a character evidence objection at trial, right before Dr. Bergey testified. Plaintiffs' attorney represented to the trial court that Dr. Bergey was "going to testify that he has a patient that that [referring to an infection] occurred to other than Dr. Macknet, his own patient. He's also going to say that at the hospital it was discussed in the orthopedic department, it was common knowledge, he knew it being a surgeon there." Defense counsel argued that Dr. Bergey never stated during his deposition that he had another patient who contracted a MRSA infection at defendant hospital. Moreover, defense counsel added, "It's just trying - trying to introduce improper evidence. And like I said, unfortunately, it's intertwined with some of my other arguments, but it's obvious character evidence, and it's unreliable." After plaintiffs' attorney pointed out that defense counsel did not ask Dr. Bergey about the other patient and suggested the trial court conduct a hearing under Evidence Code section 402, defense counsel responded, "Your Honor, it is not relevant, because it's character evidence, and it goes to the state of mind of my defendant." The trial court did not rule on the issue, an oversight defendant would have us interpret as an implied overruling of the character evidence objection. We are not at liberty to imply a ruling.
To comply with Evidence Code section 353, a defendant must not only object, but must also pursue a ruling on the objection. Absent a ruling the issue is not preserved for review on appeal. (People v. Ramos (1997) 15 Cal.4th 1133, 1171 ["Because the trial court did not rule on his objections in limine, [defendant] 'was obligated to press for such a ruling and to object to [the evidence] until he obtained one. He failed to do so, thus depriving the trial court of the opportunity to correct potential error.'"].) Defendant did not obtain a ruling from the trial court on the admissibility of Dr. Bergey's testimony about infections in his own patients and therefore has not preserved that issue for review on appeal.
B.
Admissibility of Evidence to Which Defendant Did Object and Obtain a Ruling
Defendant only specifically objected that Dr. Bergey's testimony was inadmissible character evidence under "Evidence Code sections 1100 through 1104" when (1) Dr. Bergey testified about the changes he made to his surgical practices at Loma Linda as a result of Mark's infection, and (2) plaintiffs' attorney asked Dr. Bergey, "Your concerns about infection at Loma Linda, okay, you testified about that in your depositions, didn't you?" The trial court overruled defendant's objections. As a result, Dr. Bergey testified in pertinent part that after the incident with Mark "there were multiple times when [he] checked and found holes in the outer garments of the sterile packages and had to return instruments and refused to use them on my cases in the future." Dr. Bergey also confirmed, over defendant's relevance objection, that, "After Dr. Macknet's case, [he had] personal experiences in the operating room at Loma Linda where [he was] given trays, or packs, to operate with that [he] actually rejected," even though the trays had been approved by everyone else in the operating room. In addition, Dr. Bergey confirmed not only that he had advised Mark about his "concerns of un-sterility [sic]at Loma Linda," as the cause of his infection, but also that he was "concerned enough" that he told the director of defendant's operating room.
We agree with defendant that Dr. Bergey's statements regarding surgical instruments and sterility concerns were inadmissible because they were offered to prove defendant engaged in the same conduct during Dr. Bergey's second surgery on Mark, i.e., defendant must have provided unsterile surgical instruments to Dr. Bergey during that second surgery. Evidence Code section 1101, subdivision (a) makes such evidence inadmissible. "A trial centers on a specific incident, not the defendant's general behavior." (Bowen v. Ryan (2008) 163 Cal.App.4th 916, 924.) Therefore, evidence that a defendant was negligent once is inadmissible to prove the defendant was negligent in a specific case. (Ibid.; see also Evid. Code, § 1104 ["evidence of a trait of a person's character with respect to care or skill is inadmissible to prove the quality of his conduct on a specified occasion"].)
Plaintiffs contend evidence that in other surgeries defendant hospital provided Dr. Bergey with surgical instruments that might have been contaminated because the packing was not intact is admissible to show causation. "Evidence of prior accidents is admissible to prove a defective condition, knowledge, or the cause of an accident, provided that the circumstances of the other accidents are similar and not too remote." (Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 555, emphasis added (Elsworth).)In Elsworth, the accident in question was a fatal airplane crash that occurred after the plane, built by the defendant, went into a spin and crashed seven minutes after takeoff. (Elsworth, at p. 545.) At trial, the plaintiffs presented evidence of 20 other stall and spin accidents involving the defendant's airplanes, 15 of which involved a model other than the one at issue in the trial, but all of which had the same wing design that the plaintiffs claimed was defective. (Elsworth, at p. 555.) On appeal, the Supreme Court rejected the defendant's claim that the accidents were not sufficiently similar to prove causation. (Ibid.)Plaintiffs do not address the issue of similarity and therefore have failed to show the applicability of the quoted legal principle.
Evidence of a defendant's conduct other than that at issue in the current trial is admissible under Evidence Code section 1101, subdivision (b) if "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident . . .) other than his or her disposition to commit such an act." Plaintiffs' contrary claim notwithstanding, evidence that defendant hospital in subsequent surgeries provided Dr. Bergey with surgical instruments that might have been contaminated because the packaging was torn is inadmissible if offered to show that the surgical instruments used in Mark's November 8 surgery were contaminated. That testimony constitutes evidence of defendant's conduct on a specific occasion and its use to prove defendant's conduct at the time of Mark Macknet's surgery is precisely the purpose for which such evidence is excluded under Evidence Code section 1101, subdivision (a). Consequently, the trial court erred when it overruled defendant's objection and allowed plaintiffs to present the challenged evidence.
C.
Prejudice
The remaining issue we must resolve is whether the error requires reversal of the judgment. The erroneous admission of evidence requires reversal of a judgment only if that error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; see also Evid. Code, § 353.) "The phrase 'miscarriage of justice' has a settled meaning in our law having been explained in the seminal case of People v. Watson (1956) 46 Cal.2d 818 (Watson). Thus, 'a "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] 'We have made clear that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-801.)
The evidence in this case included the testimony of plaintiffs' expert witness, Dr. Galpin, an infectious disease specialist, who expressed the opinion that Mark acquired the MRSA infection in defendant hospital from a surgical instrument Dr. Bergey used during the second surgery on November 8, 2004. Dr. Galpin acknowledged that he could not identify the specific instrument, and testified that he based his opinion in part on the fact that a culture Dr. Bergey took from Mark's disc space during the November 25, 2004, surgery grew both MRSA and enterococcus. Enterococcus is a bacteria found in urine and feces, as well as the colon. Dr. Galpin confirmed that a test of Mark's urine was negative for enterococcus and "for enterococcus to be on the skin, someone almost has to be a tad bit unclean." In Dr. Galpin's view, the far more likely explanation is that "enterococcus was introduced into [Mark's] disc space from an unsterile instrument." Dr. Galpin confirmed that the first culture taken by Mark Macknet's brother did not grow enterococcus, only MRSA. Dr. Galpin explained that although MRSA and enterococcus were introduced by the same unsterile surgical instrument, MRSA is a stronger bacteria and "often will overgrow other bacteria, including enterococcus, and inhibit it. And secondly, the [antibiotic Mark was taking] indeed would kill, more likely than not, the enterococcus before it killed a methicillin-resistant staph aureus."
Defendant's expert witness, Dr. Cable, also an infectious disease specialist, expressed the opinion that Mark developed a community-acquired MRSA infection that migrated from the superficial layers of the surgical wound to the disc space as a result of Dr. Bergey opening the facia and exploring the deep wound space during the surgery on November 18, 2004, to clean Mark Macknet's infected surgical wound. Dr. Cable testified, in pertinent part, that the profile of sensitivity to antibiotics distinguishes hospital-acquired MRSA from community-acquired MRSA. Mark's MRSA infection was highly sensitive to Vancomycin which suggests it was community acquired. Dr. Cable also explained that hospital-acquired enterococcus is highly resistant to antibiotics, but Mark's enterococcus bacteria responded to everything except Tetracycline. In Dr. Cable's opinion, the enterococcus bacteria found in the November 25 culture was flora from Mark Macknet's own body that entered his blood because he was constipated from the pain medication and entered the disc space through the blood. The MRSA infection also could have been in Mark's blood and was introduced to the disc space in that manner, which would explain why the November 18 culture revealed only rare white cells. Rare white cells also indicate that the infection was just beginning.
Plaintiffs claim every other expert witness including Dr. Goldstein, defendant's "companion expert," rejected the theory that the enterococcus bacteria was transmitted to the disc space through Mark's blood. To support this claim, plaintiffs cite Dr. Goldstein's testimony in which he rules out the possibility that "this germ" got into the blood stream "and caused the problems that it caused." It is apparent from the context that "this germ" refers to the MRSA bacteria rather than to enterococcus.
Plaintiffs claim Dr. Cable's credibility was "undermined, impeached, or destroyed on cross-examination . . . by his own contrary declaration." The declaration in question is ambiguous in that it is unclear whether Dr. Cable is referring to his own findings or those of Dr. Bergey. Moreover, the cross-examination is not as devastating as plaintiffs claim.
In addition to the conflicting expert witness testimony, the jury heard Dr. Bergey's testimony about other instances in which his patients acquired infections following surgeries at defendant hospital. In light of that evidence, it is not reasonably probable the jury would have reached a result more favorable to defendant if the jury had not also heard Dr. Bergey's improperly admitted testimony about surgical instrument packs. In short, the jury would not have rejected plaintiffs' theory of liability and accepted defendant's if Dr. Bergey's testimony regarding the surgical instruments had been excluded from evidence at trial.
Plaintiffs and defendant presented the testimony of additional expert witnesses who also supported their respective theories of liability.
DISPOSITION
The judgment is affirmed. Plaintiffs to recover costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur: Ramirez
P.J.
Codrington
J.