Opinion
No. 52845-9-I
Filed: May 16, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-2-34617-2. Judgment or order under review. Date filed: 07/11/2003. Judge signing: Hon. Steven Scott.
Counsel for Appellant(s), Georgia Trejo Locher, Georgia Trejo Locher PS, 237 SW 153rd St, Burien, WA 98166-2313.
Counsel for Respondent(s), James Glen Bennett, The Financial Center, 1215 4th Ave Ste 920, Seattle, WA 98161.
David Gross, Helsell Fetterman LLP, 1001 4th Ave Ste 4200, Seattle, WA 98154-1154.
Mary K. McIntyre, McIntyre Barns PLLC, 1215 4th Ave Ste 920, Seattle, WA 98161.
William Robert Hickman, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Donna Maria Moniz, Johnson Graffe Keay Moniz Wick LLP, 925 4th Ave Ste 2300, Seattle, WA 98104-1145.
Pamela A. Okano, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Kevin Olea was born with cerebral palsy. Kevin and his parents (collectively 'Olea') sued Swedish Medical Center and several doctors involved in the labor and delivery. The case proceeded to trial before a jury, and the jury found in favor of the defendants. Olea appeals. We affirm because: (1) Olea did not establish that the trial court abused its discretion in determining that there was a conflict of interests between the defendants sufficient to award them additional preemptory challenges; (2) it was not misconduct for defense counsel to ask a witness whether Kevin's brothers had been tested for cerebral palsy; (3) the trial court did not err in compelling the production of the school and medical records of Kevin's brothers; (4) the trial court did not err in giving jury instructions; (5) the trial court did not abuse its discretion in admitting evidence of future government benefits available to Olea; and (6) the trial court did not err in allowing, but not requiring, the jury to view a videotape of a Caesarean operation.
FACTS
After a difficult labor and delivery, Elena Olea gave birth to Kevin Olea. Kevin has cerebral palsy. Kevin and his parents sued several doctors and Swedish, arguing that Kevin's condition was caused by a deprivation of oxygen immediately before or during his birth. At trial, the only remaining defendants were Dr. Daniel Jay Fathi, a family practice physician assigned to Elena's care, Dr. David Luthy, a maternal-fetal medicine specialist, and Swedish. The jury returned a verdict in favor of the defendants, finding that neither Fathi nor Luthy acted negligently. Olea appeals.
ANALYSIS
The first issue we address is whether the trial court erred in allowing each defendant two peremptory challenges, for a total of six defense peremptory challenges. Under RCW 4.44.130:
Either party may challenge the jurors. The challenge shall be to individual jurors, and be peremptory or for cause. Each party shall be entitled to three peremptory challenges. When there is more than one party on either side, the parties need not join in a challenge for cause; but, they shall join in a peremptory challenge before it can be made. If the court finds that there is a conflict of interests between parties on the same side, the court may allow each conflicting party up to three peremptory challenges.
The trial court found that a conflict of interests existed between the defendants and therefore granted them additional peremptory challenges. On the record, the court stated:
I did rule that because of the conflicts among the defendants, although I don't believe there are substantial conflicts in terms of the interests of these defendants, I found them sufficient to award additional peremptory challenges. So the ruling in chambers was that the plaintiffs would have four peremptory challenges and the defendants would have two each.
Plaintiffs' Objections to Voir Dire, May 5, 2003 at 2. Olea argues that the trial court abused its discretion in granting the additional peremptory challenges because it did not find a substantial conflict. The statute, however, does not require the court to find a substantial conflict, it only requires a conflict. Additionally, Olea criticizes the trial court for failing to detail its reasons for its decision on the record. It is apparent from the record that the parties and trial court addressed the issue of conflict in chambers. As the appealing party, Olea bears the burden of presenting an adequate record for review and for preserving errors. Because Olea did not present a record of the trial court's in-chambers discussion and ruling on this issue, we cannot review it on appeal. We, therefore, conclude that Olea has not established that the trial court abused its discretion in granting additional peremptory challenges.
Olea also argues that the trial court erred in failing to dismiss a particular juror for cause. The trial court has broad discretion in determining whether jurors should be dismissed for cause. Here, the trial court and parties extensively questioned the juror and, while initially skeptical, the juror ultimately stated that 'in her best judgment' she could be fair. Under these circumstances, denying the request to remove the juror for cause was not an abuse of discretion.
Next, we address whether the trial court erred in declining to give a curative instruction in response to defense counsel's alleged misconduct in asking a witness whether Kevin's brothers had been evaluated for cerebral palsy. Misconduct by an attorney requires a new trial if the attorney's comments were improper and there is a substantial likelihood the remarks affected the jury's verdict. Aluminum Co. of Am. v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 539, 998 P.2d 856 (2000). Here, Olea argues that counsel for Luthy committed misconduct requiring reversal when she asked Kevin's treating physician, Dr. Forrest Bennett, if Kevin's brothers had been evaluated for cerebral palsy. Olea did not object to the content of this questioning. Eleven days later, Olea brought a motion to prohibit references suggesting that Kevin's brothers have cerebral palsy. The motion also requested a curative instruction. The trial court 'grant[ed] the motion with respect to reference to cerebral palsy with regard to [Kevin's brothers] without further foundation.' Report of Proceedings (RP) (June 2, 2003) at 2. This decision was prospective in nature because Olea did not object to the questions at the time they were asked. Additionally the trial court denied the request for a curative instruction. Olea argues that the objection was timely under the circumstances because the brothers' records were still coming in from the provider during trial. An 11-day delay, however, is not reasonable. At the time of the question, Olea could have objected to the relevance of such a question without checking the record.
If a party fails to object, misconduct requires reversal only when it is so flagrant and ill intentioned that no curative instruction could have alleviated the resulting prejudice. Nelson v. Martinson, 52 Wn.2d 684, 689-90, 328 P.2d 703 (1958). Olea does not argue that defense counsel's conduct was so flagrant that no curative instruction could have cured any prejudice. Furthermore, there does not appear to be prejudice requiring reversal in this case. Testimony by both sides clearly stated that Kevin's brothers do not have cerebral palsy. There is not a substantial likelihood that the suggestion that the brothers may have been tested for cerebral palsy affected the jury verdict. Therefore, we find no error.
Next, we address whether the trial court abused it discretion when it compelled the production of the school and medical records of Kevin's brothers. We review a trial court's decisions allowing discovery for an abuse of discretion. Barfield v. City of Seattle, 100 Wn.2d 878, 886-87, 676 P.2d 438 (1984). As an initial matter, even if the trial court erred in compelling the production of the documents, any error was harmless. The medical and school records go only to the issue of proximate cause. Because the jury found that the defendants were not negligent, they did not reach the issue of causation. Therefore, we need not consider the issue on appeal. Kimball v. Otis Elevator Co., 89 Wn. App. 169, 174-75, 947 P.2d 1275 (1997).
Moreover, ordering the production of the documents was not error. Olea argues that these records were not relevant and that the timing of the production was prejudicial. The records, however, were discoverable. Olea claimed that Kevin's cerebral palsy was caused by the defendant's negligence. The records showed that Kevin's brothers also had developmental delays, though much less severe than Kevin's. The records were therefore potentially relevant to the issue of the proximate cause of Kevin's condition.
Olea also challenges the timing of the motion to compel. Olea argues that discovery spanned over three years and requesting the documents near the trial date was prejudicial. The late discovery of the documents, however, was caused by Olea's failure to disclose. At her first deposition, she stated that her other sons were healthy and did not have any problems. It was only at her second deposition that she disclosed that both of her other sons had trouble in school and were required to repeat grades. She also disclosed that the boys were in special education classes and that one of the boys had hearing problems. By the end of the deposition, defense counsel had prepared a stipulation to release the school records. Olea postponed signing it, requesting additional time to consider the request. When Olea would not sign the stipulation, the defendants moved for an order compelling the production of the records. Given Olea's late disclosure, the trial court did not abuse its discretion in compelling the production of documents.
Olea also challenges several of the trial court's instructions to the jury. 'Jury instructions challenged on appeal are reviewed to determine whether they permit the parties to argue their theories of the case, whether they are misleading, and whether when read as a whole they accurately inform the jury of the applicable law.' Adcox v. Children's Orthopedic Hosp. Med. Ctr., 123 Wn.2d 15, 36, 864 P.2d 921 (1993). To show that a defendant health care provider acted below the standard of care, the plaintiff must prove that the provider 'failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances.' RCW 7.70.040(1). Here, the trial court gave the following instruction (Instruction No. 9):
A family practice physician has a duty to exercise the degree of skill, care and learning expected of a reasonably prudent family practice physician in the State of Washington acting in the same or similar circumstances at the time of the care or treatment in question. Failure to exercise such skill, care, and learning constitutes a breach of the standard of care and is negligence.
Similarly, a perinatologist has a duty to exercise the degree of skill, care and learning expected of a reasonably prudent perinatologist in the State of Washington acting in the same or similar circumstances at the time of the care or treatment in question. Failure to exercise such skill, care, and learning constitutes a breach of the standard of care and negligence.
The degree of care actually practiced by members of the medical profession is evidence of what is reasonably prudent. However, this evidence alone is not conclusive on the issue and should be considered by you along with any other evidence bearing on the question.
Olea argues that the relevant standard of care is that of a doctor delivering a baby, because all persons delivering babies are held to the same standard of care. Olea argues that the instruction placed an additional burden of presenting testimony from both a family practice doctor and a perinatologist. These arguments are unpersuasive. RCW 7.70.040(1) sets the relevant standard of care as reasonably prudent care from a heath care provider in the class to which the provider belongs. Additionally, the plaintiff was not required to produce two expert witnesses. A doctor that has sufficient expertise and familiarity with the standard of practice at issue here family medicine and maternal fetal medicine may testify as to the standard of care and opine as to whether a physician met the relevant standard. White v. Kent Med. Ctr., Inc., 61 Wn. App. 163, 173-74, 810 P.2d 4 (1991). Thus, the trial court did not abuse its discretion in giving jury instruction 9.
Olea also challenges jury instruction 18, arguing that the instruction gave undue weight to the potential of a preexisting condition. The instruction read:
If your verdict is in favor of the plaintiff, and if you find that:
1) before the alleged one-minute delay in his delivery Kevin Olea already had a bodily and mental condition that was causing disability and that was not proximately caused by the negligence of the defendants; and
2) because of this alleged one-minute delay his condition and disability were aggravated, then you should consider the degree to which his condition and disability were aggravated by this alleged one-minute delay.
However you should not consider any condition or disability that may have existed prior to this alleged one-minute delay, or from which Kevin Olea may now be suffering, that was not caused or contributed to by the negligence of the defendants.
Olea argues that this instruction implies that Kevin had a preexisting condition. This instruction applied only if the jury found in favor of the plaintiff and is solely related to proximate cause. A jury is presumed to follow the instructions given. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 136, 875 P.2d 621 (1994). Because the jury found that the defendants were not negligent, it did not reach the issue of proximate cause.
Moreover, the instruction does not give undue weight to the defendant's case. In order to obtain reversal on the ground that jury instructions unduly emphasized the opposing party's theory of case, 'instructions on a particular point must be so repetitious as to generate an 'extreme emphasis' that 'grossly' favors one party over the other.' Adcox, 123 Wn.2d at 38. The challenged instruction is not unduly repetitive and does not grossly favor the defendants. Therefore, the trial court did not err in giving the instruction.
Olea also challenges that trial court's decision to give instructions 13 and 14. Jury instruction 13 read: 'A physician does not guarantee the results of his or her care and treatment.' Instruction 14 read: 'A physician is not liable for selecting one of two or more alternative courses of treatment, if, in arriving at the judgment to follow the particular course of treatment, the physician exercised reasonable care and skill within the standard of care the physician was obliged to follow.' Olea argues that these instructions gave undue weight to the defendants' case. Like the previous challenged instruction, these instructions are not unduly repetitive and do not grossly favor the defendants. Indeed, the instructions were proper considering the issues raised in the case. Instruction 13 'does not constitute error if it is used to supplement a proper standard of care instruction,' and giving the instruction is within the discretion of the trial court. Christensen v. Munsen, 123 Wn.2d 234, 248, 867 P.2d 626 (1994). Here, there was a proper standard of care instruction, and the trial court did not abuse its discretion in giving this instruction.
Instruction 14 is proper when a doctor is confronted with the choice between competing techniques or diagnoses. Watson v. Hockett, 107 Wn.2d 158, 165, 727 P.2d 669 (1986). Here, Olea argued that the defendants were negligent when deciding to allow Elena to try to deliver vaginally instead of doing a Caesarean. Instruction 14 therefore was proper, and the trial court did not abuse its discretion.
Next, we address whether the trial court erred in allowing evidence of future government benefits that may be available to pay for Kevin's care. RCW 7.70.080 replaces the common law collateral source rule in medical malpractice cases and allows a party to 'present evidence to the trier of fact that the patient has already been compensated for the injury complained of from any source except the assets of the patient, his representative, or his immediate family, or insurance purchased with such assets.' Olea argues that this statute does not allow the defendants to introduce evidence of future government benefits. Because evidence of collateral benefits only goes to the issue of damages, which was not reached by the jury, we do not need to address this issue. See Kimball, 89 Wn. App. at 174-75.
Moreover, assuming without deciding that this evidence was inadmissible under the statute, the trial court did not err in admitting the evidence because Olea opened the door to this testimony. Olea presented the testimony of Elena's primary care physician. The doctor testified that during a visit with Elena shortly after Kevin was born, Elena expressed concern about 'money and the ability to pay for her stay' and about 'how she was going to manage things.' Verbatim Report of Proceedings (May 13, 2003) at 34-35. Eliciting testimony that Olea was concerned about finances opened the door to defense testimony that government benefits would be available to pay for Kevin's care. We therefore find no error.
The next issue is whether the trial court erred in allowing the defendant to introduce a videotape of a Caesarean procedure as an illustrative exhibit. Under ER 403, 'relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.' This court reviews a trial court balancing under ER 403 for a manifest abuse of discretion. Janson v. N. Valley Hosp., 93 Wn. App. 892, 902, 971 P.2d 67 (1999). Here, the trial court admitted a videotape of a Caesarean operation for illustrative purposes only. The trial court specifically instructed the members of the jury that they did not have to watch the video. The video was relevant because Olea argued that the doctors should have performed a Caesarean. The video illustrated that the procedure is not a minor one and aided the expert witness's testimony. As the trial court properly noted, while the video was not pleasant to watch, '[t]he question is not how hard it is to watch or how bloody it is, the question is how prejudicial it is.' RP (June 2, 2003) at 9. Under the circumstances, Olea has not shown that the video was prejudicial, and therefore, the trial court did not abuse its discretion in admitting it for illustrative purposes.
The cumulative effect of many errors may necessitate a new trial even if individually the errors might not. State v. Lopez, 95 Wn. App. 842, 857, 980 P.2d 224 (1999). A new trial is necessary if there is a reasonably probability that they materially affected the outcome of the trial. Lopez, 95 Wn. App. at 857. Because there was no error, a new trial is not warranted.
Luthy and Swedish request attorney fees on appeal. Under RAP 18.9, a party that brings a frivolous appeal may be required to pay attorney fees for the opposing parties. This appeal is not frivolous and therefore we deny Swedish and Luthy's request for attorney fees.
Affirmed.
SCHINDLER and KENNEDY, JJ., concur.