Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. KC044363 of Los Angeles County. R. Bruce Minto, Judge.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson; Davis, Grass, Goldstein & Housouer and Jeffrey W. Grass for Defendants and Appellants.
Law Offices of Herbert Hafif, Greg K. Hafif and Michael G. Dawson for Plaintiff and Respondent.
MALLANO, Acting P. J
In this medical malpractice action, defendants Scott Goldman and Medical Center for Bone & Joint Disorders, Inc. (Goldman) appeal from a judgment on a jury verdict in favor of plaintiff Marisa Pollak for approximately $580,000. Pollak claimed that during rotator cuff surgery on her left shoulder on April 9, 2002, Goldman made a tear in her infraspinatus muscle, causing her persistent intense pain and limitations on her ability to move her left arm. We affirm the judgment, rejecting Goldman’s contentions that the jury was improperly instructed on the issue of causation, that there was insufficient evidence on the issue of causation, and that Pollak’s counsel committed prejudicial misconduct.
Roughly half of that amount, for future loss of earnings and future medical expenses, was payable in periodic payments pursuant to Code of Civil Procedure section 667.7.Dr. Goldman admitted at trial that if he were held liable to Pollak, the defendant corporation would also be liable.
BACKGROUND
On March 18, 2002, 36-year-old Pollak saw Goldman, an orthopedic surgeon, for pain in her left shoulder. Pollak had full use of her left arm. Goldman ordered an MRI. A March 19, 2002 MRI report indicated that the infraspinatus muscle, one of the muscles of the rotator cuff, was normal and healthy, and there was no evidence of a full thickness tear, but the MRI results indicated possible inflammation or a partial tear in the supraspinatus tendon, which is above the infraspinatus. The MRI also showed a downward sloping acromion, the end point of the scapula or shoulder blade. Goldman diagnosed Pollak with a left shoulder impingement, in which the bone (acromion) was pinching the supraspinatus tendon when Pollak raised her left arm. On April 9, 2002, Goldman performed on Pollak’s left shoulder an arthroscopic procedure known as a subacromial decompression, in which the under surface of the acromion was shaved and made smooth so it would not pinch the tendon.
In the April 9, 2002 procedure, Goldman made an incision in the skin in Pollak’s back about a thumb’s width below the acromion in order to insert a trocar, a blunt instrument which spread the muscle fibers and made a pathway for the insertion of the camera, permitting Goldman to view the surgery on a television monitor. The insertion point for the camera was close to the infraspinatus. A second incision was made through the skin on the side of the shoulder above the deltoid muscle. He used a trocar to push through the deltoid muscle fibers into the space under the acromion, forming a “tunnel.” Goldman then inserted an instrument with a shaver blade and a suction system into the “tunnel” to cut and remove the bursa or membrane sack. After removing the shaver, he inserted a burr, designed to cut bone and suction out the fine bone particles. He shaved the acromion with the burr. According to Goldman, there was no tear of the supraspinatus, another muscle of the rotator cuff, but the supraspinatus was inflamed and swollen. After the acromion was shaved, sutures were placed in the two incisions and Pollak’s arm was placed in a sling.
Pollak returned to see Goldman a week after surgery and then on May 8 and June 5, 2002. On all of those occasions, Pollak had significant pain. On April 16, 2002, Goldman prescribed physical therapy for three days per week for four weeks, which therapy Pollak began on April 19, 2002. Pollak wore the sling longer than she was supposed to, and experienced no trauma in physical therapy that would have caused her to lose the muscle control in her left arm.
Notwithstanding Goldman’s claim that there was no tear in Pollak’s supraspinatus at the time of the April 9 procedure, on June 5, 2002, Goldman diagnosed a rotator cuff tear of the left shoulder. He did not order another MRI. One of Goldman’s progress notes for June 28, 2002, stated that he planned an open surgery for rotator cuff repair; another progress note dated the same day contained a diagnosis of shoulder impingement syndrome, without mentioning a rotator cuff tear, and planned another eight weeks of physical therapy. Also on June 28, Goldman wrote a letter to the California Employment Development Department stating that Pollak was under his care, she experienced significant pain after surgery for treatment of a painful condition of her left shoulder, and that “‘there was more damage than could be corrected with the initial arthroscopic procedure.’” Goldman admitted writing and signing the letter in his deposition, but at the time of trial, he denied writing the letter and denied his signature appeared on the letter, claiming that it was written and signed by a medical assistant whom he has since “let go.” At trial, Goldman also denied that he “knew [he] put a hole in [Pollak’s] shoulder during that first arthroscopic surgery.”
Goldman performed open rotator cuff surgery on July 11, 2002, and observed that Pollak’s infraspinatus had a large “longitudinal type tear with a gap.” The tear was about one and one-half centimeters long. It could not be repaired. But Goldman found two tears in her supraspinatus, which he repaired. Goldman continued to treat Pollak until September 2002, when he referred her to Dr. James Tibone, an orthopedic surgeon, who was Pollak’s treating physician from September 2002 through the time of trial in March 2006.
Tibone performed an arthroscopic surgery on Pollak’s left shoulder in March 2003 and an open surgery in December 2003. During the March 2003 surgery, Tibone saw that the infraspinatus tendon was split from the supraspinatus tendon; normally the two tendons overlap and are joined together. Tibone also was able to insert his arthroscope through “an obvious infraspinatus tear” that was already in the muscle. In his surgery on December 23, 2003, Tibone found a three-by-two centimeter triangular tear or hole in Pollak’s infraspinatus muscle, with the apex or narrow part of the triangle at the infraspinatus tendon and with the tear widening out through the infraspinatus muscle. In both surgeries, Tibone tried to sew up the tear in the infraspinatus, but was unsuccessful, because it was “very hard to stitch muscle to muscle.” Tibone planned no further surgeries for Pollak’s infraspinatus because there was no further surgery that could repair it; he prescribed rehabilitation and an exercise program in order to strengthen the other muscles of her left shoulder.
In Tibone’s opinion, Goldman fell below the standard of care and caused the tear in Pollak’s infraspinatus during his arthroscopic surgery on April 9, 2002. His opinion was based on the March 19, 2002 MRI showing a healthy infraspinatus, Goldman’s operative report for the July 11, 2002 surgery which reported a large tear in the infraspinatus, the unusual location of the injury, and the lack of any traumatic injury to Pollak between March and July 2002. Tibone opined that Pollak could not have caused the injury on her own because it was an unusual place for an injury and she would “have to be playing football or have a major car accident, some catastrophic event.” Tibone ruled out micro-trauma, or repetitive overuse, and gradual wear and tear as causes of the tear. Tibone also stated that Pollak’s use of her right arm to help her reach with her left arm did not cause the tear. The only way that Tibone could account for the tear was that it was created at the time of the April 9, 2002 surgery.
At trial, Tibone testified that he did not think that Goldman made the tear from inserting the arthroscope “because I don’t think you could make that big a hole by inserting the arthroscope. I think it could have happened from poor visualization and then with a shaver, you’re removing some of the muscle.” In his deposition, Tibone testified that the tear was “caused by the arthroscope or the arthroscopic surgery that [Pollak] had by Dr. Goldman” and that he had no opinion as to which scenario was more likely. At trial, Tibone explained that after his deposition, he “thought about it more,” and “it’s more likely that the second . . . reason I gave [in deposition testimony] is what caused the injury.”
A defense expert radiologist testified that there was nothing on a September 17, 2002 MRI of Pollak’s left shoulder which was significantly different from a December 1, 2003 MRI of the shoulder, and that Tibone did not do anything during the March 2003 surgery that would have caused the tear or gap to get any larger.
A defense expert orthopedic surgeon, Dr. Keith Liberman, testified that the only way a shaver, an inflexible instrument, could have made the gap or tear in Pollak’s infraspinatus would be “to actually put the shaver in the wrong place, . . . it would not be in the shoulder. . . . It would be like stabbing somebody in the back. [¶] . . . [¶] . . . You can’t do it arthroscopically.” In his opinion, it was more likely than not that the tear “is either the end result of wear and tear that became apparent at that time [(Goldman’s July 2002 surgery)], or something happened between the two surgeries — a sudden movement, sudden reaching . . . .” Liberman testified that the impingement syndrome and the rubbing of the muscle under the side of the acromion “is usually the cause of problems like this.” He also stated that a tear could occur if a patient does not follow postoperative instructions to refrain from reaching or heavy lifting.
Goldman testified at trial that an April 19, 2002 physical therapy note indicated that Pollak was doing overhead reaching with her left arm, with assistance from her right arm, 10 days after surgery. According to Goldman, Pollak should not have been doing overhead reaching for six weeks after surgery. But Pollak was permitted in physical therapy to do “passive range of motion exercises above shoulder level.” Goldman admitted that in pretrial discovery responses he stated that he did not possess any facts to support his claim that Pollak or a third party caused her injury. Goldman also admitted that the written discharge instructions for the April 9, 2002 surgery did not preclude overhead reaching, that one of the goals of physical therapy was for Pollak to be able to reach her left arm overhead, and that reaching, in and of itself, would not cause a tear in the infraspinatus.
The jury was instructed in pertinent part that to establish her claim, Pollak “must prove all of the following: [¶] 1. That [Goldman was] negligent; [¶] 2. That plaintiff was harmed; and [¶] 3. That [Goldman’s] negligence was a substantial factor in causing plaintiff’s harm.” The jury was also instructed with the pre-March 2006 versions of CACI No. 200 (the burden of proof), CACI No. 517 (a patient’s responsibility to follow doctor’s instructions), and CACI No. 406, which provided that “[m]ore than one person’s negligence, including [plaintiff’s], may have been a substantial factor in causing plaintiff’s harm. If so, you must decide how much responsibility each person has by determining, on a percentage basis, the extent to which his or her negligence contributed to causing the harm.”
In the ruling on Goldman’s motion for a new trial in May 2006, the court noted that the then new CACI No. 430 instruction was not available when the jury was instructed a few months before, and “neither counsel proffered instructions akin to either paragraph one or two of new CACI 430 . . . .” The 2008 version of CACI No. 430 provides: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] [Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]”
In a special verdict, the jury found, by a 9 to 3 vote, that Goldman was negligent, that his negligence was a substantial factor in causing harm to Pollak, and that Pollak was not negligent. Goldman’s motion for a new trial was denied. Goldman appealed from the judgment in favor of Pollak.
DISCUSSION
A. Jury Instructions on Causation
Goldman contends that the trial court’s refusal to instruct the jury with his proffered “but for” causation instruction constituted prejudicial error. The proffered instruction provided: “Plaintiff must show that defendants were a cause of plaintiff’s injuries. This requires that plaintiff provide through expert testimony that but for the defendants’ alleged negligence, it is more likely than not the plaintiff would not have sustained her claimed injuries.”
We conclude that Goldman fails to establish any error in refusing his instruction because the substantial factor instruction given to the jury accurately reflected his theory of causation, presented a clearer rule of causation, and would have produced the same result as the “but for” instruction. Even if the refusal of his instruction was error, it was not prejudicial.
“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) Soule considered and rejected the proposition that an instructional error in a civil case warrants automatic reversal as inherently prejudicial and instead held that “[i]nstructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Id. at p. 580.) The court in Soule thus rejected the notion that the “mere possibility” of prejudice from instructional error warrants reversal; rather, the appellant must show that it is reasonably probable that instructions allowing application of an erroneous theory actually misled the jury. (Id. at p. 581, fn. 11.) When deciding whether an instructional error was prejudicial, the court must evaluate “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Id. at pp. 580–581.)
Although Goldman’s proposed instruction was correct in substance, the substantial factor instruction given to the jury also was correct and did not foreclose a defense verdict on causation. Viner v. Sweet (2003) 30 Cal.4th 1232, 1240 (Viner), cited by Goldman, does not establish that error occurred here.
In Viner, the Court held that transactional legal malpractice cases were not exempt from the “but for” test of causation because the distinction between transactional and litigation malpractice cases “makes little difference for purposes of selecting an appropriate test of causation. Determining causation always requires evaluation of hypothetical situations concerning what might have happened, but did not. In both litigation and transactional malpractice cases, the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent. This is so because the very idea of causation necessarily involves comparing historical events to a hypothetical alternative.” (Viner, supra, 30 Cal.4th at p. 1242.) The court further explained, “In transactional malpractice cases, as in other cases, the plaintiff may use circumstantial evidence to satisfy his or her burden. . . . And the plaintiff need not prove causation with absolute certainty. Rather, the plaintiff need only ‘“introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.”’” (Id. at pp. 1242–1243.) Accordingly, “[t]he purpose of this requirement [(the “but for” test)], which has been in use for more than 120 years, is to safeguard against speculative and conjectural claims. [Citation.] It serves the essential purpose of ensuring that damages awarded for the attorney’s malpractice actually have been caused by the malpractice.” (Id. at p. 1241.)
As pointed out by the court in Mayes v. Bryan (2006) 139 Cal.App.4th 1075, the court in Viner did not repudiate the “‘substantial factor’” test. (Mayes, at p. 1095.) “Rather, the Supreme Court has repeatedly restated its view that ‘the “substantial factor” test subsumes the traditional “but for” test of causation.’ [Citation.] They are both tests of causation in fact.” (Ibid.) And “the trial court is not required to instruct from both tests of cause in fact unless the state of the evidence suggests otherwise.” (Id. at p. 1096.) In the great majority of cases, the substantial factor test produces the same legal conclusion as the “but for” test. (Id. at p. 1094.) In light of the foregoing authorities, we conclude that the trial court did not err in instructing pursuant to the substantial factor test and in refusing Goldman’s proffered causation instruction.
Even if the court’s refusal of the “but for” instruction constituted error, it was not prejudicial. Given the jury’s findings on negligence and contributory negligence, there is no reasonable likelihood that had the jury been instructed on the “but for” test, the jury would have found Goldman negligent (which instructions and findings are not challenged on appeal) but that such conduct was not a cause in fact of the harm to Pollak. Nor was there any indication that the jury did not understand the instructions or was misled. And contrary to Goldman’s contention, the jury was instructed that Pollak had to establish the element of causation.
Goldman asserts that there were two other instructional errors as to causation: (1) the failure to instruct with a definition of “substantial factor,” and (2) the failure to instruct on the requirement of expert testimony. Because Goldman did not request additional or clarifying instructions on the term “substantial factor,” any error in this regard is waived. (See Carrau v. Marvin Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 296–297 [where it is claimed that instruction is too general or incomplete, failure to object or seek additional instruction waives the point].) Were we to address this point on its merits, we would conclude that the failure to define “substantial factor” did not constitute error. (Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 530–531 [no need to define “substantial factor”].) And the failure to instruct on the necessity for expert testimony as to causation was harmless error because the only evidence offered on causation came from expert testimony and it is not reasonably probable that the omission of the instruction affected the jury’s verdict.
B. Sufficiency of Evidence of Causation
Goldman asserts that the evidence of causation was insufficient because Tibone admitted under cross-examination that he was “merely hypothesizing that Dr. Goldman caused this hole.” Immediately before that admission, Tibone also admitted that he was not present when Goldman performed the arthroscopic surgery. Accordingly, it is clear that given the entirety of Tibone’s testimony, he interpreted the word “hypothesize” to mean that he was not a percipient witness but was testifying as an expert witness. Because the jury reasonably could have so interpreted the foregoing testimony, it is not the “fatal” admission asserted by Goldman. (See Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 280 [even where expert testimony is required, it may be circumstantial in nature and jury is entitled to draw reasonable inferences from it in determining causation].)
Nor does Goldman persuade us that Tibone’s opinions were purely conclusory and unaccompanied by reasoned explanations based on the evidence. Tibone’s opinions were based not only on the MRI’s and Pollak’s medical records from her treatment with Goldman, but on Tibone’s own course of treatment of Pollak and his two surgeries on Pollak’s left shoulder where he saw the muscles and the tear for himself. Goldman’s briefs essentially ask us to reweigh the evidence, which we cannot do. Accordingly, he fails to establish that Tibone’s opinions on causation were insufficient to support the verdict.
C. Improper Conduct of Pollak’s Counsel
Goldman contends that Pollak’s counsel improperly questioned Goldman about other lawsuits against him, in violation of a pretrial ruling on a motion in limine, and that the questioning was prejudicial.
Goldman made a motion in limine to exclude evidence of other lawsuits against him. After the trial court stated that its tentative ruling was to grant the motion, Pollak’s counsel asked, “What about for impeachment . . . ?” The court responded that “if someone opens the door and says I’ve never been sued, never had claims, that’s a different question. . . . I think defense has said there’s not going to be any evidence of that. So that motion’s granted.”
Pollak’s counsel asked Goldman several questions relating to prior lawsuits, but Goldman’s counsel did not object until after several questions and answers on the topic. Thereafter, and out of the jury’s presence, Goldman made a motion for a mistrial based on Pollak’s counsel’s alleged violation of the pretrial order on the motion in limine. If the mistrial was denied, Goldman requested a specific instruction or admonishment to the jury to disregard the statements about prior lawsuits. The court denied the request for a mistrial and directed Goldman’s counsel to draft an instruction that the questions asked by Pollak’s counsel violated a pretrial order and that they were not to draw any inferences from the questions. The jury was then instructed: “During the examination of Dr. Goldman yesterday, it was suggested in questioning by [Pollak’s counsel] that there are or have been other lawsuits against Dr. Goldman. There is no evidence of other lawsuits involving Dr. Goldman. You are instructed to disregard any comments or questions by [Pollak’s counsel] suggesting that there have been other lawsuits involving Dr. Goldman.”
“Q: Have you ever had any prior claims, demands, or lawsuits relating to arthroscopic shoulder surgery other than . . . Pollak’s case? [¶] A: No. [¶] Q: Now, same question, except for just with respect to arthroscopic surgeries in general, not just limited to the shoulder area. [¶] A: Have I ever had any — [¶] Q: Have you ever had any prior claims, demands, or lawsuits relating to arthroscopic surgery other than Ms. Pollak’s case? [¶] A: I don’t recall. [¶] Q: Sir, isn’t it true that you were sued by Amy Sheaffer for medical malpractice relating to an arthroscopic surgery on her knee? [¶] [Goldman’s counsel]: Objection, argumentative. [¶] THE COURT: Sustained. Subject to a further hearing outside the presence of the jury. The objection’s sustained. [¶] And there’s no response from the witness, so the question’s just struck. [¶] Q [By Pollak’s counsel]: Well, let me read from your deposition. Page 8, line 15 through 22. [¶] ‘Question — [¶] [Goldman’s counsel]: Your Honor, I’m going to object. There’s a pre-trial motion in this. It’s improper. [¶] THE COURT: Sustained for the time being. It’s something we can review outside the presence of the jury.” Shortly thereafter, Pollak’s counsel asked Goldman the following questions: “Q: So you refer patients to Dr. Tibone when you have a situation where you can’t repair them, right? [¶] A: I have. Yes. [¶] Q: Okay. And then you call Dr. Liberman [(defense expert witness)] to cover your back when those patients come in to sue you for the damages that you caused them, right? [¶] [Goldman’s counsel]: Objection. [¶] THE COURT: Grounds. [¶] [Goldman’s counsel]: Argumentative. [¶] THE COURT: Sustained.”
Goldman moved for a new trial on the ground, among others, of the alleged misconduct of Pollak’s counsel. The trial court denied the motion for a new trial, stating as to counsel’s improper conduct, “I don’t think it — with the instruction that was given to the jury — prevented a fair trial or resulted in a miscarriage of justice.”
A contention similar to Goldman’s was made and rejected in Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757 (Grimshaw), where the court reasoned: “As to the second alleged misconduct relating to the order in limine, . . . there is no doubt that failure to approach the bench before asking the question violated the ground rule which had been clarified after the first incident. The trial court, however, was in the best position to evaluate the effect of the misconduct. It made that assessment in ruling on the motion for a mistrial and later in passing on Ford’s motion for a new trial in which one of the grounds was the asserted misconduct of counsel in violating the order in limine. In denying both motions, the trial judge impliedly determined that the misconduct did not result in prejudice and that the verdict was not the result, in whole or in part, of the charged misconduct. Such determinations by the trial court may not be disturbed on appeal unless they are patently wrong. [Citations.] We cannot say that the trial judge’s implied assessment of the effect of the charged misconduct on the verdict was manifestly wrong.” (Id. at pp. 794–795.)
As in Grimshaw, the trial court here twice rejected Goldman’s contention that the improper conduct of Pollak’s counsel was prejudicial, and we cannot conclude that the trial court’s determination was “manifestly wrong.” Having reviewed the record, we also conclude that it is not reasonably probable that Goldman would have achieved a more favorable result in the absence of the improper conduct. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801–802 [improper conduct by attorneys in civil cases may be held to be prejudicial error entitling the aggrieved party to reversal of the judgment if it is reasonably probable that the aggrieved party would have achieved a more favorable result in the absence of the improper conduct].) The improper conduct was isolated, constituting only several questions posed to Goldman, whose testimony consumed more than one day of trial. And there is no indication that the jury did not follow the admonition, or that the improper questions were so inflammatory as to be incapable of being cured by the admonition. There was no prejudicial error in connection with the improper conduct of Pollak’s counsel.
DISPOSITION
The judgment is affirmed. Respondent Marisa Pollak is entitled to costs on appeal.
We concur: VOGEL, J., ROTHSCHILD, J.