Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06CC04563, James P. Gray, Judge.
Bassiri Associates and Michael H. Bassiri for Plaintiff and Appellant.
Carroll, Kelly, Trotter, Franzen & McKenna, Michael J. Trotter and David P. Pruett for Defendant and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Maribel Marin was treated in the emergency room at Coastal Communities Hospital for an injury to her elbow. Gregory J. Joy, M.D., the physician on duty, attempted to reduce the dislocation of Marin’s elbow, and discharged her with instructions to follow up with an orthopedic specialist within 48 hours. Marin failed to do so. When Marin did see an orthopedist more than one month after her injury, it was determined that surgery would be required to repair the damage. Marin sued Joy for medical malpractice. After Marin rested her case at trial, the court granted Joy’s motion for nonsuit, on the ground Marin had failed to prove the element of causation. Marin appeals.
We affirm. Marin’s evidence failed to establish a reasonable medical probability that Joy’s failure to reduce Marin’s elbow dislocation was a cause in fact of her injury.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On January 3, 2005, Marin was transported by ambulance to Coastal Communities Hospital. Marin had injured her elbow during an “encounter” with a security guard at a bar. Joy, the emergency room doctor on duty, assessed Marin and ordered X rays of her elbow. The X rays showed a small fracture of the proximal radial head, and a dislocation of the elbow. Joy gave Marin pain medication, and then reduced the dislocation. (To reduce means “to put the... item... which is out of position into the correct anatomic position.”) Joy then verified the functionality of Marin’s arm, and splinted it. Joy did not order postreduction X rays of Marin’s elbow.
Joy testified that on discharge, Marin was informed “of the severe nature of her injury,” and that “even if she gets proper follow-up care, she still could end up with residual problems.” Joy stressed that Marin needed to “follow up... with an orthopedic specialist, to ensure, as best we can, that this injury will not leave her with a residual.” Marin’s written discharge instructions specified that Marin should contact Dr. Khan, an orthopedist, within 48 hours after being attended in the emergency department. Joy testified he told Marin to call the orthopedist “tomorrow,” and to “[t]ell the secretary that we instructed you to make this appointment.” Joy provided the discharge instructions to Marin with the assistance of a Spanish speaking interpreter, and the written discharge instructions were in Spanish. At the time she was discharged, Marin was still in pain, although the pain level was lower than when she had arrived at the emergency room.
Joy testified his goal as an emergency room physician treating an elbow dislocation and fracture is “to evaluate the injury... for whatever is damaged and provide pain relief and... correct as best I can correct... what is going on, and if appropriate, refer them to the... specialists that can provide definitive care.” Joy believed Marin’s injury was serious, and testified elbow injuries have a high potential for residual problems, “even with totally appropriate care.” Joy would refer a patient with an injury like Marin’s to an orthopedic specialist because of the risk of long term complications.
Although Joy believed he had properly reduced Marin’s elbow, even if he had not, he would not have attempted to reduce it again, and would have given her the same discharge instructions. Joy expected Marin to follow his instructions.
Marin acknowledged receiving the discharge instructions, including the instruction that she should follow up with Dr. Khan within 48 hours. She read and understood the discharge instructions. Marin did not recall Joy telling her that she would have major problems with her arm if she did not see an orthopedist within two days. The first time Marin saw a doctor about her elbow after being released from the Coastal Communities Hospital emergency room was on February 14, 2005—42 days after her injury occurred.
Dr. Stev T. Hwang, an orthopedic surgeon, first treated Marin on February 25, 2005, and diagnosed a dislocated elbow. Marin required surgery to reduce the elbow. Because of the long period of time before the elbow was surgically reduced, Marin had developed arthritis and ankylosis, causing a lack of mobility, pain and weakness, and numbness of the nerve. Dr. Hwang performed two surgeries on Marin—one on March 14, and a second on March 31, 2005.
Of greatest relevance to the issues raised by this appeal are the following questions and answers between Marin’s counsel and Dr. Hwang. (As explained, post, this is the only evidence presented by Marin regarding the element of causation.)
“Q. [Marin’s counsel] And um, at some point did you treat Maribel Marin?
“A. [Dr. Hwang] Um, yes.
“Q. Okay. And do you recall when is the first time approximately that you saw her?
“A. I just had to review the record that I brought here and I was—February 25th, 2005.
“Q. And um, did you make an assessment of her condition on that day?
“A. Yes.
“Q. And what did you—what was your prognosis, what did you find?
“A. Um, basically that she had a dislocated elbow.
“Q. A dislocated elbow?
“A. Yes.
“Q. Okay. And did she ask you to treat her for that dislocation?
“A. Um, yes, um, the time I was at the Universal Care, which I’m a consultant orthopedic surgeon and I have Universal Care patients come to see me with orthopedic problem[s] and um, um, this patient, um, actually was one of the patient[s] that I saw
“Q. Okay.
“A. —in the clinic.
“Q. Okay. And um, did you ever make a determination of what needed to be done to her elbow?
“A. Um, yes, definitely, that she would have to have some sort of surgery to reduce dislocated elbow.
“Q. Okay. And why did she need to have a surgery to reduce her elbow?
“A. Because her elbow was dislocated and has been there for quite some time and was never reduced, so that is necessary to reduce it in order to get the best condition that she might be able to get it.”
In March 2006, Marin sued Joy and Coastal Communities Hospital, Inc., for medical malpractice. After its motion for summary judgment was granted, judgment in favor of Coastal Communities Hospital was entered.
On our own motion, we augment the record on appeal with the following documents, all of which were filed in Marin v. Coastal Communities Hospital, Inc. (Super. Ct. Orange County, 2006, No. 06CC04563): (1) complaint, filed March 29, 2006; (2) Joy’s answer to the complaint, filed October 4, 2006; (3) judgment, filed May 15, 2007; and (4) amended judgment, filed March 28, 2008. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
The case against Joy proceeded to trial. After Marin’s counsel rested her case, Joy’s counsel moved for a nonsuit, on the ground Marin had failed to produce evidence of causation. Marin’s counsel argued lack of causation was an affirmative defense, and Dr. Hwang had testified Marin needed surgery because her dislocation was not reduced. Marin’s counsel conceded Marin’s only theory of recovery was that Joy had failed to meet the standard of care by failing to reduce Marin’s elbow; the failure to provide appropriate discharge instructions to Marin was not a theory of recovery.
Marin’s counsel also conceded the only evidence of causation was Dr. Hwang’s testimony. The court expressed its thoughts as follows: “You’re right; comparative negligence is a defense, it’s their burden, no question about it. But in addition to breach you clearly have a causation burden of proof as well. And the question is to me as I’m thinking about this... is it your burden to show that his... alleged negligence, failure to reduce the elbow, caused harm to your client, and that harm, to a medical probability, would have still been caused, even if she had gone to an orthopedist as instructed within 48 hours. [¶] I believe that that is still your burden of proof, because you have the burden of proof... with causation, at least that’s my analysis so far. You keep saying breach, but that’s only half of it, that’s only the standard of care issue; you haven’t yet addressed the causation issue, at least I don’t think so.” After permitting counsel to argue the motion for nonsuit, and providing Marin’s counsel with an opportunity to identify any additional evidence, the court granted the motion: “The motion for judgment of nonsuit is granted. [¶] The Court does not find that the—any reasonable jury, based upon the evidence presented by plaintiff, could find that there was medical expert testimony, evidence that would show that there was, in fact, causation to a substantial gain, a substantial factor had the plaintiff, as instructed, which was not in dispute, gone to an orthopedist within that 1 to 2 day period.”
Judgment was entered February 8, 2008. Marin moved for a new trial. The motion for a new trial was denied, and Marin timely appealed.
DISCUSSION
“On review of a judgment of nonsuit, as here, we must view the facts in the light most favorable to the plaintiff. ‘[C]ourts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant’s motion for nonsuit if plaintiff’s evidence would support a jury verdict in plaintiff’s favor. [Citations.] [¶] In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled,... indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor....”’ [Citation.] The same rule applies on appeal from the grant of a nonsuit. [Citation.]” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214 1215.) A trial court properly grants a nonsuit motion if (1) the plaintiff fails to provide sufficient evidence on an element of his or her cause of action, or (2) the plaintiff’s evidence proves an affirmative defense defeating the cause of action. (Breazeal v. Henry Mayo Newhall Memorial Hospital (1991) 234 Cal.App.3d 1329, 1337; see Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 285.)
Causation is one of the basic elements of a medical negligence claim that the plaintiff must prove. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077.) The burden of establishing all elements of the affirmative defense of contributory negligence, by contrast, rests with the defendant. (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 503; see Evid. Code, § 500; Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1668 [defendant generally bears burden of proof on affirmative defenses].) Whether a patient fails to follow his or her doctor’s instructions is a species of contributory negligence and therefore an affirmative defense on which the defendant bears the burden of proof. “A patient must use reasonable care to provide for his or her own well-being. This includes a responsibility to [follow [a/an] [insert type of medical practitioner]’s instructions] [seek medical assistance] when a reasonable person in the same situation would do so. [¶] [Name of defendant] claims that [name of plaintiff]’s harm was caused, in whole or in part, by [name of plaintiff ]’s negligence in failing to [follow [name of defendant]’s instructions] [seek medical assistance]. To succeed, [name of defendant] must prove both of the following: [¶] 1. That [name of plaintiff ] did not use reasonable care in [following [name of defendant]’s instructions] [seeking medical assistance]; and [¶] 2. That [name of plaintiff ]’s failure to [follow [name of defendant]’s instructions] [seek medical assistance] was a substantial factor in causing [his/her] harm.” (CACI No. 517.)
“In a medical malpractice action, a plaintiff must prove the defendant’s negligence was a cause in fact of injury. [Citation.] ‘The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based [on] competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical “probability” and a medical “possibility” needs little discussion. There can be many possible “causes,” indeed, an infinite number of circumstances [that] can produce an injury or disease. A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]’ [Citations.] [¶] Thus, proffering an expert opinion that there is some theoretical possibility the negligent act could have been a cause in fact of a particular injury is insufficient to establish causation. [Citations.] Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause in fact of the plaintiff’s injury.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118.)
Although Jennings v. Palomar Pomerado Health Systems, Inc., supra, 114 Cal.App.4th 1108, was a case involving the trial court’s decision to exclude expert testimony, the cases it cites involve nonsuit motions (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487; Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396), and motion for a new trial (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234).
Marin argues Dr. Hwang’s testimony established the element of causation. As detailed, ante, Dr. Hwang testified Marin needed surgery because “her elbow was dislocated and has been there for quite some time and was never reduced.” Marin therefore argues causation between the failure to reduce the dislocated elbow and Marin’s injury was established. Joy argues, however, that Dr. Hwang’s testimony did not establish a reasonable medical probability that Joy’s failure to reduce the dislocation was the cause in-fact of Marin’s injury. We agree. No expert testimony was offered that Joy’s failure to reduce Marin’s dislocated elbow was the probable cause of her ultimate injury. It was not more likely than not that surgery was required because of Joy’s failure to properly reduce the elbow, given the undisputed evidence that (1) Marin was given instructions to see an orthopedist within 48 hours, (2) she failed to do so, and (3) in Dr. Hwang’s opinion, surgery was needed because so much time had elapsed between Marin’s injury and when she saw him.
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
WE CONCUR: SILLS, P. J., IKOLA, J.