Opinion
B189728
5-2-2007
ARTAMUS RODRIGUEZ, a Minor, etc., Plaintiff and Appellant, v. MILDRED REY-MONROY, Defendant and Respondent.
Blumberg Law Corporation and Ave Buchwald for Plaintiff and Appellant. La Follette, Johnson, De Haas, Fesler & Ames, Dennis K. Ames, Nancy H. McCoy, and Ahmed Kasem for Defendant and Respondent.
NOT TO BE PUBLISHED
In this medical malpractice case, appellant Artamus Rodriguez, through his mother, Susie Sinsun Rodriguez, as guardian ad litem, argues the trial court abused its discretion in allowing the jury to consider whether fault should be allocated to a nonparty doctor. He also contends the court erred by "refusing" the jurys request for a readback of testimony, and by making improper comments to the jury. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On the morning of March 25, 2003, six-year-old appellant fell off the monkey bars at school (all further dates are in 2003). After complaining of pain in his left elbow, he was taken to Suburban Medical Center by ambulance. Emergency room personnel noted that there was swelling and tenderness around the elbow, but that his neurovascular status was normal. They found he had a pulse in his left arm and good capillary refill ("good blood flow into the extremity, and . . . adequate blood flow back out"). Appellants X-ray revealed that he had a displaced supracondylar fracture of the distal humerus, or a "severely broken elbow." Appellants condition required surgery.
Emergency room personnel called respondent Dr. Mildred Rey-Monroy to authorize treatment. She was appellants pediatrician at this time. Dr. Rey-Monroy told the caller to send appellant to her office. Emergency room personnel then called back to authorize "definitive immobilization," which requires "an orthopedic surgeon to either reduce [the] fracture without surgery, without opening up the arm, or to open up the arm and then stabilize [the] fracture." Dr. Rey-Monroy did not authorize the treatment and informed the caller that she would make arrangements for appellant to see an orthopedic surgeon.
When appellant and his mother arrived at Dr. Rey-Monroys office, appellants left arm was in an air splint. Appellants pain was not out of proportion to his injury. After checking for a radial pulse and observing that his hand was warm and pink, that he could move his fingers, and that he had good capillary refill, Dr. Rey-Monroy concluded that appellant had no neurological or vascular compromise. Dr. Rey-Monroy made an appointment for appellant to see Dr. Feliciano Navalta, Jr., an orthopedic surgeon, at 1:00 p.m. the following day.
In the meantime, Dr. Rey-Monroy instructed appellants mother to monitor his pulse by checking on the color and temperature of his hand, and to call her immediately if there was any change. Appellants mother never observed a change in the color or temperature of his hand. At approximately 5:00 p.m. or 6:00 p.m., appellant left his mothers house with his father. Appellants mother believes she told his father to monitor the color and temperature of his hand, but does not remember if she told him what to do if in fact there was any change.
The next day, appellant saw Dr. Navalta. After observing that appellants left arm was pulseless, Dr. Navalta referred him to Orthopaedic Hospital of Los Angeles. Appellant arrived at Orthopaedic Hospitals emergency room at approximately 3:00 p.m. Dr. Scott Jacobs, an emergency room physician, observed that although appellant had normal capillary refill, he had no palpable radial pulse. A doppler machine indicated that a radial pulse was present, but that blood flow through the radial artery was diminished. Dr. Jacobs noted that appellant was unable to extend or flex all of his fingers, and that appellant was experiencing some tingling. Based on this evaluation, Dr. Jacobs concluded that there was potential for vascular injury.
Appellant was transferred to Childrens Hospital Los Angeles (CHLA) for surgery. Because of a delay with the ambulance transportation service, appellant did not arrive at CHLA until after 8:00 p.m. There, Dr. Sean David Early, a pediatric orthopedic surgeon, reduced and stabilized the fracture by removing a blood clot, realigning appellants bones and inserting metal pins to hold the bones in position. Once that was done, Dr. Early could feel a weak radial pulse in appellants left arm, where there had been no palpable pulse before. The doppler test confirmed that there was blood flowing through the radial artery. After surgery, appellant had very little swelling and the muscles in his left arm were soft. For those reasons, Dr. Early ruled out compartment syndrome.
According to Dr. Early, "[c]ompartment syndrome is a diagnosis that describes a condition where theres an extreme amount of swelling in a given compartment. A compartment is a space that is encased in heavy tissue, similar to a sausage being encased in an outer wrapping. And the inner portion of that wrapping is the muscle. So when you have a compartment syndrome, you have swelling in the muscle that is so great that the flow of blood to the muscle is being restricted, similar to standing on a garden hose, and so you jeopardize . . . blood flow to the muscle." Dr. Kendall Shannon Wagner, appellants expert orthopedic surgeon, testified that once the pressure inside a given compartment reaches a certain level, a fasciotomy (cutting of the fascia, the tissue that encases the muscle) must be performed to release the pressure within six hours or permanent damage will occur.
On March 28, at 8:00 a.m., Dr. Early noticed increased swelling in appellants left arm and forearm. Dr. Early loosened the dressings and advised continued elevation of the arm. An hour later, the swelling had decreased. At about noon, Dr. Early measured the pressure in appellants arm. An uninjured muscle usually measures between zero and 10 millimeters of mercury. Compartment syndrome becomes a concern when the pressure is above 30 millimeters. Dr. Early diagnosed appellant with compartment syndrome of the left forearm after learning that one of his measurements was 38 millimeters.
Dr. Early performed a fasciotomy on appellants left forearm. He noticed that some of the muscles were light brown, instead of a healthy bright red. The muscles also were of a fragile consistency and did not contract normally. However, he did not remove the unhealthy muscles because he was not sure that they were dead, and he wanted to give them a chance to survive. He also knew that appellant would be undergoing surgery again in a couple of days to close the wound, so he planned to remove any necrotic, or dead, muscle at that time.
On March 30, Dr. Early found necrotic muscle tissue in appellants left forearm, which he removed. Dr. Early took appellant into surgery several more times to remove more necrotic tissue, treat the wound and attempt to close the wound. On April 8, the wound was completely closed. Although appellant later underwent a muscle transplant surgery, he was left with an "unsightly, minimally functional hand."
Appellant, through his guardian ad litem, sued Dr. Rey-Monroy, Dr. Early and others for medical malpractice. Dr. Early moved for summary judgment. Appellant did not oppose the motion, but Dr. Rey-Monroy did. The motion was denied. Later, the clerk entered appellants request to dismiss Dr. Early with prejudice. The case proceeded to trial against Dr. Rey-Monroy only. The jury returned a special verdict finding that Dr. Rey-Monroy was not negligent, and judgment was entered against appellant. Appellant moved for a new trial, but the motion was denied. He filed a timely notice of appeal.
DISCUSSION
I
Appellant argues the court erred in submitting a question regarding fault allocation to the jury. Before closing argument, respondent requested that the jury allocate fault between Drs. Rey-Monroy and Early on the special verdict form. Appellant objected to including Dr. Early on the verdict form, arguing that every expert who had testified on the subject had said that Dr. Early complied with the standard of care. Respondent argued that because Dr. Early essentially admitted that he was at fault, it was proper to allow the jury to allocate fault to him. The court ruled that whether or not Dr. Early was at fault was a jury question, and granted respondents request. The special verdict form submitted to the jury states:
"1. Was Mildred Rey-Monroy, M.D., negligent in the diagnosis or treatment of Artamus Rodriguez? [¶] Yes ___ No ___ [¶] If your answer to question 1 is `yes, then answer question 2. If you answered `no, stop here, answer no further questions and have the presiding juror sign and date the form.
"2. Was Dr. Mildred Rey-Monroys negligence a substantial factor in causing harm to Artamus Rodriguez? [¶] Yes ___ No ___ [¶] If your answer to question 2 is `yes, then answer questions 3 and 4. If you answered `no, stop here, answer no further questions and have the presiding juror sign and date the form.
"3. What are Artamus Rodriquezs damages? . . . [¶] . . . [¶]
"4. [One hundred percent] represents the total fault that was the cause of plaintiff Artamus Rodriguezs injuries and/or damages. What percentage of this 100 [percent] is due to the fault of each of the following: [¶] DR. MILDRED REY-MONROY ___[ percent] [¶] DR. SEAN EARLY ___[percent] [¶] TOTAL 100 [percent]"
Appellant contends that question No. 4 was improperly submitted to the jury because no expert testified that Dr. Early acted below the standard of care, and because respondents request was not coupled with a request for CACI No. 406 (apportionment of responsibility). He also argues that question No. 4 was improper because CACI No. 501 (standard of care for healthcare professionals) and CACI No. 506 (alternative methods of care), as given, were not tailored for Dr. Early, a pediatric orthopedic surgeon.
CACI No. 406 states: "More than one persons [negligence/fault], [including [name of plaintiff]s], may have been a substantial factor in causing [name of plaintiff]s harm. If so, you must decide how much responsibility each person has by assigning percentages of responsibility to any person listed on the verdict form whose negligence or other fault was a substantial factor in causing [name of plaintiff]s harm. The percentages of responsibility must total 100 percent. [¶] You will make a separate finding of [name of plaintiff]s total damages, if any. When you make this finding you should not consider any persons assigned percentage of responsibility."
CACI No. 501 states: "A [insert type of medical practitioner] is negligent if [he/she] fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful [insert type of medical practitioners] would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as `the standard of care. [¶] [You must determine the level of skill, knowledge, and care that other reasonably careful [insert type of medical practitioners] would use in the same or similar circumstances, based only on the testimony of the expert witnesses [including [name of defendant]] who have testified in this case.]."
CACI No. 506 states: "A [insert type of medical practitioner] is not necessarily negligent just because [he/she] chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice."
"In 1986, the voters adopted Proposition 51, an initiative measure designed to modify the doctrine of joint and several liability in tort cases. Among other things, Proposition 51 added section 1431.2 to the Civil Code. Section 1431.2 provides that in an action for wrongful death, personal injury, or property damage, each defendants liability for the plaintiffs `non-economic damages shall be several only, not joint, and that each defendant shall be liable only for the percentage of `non-economic damages which corresponds to that defendants proportionate share of fault." (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 596, fn. omitted.)
"A defendant may attempt to reduce his or her share of liability for noneconomic damages by seeking to add nonparty joint tortfeasors [to the special verdict form]. But unless there is substantial evidence that an individual is at fault, there can be no apportionment of damages to that individual." (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 367.) Because "fault is measured by the medical standard of care," "[a]pportionment among doctors under Civil Code section 1431.2 requires evidence of medical malpractice, not only as to named defendants, but also as to nonparty doctors." (Id. at p. 369.) "The use of special interrogatories in a verdict form lies within the sound discretion of the trial court, and the courts determination will not be disturbed on appeal absent a clear abuse of discretion." (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 364.)
Dr. Early testified that on the day of appellants first surgery, March 26, appellant did not display any signs or symptoms of compartment syndrome. He eventually diagnosed appellant with compartment syndrome on March 28. Dr. Early also testified that appellants fracture caused his compartment syndrome, and that his muscles died because the treating physician "failed to treat [the compartment syndrome] quickly enough." Although Dr. Early believed that appellants compartment syndrome had developed before he first saw appellant, he stated that if appellants compartment syndrome first developed under his care, appellants muscle loss was his fault.
Dr. Wagner testified that appellants compartment syndrome developed under Dr. Earlys care, beginning on March 26, and ultimately becoming diagnosable on March 28. Dr. Thomas Grogan, respondents expert orthopedic surgeon, also testified that appellants compartment syndrome developed under Dr. Earlys care: "[W]hen Dr. Early repaired the fracture, it actually improved the blood flow down through the forearm . . . . That increase in blood flow led to interstitial fluid buildup and increase in compartment pressure . . . ultimately choking off [the] blood flow." Dr. Grogan stated that appellants muscle loss could possibly have been avoided if the compartment syndrome had been treated early enough.
Because there was substantial evidence that Dr. Early was at fault, the court did not abuse its discretion in submitting the fault allocation question to the jury. Although appellant argues the court erred in submitting the allocation question to the jury despite the fact that respondent did not request CACI No. 406, he has presented no authority that states that a fault allocation question can be submitted to the jury only when coupled with CACI No. 406. Further, appellant could have requested the instruction but did not. With regard to CACI Nos. 501 and 506, the court gave these instructions to the jury, tailored generally to pediatricians. If appellant wanted those instructions tailored more narrowly to pediatric orthopedic surgeons, he should have requested further modification. We find no error.
Even if there were error, it is harmless. Because the jury found no negligence on the part of Dr. Rey-Monroy, it did not reach the question of fault allocation. Appellant argues that the inclusion of Dr. Early on the verdict form was prejudicial because it allowed respondents counsel to present an "empty chair" argument, pointing to Dr. Early as the author of appellants injuries. It was not the verdict form that allowed that argument, but the evidence. "In conducting closing argument, attorneys for both sides have wide latitude to discuss the case." (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795.) This includes permission to argue all inferences that can reasonably be deduced from the evidence. (Ibid.) "`"`The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury."" (Ibid.) Based on the testimony of Drs. Early, Wagner and Grogan, respondents counsel could properly argue that appellants muscle loss was caused by Dr. Earlys untimely treatment of appellants compartment syndrome.
Even if respondents counsel had been prevented from arguing that Dr. Earlys negligence was the cause of appellants muscle loss, there was sufficient evidence to support the jurys finding that Dr. Rey-Monroy was not negligent. Drs. Grogan and Melvyn H. Krause, respondents expert family physician, both testified that Dr. Rey-Monroy acted within the standard of care. Even Dr. Wagner, appellants expert, testified that based on the current state of medical knowledge, there is no evidence to suggest that a 24- to 48-hour delay in surgery increased appellants risk of compartment syndrome or significant complications in the absence of neurovascular compromise. Dr. Rey-Monroy testified that when she evaluated appellant, he displayed no signs of neurovascular compromise. Dr. Keith Gladstien, appellants expert pediatrician, also testified that he had no reason to believe that appellant had vascular compromise at the time he was examined by Dr. Rey-Monroy.
It is not reasonably probable that appellant would have received a more favorable result if the question of fault allocation had been left off the special verdict form, or if respondents counsel had been prohibited from arguing that Dr. Earlys negligence caused appellants injury. (See Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 801-802, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
II
Appellant argues the court erred in "refus[ing] the jurys request to have Dr. Gladstiens testimony read back," and by telling the jurors to "`grow up" and "`go back to work." During its deliberations, the jury requested a copy of Dr. Gladstiens testimony and a copy of respondents closing argument. In response, the court stated: "The answer is no, we are not going to retry the case twice. Once you listen to it, then we read it back to you. We are not going to do that. Grow up. Now, you are not going to get a copy of final argument. It is not evidence. If you have a specific question about the testimony of anyone and you tell us in writing what it is you want to hear, we will try to find it. Will we read the entire case back to you? No, we wont. You are excused to go back to work." The jury returned a verdict later that day without making any other requests.
The court reasonably interpreted the jurys request as one for a readback. Both parties also characterize it that way.
Code of Civil Procedure section 614 states: "After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into Court. Upon their being brought into Court, the information required must be given in the presence of, or after notice to, the parties or counsel." "While this provision does not compel the court to give any information which the jury may request, any reasonable request relating to the rereading of instructions upon a topic which is doubtful in the minds of the jurors should not be wilfully disregarded." (Cook v. Los Angeles Ry. Corp. (1939) 13 Cal.2d 591, 595.)
The court did not err by telling the jury that they were excused to go back to work, but it should not have admonished the jury to "grow up." Nevertheless, the courts isolated comments do not rise to the level of verdict coercion, as appellant suggests. Unlike the case appellant cites, Cook v. Los Angeles Ry. Corp., supra, 13 Cal.2d at page 594, the court did not pressure the jury to arrive at a verdict. And contrary to appellants claim, the court did not order the jury to "go back to work." Nor did the courts response to the jurys request minimize the significance of Dr. Gladstiens testimony (the jury also requested respondents closing argument).
It was within the courts discretion to invite the jury to narrow its request for information. The court did not refuse to read back testimony. Instead, it asked the jury to ask a "specific question" regarding any witnesss testimony after being asked for respondents closing argument, which is not evidence, and Dr. Gladstiens testimony, which covers approximately 80 pages of the reporters transcript. The court essentially told the jury that if there was a "disagreement between them as to any part of the testimony," it was welcome to request that part in writing. (Code Civ. Proc., § 614.) The courts exercise of discretion was reasonable. (See Hutton v. Brookside Hospital (1963) 213 Cal.App.2d 350, 354; cf. People v. Butler (1975) 47 Cal.App.3d 273, 280-281.)
Appellant estimates that the readback would have taken about two hours. Respondent estimates two to three hours.
Appellant also argues that the courts error was compounded by its earlier comments to the jury "discourag[ing]" note taking. We disagree. The court informed the jurors that they had the right to take notes, but warned them not to let it interfere with their careful listening and evaluation of testimony. The court also warned the jurors that they may not be able to comprehend their notes later on, and told them that the court reporters transcript must be accepted as accurate. Finally, the court stated that if there was a disagreement about any testimony, the court reporter could read back the relevant portions. These comments were entirely appropriate. (See Hutton v. Brookside Hospital, supra, 213 Cal.App.2d at p. 354.)
In any event, any error is harmless. Although appellant emphasizes that the verdict was nine to three, appellant has not demonstrated that it is reasonably probable that he would have received a more favorable result if the court had not made the comments or if all of Dr. Gladstiens testimony had been read back. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
III
We reject appellants argument that cumulative prejudice exists as we have not found prejudicial error, and in the "instances where we have assumed error for purposes of discussion . . . we have not found prejudice or, indeed, any significant adverse impact." (People v. Holloway (2004) 33 Cal.4th 96, 142.)
DISPOSITION
The judgment is affirmed.
We concur:
WILLHITE, J.
SUZUKAWA, J.