Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCV15876
SIMS, P.J.Plaintiff Florentina V. Minasian appeals from a judgment in favor of defendant Brian R. West, M.D., following a jury trial of plaintiff’s medical malpractice action. Plaintiff claims evidentiary error, instructional error, and insufficiency of the evidence to support the verdict. We shall affirm the judgment.
We deny plaintiff’s April 24, 2007, motion for judicial notice of a Medical Board of California (Medical Board) accusation against defendant.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, a plastic surgeon, performed on plaintiff a total body lift or Lockwood procedure on December 5, 2002. The total body lift involved making an incision around the patient’s circumference, elevating the buttocks and thighs, removing fat, and tightening up the abdominal, side and back tissues. The eight-hour surgery was performed in the surgery suite of defendant’s Roseville office. The outcome was unfortunate, and plaintiff sued for medical malpractice.
Plaintiff’s theory of the case was that she was an inappropriate candidate for the Lockwood procedure (which assertedly was designed to tighten loose skin in persons who had already achieved massive weight loss); she initially wanted a mere “tummy tuck”; defendant talked her into a more expensive procedure ($13,000, as opposed to $7,000) because he needed the money; and he botched the job due to his alcoholism.
We note plaintiff’s recitation of facts in her appellate brief includes several pages of “facts” which were not adduced at trial because they were excluded by the trial court, i.e., evidence concerning defendant’s drunk-driving convictions in 1997 and 2001, participation in rehabilitation (diversion) programs, Medical Board proceedings leading to revocation of his medical license with the revocation stayed and defendant placed on probation, and his filing for bankruptcy. However, as we discuss post, plaintiff fails to show reversible error in the trial court’s exclusion of this evidence.
As noted by defendant, the Medical Board proceedings overlapped this trial, and the trial court during the hearing on plaintiff’s post-trial motions read into the record the Medical Board’s ultimate finding that “[n]o evidence has been presented that [defendant] harmed any patient as a result of his alcoholism.”
As to evidence adduced at trial, plaintiff testified she first consulted a Dr. Jack Bruner about a tummy tuck (abdominoplasty) and thigh liposuction in October 2001. Dr. Bruner told her she would have to stop smoking for at least 30 days before and after surgery; she needed to lose weight before the tummy tuck because its primary purpose was to remove loose skin rather than remove fat; and he would not do both a tummy tuck and liposuction at the same time. Shortly after consulting Dr. Bruner, plaintiff met defendant in the course of her work as a loan officer. She thereafter had a consultation with defendant in October 2001 about a tummy tuck and liposuction on the thighs. Defendant discussed the risks and told plaintiff she would have to stop smoking for a month before and after the surgery. Plaintiff saved up the $7,000 cost for the surgery and returned to defendant in November 2002. According to plaintiff, defendant talked her into the (more expensive) Lockwood procedure. Plaintiff testified she had no idea that the risks of this procedure, which combined three distinct surgeries, were far greater than the risks of the staged procedure recommended by Dr. Bruner. Plaintiff testified she stopped smoking one month before the surgery and refrained from smoking for five months after the surgery.
The operative report did not indicate any problems during surgery, but plaintiff suffered post-surgery complications. The incisions began opening, requiring extensive cleaning and maintenance per defendant’s instructions. Plaintiff’s belly button died and fell off. After the incision wounds dried and closed, in March 2003 plaintiff began suffering “spitting sutures,” where pieces of suture material worked their way through the flesh and erupted through the skin, causing boils. The surgery left physical scars above the panty line where defendant said the incision would be. Defendant assured plaintiff everything was normal and said he would do a little revision surgery a year after the wounds healed. However, defendant closed his practice.
At trial in September 2005, defendant testified he is an alcoholic and “[j]ust recently realized I was an alcoholic. But I probably had an alcohol problem for many years, yes.” He closed his office in May of 2003 because of problems including alcoholism and financial problems.
At trial, defendant had no recollection of his office visits with plaintiff and only vaguely recalled the surgery. He testified based on his records.
Plaintiff’s medical expert, board-certified plastic surgeon Dr. Kirk Van Rooyan, testified defendant performed “essentially three procedures” on plaintiff: (1) liposuction of her thighs; (2) posterior excision of tissue (belt lipectomy); and (3) removal of fat and skin from the abdominal area (extended abdominoplasty). “[T]here’s increased risk with multiple procedures because of time factor, blood loss, anesthesia time. It’s important to control those risks.”
Dr. Van Rooyan testified to his opinion as to “[v]iolations of the standard of [c]are,” as follows:
1. Disregard for the lack of medical and anatomic indications and risks. Medical factors involved smoking and obesity. As far as Dr. Van Rooyan was aware, plaintiff was not advised of the potential increased risks of not stopping smoking with regard to post-surgery healing and was not advised to take vitamins to offset the effects of smoking. She should have been advised of obesity-related risks (wound-healing problems, bleeding, deep venous thrombosis and embolism) and should have been advised to lose weight before the surgery. As to anatomic factors, she did not have the significant loose skin which is the traditional reason for a tummy tuck. The consent forms lacked specificity.
2. Technical deficiencies in actual performance of the procedure. This was about an eight or nine hour operation, yet there was no evidence that leg compression garments were used during the surgery to prevent deep vein thrombosis and embolism. Rather than starting with a single incision, two incisions were made initially, before knowing how much tissue could be safely removed, which potentially could cause a problem of not being able to close the wound. “[B]ridges were burned unnecessarily by making two incisions initially and before he knew how much tissue really could be removed safely.” There was an aggressive amount of “undermining” of tissue, i.e., raising and going underneath tissue, separating fat from muscle, which risks interfering with blood vessels that provide circulation. There was aggressive tightening of the muscle fascia, putting stitches side to side and pulling them together. The tighter the stitches are pulled, the more chance of compromising the blood supply. The stitching was continuous rather than interrupted, which posed a problem because if a continuous stitch is used and breaks because of tension, the whole thing can unravel because all of the stitches are connected to one another.
3. Postoperative deficiencies. Although plaintiff was given a compression garment for after the surgery, she was allowed to move around starting the day after surgery, which could increase the mechanical stress on the incision. She should have been told to stay in bed for several days. Wound management was a problem, in that plaintiff’s incisions came apart after the surgery. One treatment method (which was used in plaintiff’s case) is to allow healing by secondary tension, i.e., let it heal in the from the side and the bottom. The problem with that is that open wounds are painful and drain and require skilled care and leave more noticeable scars. The other method is a delay closure. Consideration should have been given to doing at least a partial secondary closure in plaintiff’s case. There was no indication that such a possibility was discussed with plaintiff.
Dr. Van Rooyan opined defendant’s care was substandard in that he did a procedure on an inappropriate candidate; he did it below the standard of care; and it caused the harm seen in photographs depicting scarring.
Defendant’s expert, Dr. Terry Zimmerman, is a board-certified plastic surgeon. After medical school at the University of Southern California, he did eight years of postgraduate surgery residency in the Bay area and at the University of California at Davis. He was previously chief of surgery at Mercy Hospital in Folsom and remains on the medical executive committee.
Dr. Zimmerman reviewed the medical records, photographs, and Dr. Bruner’s deposition. The day before his trial testimony he reviewed plaintiff’s deposition and was given information about Dr. Van Rooyan’s opinion. Dr. Zimmerman was not given and did not read defendant’s deposition.
Dr. Zimmerman agreed plaintiff had an unfortunate outcome, but he did not see from the review of the records that defendant did anything substandard or negligent.
Dr. Zimmerman learned the Lockwood procedure from Dr. Lockwood and was aware defendant had also trained under Dr. Lockwood. Whereas abdominoplasty focuses just on the front or anterior part of the abdomen, “Dr. Lockwood popularized extending the operation towards the lateral or side regions and distributing more of the tension, instead of just vertically in the midline, more to the sides. And then he took that one step further and wrapped it around the back. So essentially it’s an abdominoplasty with an associated lateral or side thigh lift and buttock lift.” The Lockwood procedure frequently includes liposuction, not only to release the attachments to the skin on the sides over the thigh, but also to decrease the saddlebag area and “dog-ears” (bunched-up tissue) on the sides.
Regarding whether plaintiff was an appropriate candidate for the Lockwood procedure, Dr. Zimmerman testified as follows:
“Q. . . . [¶] First of all, in your opinion, was this patient an acceptable patient for this surgery, the Lockwood procedure?
“A. Based on the preoperative photographs and never being able to have evaluated the patient beforehand but just based on the photographs, there was a considerable amount of lax -- skin laxity anteriorly and a fair amount of excess skin and fat laterally.”
Plaintiff’s preoperative photographs were admitted into evidence by stipulation. Plaintiff’s counsel then objected, “I heard the question had he [Dr. Zimmerman] seen them [the photographs], but they weren’t in his files. Is there a foundation he saw them before or just today?” The trial court noted they had already been admitted into evidence but asked the witness, “have you seen those before?” Dr. Zimmerman responded: “I saw them earlier today.”
Dr. Zimmerman later testified:
“Q. Now, if I understood it, your first opinion was that although [plaintiff] did not undergo a gastric bypass and did not lose anywhere between 80 and 200 pounds [as had the patients upon which Dr. Zimmerman performed the Lockwood procedure], that she was an appropriate candidate for this procedure, correct?
“A. I don’t believe I was asked if she was an appropriate candidate for this procedure yet.
“Q. All right. [Defense counsel] showed you some pictures -- before pictures which I thought you indicated you just saw this morning.
“A. Yes.
“Q. So you don’t have an opinion one way or the other on whether or not she was an appropriate candidate for all of the surgical procedures that [defendant] performed?
“A. I didn’t say that either. It’s just nobody had asked me yet if she was an appropriate candidate. [¶] It’s not only massive weight loss patients that can undergo this procedure, if that’s what you’re alluding to.
“Q. You wouldn’t have been able to formulate an opinion on whether she was an appropriate candidate until you saw the before pictures or saw her, correct?
“A. That is correct.
“Q. So you couldn’t have had an opinion one way or the []other until this morning about her, right?
“A. About that question you’re asking whether she’s appropriate, that’s correct.”
Dr. Zimmerman also testified:
“Q. [By defense counsel]: Do you know that the design . . . concept of the procedure, the Lockwood procedure, was designed to give a more aesthetic appearance as it was taught to you?
“A. That was correct. That was his [Lockwood’s] philosophy with this procedure.
“Q. And it wasn’t confined to only massively obese people; is that correct?
“A. That is correct.
“Q. People that have suffered -- I misphrased that -- massive weight loss?
“A. Correct.
“Q. And from your review of the photographs here this morning, was -- I don’t know if you got to answer that question -- in your judgment, was [plaintiff] an appropriate candidate for the Lockwood procedure?
“A. She was a candidate for the procedure. I don’t disagree with Dr. Bruner’s approach that she could have undergone abdominoplasty and liposuction. That was another option for her to have this belt lipectomy performed. So, yes, she is not an inappropriate candidate for the procedure.
“Q. In other words, they’re acceptable alternatives, both approaches to treating [plaintiff]’s problem?
“A. That is correct.”
When asked to respond to the criticisms of plaintiff’s expert, Dr. Van Rooyan, Dr. Zimmerman testified as follows:
1. As to the criticism concerning the absence of leg compression devices during surgery, Dr. Zimmerman said the operative report shows the patient started the procedure face down, leg compression devices were applied when she was turned over (which is standard), and in any event there was no indication that plaintiff suffered any of the problems (deep vein thrombus or pulmonary embolus) which the compression devices are designed to prevent.
2. As to the criticism of making both upper and lower incision before raising the flap, Dr. Zimmerman said this criticism misunderstands the Lockwood procedure, a large part of which is the preoperative markings for upper and lower incision with the patient standing. Once the patient lies down, things shift, and therefore the doctor spends quite a bit of time doing the marking preoperatively and then has to trust the markings. Dr. Zimmerman did not see the initial drawings for plaintiff.
3. As to the criticism that there was too much undermining, Dr. Zimmerman disagreed, based on defendant’s operative reports, and said plaintiff did not experience any problem attributable to undermining.
4. As to the criticism of the method of suturing, Dr. Zimmerman testified the operative reports reflect the suturing method was acceptable and within the standard of care.
5. As to the criticism about not restricting the patient’s movements after surgery, Dr. Zimmerman testified the standard is to encourage patients to move a little to avoid deep vein thrombosis, just not to overdo it.
6. As to the criticism about not attempting a secondary closure when the wounds opened, Dr. Zimmerman said that if a wound is infected, it should not be re-closed. With this type of operation, there is a fair amount of tension on the tissue anyway, so it is fairly customary to allow these to heal by “secondary tension,” i.e., to contract on their own as they granulate or heal in.
7. Regarding spitting sutures, Dr. Zimmerman testified they can happen spontaneously, with no fault on the part of the surgeon.
8. Regarding smoking, Dr. Zimmerman said smoking can hamper the circulation needed for healing, and the adverse effect of smoking can linger for years after a person stops smoking. He did not know when plaintiff stopped smoking.
9. As to whether plaintiff was advised of the risks of the surgery, Dr. Zimmerman testified she was advised by both defendant and by Dr. Bruner, who advised her of the risks of abdominoplasty which is part of the Lockwood procedure and which involves the same risks.
Dr. Zimmerman testified he would not be critical of defendant sending plaintiff home the same day that she had the surgery, assuming someone like a husband was at home to assist her.
Dr. Zimmerman was not aware of the opinion of plaintiff’s expert that defendant pulled too tightly, interfering with blood supply and costing plaintiff her belly button. Plaintiff’s attorney represented it was not noted in defendant’s medical chart. When asked why plaintiff lost her belly button, Dr. Zimmerman testified that tension put on the abdominal flap during the Lockwood procedure has nothing to do with the vascularity of the belly button.
Dr. Zimmerman testified he himself has performed approximately five Lockwood procedures. Dr. Zimmerman learned the procedure from Dr. Lockwood at a conference around 2002. Dr. Zimmerman has read articles by Dr. Lockwood. Although the Lockwood procedure is applied to bariatric patients who lose weight through gastric bypass surgery, Dr. Zimmerman believed the Lockwood procedure was invented before the “bariatric craze.” The five patients upon whom Dr. Zimmerman performed the Lockwood procedure had each lost weight (between 80 and 200 pounds) before the procedure; four patients lost weight after gastric bypass surgery, and the other lost weight on her own. They all had some degree of skin laxity.
Dr. Zimmerman testified that, by explaining risks to patients, he is not trying to get the patient to agree that he can make preventable mistakes.
Dr. Zimmerman testified that defendant’s method of staging the procedure, doing the tummy and then the liposuction, was one possible, safe alternative.
The jury returned a special verdict answering, “No” to the question: “Was [defendant] negligent in his medical care and treatment of [plaintiff]?” Since the answer was “No,” the jury was not required to and did not answer the remaining questions, i.e., whether such negligence caused injury, and what the damages were.
The trial court denied plaintiff’s motion for new trial or judgment notwithstanding the verdict.
Plaintiff appeals from the judgment.
DISCUSSION
I. Defense Expert
Under the heading that no substantial evidence supports the verdict (which we address post), plaintiff presents a distinct claim of evidentiary error in a subheading contending that the trial court should have precluded defendant’s medical expert from testifying. We shall explain plaintiff fails to show grounds for reversal.
Plaintiff contends the trial court should have precluded defense expert Dr. Zimmerman from testifying because the defense failed to produce him for deposition. Plaintiff also says there was a “concomitant failure to comply with the expert discovery statutes,” but she specifies no failure other than the matter of the deposition.
However, plaintiff’s opening brief on appeal fails to acknowledge that she was also accused of failing to produce her own experts for deposition, and that the trial court noted the competing accusations in denying the cross-motions to exclude expert witnesses. Plaintiff’s reply brief claims she offered her experts for deposition but defendant refused to take the depositions.
Thus, in motions in limine, each side moved to exclude the other side’s experts on the ground of failure to produce the experts for deposition. Plaintiff’s counsel argued he was entitled to withhold plaintiff’s experts until he obtained discovery which the defense had failed to produce. Defense counsel argued the disputed discovery related to defendant’s DUIs, which were not necessary for plaintiff’s liability expert to form an opinion as to whether the treatment of plaintiff complied with the medical standard of care. The trial court denied the defense motion to exclude plaintiff’s experts. When the court came to plaintiff’s motion to exclude defendant’s experts, including Dr. Zimmerman, the trial court said: “The motion to exclude the witnesses for failure to allow deposition is denied. It was similarly denied in the other direction. And it’s unfortunate that they weren’t deposed. I’m not ruling on the appropriateness of either objection on either side. The interest of justice requires that if a necessary witness is there to help in the interest of justice to make a decision, that they probably should be allowed to testify. Therefore, the motion to exclude them on that basis is denied.”
Thus, plaintiff’s opening brief on appeal -- which merely says she asked to depose Dr. Zimmerman, and the defense failed to produce him -- fails to present an adequate factual framework upon which to review the trial court’s decision. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3 [appellant is required to provide adequate factual analysis].)
Moreover, plaintiff cites no legal authority supporting reversal. In arguing trial court error, plaintiff’s opening brief on appeal merely cites Fairfax v. Lords (2006) 138 Cal.App.4th 1019, which held the trial court prejudicially erred in allowing the defendant in a medical malpractice case to make a belated designation of experts in violation of a discovery statute which at that time required a simultaneous exchange. (Id. at pp. 1021, 1025.) The plaintiff timely served his designation. The defendant served a simultaneous document labeled “First Designation,” which did not identify any retained experts but instead stated that the defendant was reserving his right to designate experts in rebuttal to the plaintiff’s designation. (Id. at p. 1022.) After receipt of the plaintiff’s designation, the defendant served a document labeled, “Second Designation of Expert Witnesses,” naming experts for the first time. (Id. at p. 1023.) The trial court denied the plaintiff’s ex parte motion and motion in limine to strike the second designation. (Ibid.) The defendant’s expert testified at trial, where the defendant prevailed. (Id. at p. 1025.) The appellate court reversed the judgment, concluding the trial court erred in denying the motion to strike the designation due to noncompliance with the statute. (Id. at p. 1027.)
Fairfax does not compel reversal in this case. Unlike Fairfax, where only one party failed to comply with a mandatory discovery statute, here both sides failed to produce their experts for deposition, and plaintiff fails to cite any statute or other authority mandating exclusion of the defense expert. That plaintiff claimed in the trial court that she had a good excuse for withholding her experts does not constitute grounds for reversal of the judgment, particularly given plaintiff’s failure to acknowledge or argue the point in her opening brief on appeal. Even in her reply brief, plaintiff merely claims she did offer her experts for deposition, but the defense refused.
Plaintiff’s reply brief raises a new argument that Dr. Zimmerman’s testimony should have been excluded because he was unprepared at trial. We disregard points raised for the first time in the reply brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) Even if we were to consider it, it is meritless. Plaintiff argues the trial court abused its discretion in allowing Dr. Zimmerman to testify, because he admitted at trial that he did not reach an opinion about whether plaintiff was an appropriate candidate for a Lockwood procedure until the morning of his trial testimony, when he saw her pre-operative photographs. Plaintiff claims this shows he was unprepared. However, plaintiff cannot fault the trial court for failing to exclude the witness based on trial testimony which came after the trial court’s ruling and which was not a basis for the motion to exclude him.
We conclude plaintiff fails to show reversible error in the trial court’s denial of her motion to exclude Dr. Zimmerman’s testimony. We discuss post plaintiff’s contention that Dr. Zimmerman’s testimony did not constitute substantial evidence.
II. Alcohol Abuse
Plaintiff contends the trial court improperly excluded evidence of defendant’s history of alcohol abuse and resulting financial problems. However, plaintiff fails to show grounds for reversal.
A. Background
Defendant moved to exclude evidence concerning other unrelated malpractice actions against defendant, his DUI convictions, Medical Board proceedings, participation in diversion programs and psychiatric treatment, and bankruptcy, on the ground the evidence was irrelevant (Evid. Code, § 350) and more prejudicial than probative (Evid. Code, § 352). Defendant noted that plaintiff testified in her deposition that during defendant’s treatment of her, she never smelled alcohol, never thought he was drunk, and never thought he was under the influence of alcohol. She only saw him drink one time, when she met him in her capacity as a loan officer before he became her doctor.
At the hearing in the trial court, defense counsel confirmed the issue in a nutshell was that, because there was no specific allegation that defendant was under the influence of alcohol when he treated plaintiff, the evidence was irrelevant.
Plaintiff opposed the motions, arguing plaintiff did not have to show defendant was drunk during the surgery. Rather, he was chronically impaired due to alcohol abuse. Plaintiff argued the other malpractice actions were evidence that defendant was incompetent to practice medicine, and plaintiff’s psychiatric expert would testify (based on a review of the records) that defendant’s chronic alcohol abuse inevitably affected his ability to treat patients competently during the time in question. Plaintiff also argued defendant’s office manager said defendant came to work hung over, did unnecessary procedures for the money, and had her falsify records of his hours worked and attendance at AA meetings in connection with Medical Board oversight.
Defense counsel disputed plaintiff’s representations about what the evidence would show.
The trial court said, “I’m going to exclude any evidence regarding the DUI convictions under [Evidence Code s]ection 352 as untimely, prejudicial, and probative [sic].” The trial court also excluded evidence of the diversion programs, stating, “I’m going to find under [Evidence Code s]ection 352 that they’re more prejudicial and [sic] probative for several reasons. The failure of the diversion program . . . can be for many reasons. Drinking, of course, is one of them. There are other reasons. And also due to the fact that plaintiff is representing he has admissions by the defendant of alcohol use and abuse during that period of time, I think it would be cumulative and it would be too speculative. The evidence of diversion programs is hereby excluded under [Evidence Code s]ection 352.” The court said it was too early to rule on whether to exclude evidence of alcohol abuse generally.
However, the trial court was soon called upon to rule, when trial began and plaintiff wanted to call defendant as an adverse witness.
In opposition to the motions, plaintiff argued she wanted to present evidence to the jury, including Dr. Jones, a psychiatrist who had not treated defendant but had reviewed records concerning defendant’s alcoholism. Dr. Jones would testify, “[t]o the standard of care that this doctor [defendant] was psychologically and physiologically incapable of making appropriate decisions selecting candidates and literally physically doing the surgery.” Dr. Jones would testify that defendant “was incapable emotionally, mentally and cognitively . . . to appropriately decide what [plaintiff’s] appropriate care was . . . . [¶] As part of his alcoholism he was more interested in billing her a substantial amount of money, because he needed money at the time, than he was in doing appropriate surgery. . . . And the psychiatrist has written 193 articles, a specialist on drug and alcohol addiction is going to say, but [sic] he was not functioning appropriately and could not have met the standard of care in his care and treatment of this patient.”
Defense counsel noted plaintiff’s deposition testimony that she never felt defendant was under the influence of alcohol. Counsel also noted the office manager testified at the administrative hearing that defendant was not impaired, in her judgment, insofar as patient treatment. She gave him a Breathalyzer test every day as part of her duties for the Medical Board, and he never tested positive. Defense counsel said defendant did not “fail” rehab; he graduated but there was recidivism, as is frequently the case.
Plaintiff asserts defendant failed urine tests and had his office manager falsify records concerning his attendance at AA meetings. However, she does not cite evidence supporting these points, but rather allegations in Medical Board “accusations” and hearsay from plaintiff who attested she heard such evidence at Medical Board hearings.
The court noted the record of a Medical Board hearing indicated defendant admitted he failed diversion programs and that his addiction affected him professionally. Defense counsel said he had not seen a complete transcript but was told that was not what defendant said. The trial court noted that was a separate issue, whether plaintiff could prove defendant said it.
Defense counsel told the court that defendant’s own psychiatrist, Dr. Kaufman, said defendant’s alcohol problem did not affect his patient care. Plaintiff’s counsel said Dr. Kaufman was not given all the information about the diversion programs.
The trial court reaffirmed its previous rulings excluding on Evidence Code section 352 grounds any evidence of defendant’s prior DUI convictions in 1997 and 2000 and his participation in the diversion programs. The court excluded Dr. Jones’s testimony, stating, “the issue is whether or not the doctor, in his treatment of [plaintiff], violated the standard of care, thereby being negligent and thereby causing damage. [¶] . . . [¶] And unless and until it can be shown that the doctor was suffering from being under the influence of an alcoholic beverage or some other debilitory-type [sic] drug at the time of the care itself, I’m going to have to stand with my ruling that no evidence of that may be prepared [sic] in the plaintiff’s case in chief.” The court said evidence of alcoholism could be admitted to impeach defendant in the event he denied it at trial.
Plaintiff then called defendant as an adverse witness at trial and elicited his admission that he is an alcoholic and “just recently realized I was an alcoholic. But I probably had an alcohol problem for many years, yes.”
B. Analysis
Evidence Code section 352 states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
A trial court’s ruling based on Evidence Code section 352 “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
“In reviewing the trial court’s exercise of its discretion under Evidence Code section 352, we do not substitute our judgment for that of the trial court. [Citation.] We may grant relief only when the asserted abuse constitutes a miscarriage of justice [citation], that is, when in the absence of the improperly admitted evidence a result more favorable to the complaining party would likely have occurred. [Citation.]” (Wanland v. Los Gatos Lodge, Inc. (1991) 230 Cal.App.3d 1507, 1523.)
Instead of showing a miscarriage of justice, plaintiff argues the flaw in the trial court’s ruling was its assumption that, unless defendant was drunk when he performed surgery on plaintiff, the evidence of his alcohol abuse was not relevant. Plaintiff argues she sought to present evidence that defendant’s chronic alcohol abuse caused impairment even when he was not actually drunk. She says defendant himself testified in the Medical Board proceedings that his alcohol addiction affected him professionally. Plaintiff argues that if defendant was impaired from his addiction, even if he was not drunk at the time of surgery, that would be relevant to the jury’s assessment of whether he was credible and whether he was capable of meeting the standard of care. She argues that evidence in the Medical Board proceedings that defendant was willing to lie and falsify records was important for the jury to hear in this case, particularly because the defense expert relied on defendant’s own records in reaching his opinion regarding standard of care.
However, the substance of the Medical Board proceedings were in dispute and, as the trial court noted in the hearing on post-trial motions, the Medical Board ultimately found no evidence was presented that defendant harmed any patient as a result of his alcoholism. Though the trial court did not expressly state the proffered evidence would require undue consumption of time, it clearly would.
Plaintiff claims that harm to patients, including herself, is the subject of a new Medical Board accusation. However, we denied plaintiff’s motion for judicial notice of the accusation.
Plaintiff cites Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, which was not a malpractice suit but a mandamus petition by a doctor seeking to set aside the Medical Board’s suspension of his license to practice medicine pursuant to a statute stating that if a doctor sustains two or more misdemeanor convictions involving alcohol consumption, those convictions constitute unprofessional conduct. The appellate court affirmed the denial of the writ petition, holding a logical connection existed between the doctor’s DUI convictions and his fitness to practice medicine. Plaintiff quotes from Griffiths: “Convictions involving alcohol consumption reflect a lack of sound professional and personal judgment that is relevant to a physician’s fitness and competence to practice medicine. [¶] . . .[¶] . . . Repeated convictions involving alcohol use . . . reflect poorly on Griffith’s common sense and professional judgment, which are essential to the practice of medicine . . . . [¶]. . .[¶] . . . In relation to multiple convictions involving driving and alcohol consumption, we reject the argument that a physician can seal off or compartmentalize personal conduct so it does not affect the physician’s professional practice. [Citation.]” (Griffiths, supra, 96 Cal.App.4th at pp. 770-771.)
However, the point of this quote in Griffiths, supra, 96 Cal.App.4th 757, was that, in order to impose discipline on a medical licensee, the Constitution requires a nexus between the professional misconduct and fitness to practice medicine. (Id. at p. 769.) Here, that broad matter is not at issue. Here, the question is whether defendant was negligent in his treatment of this one patient. That a nexus exists between alcoholism and fitness to practice medicine does not mean the doctor commits medical malpractice on every patient.
Thus, Griffiths does not support reversal in this case.
Plaintiff cites case law that “undue prejudice” under Evidence Code section 352 means evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) However, this standard does not support plaintiff’s case. The proffered evidence relating to alcoholism uniquely tended to evoke an emotional bias, and plaintiff failed to demonstrate sufficient effect on the issues.
Additionally, plaintiff fails to show that, had his proposed evidence been admitted, he would likely have obtained a more favorable result. (Wanland, supra, 230 Cal.App.3d at p. 1523.) Plaintiff was allowed to elicit from defendant that he was an alcoholic and had an alcohol problem for years. In closing argument to the jury, plaintiff’s attorney argued plaintiff was not a candidate for the Lockwood procedure, but defendant has “got problems and he needs money.” Counsel also argued: “He [defendant] admitted he’s an alcoholic. . . . This man had to make decisions every minute for nine hours [during the surgery]. What’s going on in your life with alcohol abuse and financial bears [sic] on your ability to use your training and expertise, if you have any, in making decisions during a surgery every second and every minute. That’s who was trying to decide what to do with her. And you have pictures of the outcome. And the pictures speak more and louder than any words I could possibly use.”
We conclude plaintiff fails to show the trial court committed a “patently absurd” abuse of discretion causing a miscarriage of justice by excluding evidence related to alcoholism under Evidence Code section 352. We need not address defendant’s citation of other statutes (Evid. Code, §§ 787, 1101, 1104) as additional grounds for exclusion -- statutes which the reply brief says were not cited to the trial court.
III. Informed Consent
Plaintiff challenges the trial court’s denial of her motion to preclude evidence of informed consent and, in the alternative, the denial of her request for leave to amend the complaint to add a battery claim. We shall conclude plaintiff fails to show grounds for reversal.
A. Denial of Motion to Exclude Evidence
Plaintiff argues the trial court prejudicially erred in denying her motion to preclude evidence of informed consent. We disagree.
Plaintiff sought to exclude any consent forms she signed for this or any other procedure, exclude defense experts from testifying as to known risks of the procedure, and preclude the defense from arguing that any of the untoward outcome was a known or accepted risk and therefore there was not negligence. Plaintiff says she sought to preclude any evidence regarding informed consent on the grounds that such evidence was highly prejudicial because the defense could (and did) argue that the outcome she experienced was something she could have and should have anticipated and that she was not, therefore, entitled to recovery.
The trial court denied the motion as to consent forms because no consent forms were before the court. Regarding testimony that plaintiff should have known the risks or that any untoward outcome was a known or accepted risk, the court said, “That’s going to be subject to proof at trial. I have no way to speculate on who would say what. Subject to objection.”
A party on appeal cannot complain of trial court error in admitting evidence unless “[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made . . . .” (Evid. Code, § 353, subd. (a).) Here, the trial court indicated the motion in limine was premature and plaintiff would have to object when the evidence was offered during the trial. Plaintiff fails to show she did so.
Although the ruling on the motion in limine required further objection, plaintiff nonetheless incorrectly assigns error to the ruling in limine.
Plaintiff argues she “was willing to forego claims of lack of informed consent as a basis for her negligence claims,” which assertedly rendered any evidence of informed consent totally irrelevant. We agree with defendant that plaintiff fails to provide a citation to the record to support this assertion. Plaintiff’s reply brief tries to cure this defect, but she merely cites to her motion in limine, which says nothing about her being willing to forego anything.
Plaintiff argues the trial court’s abuse of discretion in admitting irrelevant evidence was compounded by the trial court ignoring the confusion of the jury in the way the evidence was argued by defense counsel, and was further compounded by the trial court’s denial of a new trial. Besides failing to show abuse of discretion and failing to present any assignment of error concerning denial of a new trial, plaintiff presents no assignment of error regarding closing arguments to the jury, and she merely speculates with no support whatsoever that the jury was confused. She argues, “There is every reason to believe that the jury improperly concluded that because [plaintiff] incurred some of the risks that she had been informed of, that she had consented to suffering those injuries and that [defendant] was not, therefore negligent.” She cites case law from other states for the proposition that evidence of informed consent will confuse jurors into thinking that consent to surgery amounts to an assumption of risk waiving any claim of negligence. She cites no California law supporting her position. To the contrary, California leaves “to the venerable American jury” the determination as to the factual adequacy of issues of informed consent. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1187.)
At the end of her brief, under a heading that there was cumulative error, plaintiff makes reference to parts of closing arguments to the jury, which assertedly demonstrate prejudice from the trial court’s asserted errors. However, plaintiff’s reading of the record is not supported by the cited pages of the transcript. Moreover, to the extent plaintiff suggests defense counsel misstated the law during closing argument, the point is forfeited because plaintiff did not object in the trial court and fails to show any excuse why an objection would have been unnecessary. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795.)
We additionally note plaintiff’s underlying complaint about informed consent is without merit. Defense expert Dr. Zimmerman acknowledged that, by explaining risks and complications to a patient, a doctor is not trying to get the patient to agree that the doctor can make preventable mistakes.
Plaintiff’s attorney told the jury in closing argument: “Dr. Zimmerman and Dr. Bruner both admitted you can’t consent someone to negligence [sic]. The reason you keep hearing about risks and complications and risks and complications [sic] and pictures was we told her, we told her, we told her. That would be like me saying when I left the house this morning I knew there was a possibility that if someone would run a red light, run a stop sign or cross a double yellow line on my way here, I know it’s a risk every time I get in my car. That doesn’t mean if somebody runs the red light, crosses the double yellow line or blows through a stop sign and crashes into me that it’s not their fault. They still have to accept the responsibility. . . . She [plaintiff] was never actually given the risks of a Lockwood. And by telling her what they were, had he done it, doesn’t mean he gets to do it negligently.”
The jury was instructed on informed consent as follows:
“[A] patient’s consent to a medical procedure must be informed. A patient gives an informed consent only after the plastic surgeon has fully explained the full proposed treatment or procedure. A plastic surgeon must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand and give the patient as much information as she needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure. [¶] The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. A plastic surgeon is not required to explain minor risks that are not likely to occur.
“. . . [P]laintiff claims that defendant was negligent because he performed a surgery on the plaintiff without first obtaining her informed consent. To establish this claim, plaintiff must prove all of the following: Number one, that defendant performed a surgery on the plaintiff; number two, that the plaintiff did not give her informed consent to the surgery; number three, that a reasonable person in plaintiff’s position would not have agreed to the surgery if she had been fully informed of the risks and results of [sic] the alternatives to the procedure; and number four lines [sic], that plaintiff was harmed by a result or risk that defendant should have explained before the surgery was performed.”
None of this allowed the jury to infer that a patient’s informed consent would excuse negligent conduct.
Plaintiff fails to show grounds for reversal in the trial court’s denial of her motion to exclude evidence of informed consent.
B. Denial of Leave to Amend Complaint
Plaintiff argues that, since the trial court allowed evidence of informed consent, and given the lack of evidence of informed consent to the Lockwood procedure, the court should have granted plaintiff’s motion to amend her complaint to assert a battery claim. However, plaintiff fails to show grounds for reversal.
On the day before the conclusion of trial testimony, plaintiff filed a motion to amend the complaint “according to proof,” to add a claim alleging battery. Plaintiff claimed the evidence proved lack of consent, because defendant admitted he had no recollection of his conversations with plaintiff and no documentation that he obtained her informed consent.
The parties agree the trial court denied the motion, though neither side provides a citation to the record which shows the court doing so.
Code of Civil Procedure section 473 states the court may, in its discretion, allow amendment of a complaint in furtherance of justice, upon any terms as may be just. Given the policy of liberal allowance of amendment to pleadings, appellate courts will find an abuse of discretion where a trial court denies leave to amend, and the appellant shows she was prejudiced and the respondent was not misled or prejudiced. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 1128 et seq., pp. 584-594.) A trial court’s discretion in denying leave to amend is more likely to be upheld when the amendment is offered after the trial has begun and/or there is unexcused delay. (Ibid.)
Here, plaintiff fails to explain her delay, waiting until the end of trial to seek amendment, and fails to demonstrate lack of prejudice to defendant. She asserts, “Since the motion to amend related to the actual evidence at trial - and resulted from the fact that defendant was allowed to put the informed consent issue into evidence - there could be no prejudice to defendant. The battery claim arose from the issues and evidence that came in at trial, i.e., whether [plaintiff] had adequately consented to the surgery she underwent. No further discovery or evidence was available or necessary to defend [defendant] from this claim since it was wholly predicated on the evidence defendant elicited.”
However, plaintiff should not have been surprised by any of the evidence at trial and, contrary to plaintiff’s view, defendant did not admit at trial that he operated on plaintiff without informed consent to the Lockwood procedure. Plaintiff adduced evidence that the risks of the Lockwood procedure, which involved a combination of procedures (fat suctioning, trunk plasty, and extended abdominoplasty), are greater than the risks of individual procedures. Plaintiff claimed that, although defendant warned her of the risks of abdominoplasty, he did not warn her the risks go up when procedures are combined in a single operation.
Although plaintiff claims it was undisputed that she was never informed of the increased risks, the evidence was conflicting. Thus, defendant’s medical charts reflect that, in his preoperative discussion with plaintiff about the circumferential abdominoplasty, they “again reviewed the risks, benefits, and possible complications, including pain, infection, blood loss, and scarring.” Although defendant did not expressly remember his conversations with plaintiff and did not expressly note a discussion of increased risks in her chart, defendant testified, based on his custom and practice, that he discussed with plaintiff the increased risks due to the magnitude of the surgery. “Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” (Evid. Code, § 1105.) Defendant’s former employees corroborated his custom and practice of advising patients of the risks. Defendant’s former employee, Martha Loveless, testified she was present when defendant discussed the circumferential procedure versus abdominoplasty with plaintiff and was present when he advised plaintiff of the risks, including the risk of losing the belly button. Another former employee, Gayleen Woods, testified she was present during plaintiff’s first visit to defendant (i.e., before the Lockwood procedure was considered) and heard defendant discuss surgical risks with plaintiff, including the risk of spitting sutures, and scars not healing properly. Although these witnesses did not establish that defendant told plaintiff of increased risks from the combined Lockwood procedure, both witnesses testified to defendant’s custom and practice of detailing risks for patients.
The inartful question asked the witness whether she was present when defendant discussed with plaintiff any of the risks “of either of the two surgeries.”
Additionally, plaintiff repeatedly describes the increased risks as “enormous” and “exponentially” greater than the risks of a lesser procedure. However, in the cited pages of transcript the witnesses said the risks increased, but none of the witnesses adopted plaintiff’s counsel’s use of the word “exponentially.”
We conclude plaintiff fails to show any grounds for reversal based on the issue of informed consent.
IV. Claim of Instructional Error
Plaintiff contends the trial court erred in instructing the jury, pursuant to CACI 506, that “[a] physician is not necessarily negligent just because he or she chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice.” We disagree.
A. Standard of Review
Plaintiff contends we must view the evidence in the light most favorable to plaintiff in determining whether the trial court erred in giving the jury instruction.
Plaintiff cites Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) section 8:120 at page 8-68, which states:
“On appeals alleging that the trial judge gave an erroneous jury instruction or improperly refused a particular instruction, appellate courts view the evidence in the light most favorable to the claim of instructional error. [Sills v. Los Angeles Transit Lines (1953) 40 [Cal.2d] 630, 633 . . . .]
“In other words, the appellate court assumes the jury might have believed the evidence upon which the instruction favorable to appellant was predicated and rendered a verdict in appellant’s favor on those issues as to which it was misdirected. [Henderson v. Harnischfeger Corp. (1974) 12 [Cal.3d] 663, 674 . . .; Whiteley v. Philip Morris Inc. (2004) 117 [Cal.App.4th] 635, 655 . . . ].”
We question whether this standard applies to the question whether error occurred in the context of this appeal, i.e., where the appellant contends the trial court erred in giving an instruction. Although the treatise says the standard applies to a contention that the trial judge gave an erroneous instruction (which is what plaintiff contends in the case before us), the cited cases tell a different story. Thus, in Henderson, supra, 12 Cal.3d 663, the parties agreed there was instructional error, and the issue on appeal was whether the error was prejudicial. (Id. at p. 670.) In Sills, supra, 40 Cal.2d 630, the issue was whether the trial court erred in refusing to give an instruction requested by the appellant. (Id. at p. 633.) Similarly, in Whiteley, supra, 117 Cal.App.4th 635, the issue was the trial court’s refusal to give an instruction requested by the appellants. (Id. at pp. 641, 651, 654.) Moreover, Whiteley’s discussion of the standard cited by the treatise referred to the standard of prejudice after the appellate court determined error occurred. (Id. at p. 655.)
To the extent that plaintiff thinks the standard of review requires us to accept her evidence in determining whether the trial court erred in instructing the jury with CACI 506, we disagree. In other words, plaintiff thinks we must accept her evidence that the Lockwood procedure was not an appropriate method for treating her, and therefore the jury instruction should not have been given. Such a standard means we would disregard defendant’s evidence. That is not right.
When an appellant argues that the jury has been erroneously instructed, we examine all the circumstances of the case, including a review of all the evidence and the instructions as a whole. (Gerard v. Ross (1988) 204 Cal.App.3d 968, 986.)
We shall explain plaintiff fails to show instructional error.
B. Background
In the trial court, plaintiff opposed the giving of CACI 506, arguing there was no evidence that the Lockwood procedure would be a medically accepted method for treating plaintiff, because the procedure is accepted only for patients who have lost a lot of weight and therefore have a lot of skin laxity. Defense counsel responded the argument was wrong; “I asked Dr. Zimmerman was either [Lockwood procedure or abdominoplasty] an alternative approach in this woman and he said yes. That’s direct testimony from him. [¶] Secondly, we have all kinds of other issues that involve this jury instruction [method of treating closure of the wound and management of the wound].” The trial court stated, “I believe that the facts are within the purview of the instruction and I’ll give [CACI] 506.”
The record bears out defense counsel’s representation as to the state of the evidence. Thus, when asked if plaintiff was an appropriate candidate for the Lockwood procedure, Dr. Zimmerman testified:
“A. She was a candidate for the procedure. I don’t disagree with Dr. Bruner’s approach that she could have undergone abdominoplasty and liposuction. This was another option for her to have this belt lipectomy performed. So, yes, she is not an inappropriate candidate for the procedure.
“Q. In other words, they’re acceptable alternatives, both approaches to treating [plaintiff]’s problem?
“A. That is correct.”
He also testified, “Based on the preoperative photographs [of plaintiff] and never being able to have evaluated the patient beforehand but just based on the photographs, there was a considerable amount of lax -- skin laxity anteriorly and a fair amount of excess skin and fat laterally.”
C. Analysis
On appeal, plaintiff argues CACI 506, which derives from former BAJI 6.03, may be given only in very limited contexts, and this case is not one of them. Plaintiff says the instruction is appropriate only when a plaintiff contends that a doctor has chosen an unrecognized or unapproved method for treating the particular condition. (Maher v. Saad (2000) 82 Cal.App.4th 1317.) However, plaintiff did contend that defendant chose an unapproved method for treating her, because she claims the method he chose (the Lockwood procedure) is inappropriate for persons such as plaintiff who have not lost a lot of weight. Additionally, we note that in plaintiff’s cited authority, Maher, supra, 82 Cal.App.4th 1317, we were presented with a different procedural context, i.e., a trial court’s order granting the plaintiffs’ motion for new trial on the ground the predecessor to CACI 506 (BAJI No. 6.03) was improperly given to the jury. Thus, our standard of review was whether the trial court abused its discretion in concluding the instruction was improper. (Id. at p. 1323.) Moreover, in Maher, there was no evidence that the defendant’s surgical method was an approved or recognized method of treatment under the specific circumstances. (Id. at p. 1327.) Here, as we have seen, there was such evidence.
Plaintiff contends there was no evidence that a Lockwood procedure was approved or accepted for use on an overweight woman such as herself without a substantial weight loss and hanging folds of skin. This contention is wrong because it ignores the above-quoted testimony of Dr. Zimmerman.
Plaintiff argues CACI 506, even if correct, was incomplete because it “makes i[t] sound as though once it is determined that the procedure selected was ‘approved’ or ‘accepted,’ the doctor is off the hook for the outcome.” This argument is defeated by the plain language of the instruction itself, which stated, “A physician is not necessarily negligent just because he or she chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice.” (Italics added.) To the extent plaintiff thinks the instruction should have been modified, she fails to show she requested any such modification and therefore fails to show she preserved the matter for appeal.
We conclude plaintiff fails to show instructional error. We need not address defendant’s alternative point that the instruction was also appropriate for other issues concerning post-surgery treatment.
V. Substantial Evidence
Plaintiff contends no substantial evidence supports the verdict. Although we agree with defendant that plaintiff presents a slanted view of the evidence, we elect not to treat the contention as forfeited. We conclude the contention fails on the merits.
Substantial evidence is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651-652.) Expert opinion testimony constitutes substantial evidence only if based on conclusions or assumptions supported by evidence in the record. (Id. at p. 651.) “Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert’s opinion cannot rise to the dignity of substantial evidence. [Citation.]” (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.)
Plaintiff argues the evidence was insufficient in that: (1) Dr. Zimmerman should not have been allowed to testify (because the defense failed to produce him for deposition), and his opinions lacked any factual basis; and (2) no evidence supports the jury’s conclusion that plaintiff was informed of the greater risks of the Lockwood procedure. We reject plaintiff’s arguments.
A. Dr. Zimmerman
We have rejected plaintiff’s contention that Dr. Zimmerman should not have been allowed to testify. As to the contention that Dr. Zimmerman’s opinions lacked factual basis, plaintiff argues Dr. Zimmerman’s opinions were based on only one thing -- defendant’s surgical report. She says Dr. Zimmerman “had no other information about the surgery or its consequences.” She says Dr. Zimmerman did not even review her deposition.
However, even assuming there is anything wrong with basing an opinion about surgery on the surgical report, plaintiff’s insinuation is wrong.
Thus, Dr. Zimmerman (who was initially called as a witness by plaintiff’s attorney) testified he initially reviewed the records provided by defense counsel, which consisted of the medical records (not just the surgical report), seven photographs, and Dr. Bruner’s deposition. When asked by plaintiff’s attorney, “Wouldn’t you want to read the plaintiff’s deposition to find out her . . . version,” Dr. Zimmerman answered, “I had a chance to review her deposition yesterday.” Dr. Zimmerman also stated that the day before his testimony he was provided with information about the testimony of plaintiff’s expert. Then, on the morning of his testimony, before and during his testimony, he was shown preoperative photographs of plaintiff. He also indicated he reviewed records from defendant and from Dr. Bruner, showing plaintiff had an unusual complication of spitting sutures for a long period of time. He also indicated he had reviewed medical records from plaintiff’s primary-care physician. He also indicated he had seen photographs of plaintiff’s scars. Thus, plaintiff misstates the record when she claims Dr. Zimmerman “had no information” other than the surgical report.
We note the trial transcript of Dr. Zimmerman’s testimony shows:
“Q. Doctor, do you treat patients or medical records?
“A. I treat patients.
“Q. All right. But your opinion, if I understood it, was just based on your review of [defendant’s] chart and that’s all, correct?
“A. Correct.
“Q. You’ve never actually seen, met or examined [plaintiff]?
“A. That is correct.
“Q. You haven’t read both volumes of [defendant’s] depo, correct?
“A. Correct.”
Thus, Dr. Zimmerman agreed he based his opinion on the chart alone. However, given the context of the questioning (about treating patients as opposed to medical records), and given the other testimony cited above, it is reasonable to infer he was merely saying he based his opinion on the chart rather than an examination of the patient.
We accordingly reject plaintiff’s insinuation that Dr. Zimmerman lacked a basis for making an opinion.
Plaintiff argues Dr. Zimmerman “never controverted” the following bases for negligence found in the testimony of plaintiff’s expert: (1) That defendant was too aggressive in tightening the fascia and in the cross-stitching used, which cut off blood flow to the area, causing the separation of the incisions and extensive necrosis; and (2) that defendant had thinned the fat layer too far, contributing to the loss of blood flow and resulting problems with wound healing and scarring.
However, Dr. Zimmerman testified that, although he was unaware that plaintiff’s belly button necrosed and fell off after the surgery and was unaware that plaintiff’s expert attributed it to her being pulled too tightly, that explanation did not “make sense” to Dr. Zimmerman, because the tension put on the abdominal flap in the Lockwood procedure has nothing to do with the vascularity of the belly button. Dr. Zimmerman noted that belly buttons sometimes devascularize for other reasons such as endoscopic procedures. Dr. Zimmerman testified the suturing was within the standard of care, and he himself uses a running suture (which plaintiff claimed was improper), which is acceptable and within the standard of care. Dr. Zimmerman also testified the operative reports did not reflect any excessive undermining, and in any event none of plaintiff’s problems were attributable to undermining. Thus, plaintiff is wrong when she says Dr. Zimmerman “never controverted” these points.
At oral argument in this court, plaintiff’s counsel argued that tightening and suturing were two different problems, and that the defense expert never addressed the criticism of plaintiff’s expert concerning the tightening. However, we do not see that such a distinction was made clear at trial. Thus, when asked about the “aggressive tightening of the fascia,” plaintiff’s own expert answered: “In this other diagram, we show that there are these stitches put in to pull this together side to side. It’s like sort of like a corset effect. . . . [¶] And the degree of tightening, how far apart the stitches are placed, one stitch goes in here, it goes across and goes in here again, then you pull up. It’s like a shoelace. [¶] And so how wide you space these stitches is determined by how much looseness there is. So it is a judgment call. . . . [¶] . . . [¶] But the tightening that was done, that was in putting these stitches from side to side and pulling them together, was, in my estimation, very aggressive.” Thus, plaintiff’s own expert linked the issue of tightening to the issue of suturing. As indicated, Dr. Zimmerman did respond on this point, stating the suturing was within the standard of care.
Plaintiff also argues there was no evidence supporting Dr. Zimmerman’s opinion that plaintiff was an appropriate candidate for the Lockwood procedure. Plaintiff misrepresents the record. She insinuates that all the evidence showed the procedure was appropriate only for people who already had massive weight loss. She says, “all the evidence in the record contradicted the opinion [that plaintiff was an appropriate candidate]. Every surgeon who testified - even Dr. Zimmerman - testified that the Lockwood procedure was developed for treatment of people who had had massive weight loss . . . . [Dr. Zimmerman] confirmed that he had never done the procedure on anyone who had [plaintiff’s] body type, i.e., obesity with only a small amount of lax skin and muscle.” However, contrary to the insinuation, Dr. Zimmerman did not say or suggest the Lockwood procedure was used only after massive weight loss. Moreover, plaintiff neglects to mention that Dr. Zimmerman had before him plaintiff’s preoperative photographs when he testified she was an appropriate candidate. Thus, plaintiff’s claim that Dr. Zimmerman’s opinion was “not based on any factual evidence” is facially defective.
We agree with defendant that plaintiff’s appellate brief misstates or misrepresents the record on various points, but we decline defendant’s suggestion that we reject the appeal in its entirety on that basis.
We conclude plaintiff fails to show Dr. Zimmerman’s opinion did not constitute substantial evidence in support of defendant.
B. Increased Risks
As indicated, plaintiff claims an additional ground for reversal based on lack of substantial evidence is that there is no evidence supporting the jury’s (implied) conclusion that plaintiff was properly informed of the increased risks of the combined Lockwood procedure. However, plaintiff fails to show the jury made any such finding. The jury was instructed that plaintiff claimed defendant was negligent in performing a surgery without obtaining her informed consent, and in order to establish this claim, plaintiff had to prove “all of the following,” including that plaintiff did not give informed consent, that a reasonable person in plaintiff’s position would not have agreed to the surgery had she been fully informed, and that plaintiff was harmed by a result or risk that defendant should have explained before the surgery was performed. Since there was no special verdict, we do not know which element the jury found lacking.
Moreover, as we have already seen, there was evidence from which a trier of fact could conclude that plaintiff was informed of the increased risks of the Lockwood procedure.
We conclude plaintiff fails to show grounds for reversal of the judgment based on insufficiency of the evidence.
VI. Claim of Cumulative Error
The final argument in plaintiff’s brief is: “THE TRIAL COURT’S ERRORS - INDIVIDUALLY AND CUMULATIVELY - WERE PREJUDICIAL.” We have reviewed the contentions and our conclusions and conclude there is no individual or cumulative prejudicial error warranting reversal of the judgment.
DISPOSITION
The judgment is affirmed. Defendant shall recover his costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1)-(2).)
We concur: DAVIS, J., RAYE, J.