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Moqeet v. Angel View Care Homes

Moqeet v. Angel View Care Homes
01/14/12

Moqeet v



Moqeet v. Angel View Care Homes





Filed 4/18/11 Moqeet v. Angel View Care Homes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



SHENNA JANE MOQEET,

Plaintiff and Appellant,

v.

ANGEL VIEW CARE HOMES, INC.,

Defendant and Respondent.



E048960

(Super.Ct.No. RIC444246)

O P I N I O N


APPEAL from the Superior Court of Riverside County. John J. Lynch, Judge. (Retired judge of the former L.A. Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Jorgensen & Salberg, Richard Allen Jorgensen and Jeffrey R. Salberg for Plaintiff and Appellant.
Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz and Douglas S. DeHeras for Defendant and Respondent.
I. INTRODUCTION
Defendant and respondent Angel View Care Homes, Inc. (Angelview) owned and operated a state-licensed “Level 4-I” residential care facility in a single-family home on Shoreline Drive in Moreno Valley. While living in the Shoreline Drive facility on November 7, 2004, Taealana Moqeet (Tae), the daughter of plaintiff and appellant Shenna Moqeet (Shenna), collapsed and died at age 29 as a result of a lethal heart arrhythmia or sudden cardiac death.
Shenna and Tae’s sister Raesana Moqeet (Rasy) (plaintiffs) sued Angelview for wrongful death, claiming its negligent failure to oversee Tae’s medical care, including its failure to transport Tae to medical appointments and administer her prescribed medications, was a substantial factor in causing her death. Plaintiffs also sought damages from Angelview for Tae’s predeath pain and suffering under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.)[1] (the Act). The latter claim was not submitted to the jury because the trial court ruled there was no evidence Tae suffered any physical or emotional pain prior to her death.
Plaintiffs also sued Tae’s primary care physician, Dr. William Jih, for wrongful death/medical malpractice on the ground he failed to refer Tae to a cardiologist after examining her on October 7, 2004; however, plaintiffs dismissed their claims against Dr. Jih before the close of the evidence. Then, during jury deliberations, Rasy agreed to dismiss her claims against Angelview in exchange for a mutual waiver of attorney fees and costs.
That left the jury to determine only Shenna’s wrongful death/negligence claim against Angelview. The jury returned a special verdict finding that Angelview was negligent but its negligence was not a substantial factor in causing harm to Sheena or in causing Tae’s death. The trial court denied Shenna’s motion for a new trial and entered judgment in favor of Angelview.
On this appeal, Shenna presents a plethora of scattershot and largely unsupported claims that the court committed numerous instructional and evidentiary errors, and also engaged in “rampant and persistent” misconduct prejudicial to her case. We find no prejudicial error.
The jury’s finding against Shenna on causation—that Angelview’s negligence was not a substantial factor in causing harm to Shenna or in causing Tae’s death—is critical to understanding the issues raised on this appeal. During trial, the medical examiner/pathologist who performed Tae’s autopsy, Dr. Mark McCormick, retracted his initial conclusion, recorded in his autopsy report, that Tae had hypertrophic cardiomyopathy, a congenital condition which causes the heart to become asymmetrically enlarged and which places a person at a significantly increased risk of incurring a sustained and lethal heart arrhythmia. After reexamining the autopsy slides of Tae’s heart muscle during trial, Dr. McCormick agreed with the defense expert cardiac pathologist, Dr. Michael Fishbein, who concluded that Tae did not have hypertrophic cardiomyopathy, but merely had an enlarged heart. According to Dr. Fishbein, morbidly obese persons such as Tae often have enlarged hearts, and an enlarged heart places a person at a significantly increased risk of suffering a lethal heart arrhythmia. Drs. McCormick and Fishbein ultimately agreed that Tae died as a result of a lethal arrhythmia as a result of her enlarged heart, not as a result of having the congenital condition of hypertrophic cardiomyopathy.
As will appear, and as plaintiffs’ counsel explained to the jury during closing statements, Dr. McCormick’s retracted conclusion concerning the cause of Tae’s sudden cardiac death is the reason plaintiffs dismissed their wrongful death/medical malpractice claim against Dr. Jih before the close of the evidence. As will also appear, Dr. McCormick’s retracted conclusion also substantially undermined plaintiffs’ wrongful death/negligence claim against Angelview.
Plaintiffs’ principal theory of recover against Angelview was that it was negligent in failing to transport Tae to an October 7, 2004, appointment with an internist, Dr. Khalil, because an internist would have referred Tae to a cardiologist who would have discovered she had hypertrophic cardiomyopathy, and a cardiologist would have recommended she have an implanted pacer which would have prevented her lethal arrhythmia. But after the evidence conclusively showed that Tae had an enlarged heart but not hypertrophic cardiomyopathy, there was no medical evidence that a pacer would have been recommended for Tae’s enlarged heart. Thus, plaintiffs’ theory that Angelview’s negligence in failing to take Tae to the October 7 appointment was a substantial factor in causing Tae’s death was effectively refuted.
Plaintiffs still claimed Angelview was negligent in its overall care of Tae, that Tae’s health deteriorated during the 80 or so days she lived in the Shoreline Drive facility before her death, and Angelview’s staff waited too long—possibly more than 10 minutes—to call 911 after Tae collapsed and was unresponsive. But the jury found that Angelview’s negligence was not a substantial factor in causing harm to Shenna, or in causing Tae’s death. And for the reasons we explain, Shenna has not demonstrated a reasonable probability that the jury would have reached a different result on the causation question in the absence of the myriad evidentiary, instructional, and claims of error she raises on this appeal.
II. FACTS AND PROCEDURAL HISTORY
A. Tae’s Background
Tae was a developmentally disabled but “high functioning” dependent care adult. She was mildly mentally retarded with a full-scale IQ of 64 and a verbal IQ of 71. She was very good at memorizing telephone numbers, important dates, and bible verses, and could carry on a “complex conversation.” She dressed, bathed, and fed herself without help and had complete bowel and bladder control.
Tae was not conserved, meaning she did not have a conservator of her person, and she had the right to make her own decisions concerning her medical care. She made her own medical appointments and was a “strong self advocate” who was aware of her rights, including her right to medical privacy and to refuse medical care and medications.
Tae had significant limitations, however, including a poor sense of time. For example, she would not accurately recall when she had last taken a shower or had taken her medications. Tae was a client of the Inland Regional Center (the IRC), a state-funded, nonprofit organization that provides services to developmentally disabled persons. She had tried to work in several jobs, including in a drug store and thrift store, but efforts to give her vocational training were not successful.
Tae was very loving and friendly, even to strangers, but could be aggressive and violent when not taking her psychotropic medications. Her medical history included morbid obesity, diabetes, sleep apnea, polycystic ovarian disease, asthma, gastroesophageal reflux disease, and depressive disorder. Tae was 4 feet 11 inches tall and weighed 292 pounds on August 25, 2004. At autopsy she weighed 320 pounds.
For most of her life, Tae lived with her mother Shenna and sister Rasy in Calimesa. By January 2004, she had briefly lived in two group homes, without success. She was evicted from each home after one and three days. According to Shenna, Tae was “devastated” following her eviction from her second group home in January 2004, was often angry and depressed, and refused to take her psychotropic medications.
In August 2004, Tae was taken into custody and placed on a “5150 hold”[2] after physically attacking Shenna. Upon her release, the IRC recommended and Tae agreed to be placed in Angelview’s Shoreline Drive facility. As a “Level 4-I” facility, the Shoreline Drive facility was licensed to accept residents or “consumers” with restricted health conditions, including diabetes. The facility provided a “very restrictive” or high level of services to its residents.
At least one “direct support professional” (DSP) was working in the Shoreline Drive facility at all times, and the DSPs were trained to administer residents’ medications and see that the residents were transported to their medical appointments. According to Shenna, Tae “loved” to visit doctors, but had in the past scheduled many medical appointments to get attention.
Angelview charged the IRC $5,009 per month for Tae’s room and board and other care provided to her at its Shoreline Drive facility. Tae moved into the facility on August 18, 2004, and was its only resident through the date of her death on November 7, 2004, less than three months later. According to Eden Hernandez (Eden), a DSP in the Shoreline Drive facility, Tae had often refused to take her medications.
B. The Circumstances of Tae’s Death
Eden was the only DSP on duty in the Shoreline Drive facility on November 7, 2004. Eden woke Tae at 7:15 a.m., and Tae told Eden she wanted to stay in bed for five more minutes. Eden returned to Tae’s bedroom at 7:20 a.m. and asked Tae what she wanted for breakfast. Tae said she wanted French toast and got out of bed.
Tae walked into the living room and sat on the couch for approximately two minutes while she watched Eden make her breakfast in the kitchen. Eden suggested that Tae take a bath while she waited for her breakfast, and Tae agreed. Tae got up from the couch without assistance and walked down the hallway while Eden continued making her breakfast.
Five to six minutes later, Eden noticed Tae was not talking, which was unusual because Tae normally talked to herself while she was in her room or taking a shower. Eden walked into Tae’s room and found her lying face down on the floor, with her arms across her chest and wearing the same clothing she had on minutes earlier.
Tae was not responsive when Eden called her name. Eden tried, but was unable, to roll Tae over onto her back because Tae was too heavy. Eden checked Tae’s neck pulse but was unsure whether she detected a pulse. She was unable to check Tae’s wrist pulse because her arms were pinned under her chest.
Approximately two minutes after she found Tae, Eden called 911. Paramedics arrived two minutes later and tried to resuscitate Tae for 15 to 20 minutes. The paramedics called for backup because they needed assistance in order to lift Tae onto a gurney. Tae was transported by ambulance to a hospital, and died at the hospital a short time later.
C. Plaintiffs’ Theories of Recovery Against Angelview
At trial, the key point of contention between plaintiffs and Angelview was the extent to which Angelview had a duty to oversee Tae’s medical care. Angelview did not dispute that it was contractually obligated to administer Tae’s medications to her and transport her to her various medical appointments, but it presented evidence that the standard of care did not require it to oversee Tae’s medical care or make her medical decisions for her, including making sure she did not cancel important medical appointments. Angelview emphasized that Tae was not conserved and had the right to refuse medical treatment, and it could not have reasonably foreseen or taken any steps to prevent her sudden cardiac death.
By contrast, plaintiffs presented evidence that the standard of care required Angelview to be much more proactive in overseeing Tae’s medical care. Dr. Loren G. Lipson, an internist and plaintiffs’ expert witness on the standard of care for residential care facilities, was highly critical of Angelview’s oversight of Tae’s medical care, including its failure to see that she kept an October 7, 2004, appointment with the internist, Dr. Khalil, which plaintiffs claimed ultimately would have led to her having an implanted pacer which, in turn, would have prevented her lethal heart arrhythmia. Plaintiffs emphasized that Tae was wholly dependent on Angelview for her care and living activities, and was socially isolated and susceptible to physical and mental ailments while living in the Shoreline Drive facility.
D. Tae’s August 25 Examination by Dr. Jimenez
Dr. Arthur Jimenez, a general practitioner, examined Tae on August 25, 2004, shortly after her admission to the Shoreline Drive facility. Dr. Jimenez had contracted with Angelview to examine all its residents, but he was not the primary care physician for any of Angelview’s residents. Tae weighed 292 pounds at the time of the appointment. She was stable and not in acute distress. Dr. Jimenez placed her on a 2,000 calorie per-day diet.
Dr. Jimenez also continued Tae’s existing prescription for Spironolactone, but did not write the prescribed dosage on the prescription. The Spironolactone was originally prescribed for Tae’s polycystic ovarian disease, but Dr. Jimenez prescribed it for Tae’s leg edema. The pharmacy did not fill the prescription because Dr. Jimenez did not write the dosage on the prescription. Angelview gave Tae her existing supply of Spironolactone, which ran out on September 2. Tae did not take any Spironolactone after September 2, and Angelview did not attempt to see that her renewed prescription was filled.
Spironolactone is a diuretic and, according to Dr. Jimenez, is commonly prescribed for hypertension and to prevent congestive heart failure. Tae did not have hypertension, and did not complain to Dr. Jimenez of having any “cardiac issues,” including syncope or chest pain. Tae did not see Dr. Jimenez again after August 25.
E. Tae’s Examinations by Dr. Jih
Dr. Jih first saw Tae on March 5, 2004, and was her primary care physician. During March, Tae complained to Dr. Jih and two other doctors of dizziness, lightheadedness, and of experiencing “syncope,” a technical term for passing out or losing consciousness. She believed she had passed out at home and was treated in an emergency room.
On April 27, Dr. Jih prescribed a power chair for Tae after she complained of weakness. Tae next saw Dr. Jih on June 10, and again reported signs of syncope and shortness of breath. Tae missed three appointments with Dr. Jih between August 12 and October 6.
On October 6, Angelview took Tae to Dr. Jih’s office for an appointment. On that date, Dr. Jih diagnosed Tae with an upper respiratory infection and bronchitis and prescribed an antibiotic. Her lungs were otherwise clear. Her blood pressure was 110 over 82, consistent with prior readings, and she weighed 302 pounds. Dr. Jih assumed that Tae was taking her diabetes medication, Glucophage, because her diabetes was fairly controlled.
Dr. Jih did not believe Tae had ever experienced syncope or a complete loss of consciousness, but had experienced dizziness and lightheadedness due to her many medical conditions, including her diabetes and psychotropic medications. He also did not believe her dizziness was heart-related, and did not believe she had any signs of congestive heart failure.
F. Dr. Yeh’s Expert Testimony for Plaintiffs
Dr. Timothy Yeh, a cardiologist who specialized in “arrhythmia-related issues,” testified as an expert for plaintiffs. Based on Tae’s medical records, including Dr. McCormick’s autopsy report, Dr. Yeh opined that if Tae had been referred to a cardiologist, a cardiologist would have performed an echocardiogram which would have shown she suffered from hypertrophic cardiomyopathy, which is marked by a thickened heart muscle, particularly the septum or wall of the heart that separates its chambers. Had Tae been diagnosed with hypertrophic cardiomyopathy, she would have had an implanted pacer which likely would have prevented her from having a lethal arrhythmia. Dr. Yeh explained that syncope, or a loss of consciousness, is a symptom of hypertrophic cardiomyopathy.
Dr. Yeh also believed Tae had “a lot” of symptoms of congestive heart failure, and the diuretic Spironolactone would have been effective in treating that condition by minimizing the buildup of fluid in her heart. Still, Dr. Yeh did not believe Tae died from congestive heart failure or had any cardiac pathology other than hypertrophic cardiomyopathy. He opined she died as a result of a sustained and lethal arrhythmia, caused by her hypertrophic cardiomyopathy. He also believed that before her death she had been having “recurring near lethal arrhythmias” as evidenced by her complaints of syncope to Dr. Jih.
Dr. Yeh acknowledged that his opinion that Tae suffered from hypertrophic cardiomyopathy was based on her complaints of syncope, the autopsy report, and an April 2003 echocardiogram which he believed showed she had a thickened septum. Dr. Yeh acknowledged he was not a pathologist and would defer to a pathologist in determining whether Tae had hypertrophic cardiomyopathy, because a pathologist was more qualified than he to examine Tae’s heart muscle. Dr. Yeh also acknowledged that the cardiologist who interpreted Tae’s April 2003 echocardiogram did not report a thickened septum or any other evidence of hypertrophic cardiomyopathy; the autopsy report did not note she had a thickened septum; and there was no medical record of Tae passing out between June and November 2004. Ultimately, Dr. Yeh agreed that if the pathologist who performed Tae’s autopsy concluded she did not have hypertrophic cardiomyopathy, he would agree she did not have the condition.
G. Dr. McCormick’s Opinion that Tae Did Not Have Hypertrophic Cardiomyopathy
Hypertrophic cardiomyopathy is a congenital condition which is present at birth, and which is marked by an asymmetrically or unevenly enlarged heart with “myofiber disarray” or heart muscle fibers being out of line with each other. By contrast, a concentrically or evenly enlarged heart, without myofiber disarray, would be diagnosed as “cardiac hypertrophy” and could be caused by hypertension or being overweight.
Dr. McCormick, the forensic pathologist who performed the autopsy of Tae, concluded in his autopsy report that she died of “hypertrophic cardiomyopathy with focal acute myocarditis.” Other significant conditions contributing to her death included diabetes mellitus and morbid obesity. Dr. McCormick initially testified that, though at autopsy Tae did not have an asymmetrically enlarged heart, her heart was nevertheless enlarged and slides of her heart muscle, when examined microscopically, showed signs of myofiber disarray. On this basis, Dr. McCormick concluded in his autopsy report that Tae had hypertrophic cardiomyopathy.
Following his initial testimony, Dr. McCormick reexamined the slides of Tae’s heart muscle he had examined during the autopsy, together with “recuts” or additional slides of her heart muscle. After reviewing all the slides, Dr. McCormick changed his original opinion that Tae’s heart muscle showed signs of focal or myofiber disarray. Accordingly, he changed his original conclusion that Tae had hypertrophic cardiomyopathy and agreed she merely had an enlarged or hypertrophic heart.
Thus, Dr. McCormick concluded that the most likely cause of Tae’s death was “lethal arrhythmia attributable to hypertrophy of the heart,” but not lethal arrhythmia attributable to hypertrophic cardiomyopathy. The doctor explained that any hypertrophic or enlarged heart can cause electrical instability in the heart which can in turn cause lethal arrhythmias. In addition, any enlarged heart places a person at a “significantly increased risk” of sudden cardiac death, and morbidly obese people with hypertension may have hypertrophied or enlarged hearts.
H. Dr. Fishbein’s Testimony
Dr. Michael Fishbein, a cardiac pathologist with expertise in cardiovascular pathology and the study of sudden cardiac death, was called as an expert witness by the defense. Dr. Fishbein explained that hypertrophic cardiomyopathy is a congenital condition which causes the heart to develop abnormally or asymmetrically, and the asymmetry is usually reflected in a thickened septum. Dr. Fishbein agreed with Dr. McCormick that Tae did not have hypertrophic cardiomyopathy, but instead had a hypertrophied or a “heavier than . . . normal” heart. Given that she was “quite overweight,” he said it was to be expected that Tae would have an enlarged heart, because in a heavy person the heart has to work much harder to pump blood to more fat and muscle. Persons with hypertrophic hearts, he explained, are at risk of lethal arrhythmias, and Tae probably died of a lethal arrhythmia due to her hypertrophied or enlarged heart.
Dr. Fishbein also testified there was no evidence that Tae had congestive heart failure. She did not have peripheral edema, and the small amount of fluid in her lungs which was observed during the autopsy was probably due to the attempts to resuscitate her. She also had an enlarged liver, spleen, and other organs, but these were probably caused by her diabetes and excessive weight.
I. The Dismissal of Dr. Jih
Shortly after Drs. McCormick and Fishbein testified, plaintiffs moved to dismiss their claims against Dr. Jih with prejudice, and the court granted the motion. During closing argument, plaintiffs’ counsel explained that Dr. Jih was dismissed because Dr. McCormick had retracted his initial conclusion that Tae suffered from hypertrophic cardiomyopathy, and all the expert medical evidence now showed that Tae had a hypertrophic heart, but not hypertrophic cardiomyopathy. The latter condition, counsel explained, was much easier to detect than an enlarged or hypertrophic heart, and if Tae had hypertrophic cardiomyopathy, Dr. Jih reasonably should have discovered it or referred Tae to an internist or cardiologist who would have discovered it. Counsel acknowledged, however, that as a primary caregiver, Dr. Jih was not negligent for failing to diagnose Tae as having a hypertrophic heart, because that condition was more difficult to detect than hypertrophic cardiomyopathy.
J. Plaintiffs’ Remaining Theories of Recovery Against Angelview Following Dr. Jih’s Dismissal
During closing arguments and notwithstanding plaintiffs’ earlier dismissal of their claims against Dr. Jih, plaintiffs’ counsel still emphasized that Angelview was negligent for failing to see that Tae was transported to her October 7, 2004, appointment with Dr. Khalil. Only at this point, plaintiffs claimed the internist likely would have diagnosed Tae’s hypertrophic heart. Counsel argued Tae “had a shot at that internist catching this issue,” that is, diagnosing her enlarged heart, and if her enlarged heart had been detected, an implanted defibrillator may have saved her life.
Significantly, however, this theory of recovery against Angelview was wholly unsupported by the evidence. Dr. Yeh never testified that an implanted pacer would have been recommended for Tae in the event she was diagnosed with a hypertrophic or enlarged heart, as opposed to hypertrophic cardiomyopathy. Instead, Dr. Yeh testified that Tae would have been “a candidate” for an implantable pacer if she had some type of cardiomyopathy, but during his deposition Dr. Yeh testified he did not believe that Tae had any type of cardiomyopathy or heart disease other than hypertrophic cardiomyopathy.
Also during closing arguments, plaintiffs’ counsel criticized Angelview for failing to ensure that Tae took her prescribed medications, including her diuretic Spironacolatone, suggesting congestive heart failure contributed to her death. Plaintiffs’ counsel also claimed Angelview was negligent for waiting too long, more than 10 minutes, to call 911 after Tae collapsed, suggesting that more prompt action likely would have saved Tae’s life.
III. DISCUSSION
A. Shenna’s Claim for Tae’s Predeath Pain and Suffering
We first address Shenna’s claim that the trial court erroneously refused to allow the jury to determine whether Angelview was liable to Shenna for Tae’s predeath pain and suffering under the Act. Damages for a decedent’s predeath pain and suffering are not recoverable in a wrongful death action, but are recoverable as a heightened remedy in a survivor action provided the conditions of section 15657 are met. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256,1264-1265.) Section 15657 requires proof by clear and convincing evidence that the defendant committed physical abuse, as defined in section 15610.63, or neglect, as defined in section 15610.57, and that the defendant was guilty of recklessness, oppression, fraud or malice in the commission of the abuse or neglect. (§ 15657, subds. (a), (b); Quiroz v. Seventh Ave. Center, supra, at p. 1265.)
The jury was not allowed to consider Shenna’s claim for Tae’s predeath pain and suffering in its special verdict form. Specifically, the jury was not allowed to determine whether Angelview was reckless in its care of Tae, or whether Tae incurred any pain and suffering due to Angelview’s recklessness prior to her death. This was proper because, as the trial court concluded, there was no evidence that Tae incurred any pain and suffering prior to her death on November 7, 2004, due to any acts or omissions on the part of Angelview.
Damages for “pain and suffering” include damages for physical pain and for “‘fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.’” (Marron v. Superior Court (2003) 108 Cal.App.4th 1049, 1060.) There was no evidence that Tae suffered physical pain shortly before her death; she collapsed suddenly and lost consciousness, and never recovered. Nor was there any evidence that Tae suffered any physical pain while living in the Shoreline Drive facility before November 7.
And, regarding emotional pain and suffering, uncontradicted evidence showed that Tae was suffering from depressive disorder when she was admitted to the Shoreline Drive facility on August 18. She was also having emotional difficulty adjusting to living away from her family. But there was no evidence that Angelview’s acts or omissions exacerbated Tae’s depression or emotional difficulties. Tae consented to live in the Shoreline Drive facility and was in contact with her family and friends throughout her stay in the facility.
In sum, there was no evidence that Tae suffered any physical or emotional pain as a result of any acts or omissions on the part of Angelview—above and beyond the emotional difficulties Tae was having when she went to live in the facility on August 18, 2004. Just before August 18, 2004, Tae was on a “5150 hold” for physically attacking Shenna, and for many months before August 18 she had been angry and depressed and was refusing to take her psychotropic medications.
Given that there was no evidence to support the damages or pain and suffering element of Shenna’s dependent adult abuse claim, it was unnecessary for the jury to determine whether Shenna proved the other elements of the claim, including whether Angelview committed any physical abuse or neglect of Tae within the meaning of the Act, or whether its abuse or neglect was reckless. (§ 15657; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88 [to obtain remedies provided by section 15657 of the Act, a plaintiff must show by clear and convincing evidence that the defendant is guilty of something more than negligence; the plaintiff must show reckless, oppressive, fraudulent, or malicious conduct].)
Additionally, Shenna cannot demonstrate a reasonable probability that the failure to submit her claim for Tae’s predeath pain and suffering to the jury prejudiced her, given the jury’s finding that Angelview’s negligence was not a substantial factor in causing her harm, or in causing Tae’s death. And for the reasons we explain, there was no prejudicial instructional error on causation and no prejudicial evidentiary or other error.
B. No Prejudicial Instructional Error on Causation
Shenna contends the instructions on causation, including Judicial Council of California Civil Jury Instructions, CACI Nos. 430, 431, and 501, and Angelview’s Special Instruction No. 1, were inconsistent and confusing, and that CACI No. 501 and Special Instruction No. 1 were erroneously given. We find no prejudicial instructional error on causation.
1. Background
After the court instructed the jury that plaintiffs were claiming they were harmed by Angelview’s negligence, the court gave CACI No. 401, which told the jury: “Negligence is the failure to use reasonable care to prevent harm to one’s self or others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. You must decide how a reasonably careful person would have acted in Angelview Care Homes’[s] situation.”
Thereafter, the court gave CACI No. 430 (Causation: Substantial Factor) without also giving CACI No. 431 (Causation: Multiple Causes), though the Directions for Use to CACI No. 430 state that in cases involving multiple (concurrent dependent) causes, CACI No. 431 should also be given. CACI No. 430 told the jury: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.”
The court then gave CACI No. 501 on the standard of care for health care professionals, even though the instruction only applied to plaintiffs’ dismissed wrongful death/medical malpractice claim against Dr. Jih. CACI No. 501 told the jury: “A family medicine specialist is negligent if he fails to use the level of skill, knowledge and care in diagnosis and treatment that other reasonably careful family medical medicine [sic] specialists would use in similar circumstances. The level of skill, knowledge and care is sometimes referred to as standard of care. You must determine the level, skill, knowledge and care that other reasonably careful family medicine specialists would use in similar circumstances based only on the testimony of expert witnesses.”
After reading a few more instructions, the court told the jury the instructions had been “mixed up” and that additional instructions would be given. The bailiff was sworn and the court allowed the jury to began its deliberations, even though further instructions would be given. The court then conferred with counsel outside the presence of the jury and acknowledged it should not have given CACI No. 501. The court never retracted CACI No. 501, however. And when the jury was brought back into the courtroom for further instructions, the court gave CACI No. 431 without rereading CACI No. 430.
CACI No. 431 told the jury: “A person’s negligence may combine with another factor to cause harm. If you find that Angelview Care Home[s]’s negligence [was a] factor in causing Shenna or Rasy Moqeet’s harm, then Angelview Care Homes, Inc. is responsible for the harm. Angelview Care Homes cannot avoid responsibility just because some other person, condition or event was also a substantial factor in causing Shenna or Rasy Moqeet’s harm.” A juror immediately asked the court to read the instruction again and the court did so.
After the court instructed the jury the second time, Angelview requested, and the court agreed, to give Angelview’s “Special Instruction No. 1” to the jury in writing. The special instruction told the jury that “[c]ausation must be proven within a reasonable medical probability based upon competent expert testimony,” and was based on the settled principal that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 (Jones).)
Rasy then agreed to dismiss her claims against Angelview, and the court modified the special verdict form to eliminate all references to Rasy and her claims. Meanwhile, the jurors asked the court to define the terms “harm” and “substantial factors.” The court called the jury back into the courtroom, instructed it that “harm” meant “loss, injury or damage,” and at that point reread CACI No. 430, which defined “substantial factor.” The court then told the jury that its special verdict form had been modified to delete all references to Rasy, and not to speculate why that had been done but that Rasy and her counsel had consented to the deletions.
A short time later, the jury reached its special verdict. The special verdict read: “[Question] One: Was Angelview Care Homes, Inc. negligent‌ [¶] Answer, yes. [¶] Question 2: Was Angelview Care Homes’[s] negligence a substantial factor in causing harm to Shenna Moqeet‌ [¶] Answer, no.” All 12 jurors agreed that Angelview was negligent, and 10 jurors agreed its negligence was not a substantial factor in causing harm to Shenna.
2. Applicable Law and Analysis
The propriety of jury instructions is a question of law subject to de novo review on appeal. (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.) When a party claims an instruction is incorrect or incomplete, we evaluate the instructions as a whole, not in isolation. (People v. Rundle (2008) 43 Cal.4th 76, 149.) A judgment will be reversed based on instructional error “only ‘“where it seems probable” that the error “prejudicially affected the verdict”’ [citation].” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983.)
In determining whether instructional error is prejudicial, we consider the nature of the error, including its natural and probable effect on a party’s ability to place his full case before the jury, together with the likelihood of actual prejudice as reflected in the individual trial record, taking into account “‘(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.’” (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 983; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581.) Applying these principles, we find no prejudicial error in the causation instructions.
(a) CACI No. 501
CACI No. 501 concerned the standard of care for a family medicine specialist and, as such, plainly did not apply to Shenna’s wrongful death (negligence) claim against Angelview, whom the jury knew was not a family medicine specialist, but only applied to her dismissed wrongful death (medical malpractice) claim against Dr. Jih, whom the jury heard was a family medicine specialist. Thus, it is not reasonably probable that CACI No. 501 affected the jury’s finding that Angelview’s negligence was not a substantial factor in causing Tae’s death.
(b) CACI Nos. 430 and 431
Although, as Shenna points out, CACI Nos. 430 and 431 were not read in succession, both instructions were given and each was read a second time in response to a juror’s request. Taken together, CACI Nos. 430 and 431 properly instructed the jury on what to consider in determining whether Angelview’s negligence was a substantial factor in causing harm to Shenna, or in causing Tae’s death. Based on the entire record, it is not reasonably probable that the disjointed manner in which the trial court gave these instructions affected the verdict.
(c) Special Instruction No. 1
Shenna claims Special Instruction No. 1, which told the jury that “[c]ausation must be proven with any reasonable medical probability based upon competent expert testimony,” was erroneously given because it states a “heightened causation standard” that applies only in “asbestos cases,” not personal injury cases. She also claims the instruction was effectively disapproved in Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052, where the court adopted the substantial factor test for causation in place of the former “but for” test. We reject these claims and conclude the special instruction was properly given.
“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based [on] competent expert testimony. Mere possibility alone is insufficient . . . .” (Jones, supra, 163 Cal.App.3d at p. 402, italics added.) This principle was established well before Jones was decided in 1985 (see id. at pp. 402-403) and was not abrogated in Mitchell, where the “substantial factor” test for causation was adopted in place of the “but for” test in negligence cases (Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1052).
Nor does the “reasonable medical probability” test represent a “heightened standard” for causation that applies only to asbestos-related cancer claims. (See CACI No. 435.) Rather, the test applies in all actions for “personal injury” in which causation must be proved by scientific or medical evidence. (See Jones, supra, 163 Cal.App.3d at pp. 402-403.) The test is necessary to ensure that the causation or substantial factor determination is not based on mere medical “‘possibility,’” but is based on a “reasonable medical ‘probability.’” Simply put, “[t]his is the outer limit of inference upon which an issue may be submitted to the jury.” (Id. at p. 403.)
In her wrongful death claim, Shenna was seeking damages for her own pecuniary losses suffered as a result of Tae’s death (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 793), based on the theory that Angelview’s negligence was a substantial factor in causing Tae’s death or personal injury. And in order to prove that Angelview’s negligence was a substantial factor in causing Tae’s death, Shenna had to prove there was a reasonable medical probability that Angelview’s negligence was a substantial factor in causing Tae’s death. Special Instruction No. 1 was thus necessarily and properly given.
C. No Prejudicial Evidentiary Error
Shenna claims the court prejudicially erred in excluding evidence supporting her wrongful death claim against Angelview, including: (1) her testimony that Tae was showing signs or symptoms of syncope during a visit to SeaWorld on September 27, 2004 and (2) evidence that Angelview failed to transport Tae to several medical appointments during September and October 2004—other than and in addition to her October 7 appointment with Dr. Khalil. She also claims the court erred in excluding several documents, and numerous other documents and evidence was erroneously admitted. We find no prejudicial evidentiary error.
1. Tae’s Missed Medical Appointments
We first address Shenna’s claim that the court erroneously excluded evidence that Angelview failed to transport Tae to several medical appointments in September and October 2004, other than her October 7 appointment with Dr. Khalil. As will appear, this claim is a red herring. The matter of Angelview’s failure to transport Tae to her various medical appointments was much discussed during trial.
In its motion in limine No. 4, Angelview successfully sought to exclude evidence that Angelview failed to transport Tae to 11 out of 12 medical appointments during September and October 2004—with the exception of her October 7 appointment with Dr. Khalil. Angelview relied on the deposition testimony of plaintiffs’ expert, Dr. Lipson, that none of Tae’s missed medical appointments, with the exception of her missed October 7 appointment with Dr. Khalil, likely caused her death.
Shenna claims “the court refused to allow testimony on the missed appointments for any purpose, including impeachment.” This is patently untrue.
Despite the court’s grant of the motion in limine, the jury heard ample evidence that Angelview did not transport Tae to several medical appointments in September and October 2004 through plaintiffs’ counsel’s impeachment of the testimony of Angelview’s administrator, May Boco, that “there were no missed [medical] appointments.”
Ms. Boco explained that Tae made her own medical appointments, remembered important dates and wrote them in her planner, but would often cancel her appointments, not tell Angelview about them, or simply refuse to go to them. Angelview did not take Tae to two psychiatric appointments on September 13 and October 25, 2004, because Tae refused to go. Instead, she decided to go to Stater Bros. that day. She also refused to go to an endocrinology appointment on October 7. Angelview knew about the endocrinology appointment, but Tae called Ms. Boco the night before and told her she did not want to go. (The endocrinology appointment was apparently scheduled on the same day Tae was to see Dr. Khalil.)
To Ms. Boco’s knowledge, Angelview took Tae to only three appointments during her stay at the Shoreline Drive facility—(1) her August 25 appointment with Dr. Jimenez, (2) her October 6 appointment with Dr. Jih, and (3) a dental appointment. Tae refused to go to a second appointment with Dr. Jimenez in September 2004. According to Ms. Boco, Angelview would transport Tae to her medical appointments provided she told Angelview about the appointment.
Ms. Boco also testified that Angelview did not know about Tae’s appointment with Dr. Khalil on October 7, until after Dr. Khalil’s office sent a letter to Tae dated October 12 telling her she missed the appointment. By contrast, Shenna testified she told Ms. Boco and Angelview’s chief executive officer, Rodolfo Aumentado, about the appointment with Dr. Khalil before Tae was placed in the Shoreline Drive facility, and it was very important that Tae attend the appointment.
Thus, the jury heard ample evidence that Angelview did not transport Tae to medical appointments in September and October 2004, including her October 7 appointment with Dr. Khalil.
Shenna further complains her trial counsel was not allowed to ask her own expert witness, Dr. Lipson, whether Angelview was “reckless” in failing to transport Tae to her various medical appointments. But Dr. Lipson quite effectively got that point across under cross-examination by Angelview’s counsel. When asked whether Angelview’s failure to take Tae to “a single medical appointment with an internist in October” was reckless, Dr. Lipson responded by saying, “[t]he overall watching of her medical care and making sure appointments were governed and done [was] totally reckless.” (Italics added.)
Then, when pressed to answer specifically whether Angelview’s failure to take Tae to the October 7 appointment was reckless, Dr. Lipson again responded by referring to all the missed appointments, saying: “It’s negligent and given the context of her care or failing to get care for anything while she was there aside from one or two visits to other care providers, but certain areas not getting care at all, it is reckless.” Finally, Dr. Lipson testified Angelview’s failure to take Tae to see Dr. Khalil on October 7 was “highly negligent, maybe even grossly negligent and bordering on reckless . . . . But given again the pattern of failing to provide care in many different ways by many different care givers and not making sure that that was done is reckless, sir.” (Italics added.)
Shenna also complains her trial counsel was not allowed to ask the defense experts whether Angelview was reckless in failing to transport Tae to her 11 missed medical appointments. She argues that the defense expert, Dr. William Klein, “opened the door” to this question by testifying that Angelview “easily met the requirements for [a] residential care facility,” and Angelview did not breach the applicable standard of care in any way.
We fail to see how Shenna’s inability to ask Dr. Klein whether Angelview was reckless in failing to transport Tae to her various medical appointments could have made a difference in the outcome. Dr. Klein testified Angelview “easily met” the standard of care for a residential care facility, and that Tae received “excellent” care in the Shoreline Drive facility. He emphasized that Tae was not conserved; consented to be placed in the facility; was psychologically stable; had a right to refuse medical care; and was a “strong self advocate.” Had Dr. Klein been asked whether Angelview was “reckless” in failing to transport Tae to her various medical appointments, he undoubtedly would have answered “no,” because Angelview had neither the right nor the duty to see that she kept all her appointments.
Further, Dr. Lipson was critical of Angelview’s lack of oversight concerning Tae’s medical care, and quite effectively conveyed his opinion that Angelview was reckless in its “overall” oversight of Tae’s medical care, including its failure to ensure she was transported to her various medical appointments. Thus, whether Angelview was reckless in failing to transport Tae to her medical appointments or see that she kept those appointments was amply vetted to the jury.
2. Tae’s Symptoms of Syncope at SeaWorld
Dr. Jih filed a motion in limine to preclude Shenna’s testimony that Tae was showing what appeared to be symptoms of syncope during a visit to SeaWorld on September 27, 2004, Tae’s 29th birthday. The motion was made on the grounds the incident was not reported to Dr. Jih when he examined Tae several days later on October 6, and none of the experts relied on the incident in forming their opinions.
The court initially granted the motion, but plaintiffs’ counsel later argued the testimony should be admitted because the defense experts were saying Tae exhibited no signs of syncope prior to her death when, in fact, she had exhibited signs of syncope on September 27. Ultimately, the court did not allow Shenna to testify about the SeaWorld incident. Shenna would have testified that Tae became dizzy, was shaking, her skin turned gray, and she nearly passed out during the visit.
Shenna argues her testimony concerning the SeaWorld incident should have been admitted against Angelview because Angelview had no standing to assert Dr. Jih’s motion. She also argues the court erred in refusing to allow her to examine her own experts and cross-examine the defense experts concerning the import of Tae’s syncope symptoms at SeaWorld.
There is, however, no reasonable probability that Shenna would have prevailed on her wrongful death/negligence claim, including on the critical causation question, had she testified about Tae’s symptoms at SeaWorld, or had any of the medical experts been questioned about the import of those symptoms. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1223; Evid. Code, § 354.) We explain.
The issue whether Tae had ever experienced syncope, as opposed to dizziness and lightheadedness, was relevant to Shenna’s claim that Angelview’s failure to transport Tae to her October 7 appointment with Dr. Khalil was a substantial factor in causing Tae’s death. Plaintiffs specifically claimed that Dr. Khalil would have referred Tae to a cardiologist based on her symptoms of syncope, and a cardiologist would have ordered an echocardiogram or other testing that would have diagnosed Tae’ hypertrophic cardiomyopathy. Then, the cardiologist would have recommended that Tae have an implanted pacer to prevent her from having a lethal arrhythmia, a serious risk for persons with hypertrophic cardiomyopathy.
This theory of recovery against Angelview failed, however, after Drs. McCormick and Fishbein agreed at trial that Tae did not have hypertrophic cardiomyopathy but merely had an enlarged heart. Before these two doctors testified, Dr. Yeh testified that Tae could have had an implanted pacer, and this would have been “99.8 percent” effective in treating her hypertrophic cardiomyopathy, or preventing her from having a lethal arrhythmia. Significantly, however, neither Dr. Yeh nor any other medical expert testified that an implantable pacer would have been recommended to treat Tae’s enlarged heart.
Dr. Fishbein also explained that having an enlarged heart increases a person’s risk of having a lethal arrhythmia, but persons with hypertrophic cardiomyopathy have “a much, much greater” risk of lethal arrhythmias. For this reason, Dr. Fishbein explained there is a “big difference” between the hypertrophic cardiomyopathy and having an enlarged heart, and the conditions are “treated quite differently” for clinical purposes.
Dr. Fishbein also said he was “not surprised” that Tae had a “heavier than . . . normal heart” because she was “quite overweight.” In every autopsy he had performed on someone as overweight as Tae, the person had an enlarged heart. In heavy persons the heart has to “work harder” to pump blood to more fat and muscle, and for this reason being overweight is not good for the heart.
In sum, even if Dr. Jih or Dr. Khalil had referred Tae to a cardiologist on October 6 or 7, and even if Tae’s enlarged heart had been diagnosed, there was no evidence that an implanted pacer or any other treatment would have been recommended to prevent Tae from having a lethal arrhythmia. This completely undermined plaintiffs’ claim that Angelview’s negligence in failing to transport Tae to her October 7 appointment with Dr. Khalil was a substantial factor in causing Tae’s death. For substantially the same reason, plaintiffs dismissed their wrongful death/medical malpractice claim against Dr. Jih.
In any event, Shenna’s proffered testimony that Tae showed symptoms of syncope at SeaWorld on September 27, 2004, would not have aided her theory that Angelview’s negligent failure to take Tae to her October 7 appointment with Dr. Khalil was a substantial factor in causing Tae’s death.
Shenna’s proffered testimony about Tae’s symptoms of syncope at SeaWorld also would have lent no support to her alternative theories of recovery against Angelview. These were essentially twofold. First, Shenna claimed that Angelview’s overall failure to oversee Tae’s medical care was a substantial factor in causing her sudden cardiac death.
Shenna’s specific claim that Angelview was negligent in failing to obtain more Spironolactone for Tae was part of this broader theory. But it depended upon a showing that Tae died as a result of congestive heart failure, which was clearly not the case. Dr. Fishbein opined that Tae did not show any signs of congestive heart failure at autopsy, and effectively refuted Drs. McCormick’s and Yeh’s impressions that Tae had “some type” of congestive heart failure, or “[m]ild to moderate” congestive heart failure. Furthermore, Drs. McCormick’s and Fishbein’s ultimate conclusions that Tae died from a lethal arrhythmia was inconsistent with the theory that she died of congestive heart failure.
Lastly, Shenna claimed Angelview was negligent because its staff member or DSP Eden did not call 911 until some 10 minutes after Tae collapsed, Eden did not attempt to resuscitate Tae, and had more prompt action been taken Tae’s life could have been saved. None of the testimony about syncope had anything to do with this theory. And in finding that Angelview’s negligence was not a substantial factor in causing Tae’s death, the jury necessarily rejected it.
3. Shenna’s Other Claims of Evidentiary Error are Unsupported
Shenna claims the court should have admitted several documents under exceptions to the hearsay rule, namely, “Angelview’s Plan of Care” for Tae; a progress note by Dr. Avelino Canlas, the physician who referred Tae to Dr. Khalil; and “Agreements and Consent for Treatment,” a document that Tae signed allowing Angelview access to her medical records. She also claims the court erroneously admitted several items of evidence, including: (1) opinion testimony by Dr. Jih, who was not designated as a retained expert; (2) testimony that the IRC investigated Tae’s death and did not recommend that Angelview be disciplined or prosecuted; (3) Tae’s individual program plan and several other documents; and (4) Dr. Klein’s testimony regarding the standard of care for residential care facilities.
None of these claims are supported with adequate argument. Though Shenna claims the three documents listed above should have been admitted under exceptions to the hearsay rule, she does not discuss or analyze how a different result would have been probable had the documents been admitted. (Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th at p. 1223.) Nor does she explain how a different result would have been probable if any of the evidence she claims was erroneously admitted had been excluded. We therefore reject each of these claims as not properly raised. (People v. Earp (1999) 20 Cal.4th 826, 881.)
D. Failure to Instruct on Punitive Damages (CACI No. 3943)
Shenna claims the court erred in refusing to give CACI No. 3943, which would have allowed the jury to determine whether Angelview was liable to her for punitive damages on her wrongful death claim. This argument bears little discussion.
CACI No. 3943 allows a jury to determine whether an award of punitive damages is justified only if the jury determines the defendant’s conduct caused the plaintiff harm. Because the jury determined that Angelview’s negligence did not cause Shenna harm, it never would have reached the question whether its conduct justified an award of punitive damages. Thus, Shenna has not shown she was prejudiced by the failure to give CACI No. 3493.
E. No Prejudicial Judicial Misconduct
Lastly, Shenna complains of several “irregularities” in the proceedings. She claims the court did not give the parties a chance to move documents into evidence prior to closing arguments; had an ex parte communication with counsel for Angelview regarding its motion in limine to exclude evidence of Tae’s missed medical appointments;[3] made disparaging comments in front of the jury, including comments that plaintiffs might file an appeal; did not allow plaintiffs’ counsel “to conduct a complete examination of witnesses”; and allowed the jury to begin deliberations without having any exhibits to review and knowing that additional instructions would be given.
We disagree that the court discredited plaintiffs, their trial counsel, or their case in front of the jury as Shenna suggests. (Cf. People v. Sturm (2006) 37 Cal.4th 1218, 1233.) Shenna’s other claims of error or irregularities, like most of her claims of evidentiary error, are not adequately supported with argument and are therefore not properly raised. (People v. Earp, supra, 20 Cal.4th at p. 881.) There is no discussion or analysis of how any of the court’s various irregularities prejudiced Shenna’s case in light of the entire record, including the evidence. (Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th at p. 1223.)
IV. DISPOSITION
The judgment is affirmed. Angelview shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King
J.


We concur:

/s/ McKinster
Acting P.J.

/s/ Richli
J.



[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Under section 5150, persons who are a danger to themselves or others as a result of a mental disorder may be taken into custody and placed in a facility approved by the State Department of Mental Health, for treatment and evaluation for 72 hours.

[3] The trial court disclosed the ex parte communication to the parties in court on April 30, 2009. The court explained that, outside the courtroom the day before, counsel for Angelview spoke to the judge and complained that, despite the court’s ruling granting Angelview’s motion in limine to exclude testimony concerning 11 of Tae’s 12 missed medical appointments, the evidence was “coming in” and the court should “keep it out.”
After disclosing the ex parte communication, the court asked plaintiffs’ counsel whether he wished to make a record, and counsel said he did not. Nor did plaintiffs’ counsel move for a mistrial based on the ex parte communication at any point during the trial. For this reason, Shenna has forfeited any claim that she did not receive a fair trial based on the ex parte communication. (See Horn v. Atchison T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610.) In any event, the ex parte communication did not prejudice Shenna, because the court never struck or excluded any of the testimony plaintiffs’ counsel elicited concerning Tae’s missed medical appointments.




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