NOT TO BE PUBLISHED IN OFFICIAL REPORTS
In this medical malpractice lawsuit, plaintiff Sally Chaney (Plaintiff) appeals following a jury verdict in favor of the defendant hospital, NorthBay Healthcare Group (NorthBay), and the defendant doctors (Doctors) (collectively, Defendants). NorthBay filed a protective appeal from the judgment on its indemnification cross-complaint against Doctors. We affirm both judgments.
In 1995, Plaintiff was treated for a herniated disk that was pressing into her spinal cord. In 2008, she was admitted to NorthBay after experiencing neck pain and weakness in her right leg. An MRI taken two days after Plaintiff's admission revealed a herniated disk was pushing against Plaintiff's spinal cord. Plaintiff's assigned hospitalist subsequently ordered her transferred to another hospital for neurosurgical treatment, because NorthBay did not provide those services. The transfer was delayed for some days in part because the hospital that accepted Plaintiff for transfer did not initially have a bed available. Plaintiff was at NorthBay for a total of 11 days before she was transferred to a new hospital, where she underwent surgery.
Plaintiff presented evidence that Defendants were negligent in failing to ensure the MRI was performed more quickly; inadequately monitoring, recording, and communicating her status and symptoms; and failing to ensure her prompt transfer to a hospital with neurosurgical services. Plaintiff further presented evidence that this negligence, by delaying the surgery needed to relieve the pressure on her spinal cord, caused her to suffer permanent damage to her spinal cord. Defendants submitted evidence refuting negligence and causation. In closing arguments, NorthBay conceded its nurses were negligent in monitoring Plaintiff every six hours, instead of every four hours as ordered by her treating physician, but argued the negligence did not cause Plaintiff any injury.
The jury found, by special verdict, that NorthBay was negligent but its negligence did not cause Plaintiff's injuries, and that Doctors were not negligent.
I. NorthBay's Liability for Administrative Acts
During in limine motions, the trial court ruled Plaintiff was precluded by her discovery responses from contending that NorthBay was liable to Plaintiff due to the acts of administrators and case management.
As an initial matter, we disagree with Plaintiff's suggestion that any error is reversible per se. "[W]hen a trial court erroneously denies all evidence relating to a claim, or essential expert testimony without which a claim cannot be proven, the error is reversible per se because it deprives the party offering the evidence of a fair hearing and of the opportunity to show actual prejudice. [Citations.] [¶] The erroneous denial of some but not all evidence relating to a claim [citations] differs from the erroneous denial of all evidence relating to a claim, or essential expert testimony without which a claim cannot be proven [citations]. In the former situation, the appellant must show actual prejudice; in the latter situation, the error is reversible per se." (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1114-1115 (Gordon).) Plaintiff presented ample evidence on her claim that NorthBay's nurses and Doctors were negligent. The trial court's ruling precluding her from pursuing one theory of negligence—that NorthBay's administrators were negligent—is not reversible per se. (See Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1432 [erroneous rulings not reversible per se because "none of the challenged rulings in this case foreclosed [the plaintiff's] essential theory of liability" but rather "precluded certain arguments or discrete items of evidence"]; cf. Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 668 (Kelly) [error reversible per se where trial court's rulings "effectively excluded any presentation of evidence on liability"].)
Plaintiff argues it is reasonably likely that, absent the trial court's ruling, the outcome would have been more favorable. Plaintiff refers to the following deposition testimony of an expert precluded, pursuant to the trial court's ruling, from testifying at trial: (1) NorthBay administrators failed to adequately train nurses and case managers, and failed to establish and implement policies to ensure nurses adequately communicated with doctors and discharged doctors' orders; and (2) NorthBay should have contacted more hospitals in an attempt to expedite Plaintiff's transfer.
As an initial matter, the jury found NorthBay was negligent, but found the negligence did not cause Plaintiff's injuries. While the excluded theory was another means by which to find NorthBay negligent, Plaintiff already prevailed on that issue. Plaintiff's theory of causation was that the negligence delayed her eventual transfer and surgery, and during that delay her spinal cord was permanently damaged. The alleged negligence of NorthBay's administrators—like the negligence of NorthBay's nurses—resulted in the delay of Plaintiff's transfer to another hospital. Plaintiff has not identified any part of the excluded deposition testimony indicating that the delay caused by the administrators' alleged negligence added to or exacerbated the delay caused by the nurses' negligence. Plaintiff has therefore failed to demonstrate a reasonable probability that the jury would have found any delay caused by the negligence of administrators caused her injuries.
In addition, the first category of excluded testimony pertains to a theory—administrators negligently trained and set policies for nursing and case management staff—that is purely derivative of the theory Plaintiff pursued at trial and lost. Plaintiff presented expert trial testimony that nurses inadequately communicated with doctors; nurses failed to discharge physicians' orders; and additional conduct by nurses and case managers violated the standard of care. The excluded expert was identified as an expert in health care administration and had no formal medical training; his opinion was that the hospital administration was responsible for the negligent conduct of its staff.
The second category of excluded evidence highlighted by Plaintiff is testimony that there were approximately 14 community hospitals with neurosurgical services, NorthBay had transfer agreements with four of these hospitals and only contacted those four regarding Plaintiff's transfer, and the failure to contact additional hospitals to expedite the transfer violated the standard of care. However, the expert also testified the failure to contact additional hospitals violated the standard of care in light of Plaintiff's neurosurgical emergency—an assumed fact he derived from the deposition testimony of Plaintiff's other experts. At trial, Plaintiff presented expert testimony that one of Plaintiff's physicians violated the standard of care by failing to designate Plaintiff's transfer as "emergent," indicating an immediate transfer was needed, yet the jury found this physician was not negligent. It is not reasonably probable that the jury, having found the physician's failure to designate Plaintiff's transfer as emergent was not negligent, would have nonetheless found the failure to contact more hospitals regarding the transfer—required in cases of medical emergency—was negligent.
In sum, Plaintiff has failed to demonstrate a reasonable probability that the jury would have found that any administrative negligence caused Plaintiff's injuries. That the jury verdict on causation was nine-to-three, as Plaintiff notes, does not alone render any error prejudicial.
In a related argument, Plaintiff contends the trial court erred by refusing to instruct the jury on a hospital's duty of reasonable care. (See CACI No. 514 ["A hospital is negligent if it does not use reasonable care toward its patients. A hospital must provide procedures, policies, facilities, supplies, and qualified personnel reasonably necessary for the treatment of its patients."].) The jury was instructed on a nurse's duty of care and on NorthBay's vicarious liability for breaches of care by its nurses. We have already concluded Plaintiff failed to demonstrate prejudice from any error in precluding her from arguing NorthBay administrators were negligent. Plaintiff contends the refusal to instruct on a hospital's duty of care rendered the special verdict form confusing, because the form asked whether "the defendant NorthBay Hospital, or any members of its nursing staff" were negligent (italics added), but fails to demonstrate she was prejudiced by any confusion.
II. Excluded Evidence
Plaintiff argues the trial court erred in limiting the opinion testimony of Dr. Rao, who treated Plaintiff in 1995, and Dr. Bagherian, a chiropractor, and by excluding evidence of NorthBay's cross-complaint. We reject the contentions.
A. Dr. Rao
Dr. Santi Rao treated Plaintiff in 1995 and provided a consultation with one of the doctors treating Plaintiff during her 2008 hospitalization at NorthBay. Plaintiff's pretrial disclosure of expert witnesses identified Dr. Rao as a non-retained expert and did not attach an expert witness declaration. NorthBay filed a motion in limine arguing Dr. Rao should be precluded from providing testimony beyond that arising from his treatment of Plaintiff because Plaintiff failed to identify him as a retained expert. NorthBay noted Plaintiff's counsel had retained Dr. Rao to review Plaintiff's complete 2008 NorthBay medical records and provide his opinion based on those records. The trial court granted the motion, ruling "Dr. Rao is not to testify to expert witness opinions based upon his post hoc forensic review of medical records for which he was retained by plaintiff's counsel." Plaintiff challenges this ruling.
"A party must identify its expert witnesses before trial in response to a demand for exchange of expert witness information under [Code of Civil Procedure] section 2034.210." (Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 139 (Ochoa).) If any identified expert "has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration." (Code Civ. Proc., § 2034.210, subd. (b).)
A treating physician is distinct from a retained expert by virtue of "the context in which he became familiar with the plaintiff's injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion. . . . A treating physician is not consulted for litigation purposes, but rather learns of the plaintiff's injuries and medical history because of the underlying physician-patient relationship." (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35-36 (Schreiber).) "[T]o the extent a physician acquires personal knowledge of the relevant facts independently of the litigation, his identity and opinions based on those facts are not privileged in litigation presenting `an issue concerning the condition of the patient.' [Citations.] For such a witness, no expert witness declaration is required, and he may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience. This may well include opinions regarding causation and standard of care because such issues are inherent in a physician's work." (Id. at p. 39.)
Plaintiff argues that Dr. Rao was a treating physician and Plaintiff was therefore not obligated to identify him as a retained expert or provide a declaration. Plaintiff's argument fails to recognize that Dr. Rao was only a treating physician "to the extent [he] acquire[d] personal knowledge of the relevant facts independently of the litigation. . . ." (Schreiber, supra, 22 Cal.4th at p. 39.) "To the extent that a treating physician became familiar with services provided to the plaintiff or other facts for the purpose of forming and expressing an opinion in anticipation of litigation or in preparation for trial, however, he or she acts as a retained expert. An expert witness declaration is required for such a treating physician to the extent that he or she testifies as a retained expert." (Ochoa, supra, 228 Cal.App.4th at p. 140.) Contrary to Plaintiff's contention, Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, does not demonstrate the trial court's ruling was in error. Dozier concluded that when a treating physician, Dr. Zeegan, "received additional materials from [the plaintiff's] counsel" and formed opinions about the defendant's "adherence to the standard of care—a subject on which he had formed no opinions in connection with his physician-patient relationship with [the plaintiff]—his role was not that of a treating physician, but became that of a retained expert. And as Dr. Zeegan was a retained expert, [the plaintiff] was required to disclose the information called for in section 2034.210, subdivision (b), including a summary of the substance of Dr. Zeegan's anticipated testimony." (Id. at p. 1521.)
Even if the trial court's ruling were in error, Plaintiff fails to demonstrate prejudice. She presented expert testimony from a hospitalist, a neurologist, a neuroradiologist, and a nurse about standards of care and causation, and she does not identify any excluded testimony from Dr. Rao that was not part of another expert's testimony. Plaintiff fails to explain how she was prejudiced by the question, during Doctors' cross-examination of Dr. Rao, about how many hours he had billed Plaintiff.
B. NorthBay's Cross-Complaint
NorthBay filed a cross-complaint against Doctors alleging Doctors were obligated to indemnify NorthBay for any liability arising from Doctors' negligence. NorthBay moved in limine to exclude Plaintiff from introducing the cross-complaint into evidence. Plaintiff opposed the motion, arguing the cross-complaint contained judicial admissions regarding negligence and causation. The trial court granted NorthBay's motion. Plaintiff argues the trial court abused its discretion.
"`The admission of fact in a pleading is a "judicial admission."' . . . `[T]he trial court may not ignore a judicial admission in a pleading, but must conclusively deem it true as against the pleader.'" (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 187.) "On the other hand, a mere conclusion, or a `mixed factual-legal conclusion' in a complaint, is not considered a binding judicial admission." (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324.)
Plaintiff identifies the following allegations of the cross-complaint: (1) "as between [NorthBay] and [Doctors], responsibility, if any, for the damages claimed by the plaintiff rests entirely or partially on the actions of [Doctors]"; (2) Doctors "were the legal cause of any injuries and damages sustained by the plaintiff"; and (3) the individual doctor defendants "were the attending physicians serving as the assigned Hospitalists for the medical care and treatment of the plaintiff during her admission to [NorthBay] and were providing the care and treatment of which plaintiff complains in her Complaint."
With respect to the first two allegations, they are legal conclusions, not facts, and "[l]egal conclusions and assertions involving a mixed question of law and fact are not the stuff of judicial admissions." (Stroud v. Tunzi (2008) 160 Cal.App.4th 377, 384.) As for the third allegation, it was undisputed that Doctors treated Plaintiff during her time at NorthBay. Any error in precluding Plaintiff from using this allegation at trial was harmless.
C. Dr. Bagherian
NorthBay filed a motion in limine to preclude Alireza Bagherian from providing expert opinion testimony about Plaintiff's condition at the time she was hospitalized and about the cause of her injuries. NorthBay argued Dr. Bagherian was a chiropractor, not a physician, and lacked the education and training necessary to function as an expert on these issues. NorthBay also argued the testimony was cumulative because Plaintiff had other expert witnesses who would testify on the same issues. The trial court precluded Dr. Bagherian from testifying about "whether the plaintiff's condition constituted a neurosurgical emergency and on the issues of medical causation," relying on Evidence Code section 352. Plaintiff contends the ruling was an abuse of discretion.
The trial court's ruling was not an abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 ["Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time."].) The court could reasonably conclude that Dr. Bagherian's training and background—which, as he testified at his deposition, did not include a medical degree—rendered his expert opinion testimony on the excluded issues minimally probative. The court could further reasonably conclude that this minimally probative testimony would constitute an undue consumption of time in light of the other experts Plaintiff intended to call on the same issues, including a neurosurgeon and a neuroradiologist. Cases cited by Plaintiff finding the exclusion of evidence an abuse of discretion are inapposite. (See Stone v. Foster (1980) 106 Cal.App.3d 334, 352 [excluded evidence was "the only evidence defendant could produce" on the issue]; Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 266 ["The trial court permitted only one expert to testify to the same opinion . . . regardless of which party elicited the testimony."].)
Plaintiff argues only Dr. Bagherian could testify that "even chiropractors are taught early on in their training that signs of cord compression constitute a medical emergency . . . and it is strongly enforced in training that when there is a cord compression, you must look for muscle weakness and bladder dysfunction." As none of the individual defendants were chiropractors, Plaintiff fails to establish that training received by chiropractors is relevant. Plaintiff also argues Dr. Bagherian was the only expert who could testify that Plaintiff's injuries "were caused by her cord compression." However, Plaintiff presented at least one other expert at trial who so testified. Finally, Plaintiff's claim that the trial court subsequently exhibited "disdain" for her experts and "deference" to Defendants', and unduly limited her time to question witnesses, does not establish the trial court's in limine ruling constituted an abuse of discretion.
III. Trial Court Bias and Cumulative Error
Plaintiff next contends she did not receive a fair trial because of the trial court's bias and cumulative errors. We disagree.
"In conducting trials, judges `"should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side of the other." [Citation.]'" [Citation.] "Their conduct must `"`accord with recognized principles of judicial decorum consistent with the presentation of a case in an atmosphere of fairness and impartiality.'"'" (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1002 (Haluck).) Reversal is required where "`the court's comments would cause a reasonable person to doubt the impartiality of the judge or would cause us to lack confidence in the fairness of the proceedings.'" (Id. at p. 1008.) In addition, where there are multiple errors that are individually harmless, reversal is required where "`the cumulative effect of the errors was unquestionably to make it "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error[s]."'" (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1539.)
The discussion of this issue in Plaintiff's opening brief is wholly inadequate. Plaintiff makes sweeping assertions—"Counsel for NorthBay objected repeatedly throughout the trial during counsel for [Plaintiff's] witness examinations. The trial court sustained, often incorrectly, most of his objections."—followed by a string of nearly 100 citations to the record, with no indication of the nature of any objection, whether the ruling was one of the incorrect ones or not, and the basis for any disagreement with the ruling. As another example, she claims, "The court regularly admonished [Plaintiff]'s counsel and witnesses, but rarely admonished defense counsel or its witnesses despite violation of the court's rules," and attaches a string cite of more than 100 citations to the record, with no indication of the nature of the admonishment, whether any admonishment was warranted, and what court rules were being violated. This does not constitute a reasoned argument. (See Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219 ["[Appellants] also want us to conclude the judge was biased because he ruled against them on some of their evidentiary objections. But, without even noting the questions to which they objected, they merely refer us to pages in the transcript which supposedly demonstrate some of their objections were overruled. Their brief fails to tell us what the objections were or why these unidentified objections should have been sustained. As we noted earlier, absent reasoned argument the issues are waived."].) In her reply brief, Plaintiff protests that "[w]ith a 3700-plus page trial transcript and numerous error allegations," requiring her to provide additional detail "would be impractical and unwieldy." Yet her approach assumes this court will take on this impractical and unwieldy task for her. We decline to do so.
In her reply brief, Plaintiff discusses a number of specific instances that she claims demonstrate bias.
Even if it were not forfeited, we would reject it. Plaintiff contends the trial court admonished her trial counsel more frequently than Defendants' counsel and otherwise treated counsel and witnesses inconsistently. The specific instances discussed in Plaintiff's reply brief, assuming the rulings were in error, do not indicate Plaintiff was denied a fair trial. "`[A] trial court's numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review. [Citations.] [¶] On appeal, we assess whether any judicial misconduct or bias was so prejudicial that it deprived defendant of "`a fair, as opposed to a perfect, trial.'"'" (People v. Pearson (2013) 56 Cal.4th 393, 447.) The trial court's conduct did not "convey to the jury that [the judge and defense counsel] were a team and plaintiffs' counsel was an outsider." (Haluck, supra, 151 Cal.App.4th at p. 1005.) Plaintiff claims the trial court's actions encouraged the "belittling" of Plaintiff's counsel, citing an instance in which Plaintiff's counsel mistakenly thought it was his turn to question a witness and apologized for his error; the trial court said, "I didn't ask you"; and Doctors' counsel stated, "Believe me, I understand why." It is difficult to discern the meaning of this exchange from this record, but we do not conclude it constituted a belittling of Plaintiff's counsel with the trial court's implicit assent. Plaintiff has not established that any erroneous or inconsistent rulings "`would cause a reasonable person to doubt the impartiality of the judge or would cause us to lack confidence in the fairness of the proceedings.'" (Id. at p. 1008.)
IV. Expert Witness Costs
Following the jury verdict, the trial court awarded expert witness costs to NorthBay and Doctors pursuant to section 998, subdivision (c)(1). We reject Plaintiff's challenge to these awards.
Section 998, subdivision (c)(1), provides in relevant part: "If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, . . . . the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses." "`"`[A] good faith requirement'" is read into section 998, requiring that "`the settlement offer be "realistically reasonable under the circumstances of the particular case"' "and that there be "`"some reasonable prospect of acceptance."'"'" (Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632, 647 (Melendrez).) "`"Where the defendant obtains a judgment more favorable than its offer, `"the judgment constitutes prima facie evidence showing the offer was reasonable. . . ."' [Citation.]" [Citation.] "`Whether a section 998 offer was reasonable and made in good faith is left to "the sound discretion of the trial court."'" [Citation.] "`In reviewing an award of costs and fees under section 998, the appellate court will examine the circumstances of the case to determine if the trial court abused its discretion in evaluating the reasonableness of the offer or its refusal.'"'" (Ibid.)
In 2013, NorthBay offered to settle the lawsuit for $100,000 and a waiver of costs, and Doctors each offered to settle with Plaintiff for a waiver of costs, fees, and the right to pursue a malicious prosecution action. The trial court found the offers were made in good faith and awarded expert costs. Plaintiff argues the offers were not made in good faith because she sought damages of over $2 million. The amount of damages sought by Plaintiff does not establish the trial court abused its discretion. A defendant's "offer should be evaluated not only in comparison to the amount of damages plaintiffs sought, but in light of their likelihood to prevail." (Melendrez, supra, 240 Cal.App.4th at. p. 649.) "Notwithstanding plaintiffs' perception of their likelihood to prevail, `[w]hen a defendant perceives himself to be fault free and has concluded that he has a very significant likelihood of prevailing at trial, it is consistent with the legislative purpose of section 998 for the defendant to make a modest settlement offer.'" (Id. at p. 650.)
Plaintiff also argues NorthBay's offer was not reasonable because NorthBay conceded at trial its nurses were negligent. While NorthBay did concede its nurses were negligent in failing to perform checks every four hours, this did not constitute a concession of liability because NorthBay contended this negligence did not cause Plaintiff any harm. NorthBay's concession of negligence does not establish the trial court abused its discretion in awarding expert costs to NorthBay.
Plaintiff finally argues the award of expert fees to Doctors should be reversed because Doctors did not submit their written offer with their memorandum of costs. Although Doctors did not submit the offer with their initial memorandum of costs, they did submit it with their opposition to Plaintiff's motion to tax costs and Plaintiff conceded below that the offer was made. Plaintiff relies on Behr v. Redmond (2011) 193 Cal.App.4th 517, which held that when a defendant "failed to support her memorandum of costs with a written offer to compromise. . . . the award of expert witness fees must be reversed." (Id. at p. 538.) However, this case does not hold the written offer must be submitted with the initial memorandum of costs rather than in response to a plaintiff's motion to tax costs, and we see no basis to so hold.
V. NorthBay's Cross-Appeal
NorthBay filed a protective cross-appeal from the judgment in favor of Doctors on NorthBay's cross-complaint, arguing if the judgment against Plaintiff is reversed, the judgment on the cross-complaint should be reversed also. As we are affirming the judgment against Plaintiff, we also affirm the judgment on the cross-complaint.
The judgments are affirmed. Respondents are awarded their costs on appeal.
JONES, P.J. and BRUINIERS, J., concurs.