Opinion
G056433
10-15-2019
VALERIE ROMERO, Plaintiff and Appellant, v. FULLERTON SURGICAL CENTER LP etc., Defendant and Respondent.
Vickery & Shepherd and Earl Landers Vickery; The Law Firm of Joseph H. Low IV and Joseph H. Low IV for Plaintiff and Appellant. Fraser Watson & Croutch, Daniel K. Dik and David M. Wright for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00753368) OPINION Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Reversed. Vickery & Shepherd and Earl Landers Vickery; The Law Firm of Joseph H. Low IV and Joseph H. Low IV for Plaintiff and Appellant. Fraser Watson & Croutch, Daniel K. Dik and David M. Wright for Defendant and Respondent.
INTRODUCTION
Valerie Romero appeals from a judgment entered after the trial court granted respondent Fullerton Surgical Center's (Fullerton) motion for nonsuit in her personal injury action. Romero alleged that an implant in her toe was damaged while she was under Fullerton's care for an epidural injection, a procedure having nothing to do with toes. Because she was unconscious shortly before, during, and shortly after the procedure, she relied on the doctrine of res ipsa loquitur to establish Fullerton's negligence.
We reverse. Romero presented sufficient evidence that, if believed by the jury, would support a finding of negligence under res ipsa loquitur. In fact, her evidence followed the classic pattern for res ipsa loquitur established by the leading California authority in cases involving medical procedures: an injury to a part of the body not involved in the procedure while the patient is unconscious. Granting a motion for nonsuit was error.
FACTS
In an appeal from a judgment after the trial court grants a motion for nonsuit, we state the facts in the light most favorable to the plaintiff. (See Walnut Creek Aggregates Co. v. Testing Engineers, Inc. (1967) 248 Cal.App.2d 690, 692.)
Romero left her job as a Long Beach police officer because of a back injury incurred upon being hit by a truck while on duty. After retiring from the police force, she became a private investigator.
Romero began having problems with her left foot in 2013. She sought treatment from a podiatrist who had been treating her for problems with her other foot. He began treating her left foot in August 2013. The podiatrist diagnosed a lack of circulation to the second toe and prescribed a course of laser treatments, injections, and physical therapy as conservative, non-invasive treatment. He also gave Romero two kinds of special boot designed to keep pressure off the problem toe to allow it to heal.
The conservative treatment not did not solve the problem, and Romero had surgery on her toe in January 2014. The podiatrist placed an implant in one of the bones. Although the surgery was successful, Romero did not recover as expected, and the podiatrist suspected she had developed a neuroma, a benign tumor, at or near the surgical site. Conservative treatment did not help, and a second surgery, in March 2014, was necessary to remove the neuroma. This surgery was also successful, and Romero began to heal quite rapidly. She was diligent about attending to the physical therapy necessary to regain function in her foot. By early May, Romero was often wearing regular tennis shoes instead of relying entirely on the special boot. Romero's physical therapist saw her on May 6, and she was healing normally.
On May 8, 2014, Romero, accompanied by her husband, went to Fullerton to have an epidural injection for pain caused by her back injury. She drove herself to the center, and she wore the special boot on her left foot as a precaution to protect her toe. She walked into the center unassisted. She waited in the waiting room until she was called back into the pre-op area. There she waited for over two hours. During that time, because lying in bed caused her back to hurt, she walked up and down for a short time. She also got permission to wear her special boot during the procedure.
Romero was sedated during the spinal procedure and was unconscious. She wore the boot during the procedure.
Upon regaining consciousness in the recovery room, Romero complained of "excruciating" pain in her foot. Romero's husband and Romero herself testified that the boot was not in the same condition after the procedure as it had been before. It was dangling from her foot, and the straps were not properly secured. After the procedure, upon returning home, Romero could not walk into her house unassisted, and she saw bruises on her upper thighs. She spent most of the next few weeks with a severe headache and excruciating pain in her left foot.
On May 19, 2014, Romero saw the podiatrist who had installed the implant in her toe. She had returned to wearing the special boot and was barely able to walk even with the boot. Her foot was bruised and swollen, and the toe with the implant was crooked. She was in considerable pain. The podiatrist also saw the bruising on Romero's thighs, which was still visible. Her physical therapist also saw her on May 19; he testified that her foot was swollen, reddened, and inflamed. He also saw bruises on her thighs.
The podiatrist was of the opinion that something "pretty traumatic" had happened to Romero's foot since he had last seen her, on May 1. He took an X-ray of the foot and discovered that the implant was displaced. He suspected that it was torn. A CT scan revealed that the implant was torn and the bone to which it had been connected was fragmented or fractured.
Repairing the implant required another surgery, in June 2014. The surgery confirmed that the bone had fragmented and the implant was sheared off at one end. The podiatrist testified that he had seen only one case of similar damage to an implant in the past; it was caused by a major automobile accident. He opined that it would take major trauma to cause the implant to tear and break.
Romero concluded that something had happened while she was unconscious during her epidural procedure that had dislodged the implant. She sued Fullerton for negligence in October 2014. Romero did not sue any doctor or medical professional, and she did not allege medical malpractice.
The case was tried to a jury in March 2018. Romero relied on res ipsa loquitur to establish Fullerton's negligence, since she was not conscious during the epidural procedure. Her witnesses were herself, her husband, her daughter, her mother, her podiatrist (who installed the implant), her internist, and her physical therapist, all percipient witnesses. She also submitted testimony from a nursing expert on the standard of care with regard to the charting done at Fullerton at the time of her procedure. Other than the nursing expert, Romero offered no expert testimony.
At the close of plaintiff's evidence, Fullerton moved for a nonsuit. The chief basis of the motion was the lack of "medical evidence or testimony that to a reasonable degree of probability anything happened in the operating room on May 8 . . . 2014 at the Fullerton Surgical Center." Fullerton referred to the testimony of the podiatrist and the internist that neither one knew what caused the implant to rupture. "There is zero medical evidence to causally relate the incident to the care and treatment provided by the Fullerton Surgical Center . . . ." Fullerton also mentioned the necessity for expert testimony on the standard of care in medical malpractice cases. It attacked Romero's credibility, calling her testimony into question, and argued that she herself could have caused the injury by kicking various things, such as the toilet, the bed, or the running board of her husband's truck on the way out of the center.
Fullerton submitted a memorandum of points and authorities to the trial court to support its motion, but the memorandum was not filed, and it is not part of the record before us.
Fullerton also speculated that Romero could have kicked her foot getting off the table after her procedure or rolling over on the operating table by herself. Romero testified that she did not wake up until she was in the recovery room. If either of these things had happened while Romero was unconscious, Fullerton would be responsible.
The trial court granted the motion, basing its ruling on (1) the lack of physician "but-for" evidence that Romero's foot injury would not have occurred unless she was dropped; (2) the circumstantial and speculative nature of the case, (3) the lack of a causal nexus between the spinal procedure and the damage to Romero's foot, and (4) the improbable premise of a conspiracy among the five people in the operating room during Romero's procedure to hide something that happened to her foot.
Although the trial court apparently found this last idea ludicrous, the res ipsa loquitur doctrine came to be applied in medical cases for precisely this reason. "The application of the doctrine of res ipsa loquitur in malpractice cases is a development of comparatively recent years. Before that time, the facts that medicine is not an exact science, that the human body is not susceptible to precise understanding, that the care required of a medical man is the degree of learning and skill common in his profession or locality, and that even with the greatest of care untoward results do occur in surgical and medical procedures, were considered paramount in determining whether the medical man in a given circumstance had been negligent. But gradually the courts awoke to the so-called 'conspiracy of silence.' No matter how lacking in skill or how negligent the medical man might be, it was almost impossible to get other medical men to testify adversely to him in litigation based on his alleged negligence. Not only would the guilty person thereby escape from civil liability for the wrong he had done, but his professional colleagues would take no steps to insure that the same results would not again occur at his hands. This fact, plus the fact that usually the patient is by reason of anesthesia or lack of medical knowledge in no position to know what occurred that resulted in harm to him, forced the courts to attempt to equalize the situation by in some cases placing the burden on the doctor of explaining what occurred in order to overcome an inference of negligence." (Salgo v. Leland Stanford Jr. University Board of Trustees (1957) 154 Cal.App.2d 560, 568.)
DISCUSSION
"A motion for nonsuit allows a defendant to test the sufficiency of the plaintiff's evidence before presenting his or her case. Because a successful nonsuit motion precludes submission of plaintiff's case to the jury, courts grant motions for nonsuit only under very limited circumstances. [Citation.] A trial court must not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor. [Citations.] [¶] 'In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff ['s] favor . . . ."' [Citations.]" (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839 (Carson).)
"In an appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. 'The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences, and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.' [Citations.] [¶] Although a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is 'some substance to plaintiff's evidence upon which reasonable minds could differ . . . .' [Citations.] Only the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit. [Citations.]" (Carson, supra, 36 Cal.3d at p. 839, italics added.)
I. Res Ipsa Loquitur
Fullerton's nonsuit motion rests mainly on the lack of expert physician testimony regarding the cause of Romero's injury. No physician witness - expert or percipient - could point to some event occurring during the epidural procedure and say that event caused Romero's toe implant to rupture. This is true. It is also beside the point.
Romero's negligence claim against Fullerton rests on the doctrine of res ipsa loquitur. If successfully invoked, res ipsa loquitur creates a presumption of negligence, that is, "a proximate cause of the occurrence was some negligent conduct on the part of the defendant." (Evid. Code, § 646, subd. (c)(1).) The trier of fact must then "assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption." (Evid. Code, § 604.)
Romero and all her witnesses acknowledged that they did not know what happened in the operating room at Fullerton that could have caused the injury because she was unconscious at the time it occurred. That is why her case rests on res ipsa loquitur.
"The doctrine of res ipsa loquitur has three conditions: '(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' [Citation.]" (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489 (Ybarra).) "Generally, [res ipsa loquitur] applies 'where the accident is of such a nature that it can be said, in light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.' [Citations.]" (Fowler v. Seaton (1964) 61 Cal.2d 681, 686; see Di Mare v. Cresci (1962) 58 Cal.2d 292, 298-299.)
As our Supreme Court has explained, "[W]e should not forget that 'the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.' [Citation.]" (Ybarra, supra, 25 Cal.2d. at p. 490.)
"[I]t is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone's negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability." (Ybarra, supra, 25 Cal.2d at p. 490.)
If the plaintiff presents evidence that could establish all three conditions, "it is not for the trial court to ascertain whether a defendant's negligence is the more likely explanation of the accident. The court merely determines whether the plaintiff has produced sufficient substantial evidence to permit a jury to draw such an inference. Where reasonable men may differ as to the balance of probabilities, the trial judge must leave the question to the jury." (Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639, 649; see Evid. Code, § 646; see also Albers v. Greyhound Corp. (1970) 4 Cal.App.3d 463, 474; Seneris v. Haas (1955) 45 Cal.2d 811, 826-827 [where evidence is conflicting, jury determines whether res ipsa loquitur conditions are present].)
Romero presented evidence that, if believed by the jury, could have established all three conditions. Giving her evidence the deference required in a motion for nonsuit (see Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 693, fn. 2 (Massey)), she established that she walked into the Fullerton center without difficulty, with a toe that was in the final stages of healing, was rendered unconscious, and regained consciousness with an injury to her foot, revealed later to be a ruptured toe implant that would have taken major trauma to produce. Under Ybarra, this is a classic res ipsa loquitur set of circumstances. (Ybarra, supra, 25 Cal.2d at p. 490.)
As our Supreme Court explained, "We have here no problem of negligence in treatment, but of distinct injury to a healthy part of the body not the subject of treatment, nor within the area covered by the operation." This satisfied the first condition: "the accident must be one which ordinarily does not occur unless someone was negligent." (Ybarra, supra, 25 Cal.2d at p. 491.) The lack of a causal nexus between the spinal procedure and the damage to Romero's toe - far from being a defense - is precisely the reason that the first res ipsa loquitur condition applies in this case.
The trial court faulted Romero for not having presented "physician evidence," presumably expert testimony, that "but for" Romero having been dropped during her epidural procedure, her foot injury would not have occurred.
The trial court's reference to "but for" evidence in this context is confusing. The court appears to mean that Romero had to eliminate all possible other causes for her injury. "But for" evidence, now called "substantial factor" evidence, does not require the elimination of every other possible cause. (See 6 Witkin, Summary of Cal. Law (11th ed. 2017) §§ 1334-1337, pp. 632-636.)
Medical negligence usually, but not always, requires expert testimony regarding the standard of care. The clichéd examples of cases where expert testimony is unnecessary are those that involve leaving some piece of surgical equipment in the patient's body (see Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6-7) or amputating the wrong leg. (See Ewing v. Northridge Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1303.) No medical expertise is required to arrive at the conclusion that someone has blundered.
In this context, courts are fond of quoting Nobel laureate Bob Dylan's observation "you don't need a weather man to know which way the wind blows." (See, e.g., Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. 4; Los Angeles Unified School Dist. v. Superior Court (2014) 228 Cal.App.4th 222, 246, fn. 16; Carson v. Mercury Ins. Co. (2012) 210 Cal.App.4th 409, 422; In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 820.)
The common knowledge exception to the rule is not, however, restricted to such drastic examples. Common knowledge also applies to cases in which a body part not involved in the procedure has been injured. For example, common knowledge could instruct that a woman should not come out of a normal childbirth with a paralyzed leg (Ragusano v. Civic Center Hospital Foundation (1962) 199 Cal.App.2d 586, 793) or that a man should not contract a life-threatening infection and lose part of his lower jawbone as a result of a tooth extraction. Other circumstances also allow application of the common-knowledge exception. (Barham v. Widing (1930) 210 Cal. 206, 209, 211, 214; see Bardessono v. Michels (1970) 3 Cal.3d 780, 790-791 [common knowledge regarding injuries from injections]; Mastro v. Kennedy (1943) 57 Cal.App.2d 499, 504-505 [danger of infection from nonsterile instrument or operating field common knowledge; nonsuit improper].)
In this case, Romero presented evidence that a body part not involved in the procedure - her toe - was injured while she was wearing a protective boot. We believe that common knowledge applies here; no medical expertise is required to conclude that this injury would not have occurred in the absence of negligence.
We note that Romero was not suing for medical malpractice. She did not sue the doctors who performed the epidural procedure on her back; she did not maintain the procedure was performed incorrectly. The standard of care with regard to physicians is therefore irrelevant.
Instead, Romero sued Fullerton for the injury to her toe. Her theory was that something happened while she was being transported to or from the operating room or during the procedure itself and independent of the procedure, while she was unconscious, that damaged her toe implant. (See Walker v. Sonora Regional Medical Center (2012) 202 Cal.App.4th 948, 959-960 and fn. 8; Czubinsky v. Doctors Hosp. (1983) 139 Cal.App.3d 361, 367 [expert testimony not necessary to prove hospital negligence in failing to provide adequate number of personnel].) And not only the implant was damaged. Romero also presented evidence of unexplained bruising on her thighs as further evidence of something untoward - and unconnected with an epidural injection - had happened while she was unconscious. (Cf. Massey, supra, 180 Cal.App.4th at pp. 696-697 [expert testimony not required for routine nontechnical tasks].)
Romero presented evidence that, if believed by the jury, established that Fullerton had control over her while she was being transported and during the procedure. She was in the center for a procedure that required anesthesia and movement from place to place. "[W]here a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct." (Ybarra, supra, 25 Cal.2d at p. 494, italics added.) The word "may" is important there. And "when there is a substantial probability that a defendant's negligence was a cause of an accident, and when the defendant's negligence makes it impossible, as a practical matter, for plaintiff to prove 'proximate causation' conclusively, it is more appropriate to hold the defendant liable than to deny an innocent plaintiff recovery, unless the defendant can prove that his negligence was not a cause of the injury." (Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 774, fn. 19.)
Finally, Romero's evidence, if believed, established that she did nothing to cause the accident. After she came to the center and before the procedure, she was either sitting in a waiting room, lying down or walking in the pre-op area, or unconscious. Nothing happened in the waiting room or the pre-op area to cause the implant to rupture.
Fullerton relies mainly on two cases, Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493 (Bushling) and Elcome v. Chin (2003) 110 Cal.App.4th 310 (Elcome). Both cases are appeals from defense summary judgment motions. We note initially that a motion for summary judgment differs significantly from a motion for nonsuit. In determining whether to grant a defense summary judgment motion, the court looks first at the defendant's evidence to see whether it shows that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. If this showing has been made, the burden shifts to the plaintiff to produce evidence of a triable issue of material fact as to the cause of action or the defense. (Code Civ. Proc., § 437c, subd. (p)(2).) In other words, the court evaluates the defense evidence, then, if the burden has been met, turns to the plaintiff's evidence.
A nonsuit motion, however, does not involve consideration of the defense case. "[A] 'nonsuit in a jury case . . . may be granted only when disregarding conflicting evidence, giving to the plaintiffs' evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs' favor, it can be said that there is no evidence to support a jury verdict in their favor.' [Citation.]" (Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 469, italics added.)
One of Fullerton's witnesses, a physician, testified during Romero's case-in-chief to accommodate his schedule. His testimony is disregarded in evaluating and reviewing a motion for nonsuit.
Bushling concerned a patient who went into the hospital for abdominal surgery and claimed that his shoulder was injured during the procedure. (Bushling, supra, 117 Cal.App.4th at p. 497.) The case became a battle of medical experts; ultimately the panel majority decided that the plaintiff's experts were not good enough to create a triable issue of fact. (Id. at p. 511.) The opinion never mentions res ipsa loquitur, and it was undisputed that both sides required expert medical testimony. The case does not assist Fullerton in its effort to negate either res ipsa loquitur or common knowledge. A case is not authority for a proposition it does not consider. (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043.)
Fullerton's other main case, Elcome, at least has the virtue of addressing res ipsa loquitur. The reviewing court defined its task as "address[ing] the quantum of evidence necessary for a plaintiff to raise triable issues of material fact, in opposing a motion for summary judgment in a medical malpractice action, where the plaintiff relies on the doctrine of res ipsa loquitur." (Elcome, supra, 110 Cal.App.4th at p. 312.) As noted above, the way a trial court handles evidence in a motion for summary judgment differs significantly from the way evidence is regarded for a nonsuit motion. With a summary judgment motion, "'[t]he court must consider all evidence set forth in the parties' papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact . . . . [Citation.]' [Citation.]" (Id. at p. 316, italics added.) So Elcome's utility is limited right from the get-go.
The plaintiff in Elcome alleged that her upper extremities had been injured during surgery on her pelvis. (Elcome, supra, 110 Cal.App.4th at p. 313.) The reviewing court dismissed her common knowledge argument by stating, "This is not a case where a foreign object was left in plaintiff's body following an operation, for which there is no explanation other than that someone failed to exercise due care. There can be numerous etiologies for plaintiff's neck and upper extremity injuries which are totally unrelated to the surgery and which do not suggest the probability that one of the defendants or anyone else was negligent." (Id. at p. 318.)
This passage does not address common knowledge. Common knowledge means that no particular medical expertise is needed to conclude that someone was negligent. Instead, this passage addresses the first condition of res ipsa loquitur: the injury must be of the kind that ordinarily does not occur in the absence of someone's negligence.
The way in which the Elcome court distinguished Ybarra is also significant. The court noted that the Ybarra plaintiff submitted medical evidence of his injuries and testimony from physicians that the injury was caused by trauma, even though the physicians could not pinpoint the source of the trauma. In addition, the Ybarra plaintiff testified that he did not have shoulder problems before the operation and he did nothing to contribute to his injuries. These differences made Ybarra inapplicable to the case before the court. (Elcome, supra, 110 Cal.App.4th at pp. 320-321.)
The court faulted the trial court for ruling that the plaintiff needed expert testimony to establish a triable issue of fact that she was injured. The reviewing court held that her own testimony that she awoke from surgery with pain in her upper extremities was sufficient to create a triable issue of fact of injury. (Elcome, supra, 110 Cal.App.4th at p. 322.)
In this case, Romero presented evidence that her toe was nearly healed when she went into the center for her epidural injection and that she did nothing to contribute to her injuries. Her podiatrist also testified that the injury was caused by "major trauma," although he, like the physicians in Ybarra, was not in a position to state the source of the trauma. In short, this case has all the attributes that the Elcome court held distinguished its case from Ybarra. So Elcome is of no assistance at all.
Res ipsa loquitur is a doctrine that affects the burden of producing evidence. It creates a presumption of negligence and places the onus on the defendant to explain why it was not negligent. We do not hold here that Romero has enough evidence to establish res ipsa loquitur conclusively, only that she has enough evidence to defeat a motion for nonsuit. It may be that Fullerton can produce this explanatory evidence, such as intervening or supervening causes for the injury, in which case the presumption would disappear. (See Evid. Code, § 646.) It may be that a jury would ultimately not believe Romero or her witnesses. But a jury never got the chance to decide here, and that was error.
II. Scope of Expert Testimony
Romero has also raised an issue with respect to her nursing expert. The expert testified that she based her opinions on the standard of care for nursing on those "set by the World Health Organization which regulates any type of care, medical care that is given. It gives guidelines and those are how the professional organizations in each country set their standards." She specified the guidelines she used as those of the Association of Peri-Operative Registered Nurses and the American Society of Peri-Anesthesia Nurses.
During the trial, the court, relying on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) repeatedly sustained objections to the expert's testimony when she attempted to explain the content of the guidelines. "Well, I have no problem with you're [sic] indicating that you rely upon guidelines. You can even specify the name of a guideline, but you don't get to recite the contents of the guideline. [¶] We're relying upon your background, training and experience. To the extent that you rely on something, you can indicate that you rely on it without stating the content of that." The court explained to the jury, "They [experts] may indicate those things that they rely upon by indicating by name, I looked at the standard, I looked at this other standard, I looked at this other standard or I considered them without relating to you the content of the standard." Romero argues that the trial court erred in refusing to allow the expert to testify as to the content of the guidelines in explaining how she had formulated her opinions.
Sanchez held that an expert cannot base his or her opinion on case-specific facts based on hearsay (out-of-court statement offered for its truth). (Sanchez, supra, 63 Cal.4th at p. 685.) The court also held, "Our decision does not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field. Indeed, an expert's background knowledge and experience is what distinguishes him from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth. Thus, our decision does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise. Our conclusion restores the traditional distinction between an expert's testimony regarding background information and case-specific facts. [¶] . . . [¶] Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests. A jury may repose greater confidence in an expert who relies upon well-established scientific principles. It may accord less weight to the views of an expert who relies on a single article from an obscure journal or on a lone experiment whose results cannot be replicated. There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception." (Id. at pp. 685-686, some italics added.)
The issue is thus what traditional latitude was granted to experts to describe background knowledge in the area of his or her expertise before Sanchez. The rule was stated in Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 788-789 (disapproved on other grounds in Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21): "While an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible. [Citations.] The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence." (See Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 413-415 [expert may rely on report but may not testify about contents]; Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 860 [expert may rely on other expert but may not reveal contents of other expert's opinion].
We offer this analysis as a guideline. It is not a ruling one way or the other on potential objections to possible questions that may be posed to a hypothetical witness during further proceedings that might or might not take place. A ruling on an evidentiary objection is for the trial court in the first instance. If called upon to do so, we then review for error and prejudice (see Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1449), but since the case must be retried, and we don't know what the evidence before the court at that time will be, we must first await a new exercise of discretion by the trial court before we review it.
DISPOSITION
The judgment is reversed. Appellant is to recover her costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. GOETHALS, J.