Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. S-1500-CV-256727. William D. Palmer, Judge.
Cole Pedroza, Kenneth R. Pedroza, Jennifer W. Kennedy, Cassidy E. Cole; Taylor Blessey, Raymond L. Blessey and Barbara M. Reardon, for Defendant and Appellant.
Hoyt E. Hart, II, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Procedural and factual Histories
Plaintiff Jerry Walker filed a medical malpractice action in Kern County Superior Court against Bakersfield Family Medical Center (BFMC), physician’s assistant Mark Gardner, and supervising physician Lorence Eshoe. The action arose after Walker developed Fournier’s gangrene and required extensive surgery while under the treatment and care of BFMC.
Walker had visited BFMC’s urgent care facility on November 13, 2004, complaining of painful swollen testicles. BFMC is a medical group of physicians that operates an urgent care facility, as well as providing primary care pursuant to a health maintenance organization. Walker’s health plan contracted with BFMC to provide services to its members, and Walker’s primary care physician was employed by BFMC.
Walker saw Gardner on November 13 at the urgent care center. Gardner examined Walker, observing that Walker had hot, slightly swollen testicles and complained of increasing pain. Gardner ordered a urinalysis and a blood test. The urinalysis came back positive for blood and bacteria, suggesting an infection somewhere in the urinary tract. Since blood test results are not immediately available, usually taking about one to two days, Gardner did not see them. Gardner’s differential diagnosis was urinary tract infection, cellulitis (a bacterial infection of the skin), epididymitis (infection of testicle), hydrocele, and varicocele. Gardner consulted with Dr. Eshoe who found Gardner’s diagnosis and treatment plan to be appropriate, but suggested that an ultrasound should also be ordered to rule out nonemergent causes of the symptoms. Walker was sent home with a course of antibiotics (Cipro), low-dose pain medication to take as needed, and instructions to call in on Monday for an ultrasound appointment. He was also given follow-up instructions, including that he was to seek emergency care if symptoms worsened or if he experienced increased pain.
Since the ultrasound would be done at an outside facility, BFMC’s policy required that Gardner’s order be reviewed by member services. When Walker called on Monday to get his appointment, he was told to call back the next day. He was told the same thing on Tuesday. Walker testified that he did not experience any increased pain or other worsening symptoms until Wednesday, November 17, when he noticed an odor. Walker then called BFMC, said he had developed an odor, and asked to see his primary care physician. The scheduler told Walker he would have to return to urgent care because he had started his care there, a statement the scheduler denied. The call was transferred. Walker told the urgent care receptionist that he needed to see someone and asked if the ultrasound had been scheduled. He was told the test was scheduled for the next morning, Thursday, November 18.
This evidence was contradicted by medical testimony that gangrene is a disease process that worsens over time. On November 13, Walker had slight swelling of the scrotum and no tissue necrosis. On November 18, the swelling was severe and there was extensive necrosis. Since Walker was on pain medication the entire time, however, he apparently felt no increased pain.
Walker first said he did not tell the receptionist he had an odor. Later, he changed his testimony and said he did tell her.
On Thursday morning, Walker said the smell had gotten “quite bad.” When Walker arrived for his ultrasound, the radiologist examined Walker and told Walker that he had gangrene. Walker’s brother drove him to the emergency room at San Joaquin Community Hospital where Walker was examined by urologist Dr. Bruce Joseph. Walker was in obvious pain and the odor could be smelled outside the examination room. The infection was extensive, reaching to the pubic bone, both testicles, the scrotum, the base of the penis, and the anus. Walker was immediately taken to surgery where the infected tissue was removed, including both of his testicles.
Dr. Joseph testified that, although Walker did not have gangrene on November 13 when seen at the urgent care center, sometime between the 13th and the 18th the infection progressed to a point where gangrene developed. In his opinion, if Walker had been seen “a day or so prior to the 18th,” there would have been a window of opportunity to save the testicles. Although Joseph testified that treating an infection with antibiotics is routine and within the standard of care, waiting to schedule the ultrasound for several days was not. He also said that, in these cases, it is very important to follow up with the patient to determine if the antibiotic has been effective, which it was not in this case.
The plaintiff’s expert, Dr. Strauss, testified that the care provided by BFMC, Gardner, and Eshoe fell below the standard of care because there was insufficient follow up, including the delay in scheduling the ultrasound, and because Gardner was not being adequately supervised by Dr. Eshoe. Dr. Strauss also testified that Walker should have been referred to a urologist at the urgent care visit and that the ultrasound should have been ordered for the same day. There is no evidence that the ultrasound would have detected anything significant had it been done on November 13, or at any time before November 18. The defense expert, Dr. Danoff, testified that, at the point where the cellulitis “exploded,” there was little a doctor could have done to change the course of the infection. He could not say when that point was reached in this case, but opined that, had Walker come in November 17, the results would have been the same.
The matter was tried before a jury, which found that Gardner and BFMC were negligent, but concluded that Gardner’s negligence was not a substantial factor in the harm suffered. The jury found Dr. Eshoe had not been negligent. The jury awarded Walker $150,411.00 in damages.
BFMC moved for a new trial, which was denied. BFMC has appealed. Walker filed a protective cross-appeal but raised no additional issues.
Discussion
I. Sufficiency of the evidence
When a party attacks the jury’s verdict on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with determining whether there is substantial evidence, contradicted or uncontradicted, which will support the determination. (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.) In measuring the sufficiency of the evidence, the appellate court reviews the entire record on appeal. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) In doing so, we must determine whether a reasonable trier of fact could have reached the verdict that it did. As a result, the testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable. The trier of fact may reject the testimony of a witness, even though uncontradicted, and, if rejected, we cannot credit the witness’s testimony on appeal “unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.)
Having reviewed the entire record in light of this standard of review, we conclude there is substantial evidence to support the jury’s verdict finding that BFMC’s actions were both negligent and a substantial cause of Walker’s injuries. Before we identify the theory upon which the jury’s verdict is sustainable, we first describe the theories that will not support the jury’s verdict against BFMC given its verdicts on the claims against Gardner and Dr. Eshoe. We do this because finding BFMC liable initially appears inconsistent with the verdicts reached on the claims against Gardner and Dr. Eshoe. There is no question the verdict does eliminate many of the possible theories of liability presented at trial.
The jury concluded that Dr. Eshoe’s care and treatment of Walker on November 13 was consistent with the applicable medical standard of care. Of necessity, this means the jury rejected evidence that Dr. Eshoe did not adequately supervise Gardner, since there is uncontradicted evidence, and state law requires that physician’s assistants operate under the direct supervision of a licensed medical doctor. (Bus. & Prof. Code, § 3502.) Dr. Eshoe admitted he was the supervising physician on November 13. This also means the jury accepted the evidence that Gardner had run his diagnosis and treatment plan past Dr. Eshoe, who had approved it with the addition of the ultrasound. The jury verdict requires the conclusion that the treatment plan and diagnosis on November 13 were within the appropriate standard of care given the information available.
The jury further found that, although Gardner was negligent in some manner, his negligence did not result in Walker’s injuries. (Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 427 [plaintiff must provide substantial evidence of causation].) We presume that the jury considered all possible theories of liability with respect to Gardner and, given the verdict, found that none of his actions resulted in Walker’s injuries. (People v. Harris (1994) 9 Cal.4th 407, 431 [court must presume jury considers all relevant evidence before it].) Given the jury’s verdict as to Dr. Eshoe, the only viable liability theory with respect to Gardner is that he did not provide sufficient follow-up instructions, since the actual assessment and treatment of Walker was reviewed and approved by Dr. Eshoe, and the scheduling of the ultrasound was out of Gardner’s control. Walker testified that Gardner did not give any follow-up instructions to him orally. Walker testified he received the written follow-up instructions from the nurse. Given the evidence that the nature of the presenting symptoms required follow up to determine whether the antibiotics prescribed were working, the jury could have concluded that the instructions Gardner gave were inadequate. However, evidence that Walker received follow-up instructions from the nurse and made contact with his primary care physician’s office staff as directed when his symptoms worsened supports the jury’s conclusion that any inadequate follow-up instructions given by Gardner did not play a significant role in causing Walker’s injuries.
Although Dr. Joseph opined that the delay in scheduling the ultrasound fell below the standard of care, there is no evidence that the ultrasound would have provided any information to suggest a different treatment plan on November 13. This would be necessary to establish causation, even if the failure to schedule the ultrasound sooner fell below the standard of care and could be attributed to Gardner.
The only other possible theory consistent with the jury’s verdict as to Gardner is that he was negligent in failing to refer Walker to a urologist on November 13. Dr. Strauss testified that this should have been done. There is no evidence, however, that a urologist would have done anything different on November 13, other than issue more careful follow-up instructions. Given the jury’s verdict regarding Gardner, we presume the jury would have found no causation even if the failure to refer to a urologist did breach the standard of care.
Also, BFMC’s liability cannot rest on its failure to have in place a structured policy for the supervision of physician assistants. As we have stated, in finding that Dr. Eshoe was not negligent, the jury implicitly found that Eshoe adequately supervised Gardner. Even if the jury had not reached this conclusion, there is no evidence to support a finding that any failure to provide structured supervision of physician’s assistants resulted in Walker’s injuries. There is no evidence that closer supervision would have changed anything that occurred on November 13. We also agree that the jury’s findings with respect to Gardner and Eshoe also mean that BFMC cannot be held liable on a theory of respondeat superior for anything done by these two employees of BFMC on November 13. (Palmer v. Superior Court (2002) 103 Cal.App.4th 953, 972 [principal cannot be liable unless agent is found liable].)
We believe, however, that there is another viable theory on which the jury could have rested its verdict. It is the same theory identified by the trial court when denying the motion for new trial. Walker testified that he first observed a change in his condition on Wednesday, when he noticed the odor. At that point, Walker, consistent with his follow-up instructions, called BFMC and spoke with Jeffrey Shepherd, the scheduler for Walker’s primary care physician. Walker explained that he had been seen by urgent care and thought he needed to see a doctor because he had noticed a smell. According to Walker, Shepherd told him that, because Walker had started with urgent care, he needed to stay with urgent care. Shepherd then transferred Walker to the urgent-care receptionist. Walker told the receptionist that he had an odor. He requested that she check to see if his ultrasound had been scheduled yet because this was the third day he had called and he needed to see a doctor. She checked and verified that the ultrasound was scheduled for the next morning, November 18. From this evidence, the jury could have concluded that BFMC did not allow Walker immediate access to his primary care physician and therefore was negligent in providing adequate follow-up care.
We recognize that Shepherd disputes this testimony, stating he did not talk to Walker on November 17, and that he would not have told Walker to report back to urgent care because all urgent care follow up is performed by the primary care physician.
Contrary to BFMC’s assertion, there is medical standard-of-care evidence to support this theory. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509 [where conduct required of medical professional is not within common knowledge of lay person, plaintiff must present expert witness testimony to prove breach of standard of care].) There was evidence from all the medical professionals that follow up was extremely important given Walker’s health condition (obesity and diabetes) and the presenting symptoms.
Dr. Strauss opined generally that BFMC had breached the standard of care with respect to its management of Walker’s care. He went on to discuss the need for adequate follow-up care. Shepherd, himself, testified that urgent care follow up routinely is done by the primary care physician. Walker made his call to BFMC, consistent with his follow-up care instructions, on Wednesday morning at around 9:00 a.m. after discovering the odor.
Dr. Joseph testified that, although he could not say when the gangrene set in, if Walker’s condition had been caught a day or so prior, he would have had a better result. Dr. Weinberger, the defense expert, testified that the progression of the disease from November 13 to November 18 required a finding that the symptoms had gotten worse, and that the sooner Walker had come in the better. Although neither doctor could state with certainty when the gangrene set in, or when Walker reached the point of no return, the most favorable inference that can be drawn from this evidence is that, had BFMC office staff immediately notified Walker’s primary care physician of the reported change in condition, or allowed Walker access to his primary care physician, Walker’s injuries would not have been as severe. This is proof of causation and provides a viable theory upon which to rest the jury’s negligence finding as to BFMC, independent of the verdicts reached with respect to Gardner and Eshoe.
The jury was instructed it could find liability if BFMC failed to act as would a reasonable urgent care facility and that failure to act reasonably resulted in Walker’s harm. The jury was free to infer from the testimony of Drs. Strauss, Joseph, and Weinberger that the standard of care requires appropriate follow up by the primary care physician, and BFMC failed to assure that Walker received appropriate follow-up care. We conclude there is sufficient evidence to support the jury’s verdict that BFMC was negligent in making sure that Walker received standard-of-care follow-up care.
II. Motion for new trial/JNOV
BFMC filed a motion for new trial and for judgment notwithstanding the verdict (JNOV) on the grounds of failure of proof. The trial court has broad discretion in deciding a new trial motion, and its exercise of discretion must be sustained on appeal unless the opposing party can demonstrate that no reasonable finder of fact could have found for the movant on any theory. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) We review the denial of a motion for JNOV by determining whether there is any substantial evidence to support the jury verdict, resolving any conflict in the evidence and drawing all reasonable inferences in favor of the jury’s verdict. (Shapiro v.Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730; Osborn v.Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 259.)
The trial court rejected BFMC’s version of the evidence and concluded there was sufficient evidence to support the verdict on the theory we have adopted here. Given our conclusion that there is sufficient evidence to sustain the jury’s verdict and that there is no inconsistency, the trial court was correct to deny the motion for new trial.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Walker.
WE CONCUR: Vartabedian, Acting P.J., Hill, J.