Opinion
F040867.
10-14-2003
ANTONIO GIANGRASSO, a Minor, etc., Plaintiff and Appellant, v. TENET HEALTHSYSTEM HOSPITALS, INC., Defendant and Respondent.
Ringhoff & Toledo, Stephen J. Ringhoff and Theressa Y. Toledo for Plaintiff and Appellant. Dummit, Faber, Briegleb & Diamond; Dummit, Faber & Briegleb and Daniela P. Stoutenburg for Defendant and Respondent.
Antonio Giangrasso (hereafter Tony), a minor, by and through his guardian ad litem Anna Marie Facha, appeals from a judgment of nonsuit entered against him in his lawsuit against Tenet Healthsystem Hospitals, Inc., doing business as Doctors Medical Center-Modesto (DMC). We will affirm.
FACTUAL AND PROCEDURAL HISTORIES[]
Because this is an appeal after grant of motions in limine and a brief opening statement, the facts are taken from the transcript relating to the motions in limine and the opening statement, as well as trial documents filed with the court which the court considered in ruling on the motion for nonsuit. They are treated basically as offers of proof by this court.
BACKGROUND
On December 25, 1997, 10-year-old Tony was involved in a sledding accident near Strawberry Lodge, Tuolumne County, in which he sustained a closed head injury. Tony, who was unconscious, was taken by a Tuolumne County ambulance to a nearby landing area for helicopter ambulances, to meet the Air Med Team from DMC.
The Air Med Team, composed of a registered nurse and a paramedic, performed an assessment of Tony and assigned him a Glasgow Coma Scale score of six. Flight nurse Randy Sharpsteen intubated Tony using a size 6.5, cuffed endotracheal tube. Tony was also given the sedative VERSED. Once the tube was in place, the cuff on the tube was inflated. The Air Med Team then transported Tony to DMC, where he was admitted. After a brief time in the emergency room, Tony was transferred to the intensive care unit. Thereafter, multiple physicians assessed, treated and examined Tony, including Drs. Dikran Bairamian, Michael Rossini and Louis Nelson. Tony was diagnosed with a skull fracture and possible neck injuries. Tony was continued on sedation and remained intubated.
The following morning, December 26, Tonys treating physicians gave several orders to stop the sedation and remove the endotracheal tube when Tony awakened. Tonys family members were told that Tony was being taken off medications and should wake up within a couple of hours. Tony did not wake up, however, until 21 hours later. When he awoke, Tony was extubated. The nurse who removed the tube almost immediately noted stridor, a sound which signals respiratory problems, primarily with constriction of the airway. Tony was taken to the operating room for re-intubation by Dr. Gray Neuweiler, an anesthesiologist. Dr. Neuweiler first attempted to replace the tube with a size 6 tube, but when he felt resistance, he dropped the replacement tube down to size 5.5.
On December 30, 1997, Dr. Charles Hutchins, a pulmonologist who had also been assessing, examining and treating Tony, extubated him. The following day, Tony was transferred to Memorial Hospital, where he received continued care of his head injury. After a brief stay at Memorial, Tony was discharged.
Within a few weeks, and after several emergency room visits for breathing difficulties, Tony was diagnosed as having subglottic stenosis, a narrowing of the trachea just below the vocal cords from scar tissue that formed. On February 7, 1998, surgeons made an incision in Tonys throat and inserted a tracheostomy tube to allow unhindered breathing. Despite more than 20 attempts at surgical correction, Tony still breathes through a tube in his throat and has lost his natural voice. He speaks with a speech enhancer, nicknamed the buzzer, commonly used by patients who have acquired throat cancer from smoking.
On December 8, 2000, Tony filed suit against DMC, Air Med Team, Sharpsteen, and B. Bartlett, EMT, alleging that each of the defendants had committed medical negligence. Trial was originally set for March 11, 2002, but was later continued to May 2002.
THE EXPERT DEPOSITIONS
On January 18, 2002, Tony served his expert witness disclosure, naming Carl R. Noback, M.D., as his expert anesthesiologist. After being served with the defendants motion for summary judgment, Tony tried to contact Dr. Noback, but was unable to do so.[] Three days before Tonys opposition was due, Tonys counsel contacted Crystal Terry, M.D. Dr. Terry did not have time to review all of the medical records, but agreed to sign a self-contained declaration, in the form of a written hypothetical question.
Tonys counsel later learned that Dr. Noback had taken a full-time teaching position at the University of California, Los Angeles and was no longer available to do forensic work because of his schedule.
On January 25, 2002, Dr. Terry signed the declaration, which was filed with Tonys opposition to the motion. In the declaration, Dr. Terry stated, "Subglottal stenosis does not ordinarily occur as a result of intubation in the absence of negligence." Dr. Terry assumed that the Air Med Team paramedics who originally inserted the tube had overinflated the cuff on the tube and, based on that assumption, opined that the "most likely cause of the stenosis was impingement on circulation of tissues caused by a cuff which was over inflated[,]" stating that "[t]here is a known cause and effect relationship between over inflation and subglottal damage."
On January 26, 2002, before any depositions had been taken, Tonys counsel requested that defense counsel allow him to substitute Dr. Terry for Dr. Noback. After Tony filed a motion to allow him to do so, the parties agreed to the substitution, with the understanding that Dr. Terrys deposition would be taken before the depositions of the defendants liability experts.
At Dr. Terrys deposition, which was taken on February 26, Dr. Terry confirmed that portion of her declaration in which she said that subglottic stenosis does not ordinarily occur, particularly in children, in the absence of negligence. Dr. Terry also testified that stenosis in the trachea can occur as a result of an endotracheal tube being in place for a period of days without negligence, but it is extremely rare. Dr. Terry explained that, in her opinion, the most likely cause of the injury was either overinflation of the cuff on the endotracheal tube or failure to properly monitor the cuff pressure, or both. Dr. Terry had reviewed and relied on the deposition of Herbert Dedo, an otolaryngologist from the University of California, San Francisco with whom she had trained. Dr. Dedo expressed the opinion the cuff pressure was the most likely culprit, although he said sedation which was "too light" could also cause the problem. Dr. Terry had not reviewed the X-rays taken at DMC prior to her deposition.
Dr. Terry did not offer the opinion that the sedation may have been "too light." Dr. Terry testified she had not seen anything in the medical records that Tony was "combative, coughing or bucking" during the relevant time periods. While Dr. Terry had examined the sedation the physicians had ordered and the nurses gave, she did not interpret the records as revealing combative behavior on Tonys part. In Dr. Terrys opinion, everyone at DMC involved in Tonys care was within the standard of practice. Tony reserved the right to have Dr. Terry consider other information from other depositions not yet taken, as well as the IME (independent medical examiner) report prepared by DMCs expert, Dr. Kasey Li, which Dr. Terry had not received.
On March 2, DMCs retained liability experts, Dr. Bruce Halperin and Dr. Li, were both deposed. Both doctors were of the opinion that: (1) the injury was a direct result of the intubation; (2) more likely than not, the injury was the result of contact between the tube and the mucous membranes of the throat when the child was "combative," which is commonly called "bucking on the tube"; (3) the cuff was lower in the airway than the damage to the throat, and therefore could not have been the cause; (4) Tony was someone who was more likely than others to form scar tissue from an injury, and that the scar tissue would be formed to a greater extent in him than in others; (5) the method used to control "bucking" is sedation; and (6) this type of injury is rare.
On March 11, Tonys counsel informed defense counsel by letter that, after providing Dr. Terry with information from the depositions of Drs. Halperin and Li, Dr. Terrys "basic opinion remains the same: This is a complication (injury) which does not ordinarily occur in the absence of negligence." Tonys counsel explained that Dr. Terrys initial thought was that the cuff was overinflated, but "[a]ssuming that the cuff was always below the area of injury, it obviously was not the cause of the injury." The letter further stated:
"Dr. Terry has again reviewed the records with an eye toward determining whether or not Tony was combative. She is of the opinion that the records do not clearly indicate such combativeness. If he was combative, the records should clearly indicate this fact so that the physicians can adjust the sedation. She agrees with both of your experts that the primary method of avoiding damage caused by movement of the patient is efficient sedation. However, the physician cannot stand by the patient 24 hours a day and is dependent upon the nursing staff to report the effect of the sedation order, especially where it is not as anticipated.
"Dr. Terry also notes that there was a significant period in which the Versad [sic] was discontinued before extubation. Apparently the physician ordered the Versad [sic] stopped and the patient extubated when awake. It appears to Dr. Terry that this order anticipated that the child would awaken and be extubated within a very few hours. Instead, some 21 hours elapsed before the extubation. It is her opinion that the nurses should have reported the failure to awaken as anticipated so the physician could reconsider the sequence of sedation/extubation to protect against the complication which your experts describe as resulting from ineffective sedation.
"Obviously, these opinions reflect standard of care violations which were not discussed in her deposition because she did not see the records as reflecting a combative patient. Since these represent new opinions (predicated on facts which were contained in her notes regarding sedation) we would be happy to produce Dr. Terry for deposition again, at a mutually convenient date."
Defense counsel declined the offer to depose Dr. Terry a second time.
On March 19, 2002, the court entered Tonys dismissal with prejudice of the individual defendants, Sharpsteen and Bartlett, from the lawsuit. At Tonys request, Air Med Team was also dismissed from the lawsuit on the first day of trial, leaving DMC as the only defendant.
THE MOTIONS IN LIMINE
On May 1, 2002, the parties filed trial briefs and motions in limine. One of the motions DMC brought was to limit the testimony of Tonys experts, particularly Dr. Terrys testimony, to the information and materials reviewed, and the opinions and testimony given, at the time of their depositions. Defense counsel noted that Dr. Terry had testified at her deposition that all the care and treatment rendered to Tony while at DMC was within the standard of care, that Dr. Terrys only contention against DMC and Air Med Team was that Air Med had overinflated the cuff during the initial intubation, which, in her opinion, was the most likely cause of the injury, and Dr. Terry opined that Dr. Neuweiler, who is not an employee or agent of DMC, was negligent in failing to record the cuff pressures after he re-intubated Tony on December 27, 1997. Dr. Terry had confirmed these were all of her opinions in the case, and there was nothing more she required to complete her review of the case. Defense counsel further explained that after the evidence established that the cuff could not have been the cause of the injury, Tony changed his contentions in his March 27 mediation brief. In that brief, Tony contended that the nurses at DMC were negligent sometime between 11:00 a.m. on December 26, 1997, and 8:00 a.m. on December 27, 1997, regarding the issue of sedation.
Defense counsel argued that Dr. Terry should not be allowed to render an opinion at trial directly contradicting the opinion she gave during her deposition, i.e., that DMC did not act below the standard of care, because Dr. Terry did not make corrections to her deposition transcript as allowed by Code of Civil Procedure section 2025, subdivision (q)(1), and Tony did not file a motion to augment his expert witness designation to incorporate Dr. Terrys new opinions as required by section 2034.
In his written opposition to the motion to exclude expert testimony, Tonys counsel argued that Dr. Terrys testimony was admissible because defense counsel was informed that Dr. Terry would be reviewing the defense experts depositions and the report, and defense counsel knew at Dr. Terrys deposition that she had not reviewed the X-rays. Tonys counsel further argued it would not have been appropriate for Dr. Terry to change her deposition testimony, since the deposition reflected her opinions at that time, there was no need to file a motion to augment because Dr. Terry was already properly disclosed, and it was both "fair and proper" to inform defense counsel of Dr. Terrys new or different opinions.
On May 6, the first day of trial, the parties waived a jury. The following day, the parties argued the motions in limine. With respect to the exclusion of Dr. Terrys testimony, Tonys counsel explained that Dr. Terrys testimony would differ from her deposition testimony in that she would now testify that "if somehow the fact is proven that this child was combative during this time, the sedation orders were not appropriate. Because it should have been enough sedation so that he wasnt combative." Tonys counsel further explained that Dr. Terry would testify that she did not see any evidence of combativeness in the medical records, and "other witnesses" would testify that Tony was not combative. Tonys counsel explained he would use Dr. Terrys testimony—that if Tony was combative, he was inadequately sedated—to rebut DMCs contention that "bucking" caused the injury. Tonys counsel contended he was not required to file a motion to allow this change in testimony because he notified defense counsel of the changed opinions and he was neither adding a new expert nor expanding the scope of Dr. Terrys testimony beyond the subject designated in the expert witness declaration.
DMCs counsel argued that Tonys counsel was incorrect about the facts, because the records did reflect that Tony was combative a number of times and easily agitated upon stimulation. DMCs counsel explained that the defense experts testified that the presence of the tube can cause narrowing of the trachea, and that all the parties experts, including Dr. Terry, agreed that the condition that resulted here is an inherent risk of the procedure. According to DMCs counsel, defense experts also testified that movement or agitation, not just combativeness, can cause the injury, and that in most cases, this does not result in permanent scarring. In this particular case, however, "for no reason anyone can explain today, this child developed keloid scarring or hypertrophic scarring [where] somebody else might not [have]."
DMCs counsel argued that by Dr. Terrys changing her testimony from saying that DMC was not negligent to saying DMC was negligent, Tony was augmenting the expert witness declaration and should have filed a motion to allow him to do so. DMCs counsel further argued that to allow Dr. Terry to change her testimony at trial would prejudice DMC, because DMC would not be able to obtain testimony from Tonys treating physicians to refute Dr. Terrys testimony. DMCs counsel explained that after getting the March 11 letter, he tried to contact the physicians, but they either refused to talk to him informally or could not be contacted, and although he could subpoena some to testify at trial, he would not know what they were going to say. DMC also argued it was prejudiced because of the additional cost of taking Dr. Terrys deposition a second time, and then having its experts review the new testimony.
The court found that this was not a proper augmentation to give a new opinion and that the defense had been prejudiced by the change in testimony, since defense counsel had tried to obtain testimony from the treating physicians, but was unable to do so. The court therefore ruled that Dr. Terry could not offer any new opinion. The court did state, however, that Dr. Terry could be used to impeach the defense experts under Code of Civil Procedure section 2034, subdivision (m) and could offer a proper hypothetical. The court further stated that the ruling was "subject to change based upon how this trial proceeds."
THE NONSUIT
Following rulings on the motions in limine, Tonys counsel gave his opening statement. He explained the facts regarding Tonys accident, the treatment given by Air Med Team, and Tonys hospitalization at DMC. Tonys counsel stated that the evidence would show that Tony was "no different than any of the others [patients who are intubated] in terms of how he was treated, at least according to the records, or the result that was expected, at least according to the records." Counsel also stated that this may be a situation where conditional res ipsa loquitur applies and "there may not be an explanation for exactly why this happened."
Tonys counsel explained that at first, the experts believed that cuff pressure caused the injury, but the X-rays revealed that the cuff was farther down Tonys throat than where the area of damage was. The second "potential culprit" was "bucking on the tube." Dr. Dedo explained in his deposition that bucking occurs when an individual tries to cough up the tube, causing "a mechanical movement back and forth between the tube and the cartilaginous area," which can damage the tissue and cause scars to form. Counsel explained that "bucking on the tube" is not unique to Tony, and that everyone who has a tube placed in his or her throat, whether it is from an injury or during the course of surgery, bucks. The "bucking" is controlled with the administration of sedation, which in this case was Versed. The physicians ordered the sedative, but the nurses were to administer the sedative as needed, at their discretion. The records show that the nurses gave Tony the maximum dose of Versed beginning when the order started on December 25 to when it stopped on December 26, and nothing in the records shows that the nurses informed the physicians that Tony was bucking, which leads to an inference that the nurses felt the sedation was adequate.
Tonys counsel further explained that a defense medical examination of Tony revealed that there was no damage, irritation or scarring to the lower passageway, which is the area below the injury, and which would have a significant potential for abrasion or other damage. Counsel pointed this out in case there was an argument that Tony was somehow susceptible to irritation to his throat, and although Dr. Dedo testified Tony had "exuberant scarring" from his attempts to replace the mucosal tissue, there was no irritation around the area where the cuff was.
Tonys counsel stated that in the defense experts opinion, while there are potential causes of the injury other than the cuff pressure and bucking, those potential causes do not exist in this case. Instead, the expert testified the injury was not caused by the cuff because of where the injury occurred, and therefore it must have been caused by the tube, which raises "the factual issue ... whether or not theres combativeness." Tonys counsel stated that for this reason, Tony was asking the court to consider conditional res ipsa, "because this is not an uncommon procedure but this is certainly an uncommon result." Tonys counsel explained that an anesthesiologist would testify that he doesnt tell his patients that scarring is the kind of risk he ever considers before surgery and that he only tells his patients they might have a sore throat for a couple of days.
Following the opening statement, DMC moved for nonsuit on the ground that Tonys counsel had not stated "what expert would testify as to any negligence," since everyone knew from the motions in limine that Tonys only expert, Dr. Terry, had testified that all DMCs conduct was within the standard of practice. The court allowed Tonys counsel to reopen so he could address this issue.
Tonys counsel responded that Dr. Terry testified at her deposition "that this injury does not ordinarily occur in the absence of negligence, especially in children," and that Dr. Dedo testified "essentially the same way[,] ... he said ... youre not ever going to see malpractice written down in the records, but this isnt a normal risk of this type of surgery." The court responded that DMCs position was that Tonys counsel had to present evidence that DMC was somehow responsible for the negligence. Tonys counsel contended that testimony by a qualified physician that the injury does not ordinarily occur in the absence of negligence was sufficient to establish conditional res ipsa. The court replied that the burden under conditional res ipsa does not shift until the plaintiff presents evidence that "points the finger at the defendant" showing that DMC is responsible for Tonys injury. The court further explained that this is not a case where common experience would allow the court to decide whether DMC was negligent, and therefore expert testimony was required to show that DMC violated the standard of care.
Tonys counsel responded:
"I am not going to tell you that any expert is going to come in and say that there is a particular act by Doctors Hospital employees which is below the standard of care. I think that their testimony will be that this child came into this hospital with injuries other than this. That their own doctor says specifically that this injury is a direct result of the treatment we gave him. Okay. That this is a treatment commonly given and is a treatment which has a couple of potential inherent risks, which, if properly managed, will not result in injury. That other physicians will say, in the absence of negligence, this injury does not ordinarily occur. [¶] I believe that to be sufficient to have the Court sit as a trier of fact to determine whether or not conditional res ipsa will give us the presumption or the inference of negligence from those facts alone, but I will not have somebody come in here and say heres where they were negligent. [& para;] They will also say they were responsible, I believe, and the Court can infer this without expert testimony, because the nature of the—of what they say is the culprit in this case, the bucking, is controlled by and managed by the hospital personnel at their discretion; and if its not manageable at their discretion because the order is limiting, I think its inherent that they have to seek additional orders to protect the patient."
DMCs counsel renewed the motion for nonsuit, stating that since Tonys counsel did not mention any expert who would testify that any particular act of DMC was negligent, there was no conditional res ipsa, and without conditional res ipsa, the plaintiff must prove a "standard of care violation," which he did not state he could do.
The court, in ruling on the motion, reviewed the elements of conditional res ipsa loquitur. The court asked Tonys counsel whether there would be testimony by anyone with respect to the first element—that this is the kind of injury which ordinarily does not occur in the absence of negligence. Tonys counsel responded that Dr. Terry would testify, as she did in her deposition, that the injury did not ordinarily occur in the absence of negligence, but also that it could occur in the absence of negligence. DMCs counsel restated that Dr. Terry also testified at her deposition that DMC did not violate the standard of care. The court then stated that some expert would have to opine that DMCs care was below the standard of care, and granted the motion for nonsuit.
Judgment was entered on May 23, 2002. This timely appeal followed.
DISCUSSION
Tony raises two contentions on appeal: (1) that the trial court erred in precluding Dr. Terry from testifying about her "new opinion" with respect to the defense experts explanation for the injury; and (2) the trial court erred in granting nonsuit in DMCs favor. We will discuss each contention in turn.
A. Expert Testimony
Tonys argument that the trial court erred in rejecting Dr. Terrys new opinion testimony presents no basis for reversing the judgment of nonsuit in DMCs favor. The court rejected Dr. Terrys proposed testimony because Tony had not moved to amend his expert witness declaration, as required by Code of Civil Procedure[] section 2034, subdivision (k), and DMC would be prejudiced if the proposed testimony were allowed in.
Further statutory references are to the Code of Civil Procedure unless indicated.
Section 2034 governs the exchange of expert witness information in civil cases. Once a party demands an exchange of expert witness information, the parties are required to provide "[a] list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial," or "[a] statement that the party does not presently intend to offer the testimony of any expert witness." (§ 2034, subds. (a), (f)(1).) For certain expert witnesses, including Dr. Terry, the party must also provide an expert witness declaration signed by the partys attorney, or by that party if that party does not have an attorney, which includes, as pertinent here, "[a] brief narrative statement of the general substance of the testimony that the expert is expected to give." (§ 2034, subd. (f)(2)(B).) As explained by our Supreme Court, "[i]f a party wishes to expand the scope of an experts testimony beyond what is stated in the [expert witness] declaration, it must successfully move under subdivision (k) for `leave to ... amend that partys expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give." (Bonds v. Roy (1999) 20 Cal.4th 140, 145; § 2034, subd. (k).[]) If a party unreasonably fails to move for leave to amend its expert witness declaration, the exclusion sanction of section 2034, subdivision (j) applies, and the court may limit the scope of the experts testimony to the general substance of what was described in the expert witness declaration. (Bonds v. Roy, supra, at pp. 148-149; § 2034, subd. (j).[])
Section 2034, subdivision (k) lists an exhaustive series of requirements for making and granting such a motion: "[The] motion shall be made at a sufficient time in advance of the time limit for the completion of discovery under Section 2024 to permit the deposition of any expert to whom the motion relates to be taken within that time limit. However, under exceptional circumstances, the court may permit the motion to be made at a later time. This motion shall be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. ... The court shall grant leave to augment or amend an expert witness list or declaration only after taking into account the extent to which the opposing party has relied on the list of expert witnesses, and after determining that any party opposing the motion will not be prejudiced in maintaining that partys action or defense on the merits, and that the moving party either (1) would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness, or (2) failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, provided that the moving party (1) has sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony, and (2) has promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in subdivision (f) on all other parties who have appeared in the action. Leave shall be conditioned on the moving party making the expert available immediately for a deposition under subdivision (i), and on such other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion. [¶] The court shall impose a monetary sanction under Section 2023 against any party, person, or attorney who unsuccessfully makes or opposes a motion to augment or amend expert witness information, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances made the imposition of the sanction unjust."
Section 2034, subdivision (j), provides in pertinent part: "Except as provided in subdivision[] (k) ..., on objection of any party who has made a complete and timely compliance with subdivision (f), the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] ... [& para;] (2) Submit an expert witness declaration. ..." Our Supreme Court held in Bonds v. Roy that the sanction in subdivision (j) applies when "a party has submitted an expert witness declaration, but the narrative statement fails to disclose the general substance of the testimony the party later wishes to elicit from the expert at trial." (Bonds v. Roy, supra, 20 Cal.4th at p. 149.)
Tony contends that he was not required to bring a motion to amend the expert witness declaration because Dr. Terrys new opinion did not "change the basic substance of the area of testimony (i.e. liability and causation)." We do not find Tonys expert witness declaration in the appellate record. Nor has Tony requested us to take judicial notice of the declaration. In addition, there is nothing in the reporters transcript of the hearing on the motions in limine to show what the declaration stated. Without the declaration, it is impossible for us to review Tonys claim that Dr. Terrys new opinion falls within the "brief narrative statement of the general substance of the testimony" that Dr. Terry was expected to give, as listed in the declaration. On this ground alone, we may reject Tonys contention, since he has failed to affirmatively show error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [party challenging judgment has burden to show reversible error]; accord, Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [if record is inadequate for meaningful review, appellant defaults and the decision of the trial court is affirmed]; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865 [duty of appellant to present adequate record from which prejudicial error is shown]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [failure to provide an adequate record on an issue requires that the issue be resolved against appellant].)
Even if we could review this issue, the trial court did not abuse its discretion in excluding the testimony.[] Assuming that the expert witness declaration stated that the general substance of Dr. Terrys testimony would be liability and causation, the trial court could reasonably conclude that the declaration did not encompass the additional testimony Tony wanted to elicit from Dr. Terry at trial—that DMCs explanation for the injury (i.e., "bucking on the tube") was not an innocent explanation because it involved negligent conduct by DMCs nurses—particularly in light of Dr. Terrys prior testimony that, in her opinion, DMC was not negligent. In this context, Dr. Terrys new opinion was not merely one about liability or causation, but instead would be used to refute DMCs explanation for the injury. Thus, Dr. Terrys proposed testimony was a change in substance—from establishing liability to refuting DMCs defense to the action, thereby requiring Tony to file a motion to amend the expert witness declaration.
The parties do not dispute that the appropriate standard of review of a trial courts decision on a motion to amend an expert witness declaration is abuse of discretion. (See Bonds v. Roy, supra, 20 Cal.4th at p. 149 [court within its discretion in denying motion to amend expert witness declaration]; Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 135, disapproved on other grounds in Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 39-40 [whether to grant relief from failure to timely submit expert witness declaration addressed to sound discretion of trial court]; Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476.) Under this standard, the courts "discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered." (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)
Tony contends the trial court abused its discretion in excluding the testimony because DMC had not shown prejudice, since it had the opportunity to depose Dr. Terry further but failed to do so, and the courts sanction of excluding Dr. Terrys testimony was too harsh. Although Tony did informally advise DMC of the change in testimony, Tony never attempted to seek court approval for the change. Merely advising counsel of the change of testimony and offering Dr. Terry for further deposition, however, is not sufficient to ensure that the additional testimony will be admissible at trial, given that section 2034 requires the party seeking to amend the expert witness declaration to attempt to resolve the issue informally before filing a motion. (§ 2034, subd. (k) ["This motion shall be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion"].) Once DMC rejected Tonys offer, it was incumbent on Tony to bring a motion to allow him to offer the new opinion. To hold otherwise would mean that an informal statement about the new opinion and an offer to have the expert deposed further would satisfy the partys obligation to amend the declaration, and render superfluous the requirement of bringing a motion.
While the issue of Dr. Terrys new opinion was brought to the courts attention on the first day of trial, even if the court delayed trial so that Dr. Terry could be deposed further, the late request afforded no practical opportunity for DMCs experts to rebut Dr. Terrys testimony or for DMC to retain another expert, if necessary, to refute Dr. Terrys opinion. As DMCs counsel explained to the court, Dr. Terrys new opinion opened up an area that neither party had explored during discovery. Upon learning of the new opinion, DMC attempted to obtain testimony from the treating physicians, but was unable to do so. This is not a case such as the one Tony relies upon, Fatica v. Superior Court (2002) 99 Cal.App.4th 350, where a treating physicians opinion testimony was wrongly excluded as a matter of law.[] The court acted within its discretion in excluding the testimony. It is not our role to substitute our judgment for that of the trial court. (See Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633 [presumption made in favor of judgment and all reasonable inferences].)
Neither does the other case Tony relies on help him since it did not involve the adequacy of an expert witness declaration. (Jones v. Moore (2000) 80 Cal.App.4th 557.)
B. The Nonsuit
Tony contends the trial court erred in granting DMCs motion for nonsuit because he asserted sufficient facts during opening statement to sustain a verdict in his favor. Specifically, Tony contends that he was relying on the doctrine of conditional res ipsa loquitur to establish negligence, and that his counsels assertion that both Drs. Terry and Dedo would testify that the injury Tony sustained does not ordinarily occur in the absence of negligence was sufficient to infer negligence. Tony also contends that, in the alternative, he was entitled to rely on the common knowledge doctrine to infer negligence. Tony argues that the trial court erred in ruling that he was required to present expert testimony that DMC committed a specific or particular act of negligence to establish a prima facie case of conditional res ipsa loquitur. We disagree.
1. Standard of Review
"`The standard of review for a nonsuit after [the] conclusion of the opening statement is well settled. Both the trial court in its initial decision and the appellate court on review of that decision must accept all facts asserted in the opening statement as true and must indulge every legitimate inference which may be drawn from those facts. [Citations.] A nonsuit at this early stage of the proceedings is disfavored. [Citation.] It can only be upheld on appeal if, after accepting all the asserted facts as true and indulging every legitimate inference in favor of plaintiff, it can be said those facts and inferences lead inexorably to the conclusion plaintiff cannot establish an essential element of its cause of action or has inadvertently established uncontrovertible proof of an affirmative defense. [Citations.] [Citation.]" (Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1424.)
2. Conditional Res Ipsa Loquitur
Medical malpractice is a cause of action for professional negligence. It is shown by demonstrating (1) the standard of care in the professional community, (2) the medical providers failure to meet that standard, and (3) the patients harm due to the medical providers deficient care. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077; BAJI No. 6.00 [professional negligence].) A medical providers negligence is not presumed but must be proved, except in cases where the doctrine of res ipsa loquitur applies. (Lashley v. Koerber (1945) 26 Cal.2d 83, 88-89.) When an accident or disagreeable consequence is so likely to have been caused by the defendants negligence, it may fairly be said that "`the thing speaks for itself" or, in Latin, res ipsa loquitur. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825.)
The doctrine of res ipsa loquitur is designed to protect the dependent party from unexplained injury at the hands of one in whom he has reposed trust. (Cho v. Kempler (1960) 177 Cal.App.2d 342, 349, quoting Prosser, Res Ipsa Loquitur in California (1949) 37 Cal. L.Rev. 183.) In some cases the plaintiff is unable to produce direct evidence of negligence, although he may be able to establish facts from which it can be inferred that the defendant was negligent and his negligence caused the injuries. In such cases, the courts do not require the plaintiff to forgo recovery on the sole ground that he has not been able to produce direct evidence of negligence. (McCoid, Negligence Actions Against Multiple Defendants (1955) 7 Stan. L.Rev. 480, 482.) A res ipsa loquitur case is a circumstantial evidence case, which permits a jury to infer negligence from the mere occurrence of the incident. (Prosser, Res Ipsa Loquitur in California, supra, at p. 191.)
The doctrine of res ipsa loquitur has been codified as "a presumption affecting the burden of producing evidence." (Evid. Code, § 646, subd. (b).) "A presumption affecting the burden of producing evidence `require[s] the trier of fact to assume the existence of the presumed fact unless the defendant introduces evidence to the contrary. [Citations.]" (Brown v. Poway Unified School Dist., supra, 4 Cal.4th at p. 826.) Where the doctrine of res ipsa loquitur applies, "[t]he presumed fact ... is that `a proximate cause of the [plaintiffs injury] was some negligent conduct on the part of the defendant ... ." (Ibid.)
As one Court of Appeal recently explained:
"At trial, before the burden-shifting presumption arises, the plaintiff must present some substantial evidence of three conditions: (1) the injury must be the kind which ordinarily does not occur in the absence of someones negligence; (2) the injury was caused by an instrumentality in the exclusive control of the defendant; and (3) the injury was not due to any voluntary action or contribution on the part of the plaintiff. (Brown, supra, 4 Cal.4th at pp. 825-826 ...; Kerr v. Bock (1971) 5 Cal.3d 321, 324 ....)" (Elcome v. Chin (2003) 110 Cal.App.4th 310, 316-317.)
"`Res ipsa loquitur applies where the occurrence of an injury is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that defendant probably is the person who is responsible. In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied on both expert testimony and common knowledge.... Ordinarily, the standard of care required of a doctor, and whether he exercised such care, can be established only by the testimony of experts in the field. [Citation.]" (Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6; Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1 [standard of care against which acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts, and presents the basic issue in a malpractice action].)
"`But to that rule there is an exception that is as well settled as the rule itself, and that is where "negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge, expert testimony is not required since scientific enlightenment is not essential for the determination of an obvious fact." (Friedman v. Dresel (1956) 139 Cal.App.2d 333, 341 ..., quoting Lawless v. Calaway (1944) 24 Cal.2d 81, 86 ... .)" (Gannon v. Elliot, supra, 19 Cal.App.4th at p. 6.) Thus, the standard of care in a medical negligence case can be proved only by expert testimony unless the proper conduct required by the medical provider in the particular circumstances is within the common knowledge of the layperson. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)
"The fact that a particular injury rarely occurs does not in itself justify an inference of negligence. (Siverson v. Weber [(1962)] ... 57 Cal.2d 834, 839.) To allow an inference of negligence to be made solely based on this fact would place a disproportionate burden on the medical profession and would discourage the use of new procedures which may involve inherent risks even when due care is used. (Siverson v. Weber, supra, p. 839.) But evidence of rarity, together with some other evidence indicating negligence, may warrant a conditional res ipsa instruction, particularly where the injury resulted from a commonplace procedure rather than from a complex or unusual operation. (Clark v. Gibbons [(1967)] 66 Cal.2d 399, 412-413; Quintal v. Laurel Grove Hospital [(1964)] 62 Cal.2d 154, 165-166.)" (Hale v. Venuto (1982) 137 Cal.App.3d 910, 918-919.) A plaintiff is not absolutely required to explain how the injury happened. "`"Res ipsa loquitur may apply where the cause of the injury is a mystery, if there is a reasonable and logical inference that defendant was negligent, and that such negligence caused the injury."" (Id. at pp. 919-920, quoting Clark v. Gibbons, supra, at p. 409.)
A review of the facts in the case before us in the light most favorable to Tony reveals that Tony suffered subglottic stenosis, which was caused by the endotracheal tube the Air Med Team inserted on December 25 and which was ultimately removed on December 30 prior to his being discharged from DMC. While at DMC, Tony was under the care of a number of physicians, as well as the nurses at DMC. Both Tonys and DMCs experts were prepared to testify that while intubation is a common treatment, subglottic stenosis as a result of intubation is uncommon, and although subglottic stenosis can occur as a result of intubation in the absence of negligence, it does not ordinarily occur unless there is negligence. These facts are sufficient to establish the first precondition of res ipsa loquitur—a reasonable probability of negligent causation by someone.
The reason nonsuit was granted, and the central issue on appeal here, is whether Tony could present sufficient evidence to satisfy the second condition: whether the evidence poses, as one of several reasonable inferences, a probability that DMCs negligence caused Tonys injury. While Tonys counsel admitted at trial that he did not have any expert who would testify that DMCs employees acted below the standard of care, Tony contends such evidence was unnecessary to establish res ipsa loquitur. We disagree.
Before res ipsa loquitur can apply, it is not sufficient merely to establish a reasonable probability of negligent causation; "the finger of probable fault must be pointed at the defendant before the court, not at thin air." (Inouye v. Black (1965) 238 Cal.App.2d 31, 34.) As explained by Dean Prosser: "Thus, even though the facts cry loudly of someones negligence, it is still the plaintiffs task to fix that negligence upon the defendant. This he may do by a second inference, based on a showing of some specific cause for the accident within the defendants responsibility, or on a showing that the defendant was responsible for all reasonably probable causes to which the accident could be attributed. Here again the plaintiff needs only a preponderance of the evidence, and he need not definitely exclude all other possible conclusions." (Prosser, Res Ipsa Loquitur in California, supra, 37 Cal. L.Rev. at pp. 197-198, fns. omitted.) Unless the plaintiff can produce some evidence suggesting a probability that the defendant was negligent, res ipsa loquitur does not apply. (Brown v. Poway Unified School Dist., supra, 4 Cal.4th at p. 828 [while "`the plaintiff need not exclude all other persons who might possibly have been responsible" for lunch meat being on the floor which caused the plaintiff to slip and fall, "the evidence in this case still does not support the necessary conclusion that `it is more probable than not that the injury was the result of the defendants negligence. [Citation.]"]; Inouye v. Black, supra, at p. 35.)
Where a group of persons and instrumentalities combines "in the performance of a medical procedure culminating in an unexpected, mysterious and disastrous result," and the groups members are named as defendants, "the demand for evidence pointing the finger of probability at any one of them is relaxed; all may be called upon to give the jury evidence of care." (Inouye v. Black, supra, 238 Cal.App.2d at p. 35.) Thus, where all persons potentially responsible for an injury are named as defendants, the plaintiff is not required to produce evidence suggesting that one or more of the defendants was negligent; instead, the burden of initial explanation is placed on the defendants. (Ybarra v. Spangard (1944) 25 Cal.2d 486, 492.)
Where only one potentially responsible party is named as a defendant, however, "[t]he negligence of each [unnamed party] is just as possible as some unspecified and indeterminate lack of care" on the part of the defendant. (Inouye v. Black, supra, 238 Cal.App.2d at p. 35.) In such situations, negligence cannot be inferred without some evidence reasonably pointing to the defendant. (Ibid.; Hale v. Venuto, supra, 137 Cal.App.3d at p. 920 [res ipsa loquitur may apply against surgeon, who was the only named defendant, despite fact that plaintiff was also under the care of the hospital, nurses, anesthesiologists, and other medical practitioners for injuries that apparently occurred during surgery, where an expert testified about the most probable of causes of the injury and opined that the surgeons conduct was below the standard of care, and other testimony established that the probable causes were attributable to the surgeons conduct].)
Here, the only named defendant at time of trial was DMC, although others were involved in Tonys care, including Air Med Team paramedics and the physicians at DMC. The negligence of either Air Med Team or the physicians is just as possible as some "unspecified and indeterminate lack of care" on the part of DMC.[] Since DMC is the only party before the court, negligence cannot be inferred without some evidence reasonably pointing to DMC.[] As explained above, this evidence must usually be in the form of expert testimony, unless the proper conduct of DMC in this situation is within the common knowledge of the layperson.
While the evidence shows that the Air Med Team paramedics were not negligent with respect to inflation of the cuff, there is nothing to suggest that it might not have been negligent in some other respect, such as when they intubated Tony.
Tony contends that because DMC stated in response to contention interrogatories during discovery that no health care provider was negligent, he did not need to name any of the physicians as defendants. A response to a contention interrogatory, however, does not prove that the physicians were not negligent, neither does it lead to an inference that DMC was negligent, especially in light of the fact that this injury could have occurred without negligence.
Tony admitted below that he would not be presenting testimony from any expert that any particular act by DMCs employees fell below the standard of care. Without expert testimony, res ipsa loquitur can only apply here if DMCs negligence can be inferred based on common knowledge. The common knowledge exception is generally limited to situations in which a layperson can reasonably say, based upon universal logic, that the consequences of the medical providers acts are not the sort that would ordinarily have occurred if the medical provider had exercised due care. (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 1001.) "The classic example, of course, is the X-ray revealing a scalpel left in the patients body following surgery. [Citation.]" (Ibid.) Other examples include cases in which the patient "received an injury to a part of the body unrelated to the part being treated. (See Ybarra v. Spangard [,supra,] 25 Cal.2d 486, 487-489 ... (shoulder injury during appendectomy); Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 99-100, 102 ... (broken rib in kidney operation).)" (Hurn v. Woods (1982) 132 Cal.App.3d 896, 901.) "California decisions state that the common knowledge exception applies if the medical facts are commonly susceptible of comprehension by a lay juror—that is, if the jury is capable of appreciating and evaluating the significance of a particular medical event. (Cobbs v. Grant (1972) 8 Cal.3d 229, 236 ...; Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 141 ... .) As our high court has succinctly put it: `Technical knowledge is not requisite to conclude that complications from ... a surgical clamp left in the patients body ... indicate negligence. Common sense is enough to make that evaluation. [Citation.]" (Gannon v. Elliot, supra, 19 Cal.App.4th at p. 7.) In sum, under the doctrine of res ipsa loquitur, it may be proper for the jury to "infer negligence from the happening of the accident itself, if it finds based on common knowledge, the testimony of physicians called as expert witnesses, and all the circumstances, that the injury was more likely than not the result of negligence. (Bardessono v. Michels (1970) 3 Cal.3d 780, 784, 793 ... .)" (Gannon, at p. 6.)
Tony argues expert testimony was not necessary in his case because the following evidence supported application of the doctrine of res ipsa loquitur: (1) DMCs experts would testify that Tonys injury was most likely caused by combativeness, (2) the nurses, who are DMC employees, were in exclusive control of this aspect of patient care because they were given orders to sedate as needed, (3) the nurses administered, or failed to administer, the sedative, and (4) the records are devoid of any request for the doctors to change the sedation orders. Thus, Tony appears to argue that negligence can be inferred from the fact that if Tony was combative, the nurses must not have ensured that he was sedated properly.
To eliminate the requirement of expert standard-of-care testimony, the facts regarding this medical event must ordinarily be comprehensible to lay jurors—that is, the jurors must be capable of appreciating and evaluating the significance of this particular medical event. (Gannon v. Elliot, supra, 19 Cal.App.4th at p. 7.) Thus, a jurys lay experience must be such that technical or expert knowledge is not required to support a conclusion that failing to ensure that Tony was sedated to the point that he was not combative demonstrates negligence; a jurys common sense alone must be enough to evaluate the professional propriety of these actions by DMCs nurses and arrive at such determinations favorable to Tony. (Ibid.)
We do not believe the medical propriety of the event Tony relies on is within the expertise of lay jurors. We cannot say it is a matter of common knowledge that Tony would not have been combative, and injury would not have resulted, unless the nurses were negligent in overseeing and administering sedation. Tony was not prepared to offer any expert testimony on this topic, which is patently outside the laypersons realm of everyday experience. (See Lamb v. Moore (1960) 178 Cal.App.2d 819, 822 [not a matter of common knowledge that angulation does not occur in the treatment of a tibia bone fracture unless there was negligence in the treatment; no expert testimony; nonsuit upheld].) We therefore find that expert testimony was required to establish the proper standard of care required of DMC with respect to controlling combativeness with sedation. For this reason, the trial court did not err by granting DMCs motion for nonsuit.
DISPOSITION
We affirm the judgment. Costs on appeal are awarded to respondent.
WE CONCUR: WISEMAN, Acting P.J., LEVY, J.