Opinion
B159275.
11-25-2003
JEFFREY STOLL, an Incompetent Person, etc., Plaintiff and Appellant, v. WALTER R. BUSH, JR., et al., Defendants and Respondents.
Law Offices of Ward Smith and Ward D. Smith for Plaintiff and Appellant. Thelen Reid & Priest, Curtis A. Cole, Eileen Spadoni; LaFollette, Johnson, DeHaas, Fesler, Silberberg & Ames and Marshall Silberberg for Defendant and Respondent Walter R. Bush, Jr. Murphy, Pearson, Bradley & Feeney, Peter J. Zomber and David J. Ozeran for Defendant and Respondent Daniel Freeman Memorial Hospital.
In this medical malpractice case, plaintiff Jeffrey Stoll, an incompetent person, by and through his guardian ad litem, Lauren Blouin, appeals from the judgment rendered against him and in favor of defendants Walter R. Bush, Jr., M.D., and Daniel Freeman Memorial Hospital. Appellant contends the trial court erred by permitting the following: (1) Dr. Bushs "standard of care expert" to offer an opinion on causation, (2) Dr. Bushs counsel to cross-examine appellants expert witness with treatises that were not properly established as authoritative, (3) Dr. Bush to offer the opinion that he complied with the standard of care, and (4) BAJI No. 6.03 to be given to the jury. Appellant contends that the cumulative effect of the trial courts improper evidentiary rulings constituted prejudicial error. We disagree and affirm.
BACKGROUND
Factual Background
In the early morning hours of November 19, 1999, appellant suffered a severe allergic reaction after eating cookies containing walnuts. Appellants vomiting woke his wife, who helped him take some Benadryl and called 911. Paramedics arrived shortly at approximately 2:00 a.m. They administered additional Benadryl and Epinephrine and transported appellant to Daniel Freeman Memorial Hospital.
Dr. Bush was present in the emergency department and evaluated appellant, who was in severe respiratory distress. Dr. Bush twice attempted to establish an airway for appellant by intubating him (inserting a plastic endotracheal tube into the mouth and down into the trachea). Both attempts were unsuccessful. Appellant does not dispute that the procedure was made more difficult by the swelling associated with his allergic reaction. Dr. Bush testified that during his first intubation attempt, he requested his staff to summon an anesthesiologist, who had access to and training in fiberoptic intubation. During the second intubation attempt, appellant went into cardiac arrest and chest compressions were administered. Dr. Bush then prepared to perform a cricothyrotomy.
The evidence established that a cricothyrotomy is a rare and delicate surgical procedure that requires a physician to accurately pinpoint the patients cricoid membrane by locating certain "landmarks" surrounding it. Dr. Bush testified that he was unable to locate these landmarks on appellant due to soft tissue swelling. Dr. Bush also testified that he believed a surgical procedure on appellants neck was risky given that appellant was thrashing about, and that the resultant bleeding from such a procedure would make a fiberoptic intubation impossible. While Dr. Bush had in fact performed cricothyrotomies on two occasions prior to November 19, 1999, none of the other physicians who testified at trial, including the parties expert witnesses, had ever performed the procedure on a live human being.
Ultimately, Dr. Bush did not have to attempt the cricothyrotomy because the anesthesiologist arrived, who was able to nasotracheally intubate appellant with the aid of fiberoptic equipment. Because the anesthesiologists call room was located some distance from the emergency department and he had to retrieve the fiberoptic equipment from a locked operating room, it took him at least five minutes to reach appellant. By this time, appellants brain had been deprived of oxygen and he suffered permanent brain damage.
Procedural Background
In July 2000, appellant filed a complaint for medical malpractice against respondents. The case proceeded to a jury trial, which commenced on February 14, 2002 and continued through March 12, 2002. The court granted motions in limine excluding any opinion testimony from undesignated expert witnesses, and limiting expert witnesses to expressing only those opinions or conclusions within the scope of their designated area of expertise and/or to which they testified at their deposition. The jury returned a special verdict in favor of respondents, finding that respondents were not negligent in the medical care and treatment of appellant. This appeal followed.
The jurys verdict in favor of Dr. Bush was unanimous. The verdict in favor of Daniel Freeman Memorial Hospital was 11 to 1.
DISCUSSION
A. Standard of Review
Rulings on evidentiary objections are committed to the sound discretion of the trial court. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639.) To prevail on appeal, appellant must demonstrate prejudicial error which caused him a "substantial injury" in the proceedings below. (Code Civ. Proc., § 475; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) Where, as here, a claim of error is based on the erroneous admission of evidence, appellant must further demonstrate that the error resulted in a "miscarriage of justice." (Evid. Code, § 353.) "`"[A] `miscarriage of justice should be declared only when the court, `after an examination of the entire cause, including the evidence, is of the `opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."" (Pool, supra, at p. 1069, quoting Seamans Direct Buying Service, Inc. v.Standard Oil Co. (1984) 36 Cal.3d 752, 770.)
B. "Standard of Care" Expert Witnesss Offer of an Opinion on Causation
Appellant contends the trial court abused its discretion by permitting James Pierog, M.D., who was Dr. Bushs designated expert witness on the issue of the standard of care, to offer an opinion on causation. Appellant asserts that the issue of causation "was well beyond the scope of his designation and deposition testimony and directly in violation of the courts in limine orders." Appellant also claims that Dr. Pierogs testimony was cumulative of the testimony of Edwin C. Amos III, M.D., who was Dr. Bushs designated expert on the issue of causation.
Specifically, appellant claims that over the repeated objections of his attorney, the trial court permitted Dr. Pierog to offer the opinion that pulmonary edema (fluid in the lungs) prevented appellants lungs from absorbing oxygen and transferring it to his blood. According to appellant, "Dr. Pierogs causation opinion could lead to only one conclusion, to wit: that pulmonary edema, not Dr. Bushs failure to establish an airway, was the cause of [appellants] brain damage." Additionally, appellant asserts that the negative impact of this testimony was heightened by the fact that his attorney had no choice but "to attempt an unprepared cross-examination of Dr. Pierog on the issue."
Dr. Bush asserts that, to the contrary, appellants counsel asked Dr. Pierog questions at his deposition about blood oxygen levels, anoxic brain injury, cyanosis and hypoxia, which were read into the trial record. Because Dr. Pierogs full deposition transcript is not part of the record on appeal, we cannot determine the extent to which these issues were raised at his deposition. The record does disclose that Dr. Pierog admitted on cross-examination that he had not testified on issues of causation at his deposition.
Appellant attached Dr. Pierogs deposition transcript to his motion to augment the record on appeal, filed May 28, 2003. We denied this motion because it contained exhibits that were never submitted to the trial court. Accordingly, Dr. Pierogs full deposition transcript is not part of the record on appeal.
Even assuming Dr. Pierog did not previously testify as to causation, Dr. Bush argues, and the trial court found, that Dr. Pierogs testimony concerning appellants blood oxygen levels and anoxic brain injury were part of the basis for Dr. Pierogs opinion that Dr. Bush did not fall below the standard of care of an emergency room physician by failing to perform a cricothyrotomy. In other words, it was Dr. Pierogs opinion that appellants anaphylaxis, pulmonary edema, chest X-rays, arterial blood gases, cyanosis and hypoxia all indicated that appellant was suffering from inadequate oxygenation due to impaired gas exchange and not due to an obstructed upper airway. Dr. Bush relies on Logacz v. Limansky (1999) 71 Cal.App.4th 1149, a medical malpractice case in which the parties stipulated to limit the testimony of a defense expert to causation alone. In dicta, the appellate court noted that objections to every attempt by the expert witness to provide foundational testimony and to explain the basis for his causation opinion were erroneously sustained on the ground that such testimony was relevant to the standard of care, not causation. (Id . at pp. 1160-1161, fn. 10.) The appellate court stated that the trial court did not recognize that "testimony regarding the past treatment of [plaintiff] and the viability, efficacy and availability of treatment options might well be, and often is, relevant to both standards of care and causation. If the testimony properly pertained to causation, it should have been allowed even though it might also have been relevant to the standard of care issue." (Ibid.)
But, as appellant notes, there was no indication in Logacz that in limine motions had been granted limiting expert testimony to that given in a deposition. Even assuming the trial court erroneously permitted Dr. Pierogs causation testimony, appellant has not shown that this resulted in a miscarriage of justice. Dr. Bushs designated expert on causation, Dr. Amos, also testified that appellant had pulmonary edema. "Erroneously admitted evidence is harmless where it is cumulative or corroborative of other evidence." (Los Angeles v. Howard (1966) 244 Cal.App.2d 538, 546; see also Cooper v. McDonald (1939) 32 Cal.App.2d 114, 122-123; Carr v. Duncan (1949) 90 Cal.App.2d 282, 288.)
C. Cross-Examination of Appellants Expert Witness with Medical Treatises and Journals
During the cross-examination of appellants only expert witness, Margaret Birnbaumer, M.D., who was designated to testify on the issues of causation and standard of care, defense counsel asked her about three medical treatises or journals on which she had not relied in forming her opinions. Appellant contends this was error because the texts had not been established as reliable authority at the time of trial.
Evidence Code section 721, subdivision (b) provides: "If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs: [¶] (1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion. [¶] (2) The publication has been admitted in evidence. [¶] (3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. [¶] If admitted, relevant portions of the publication may be read into evidence but may not be received as exhibits." (Italics added.)
Three publications are at issue here. With respect to Rosen, Textbook of Emergency Medicine, the record shows that Dr. Birnbaumer herself identified this treatise as authoritative on the issue of airway management in her deposition testimony, which was read into the record. At trial, Dr. Birnbaumer testified that she had written a chapter in one of the editions of this text. Under Evidence Code section 721, subdivision (b)(3), an expert may be cross-examined in regard to a text that has been established as reliable authority "by the testimony or admission of the witness." Accordingly, there was no error in allowing Dr. Birnbaum to be cross-examined in regard to this treatise.
Dr. Bushs attorney also sought to cross-examine Dr. Birnbaumer on Physicians and Sports Medicine Journal. With respect to this publication, the trial court sustained appellants objection that no expert had ever identified it as authoritative, although Dr. Bush argued that he had done so in his direct testimony.
The court also allowed defense counsel to cross-examine Dr. Birnbaumer with respect to the Journal of Cardiology & Otolaryngology and the Annals of Otolaryngology. The record shows that the court allowed this questioning in large part based on defense counsels representation that Dr. Bushs designated expert witness, Dr. Pierog, would later establish the reliability of these texts. That testimony, however, was never offered. Nevertheless, Dr. Bush argues that he established these texts as reliable authority during his direct examination, to which there was no objection. We note, however, that in the pages of the record cited to us by the parties, there is no mention by Dr. Bush of the Journal of Cardiology & Otolaryngology. Without any foundation for this text, its admission was erroneous.
With respect to the Annals of Otolaryngology, appellant claims the Evidence Code section 721 contemplates that only a "designated" expert may establish a text as reliable authority, and that Dr. Bush did not qualify as such. Dr. Bush claims that he was both a percipient witness and an expert witness whom the defense had designated to offer expert testimony. He concedes that he did not in fact offer expert opinion testimony on the issues of causation or standard of care at trial, but argues that he is "no less of a designated expert because he chose to limit the scope of his opinions."
In making this assertion, appellant points to the facts that Dr. Bush did not provide a declaration in connection with his designation as an expert as required under Code of Civil Procedure section 2034, subdivision(a)(2), and that Dr. Bush did not offer expert opinions at his deposition. But, once again, the evidence to support this assertion was included in appellants motion to augment, which we denied.
Neither party has cited any California case on point and our own research has disclosed none. Based on our review of the record, it appears that Dr. Bush testified at trial in his capacity as a percipient witness, rather than as an expert. Accordingly, he was not qualified to establish the Annals of Otolaryngology as a reliable authority, and its admission was also improper.
Appellant points out that Evidence Code section 721, subdivision (b)(3), which was added in 1997, is modeled after rule 803(18) of the Federal Rules of Evidence, which provides that a learned treatise must be "established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice." Appellant cites us to Schneider v. Revici (2d Cir. 1987) 817 F.2d 987, a medical malpractice case in which the defendant doctor sought to use a medical text he had authored under rule 803(18). The appellate court held that the district court had properly excluded the text when defense counsel never asked the appropriate foundational question of its expert witness.
But we conclude that there was no miscarriage of justice based on the admission of these two publications. Defense counsel questioned Dr. Birnbaumer on a single article in the Journal of Cardiology & Otolaryngology, entitled "Cricothyrotomy and the Anatomy of the Cricoid Space; an Anatomy Study." The cross-examination on this article was extremely brief, and Dr. Birnbaumers only disagreement with the article was her opinion that an "experienced surgeon" was not required to perform a surgical cricothyrotomy. Defense counsels questioning on the Annals of Otolaryngology was even briefer, with defense counsel reading two sentences from the text stating that identification of physical landmarks was essential for proper placement of the cricothyrotomy and that one should first palpate the thyroid notch. But Dr. Birnbaumer had already testified that Dr. Bush had tried to palpate landmarks. Thus, contrary to appellants suggestion, this cross-examination did not "so severely compromise" Dr. Birnbaumers credibility so as to change the outcome of the case.
D. Dr. Bushs Opinion on Standard of Care
Appellant next contends the trial court erred in allowing defense counsel to ask Dr. Bush whether he complied with the standard of care when Dr. Bush was not designated as an expert.
The question as originally put to Dr. Bush was phrased as follows: "Is there any doubt in your mind, based upon everything that you did on November 19th, in your efforts to try to save [appellants] life, that your conduct complied in all respects with the appropriate standard of care?" Appellants counsel objected on the ground that Dr. Bush was not designated to offer expert opinion testimony on the issue of the standard of care. In overruling the objection, the trial court stated that the question simply asked for Dr. Bushs own assessment. Defense counsel then repeated the question in the following form: "Doctor, when you play this case back over, and over, and over again, based on everything you did, and in that time frame on November the 19th, do you have any—do you think, in your mind, that everything you did complied about, in all respects, with the appropriate standard of care?" Dr. Bush responded: "We did everything we could do and everything we were supposed to do. We did all we could."
Appellant then moved to have the answer stricken and also moved for a mistrial, both of which the court denied. In so doing, the court stated that Dr. Bush "never answered the question." Appellants counsel appeared to agree with this observation, responding "Right."
In any event, the trial court correctly noted that Dr. Bushs response was repetitive of earlier testimony given by him, to which no objection was made. For example, Dr. Bush was asked by defense counsel, "And your efforts were trying to prevent [appellant] from experiencing brain damage?" Dr. Bush answered, "We were doing everything we could." Dr. Bush had also stated earlier, "We did everything we were asked to do, and everything we could do, and we couldnt turn him around." Later, Dr. Bush testified that his staff "did everything they could, and everything they were supposed to do . . . ." Dr. Bushs designated expert on the standard of care, Dr. Pierog, also testified that Dr. Bush met the standard of care. Thus, even assuming the question was improper and that Dr. Bush in fact answered it, under these circumstances we find no prejudice.
E. BAJI No. 6.03
Appellant also contends the trial court erred in instructing the jury with BAJI No. 6.03, as follows: "[W]here there is more than one recognized method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all practitioners of good standing, a physician is not negligent if, in exercising his best judgment, he selects one of the approved methods which later turns out to be a wrong selection, or one not favored by certain other practitioners."
Appellant concedes that there are various recognized methods of establishing an airway in a person in severe respiratory distress. But appellant argues that the issue before the jury was not which recognized procedure should have been used by Dr. Bush; rather, it was "whether the standard of care required Dr. Bush to take immediate action to establish the airway surgically [via a cricothyrotomy] or whether it allowed him to stand by and do nothing in hope that the anesthesiologist would arrive in time to and be able to establish an airway with his fiberoptic equipment."
Contrary to appellants assertion, the issue before the jury was not so simple. This was not a situation in which Dr. Bush simply failed to act until the arrival of the anesthesiologist. In fact, before then, Dr. Bush tried twice to intubate appellant, and repeatedly testified that he was going through a mental checklist of the various options available, which included a cricothyrotomy and fiberoptic intubation. Indeed, Dr. Bush testified that he was preparing to perform a cricothyrotomy at the time the anesthesiologist arrived with the fiberoptic equipment.
We also note that the following exchange took place at trial between appellants attorney and Dr. Bush: "Q So doctor, you were waiting for anesthesia to get there to bring fiberoptics to establish an airway, werent you? [¶] A No, sir. [¶] Q You didnt wait for them? [¶] A No, sir. We were trying to get an airway on him. We werent waiting for anybody, sir. [¶] Q Im not saying you werent trying to do something, doctor. Im not saying that. Im saying that you waited until anesthesia got there to establish an airway, not that you werent doing anything during that period of time. [¶] You were trying to establish an airway, werent you? [¶] A I was trying to establish an airway."
Furthermore, appellants own expert witness, Dr. Birnbaumer, also confirmed that there were several options available to Dr. Bush, including holding appellant down, sedating him to minimize his movement, intubation, cricothyrotomy and the use of fiberoptic equipment. In light of this evidence, we cannot conclude that the use of this instruction constituted error.
In Parris v. Sands (1993) 21 Cal.App.4th 187, 193-194, a medical malpractice case, the plaintiff, like appellant here, contended that this instruction "virtually directed" a verdict for the defendant doctor when the evidence at trial established more than one recognized treatment for her condition. The court rejected this argument: "BAJI No. 6.03 discusses `more than one recognized method of diagnosis or treatment. Doctors Holderman and Greenberg opined Doctor Sandss treatment fell below medical standards, permitting the reasonable inference Doctor Sandss treatment was not one `recognized . . . by all practitioners of good standing. Of course, Doctor Sands testified to differing, recognized approaches to immunocompromised patients and prophylactic antibiotics. The jury could assess the credibility of these experts and decide whether, indeed, different recognized or approved treatments existed. Thus, BAJI No. 6.03 did not compel a verdict in favor of Doctor Sands." (Id. at p. 194.) The same is true here. The jury could assess the credibility of the parties expert witnesses in determining whether Dr. Bush fell below the standard of care in attempting to first establish an airway through less invasive methods than a cricothyrotomy.
F. Cumulative Effect
Appellant contends that even assuming each of the trial courts "multiple evidentiary errors" standing alone did not constitute prejudicial error, the cumulative effect of the courts rulings "had a significant impact on the jury and its ultimate decision in the case." Appellant cites us to nothing in the record to support his position. Instead, appellant simply "submits that it is reasonably probable that each of the evidentiary rulings at issue on appeal changed the outcome of the trial." We disagree.
The evidentiary errors in this case were insubstantial. For example, Dr. Pierogs testimony on causation did not provide an alternative theory of recovery, as appellant contends, since the same testimony was given by another expert witness. The credibility of appellants only expert witness, Dr. Birnbaumer, was not compromised by extremely limited cross-examination on unauthorized treatises. And Dr. Bushs own assessment that he and his staff did everything they could for appellant was duplicative of earlier testimony to which no objection was made, and the jury could recognize it for what it was—a self-serving statement. Under these circumstances, we do not find that it was reasonably probable that the outcome of this case would have been different in the absence of the challenged evidentiary rulings.
G. Daniel Freeman Memorial Hospital
Respondent Daniel Freeman Memorial Hospital contends that none of the errors raised by appellant bear on the judgment rendered in favor of the hospital. We agree. In its reply brief, appellant asserts that while the "improper impeachment" of its only expert witness, Dr. Birnbaumer, did not specifically address the hospitals acts, "the negative affect it had on Dr. Birnbaumers credibility could not help but to tarnish her credibility and negate her opinions regarding the hospital." As stated above, we do not find that the challenged, limited cross-examination of Dr. Birnbaumer tarnished her credibility. Thus, we find no merit to appellants argument.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
We concur: NOTT, J. Acting P.J. ASHMANN-GERST, J.