Opinion
C079792
10-29-2018
PRESTON MOORE et al., Plaintiffs and Appellants, v. NICHOLAS SIMOPOULOS, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PC20130043)
Preston and Deborah Moore sued Dr. Nicholas Simopoulos for negligence, medical battery and loss of consortium after Dr. Simopoulos provided medical treatment to Preston. Preston did not originally testify at trial regarding his prior intravenous (IV) drug use, but when the trial court indicated that Dr. Simopoulos's pain medicine expert, Dr. Timothy Deer, would be permitted to testify for the defense regarding the cause of Preston's pain, the Moores reopened their case-in-chief and recalled Preston, who admitted prior brief IV drug use. Dr. Deer then opined that Preston had vascular neuropathy -- permanent nerve damage -- and the only thing in Preston's history that explained the vascular neuropathy was Preston's prior IV drug use.
The jury found that Preston consented to the particular treatment performed and that Dr. Simopoulos was not negligent in performing the treatment. Although it was not necessary for the jury to make a finding on causation, the jury nevertheless found that any negligence by Dr. Simopoulos was not a substantial factor in causing harm to Preston.
The Moores now contend the evidence of Preston's prior IV drug use was much more prejudicial than probative and hence the trial court should have excluded all evidence of Preston's prior IV drug use, including Dr. Deer's expert opinion testimony, and the delay in ruling on the admissibility of that evidence increased the prejudicial impact.
We will affirm the judgment.
BACKGROUND
Preston felt severe testicular pain after moving a heavy television. An emergency room ultrasound showed a cyst on his right testicle, a condition like varicose veins on his left scrotum, and a lesion between the two testicles. Preston received an antibiotic, pain medication, and a referral to a urologist.
Preston returned to the emergency room five days later, complaining of greater pain. He received a prescription for Norco and a different antibiotic. His primary care physician gave him a refill prescription for Norco.
Dr. Simopoulos, a urologist, began treating Preston in October 2011. Preston complained of pain in his left testicle. Dr. Simopoulos was concerned about what he found in the left testicle; he testified at trial that he thought there could be a hematoma, a cyst or some type of tumor.
Dr. Simopoulos attempted to aspirate the mass to see if it was fluid-filled or solid. Preston agreed to the aspiration. Dr. Simopoulos was unable to withdraw any fluid from the mass. He told Preston it was solid, a surgical procedure was required to remove it, and ligation could also help with the pain. Preston agreed to the surgery. Meanwhile, Dr. Simopoulos prescribed Vicodin, and Preston's primary care physician prescribed OxyContin.
The Moores met with Dr. Simopoulos the following month to discuss the surgery. Dr. Simopoulos explained to the Moores that he would remove the mass and perform a ligation, which should relieve Preston's pain. Dr. Simopoulos testified that he discussed the effects of the operation on fertility. He said he discussed alternatives and the Moores agreed to the surgery.
Preston testified, on the other hand, that Dr. Simopoulos did not fully explain the procedure. Preston said if Dr. Simopoulos had fully explained the surgery, he would not have consented to it. According to Preston, Dr. Simopoulos never said he suspected a tumor. Deborah testified Dr. Simopoulos did not discuss the risks of the surgery nor offer alternatives to surgery.
When Preston continued to complain about pain, Dr. Simopoulos prescribed Toradol.
Dr. Simopoulos performed the surgery in December 2011, and Preston signed a consent form. He read the form before signing it. The consent form stated that the surgery had been adequately explained to Preston by his physician, Preston had a chance to ask questions, he received all the information he wanted about the procedure and he consented to the procedure.
During the surgery, Dr. Simopoulos saw a mass connected to the epididymis. Some of the epididymis was stuck to the mass. Dr. Simopoulos excised the mass, performed a ligation, and flushed the area with Marcaine, a liquid pain medication, before closing the suture.
The mass Dr. Simopoulos removed was a hematoma, a collection of blood caused when tissue is injured by blunt trauma. The mass included epididymal tissue.
Deborah testified that Preston complained of leg pain after the surgery, but the nurses' notes do not show such a report. The first record the Moores' expert saw which reflected left lower extremity dysfunction and pain was from five to six months later. Preston continued to complain about scrotal pain after the surgery. But according to Dr. Simopoulos, Preston did not complain of leg pain.
Dr. Simopoulos continued to prescribe pain medication for Preston, but the medication did not appear to alleviate Preston's pain. Dr. Simopoulos referred Preston to other health care providers for further treatment and pain management. Preston treated with multiple doctors. He reported a variety of symptoms including "burning numbness" in both thighs, "blind spots," chest pain and facial numbness. Dr. Jeffrey Ralph, a neurologist at UC San Francisco, diagnosed Preston with Complex Retinal Pain Syndrome (CRPS). CRPS is a condition where the sympathetic nerves, which alert when the body suffers an injury, are chronically irritated, causing severe pain, hypersensitivity and other symptoms. CRPS is typically caused by trauma. Preston testified that he felt burning in his lower extremity, a constant ache in his testicles and muscle atrophy in his left leg.
The Moores' expert on chronic pain management and CRPS, Dr. Michael Levin, opined to a reasonable degree of medical probability that Preston had Type II CRPS in his lower extremities, predominantly on his left side. Dr. Levin opined that Dr. Simopoulos breached the standard of care by damaging Preston's femoral nerve when he injected into that nerve with a needle while administering Marcaine during the surgery, causing CRPS. The Moores' urology expert, Dr. Paul Lee, opined that Dr. Simopoulos breached the standard of care in performing the October 21 needle aspirations and the December 8 surgery. Dr. Lee concluded the aspiration performed by Dr. Simopoulos caused the hematoma subsequently found in Preston.
Dr. Simopoulos's urology expert, Dr. Robert Kessler, opined that Dr. Simopoulos complied with the standard of care. He explained why it was appropriate for Dr. Simopoulos to perform the needle aspiration and the surgery and that Dr. Simopoulos performed the surgery in an appropriate manner. Dr. Kessler said it was common to squirt a long-acting anesthetic like Marcaine in an incision to control pain after a scrotal procedure and no needle is used when doing that. He further opined that Preston's sperm count was well within normal limits and ultrasounds showed no loss of the epididymis.
Dr. Simopoulos's neurology expert, Dr. Bruce Adornato, examined Preston in December 2014. He opined that Preston had an essentially normal neurological examination, except that the thigh and calf muscles on his left side were smaller in size, which was consistent with disuse atrophy. Preston had normal strength in his legs. He did not exhibit objective signs of being hypersensitive to touch on his leg or foot. His deep tendon reflexes on both knees were normal. His responses indicated that his femoral nerve was intact. Watching a surveillance video of Preston which was played during the trial, Dr. Adornato observed that Preston walked essentially normally. He opined that Preston did not appear to need a crutch, he exhibited spontaneous mobility, and he did not move like a person who had a problem with his groin. Dr. Adornato said his findings were consistent with Preston's electromyogram (EMG) results, which showed no injury to his left femoral nerve. He also noted that Preston had a negative bone scan in July 2014, indicating no CRPS. Dr. Adornato opined that Preston did not have CRPS and did not have a femoral nerve injury.
Dr. Simopoulos's psychiatry expert, Dr. Stuart Eisendrath, opined that the most probable cause for Preston's symptoms was somatoform disorder, where a patient created and perceived multiple symptoms throughout the body based on psychological factors.
After the trial court ruled that Dr. Simopoulos's pain medicine expert, Dr. Timothy Deer, would be permitted to testify for the defense regarding causation, the Moores reopened their case-in-chief and recalled Preston. Preston admitted that he used illicit drugs intravenously for a very brief period in 2007. He said he wrote on a January 17, 2008 intake form that his primary drug of choice was OxyContin. He admitted that he went to the emergency room on October 21, 2007, because of an infection in his arm as a result of IV drug use. He said he stopped using IV drugs in January 2008.
Dr. Deer opined, based on Preston's report of pain in both legs, that Preston had vascular neuropathy, permanent nerve damage. According to Dr. Deer, the only thing in Preston's history that explained the vascular neuropathy was Preston's prior IV drug use. Dr. Deer opined that acute vasculitis -- inflammation of the blood vessel -- from IV drug use resulting in neuropathy was the cause of Preston's symptoms. Use of IV drugs can cause vasculitis. According to Dr. Deer, neuropathy can develop and not manifest symptoms until years later. Dr. Deer opined that Preston did not have CRPS or a femoral nerve injury. He said Preston's doctors may not have considered IV drug use and infection as a possible cause of Preston's issues because they did not know about Preston's history of IV drug use. He agreed, however, that none of Preston's medical records showed any diagnosis of vasculitis or treatment for vasculitis.
Preston testified he was not sure if he told his treating physicians, other than his pain management specialist, that he previously used IV drugs. --------
The Moores recalled Dr. Levin as a rebuttal witness. Dr. Levin opined that Preston did not have vasculitis. He said the 2007 emergency room record did not indicate that Preston had vasculitis. Instead, that record showed Preston had an abscess, which was a localized infection. But even if Preston had vasculitis in 2007, Dr. Levin opined that the symptoms of vasculitis or neuropathy would not be delayed for many years. Dr. Levin said his opinion did not change based on the fact that the abscess shown in the 2007 record was caused by IV drug use. He agreed, however, that if a person injected a drug with impurities into his arm, vasculitis can develop elsewhere in his body. He also agreed that vasculitis can lead to neurological problems and vasculitis from an injection to the upper body can lead to neurological problems in the lower extremities.
The jury found in favor of Dr. Simopoulos on all causes of action by special verdict. On the cause of action for medical battery, the jury found that Dr. Simopoulos did not perform a substantially different procedure than the one Preston consented to. With regard to informed consent, the jury found that Preston gave informed consent for the October 21 needle aspirations and the December 8 surgery. With regard to medical negligence, the jury found that Dr. Simopoulos was not negligent in the care and treatment of Preston. It was not necessary for the jury to make a finding on causation. (Gallo v. Peninsula Hospital (1985) 164 Cal.App.3d 899, 901 (Gallo).) Nevertheless, the jury found that Dr. Simopoulos' negligence was not a substantial factor in causing harm to Preston.
The Moores moved for a new trial on grounds raised on appeal. The trial court denied that motion. The Moores appeal from the judgment and the order denying their motion for a new trial.
STANDARD OF REVIEW
We review a trial court's ruling admitting expert testimony for abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) Rulings made under Evidence Code section 352 are also reviewed under the abuse of discretion standard. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 147.) Even when an evidentiary ruling is erroneous, we will not reverse the judgment unless the error resulted in a manifest miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 353; Easterby v. Clark (2009) 171 Cal.App.4th 772, 783.) We will find a miscarriage of justice only when, after an examination of the entire cause, including the evidence, we conclude it is reasonably probable a result more favorable to the appellant would have been reached in the absence of the error. (Easterby, at p. 783; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853.)
On review of an order denying a motion for new trial, we examine the entire record, including the evidence, to make an independent determination whether any error was prejudicial. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417, fn. 10; Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694.) We must determine whether, absent the error, there is a reasonable probability the jury would have returned a plaintiffs' verdict. (Hasson, supra, 32 Cal.3d at p. 415; Wilkinson v. Southern Pacific Co. (1964) 224 Cal.App.2d 478, 484.)
DISCUSSION
The Moores contend the trial court should have excluded all evidence of Preston's prior IV drug use, including Dr. Deer's expert opinion testimony, and the delay in ruling on the admissibility of that evidence increased the prejudicial impact.
A plaintiff claiming medical negligence must prove the following elements: "(1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage." (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) Dr. Deer only testified on causation, not the standard of care. The jury found by special verdict that Dr. Simopoulos was not negligent in the care and treatment of Preston, and the Moores do not challenge this finding. Accordingly, even if the trial court had excluded Dr. Deer's testimony on causation, the Moores would not have obtained a more favorable result because the jury found that the Moores failed to prove a different essential element of their medical negligence cause of action. (Gallo, supra, 164 Cal.App.3d at p. 905; see Williamson v. Prida (1999) 75 Cal.App.4th 1417, 1427; Jamison v. Lindsay (1980) 108 Cal.App.3d 223, 236.) The Moores have not shown a prejudicial abuse of discretion.
Although counsel for the Moores argued in oral argument that the evidence of Preston's prior IV drug use turned the jury against the Moores, the record does not establish such an assertion. In any event, substantial evidence supports the verdict. Based on the evidence, the jury could reasonably conclude Dr. Simopoulos's conduct did not breach the standard of care.
Regarding causation, the Moores' expert opined that Dr. Simopoulos injured Preston's femoral nerve by injecting into the femoral nerve with a needle when he gave Preston Marcaine during the surgery. But there was no evidence Dr. Simopoulos used a needle to apply Marcaine. Dr. Simopoulos testified he squirted Marcaine into the suture area and he did not use a needle to apply the Marcaine. Dr. Simopoulos's expert told the jury it was common to squirt an anesthetic like Marcaine in an incision to control pain at the incision after a scrotal procedure and no needle is used when doing that. The Moores' experts agreed there was no breach of the standard of care if Dr. Simopoulos did not use a needle but instead used a syringe to instill pain medication during the surgery and it was within the standard of care to instill pain medication into the scrotal pouch after a surgery, without using a needle.
Having reviewed the entire record, we cannot conclude that, absent the asserted evidentiary error, there is a reasonable probability the jury would have returned a verdict more favorable to the Moores.
We next address the Moores' argument regarding the trial court's delay in ruling on the admissibility of the prior IV drug use evidence. The Moores moved in limine to exclude evidence of Preston's past use of illegal drugs, arguing that such evidence was irrelevant and inadmissible under Evidence Code section 352. Dr. Simopoulos opposed the motions, arguing among other things that drug use evidence was relevant because it was expected that Dr. Simopoulos's experts would testify that prior drug use caused the "pain syndrome" of which Preston was complaining. But neither party presented evidence of the expected testimony of Dr. Simopoulos's expert witnesses. The Moores did not depose Dr. Simopoulos's experts, and Dr. Simopoulos did not provide expert declarations.
After hearing argument on the Moores' motions, the trial court concluded prior drug use evidence was relevant if "from a medical standpoint" such use caused Preston's pain issues, but the parties failed to present enough material to permit the trial court to decide the motions. The trial court said it would conduct an Evidence Code section 402 hearing -- a hearing outside the presence of the jury to determine the admissibility of evidence -- in an effort to decide the in limine motion. Although the trial court later ruled that the parties may not mention Preston's prior drug use to the jury until the trial court had heard from the defendant's expert, it suggested that the Moores should ask prospective jurors during voir dire about any feelings regarding drug use because the trial court was thinking the evidence "probably comes in . . . ." Counsel for the Moores elected not to question prospective jurors about drug use.
Because the parties did not present evidence in limine to the trial court showing whether Preston's drug use caused his injuries, the trial court did not err in delaying its ruling on the Moores' in limine motion. (See Silva v. Union Pacific Railroad Co. (2000) 85 Cal.App.4th 1024, 1030 [trial court cannot decide an in limine motion in an "evidentiary void"]; Kelly v. New West Federal. Savings (1996) 49 Cal.App.4th 659, 671, fn. 3 [trial court should not entertain an in limine motion absent factual support].) Although the Moores now complain the trial court's delay in ruling on their in limine motion increased the prejudice to them, they did not seek to have Dr. Simopoulos's expert testify early during the trial. In fact, the Moores objected when, on day three of the trial (before opening statements were given), Dr. Simopoulos suggested taking Dr. Deer out of order so the parties and the trial court could "deal with the issue" sooner. We have found no further discussion in the record regarding drug use evidence until day 12 of the trial when the trial court alerted the parties that based on Dr. Levin's testimony, it was leaning in favor of admitting Dr. Deer's testimony. The Moores did not object to any delay in the trial court's ruling or the timing of Dr. Deer's Evidence Code section 402 hearing at that time. Thereafter, the Moores did not complain about the timing of Dr. Deer's Evidence Code section 402 hearing until day 14 of the trial, when the Moores filed a supplemental brief. Dr. Deer testified the next day.
The Moores claim the trial court deprived them of the opportunity to limit the prejudicial damage of the drug use evidence during their case-in-chief and that the delayed ruling "allowed the evidence in front of the jury when the jurors were most likely to use it for an illegitimate purpose, at the end of trial when they were tired and frustrated." The Moores assert "the jury deliberated in an atmosphere of anger and mistrust after highly prejudicial evidence was heard on the last day of a long trial." We need not consider the Moores' claims because they are made without citation to the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
In any event, the Moores were allowed to reopen their case-in-chief and presented Preston's testimony on the issue of prior IV drug use; they were also allowed to rebut Dr. Deer's testimony with the expert testimony of Dr. Levin and the testimony of Deborah. The trial court instructed the jury not to let bias, sympathy, prejudice or public opinion influence its decision. It told the jury to decide the facts only from the evidence they saw or heard during the trial. Absent some contrary indication in the record, and we have found none, we presume the jury followed the trial court's instructions. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.)
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
BUTZ, J.