Patterson v. Torrance Mem. Med. Center

Filed 4/2/08 Patterson v. Torrance Mem. Med. Center CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Lois A. Smaltz, Judge. Affirmed.

Vivoli & Associates, Michael W. Vivoli, Matthew J. Yarling, and Jason P. Saccuzzo for Plaintiff and Appellant.

Fonda & Fraser and Peter M. Fonda for Defendant and Respondent.

Plaintiff Mary Patterson (plaintiff) appeals from a judgment on special verdict entered for defendant Torrance Memorial Hospital (the hospital) on claims for negligence and elder abuse. We find no error, and we affirm.

FACTS AND PROCEDURAL HISTORY

I. Plaintiffs Injuries

Plaintiff was admitted to the hospital for a knee replacement on May 28, 2004. Immediately after her knee surgery, she was sent to an acute care ward; several days later, on June 1, 2004, she was transferred to the hospitals transitional care unit (TCU) for physical and occupational therapy.

On June 4, 2004, plaintiff fell while walking to the bathroom unassisted, suffering a scalp laceration and a painful back injury. Several hours after her fall, plaintiff was taken to an emergency room, where the laceration was surgically repaired and an X-ray was taken of her spine. The X-ray revealed a compression fracture of her L-1 vertebrae.

Since her fall, plaintiff has suffered severe, disabling pain in her lower back, which has limited her daily activities.

II. The Present Action

A. Plaintiffs Complaint

Plaintiff filed the present action for negligence and violation of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code,  15600 et seq.) (Elder Abuse Act) on October 22, 2004.[1] It alleged that the hospital took inadequate precautions to prevent plaintiff from falling after her knee surgery, and that she suffered a serious fall as a result. Further, it alleged that the hospital failed to timely transport plaintiff to the emergency room after her fall. As a result, plaintiff suffered a compression fracture of her lumbar spine, acute head trauma, a scalp laceration, and loss of blood. She has had to undergo back surgery and rehabilitation, and she remains considerably limited in her daily activities.

Prior to trial, defendant filed several motions in limine that are the subject of the present appeal. We discuss them in some detail below.

B. Defendants Motion to Exclude Evidence of the Hospitals Policies and Procedures

Defendants eighth motion in limine sought to exclude evidence of the hospitals policies and procedures and to prevent plaintiff from arguing to the jury that the hospitals policies and procedures established the standard of care. Plaintiff opposed the motion, urging that the policies and procedures were relevant not to establish the standard of care, but rather to demonstrate a pattern of substandard care. Plaintiff contended: As a result of numerous deficiencies of [the hospitals] policies and procedures (especially as they pertain to fall risk assessments), [she] was not provided with the necessary supervision to prevent her from falling and suffering an injury. Deficiencies in [the hospitals] policies and procedures also resulted in [the hospitals] nurses and staff members failure to implement an adequate care plan for [her] based on her special needs. Finally, deficiencies in [the hospitals] policies and procedures resulted in [the hospitals] nurses and staff members failure to recognize [her] as a high fall risk after she suffered . . . two falls prior to the catastrophic fall on June 4, 2004.

The trial court granted the in limine motion, excluding evidence that the hospitals policies and procedures breached the standard of care. It explained that the only issue relevant to plaintiffs negligence and elder abuse claims was whether the hospitals conduct met the standard of care. The hospitals policies and procedures were irrelevant to that inquiry: The policies and procedures . . . may well be in excess of the standard of care and shouldnt raise the bar above what is otherwise the standard of care[.] [Alternatively,] if the policies and procedures fail to meet what somebodys standard of care is, thats irrelevant. Its what the conduct actually was. In other words, did the conduct itself comply with the standard of care[,] not [were there] policies and procedures in place that complied with the standard of care. Further, the court said, the mere fact of implementation of policies and procedures doesnt mean that [the hospital] met the standard of care, and the fact that they did not implement the policies . . . and procedures does not mean necessarily that they failed to meet the standard of care.

The court noted that the policies and procedures could become relevant if the hospital asserted that its conduct met the standard of care because it complied with its own policies and procedures. Absent such a defense, however, the hospitals policies and procedures are irrelevant from the plaintiffs point of view. Your burden is not to show that [the hospital] failed to meet [its] own policies and procedures. Your burden is to show that [the hospital] failed to meet the applicable standard of care.

The court revisited its in limine ruling during the testimony of plaintiffs nursing expert, Rena Shephard. When plaintiffs counsel attempted to elicit Shephards opinion that the hospitals fall-risk assessment policy was below the standard of care, the court again ruled that [s]he cannot offer an opinion as to the policy. She may only offer opinions as to the conduct, what happened here. [] . . . [] The policy itself is not at issue. Its the conduct thats at issue. The court noted that it had permitted some limited questioning about what the policies are, but said that the policy itself is not whats going to be argued to the jury. Instead, the relevant issue was what does the evidence show the care was in this case and does that care comply with the minimum standard of care for that type of healthcare provider.

C. Defendants Motion to Exclude Evidence of Regulatory Violations

Defendants thirteenth motion in limine sought to exclude evidence of federal and state regulations governing skilled nursing facilities. Defendant contended that the regulations were irrelevant because they did not establish the standard of care. Plaintiff disagreed, urging that the regulations define the standard of care applicable to skilled nursing facilities, and that violation of those regulations constitutes neglect under the Elder Abuse Act.

The court rejected defendants contention that the regulations were irrelevant, concluding that the regulations define the standard of care under a negligence per se theory. However, the court noted that under Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, the regulations were admissible only if the court concluded as a matter of law that (1) plaintiff was one of a class of people for whose protection the regulations were adopted, and (2) plaintiffs injuries resulted from an occurrence of the nature that the regulations were designed to prevent. The court concluded that plaintiff plainly was within the class of people the regulations were intended to protect, but it asked for an offer of proof as to whether plaintiffs injuries resulted from an occurrence of the kind the regulations were designed to prevent.

After hearing plaintiffs offer of proof, the court ruled that evidence of two alleged regulatory violations would not be admitted. First, the court determined that plaintiff would not be permitted to introduce evidence that the hospitals staff emptied bedpans into the sink where plaintiff had been directed to bathe, in violation of 42 Code of Federal Regulations section 483.15 and California Code of Regulations, title 22, section 72315, subdivision (d). The court said that while the alleged practice may have violated the regulation, plaintiff had not identified any evidence that it caused plaintiff a physical injury. Further, the court rejected plaintiffs contention that she need not show a physical injury if she could demonstrate emotional injury.

Second, the court held that plaintiff would not be permitted to introduce evidence that the hospital unreasonably delayed transporting plaintiff to an emergency room in violation of California Code of Regulations, title 22, section 72301, subdivisions (d) and (f), unless she first introduced evidence that the delay caused harm. The court explained: Without there being evidence to support this claim of additional pain and suffering, [evidence of the alleged regulatory violation] cant come in. . . . [T]his is how Im going to handle it: Im going to grant the motion. I am not precluding you from offering evidence as to the factual basis. And that is that she would have had that she did have additional pain and suffering. . . . So if the evidence shows that she was given pain medication [in the TCU], . . . and that the delay . . . didnt cause her . . . any additional pain and suffering, then you dont get to the [section 72301 violation].

D. Trial, Verdict, and Judgment

Trial commenced on February 14, 2006. The jury returned a special verdict for the hospital on February 28, 2006, finding that the hospital was not negligent and that its nurses did not fail to use that degree of care that a reasonable nurse in the same situation would have used in providing medical care for physical health needs, or in protecting [plaintiff] from health and safety hazards.

Judgment was entered on March 8, 2006, and notice of entry of judgment was served March 23, 2006. This timely appeal followed.

DISCUSSION

Plaintiff raises three issues on appeal. First, she contends that the trial court erred in excluding evidence that the hospitals policies and procedures, including its fall-risk assessment policy, were below the standard of care. Second, she claims that the trial court erred in excluding evidence that the hospital violated applicable regulations by (1) permitting bedpans to be emptied into the sink in which plaintiff had been directed to bathe, and (2) failing to follow her doctors order that plaintiff immediately be transferred to the emergency room after her fall. Finally, she contends that the trial court demonstrated improper bias in favor of the hospital.

I. The Trial Court Did Not Err in Excluding Evidence of the Hospitals Policies and Procedures

Plaintiff contends that the trial court erred in excluding her experts testimony that the hospitals policies and procedures, including its fall-risk assessment policy, were below the standard of care. She concedes that her expert was allowed to testify that the hospitals fall-risk assessment of plaintiff was below the standard of care, but she contends that her expert also should have been permitted to testify that the allegedly negligent assessment was a consequence of the reckless institution of policies and procedures which themselves fell well below the standard of care, and which violated the regulations applicable to skilled nursing facilities. According to plaintiff, [t]he institution of policies and procedures falling below the standard of care is not only probative of negligence, but also tends to show systemic neglect and recklessness.

We review a trial courts ruling excluding evidence on grounds of irrelevance (Evid. Code, 350) for abuse of discretion. The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. (People v. Thornton (2007) 41 Cal.4th 391, 444, quoting People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.)

We conclude that the trial court did not abuse its discretion by excluding the proffered testimony. Plaintiff alleged two theories of liability at trial: negligence per se and elder abuse. To establish negligence, plaintiff had to prove four elements: (1) defendants obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of the duty); (3) a reasonably close connection between the defendants conduct and resulting injuries (proximate cause); and (4) actual loss (damages). (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279.) (McGarry v. Sax (2008) 158 Cal.App.4th 983, 994.) Where, as here, a plaintiff alleges negligence per se, a breach of duty is presumed if plaintiff establishes that the defendant violated a statute, ordinance, or regulation, and plaintiff is one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Quiroz v. SeventhAve.Center (2006) 140 Cal.App.4th 1256, 1285; Spates v. DameronHospital Assn. (2003) 114 Cal.App.4th 208, 218.)

A plaintiff establishes elder abuse by demonstrating, among other things, that the defendant engaged in neglect as defined by Welfare and Institutions Code, section 15610.57i.e., [t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise. Further, the plaintiff must establish that the neglect was the proximate cause of plaintiffs injuries. (E.g., BAJI No. 7.40 [essential element of elder abuse claim includes that [d]efendant[s] conduct was a cause of injury, damage, loss or harm to [plaintiff]]; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 529 [no cause of action for elder abuse where plaintiff failed to allege injury as a result of any acts of defendant].)

We are not persuaded that the excluded evidence was relevant to proving any of the elements of either negligence or elder abuse. As the trial court correctly concluded, there is no logical or necessary connection between the promulgation of inadequate policies and the provision of inadequate care in a particular case. That is, a hospital could have wholly inadequate policies but still provide a patient with superb care. In that case, there would be no liability for negligence, notwithstanding the inadequacy of the policies. Conversely, a patient could be provided negligent care notwithstanding policies that provide otherwise; in that case, the hospitals policies would not shield it from liability. Thus, the excluded evidence did not tend to prove any element of plaintiffs causes of actioni.e., that plaintiff received negligent care or that she suffered harm as a result.

Moreover, the excluded evidence was not admissible to show systemic negligence or neglect, as plaintiff suggests. Evidence of a trait of character (disposition to negligence) is inadmissible when offered to prove conduct on a specified occasion. (Evid. Code,  1101, subd. (a); cf. Marocco v. Ford Motor Co., 7 Cal.App.3d 84, 91-92.) [E]vidence of a trait of a persons character with respect to care or skill is inadmissible to prove the quality of his conduct on a specified occasion. (Evid. Code,  1104; Carr v. Stern, 17 Cal.App. 397, 406-407.) It is a fundamental rule of evidence that you cannot prove the commission of an act by showing the commission of similar acts by the same person at other times and under other circumstances. Such evidence is simply not relevant. . . . (Larson v. Larsen, 72 Cal.App. 169, 172; cf. Marocco v. Ford Motor Co., supra; see Evid. Code,  1101, subd. (b); Witkin, Cal. Evidence (2d ed.)  350, pp. 309-310.) (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 851.)

Plaintiffs proffered evidence that the hospitals policies and procedures were below the standard of care was not relevant because it did not have a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code,  210.) The trial court did not abuse its discretion in excluding this evidence.[2]

II. The Trial Court Did Not Err in Excluding Evidence of Alleged Regulatory Violations

Plaintiff next urges that the trial court erred in excluding evidence that the hospital violated applicable regulations by (1) permitting bedpans to be emptied into the sink in which plaintiff had been directed to bathe, and (2) failing to follow plaintiffs doctors order that plaintiff immediately be transferred to the emergency room after her fall. We conclude that neither evidentiary ruling was erroneous.

A. Plaintiffs Evidence That Bedpans Were Emptied into the Sink

The hospital moved in limine to exclude evidence that bedpans allegedly were emptied into plaintiffs sink. The trial court granted the motion after plaintiffs counsel conceded that the conduct did not cause plaintiff any physical injury. On appeal, plaintiff contends that physical injury should not have been required because her humiliation, emotional distress, and loss of dignity are compensable pain and suffering, and are an aspect of [her] general damages.

We agree with plaintiff in part. Under California law, a plaintiff may recover damages for emotional distress even if she did not suffer physical injury. (E.g., Lee v. Bank of America (1990) 218 Cal.App.3d 914, 920-921 [damages for emotional distress unaccompanied by physical injury may be awarded in a tort action]; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928 [unqualified requirement of physical injury is no longer justifiable]; Flahavan, Rea & Kelly, Cal. Practice Guide: Personal Injury (The Rutter Group 1984) 3:212.1, p. 3-110 (rev. # 1, 2004) [while physical manifestation of mental suffering lends credence to plaintiffs tort claim, physical consequences are not essential to a damages recovery].) Thus, the trial court erred in requiring plaintiff to demonstrate physical injury as a predicate to introducing evidence that bedpans were emptied into her sink.

However, although plaintiff should not have been required to show physical injury, to establish negligence she had to demonstrate severe emotional distressthat is, emotional distress that was substantial or enduring as distinguished from trivial or transitory. (Lee v. Bank of America, supra, 218 Cal.App.3d at pp. 920-921; see also Young v. Bank of America (1983) 141 Cal.App.3d 108, 114 [same].) The elder abuse claim required a similar showing: Under the statute, abuse of an elder includes conduct causing mental suffering, defined as fear, agitation, confusion, severe depression, or other forms of serious emotional distress. (Welf. & Inst. Code,  15610.07, 15610.53, emphasis added.)

Under either of plaintiffs theories of recovery, thus, plaintiff was entitled to introduce evidence that bedpans were emptied into her sink only if she could show that such conduct caused her severe emotional distress. Although she was given an opportunity to do so, she failed to make the requisite showing of severe emotional distress. Instead, when urged by the court to identify her evidence that she was harmed by the alleged emptying of bedpans into her sink, counsel said only that we . . . will offer testimony that [plaintiff] was required to bathe in a sink that she will testify smelled and that having to bathe in that condition is a separate harm that is prescribed by the statute. Plaintiff offers nothing new on appeal; instead, she simply repeats that the indignity of being required to clean oneself in a sink that also serves as a receptacle for human waste falls within this broad concept of pain and suffering.

There is no question that the conduct plaintiff complains of is inappropriate, unsanitary, and likely to cause a patient emotional distress. However, that is not enough. As we have said, plaintiff was entitled to proceed on this claim only if she could show that her resulting emotional distress was severe. Because she failed (and fails) to show that she could do so, we conclude that the trial court did not err in excluding the evidence relating to the emptying of bedpans.

B. Plaintiffs Evidence That the Hospital Failed to Follow Her Doctors Order to Transfer Her Immediately to the Emergency Room After Her June 4 Fall

Plaintiff also urges on appeal that the trial court erred in excluding testimony by her nursing expert that the hospital violated regulatory requirements by failing to immediately bring plaintiff to an emergency room after her June 4 fall. According to plaintiff, her treating physician, Dr. Shrader, ordered that she should immediately be brought to an emergency room if her scalp laceration exceeded one-half inch. However, although plaintiffs laceration was two inches long, she was not transferred to an emergency room for nearly five hours. Plaintiff contends the failure timely to transfer her to an emergency room violated California Code of Regulations, title 22, section 72301, subdivision (d), which requires skilled nursing facilities to assist the patient in arranging for transportation necessary to obtain treatment prescribed by the attending physician, and subdivision (f), which requires skilled nursing facilities to ensure that all orders, written by a person lawfully authorized to prescribe, shall be carried out unless contraindicated.

We do not agree with plaintiff that the trial court abused its discretion by excluding the proffered testimony. As a preliminary matter, there is no evidence that the timing of plaintiffs transfer to the emergency room violated her doctors orders. Although Dr. Shrader testified at trial, he did not testify that the hospital violated his orders by delaying plaintiffs transfer to the emergency room. To the contrary, he disagreed with plaintiffs counsels suggestion that the laceration required immediate[] surgical attention,[3] and he said that he did not believe that any nursing care provided plaintiff by the hospital was below the standard of care.

Additionally, there is no evidence that plaintiff suffered any injury as a result of the delay in transferring her to the emergency room. It is undisputed that plaintiffs laceration was surgically repaired in the emergency room, and plaintiff has never contended that the wound would have healed any differently if the surgery had taken place earlier. Plaintiff did contend that she would have suffered less pain if she had been brought to the emergency room sooner, but she did not introduce any evidence in support of her claim. As the trial court correctly noted, while plaintiffs evidence established that the anesthetic administered in the emergency room relieved plaintiffs pain, there was no medical evidence that the anesthetic offered more effective pain relief than the narcotic administered at the TCU, or that plaintiff would have suffered less pain had she been brought to the emergency room sooner.

If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. [Citation.] (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 715, quoting Budd v. Nixen (1971) 6 Cal.3d 195, 200.) Because plaintiff did not establish damage resulting from the allegedly negligent conduct, the trial court did not abuse its discretion in excluding it.

III. The Trial Court Did Not Commit Prejudicial Misconduct

Plaintiff contends finally that the trial court committed prejudicial misconduct by evidencing a defense bias in its evidentiary rulings and disparaging plaintiffs counsel in front of the jury. Specifically, plaintiff contends that the trial court repeatedly sustained its own objections to plaintiffs counsels questions, chastised counsel in front of the jury, permitted defense counsel to engage in habitually abusive questioning of plaintiffs witnesses, and was hostile to virtually any objection asserted by [plaintiffs] counsel. In sum, plaintiff contends, the trial court steadfastly refused to enforce any of the rules of evidence against [the hospital], and consistently acted as though [the hospital] was free to introduce whatever testimony or other evidence it desired to present, without regard to the rules of hearsay, and even without . . . a witness. The cumulative effect of this misconduct, and the trial courts glaringly obvious bias against [plaintiff] and her counsel, had an obvious impact on the jury . . . .

A trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression that it is allying itself with the prosecution. (People v. Carpenter (1997) 15 Cal.4th 312, 353; see also People v. Fudge (1994) 7 Cal.4th 1075, 1107; People v. Clark (1992) 3 Cal.4th 41, 143.) Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials. (People v. Mahoney (1927) 201 Cal. 618, 626-627.) When the trial court persists in making discourteous and disparaging remarks to a defendants counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge . . . it has transcended so far beyond the pale of judicial fairness as to render a new trial necessary. (Id. at p. 627.) (People v. Sturm (2006) 37 Cal.4th 1218, 1233.)

After having reviewed the entire trial transcript, we conclude that the trial court did not demonstrate bias against plaintiff. While the trial judge was occasionally sharp-tongued in her comments to counsel, her impatience was not directed exclusively at plaintiffs counsel, as plaintiff suggests. To the contrary, the court was equally sharp with defense counsel when counsel ignored the courts rulings or asked inappropriate questions. For example, when defense counsel asked plaintiff whether it was possible that a hospital bed depicted in a photograph was plaintiffs bed, the court said: So now we know its possible. Do you want to ask her the question if it was her bed? When defense counsel asked a nonexpert witness a hypothetical question, the court interrupted him and said, Youre asking her expert questions, and Im telling you its not going to happen twice. The court repeatedly cut off defense counsels argumentative questions, telling him Youre really into argument now, and interrupted his objections, saying No more speaking objections. Theres an Evidence Code. Use the words. Otherwise, your objection is overruled. And, when defense counsel made a statement to a witness, the court interrupted and asked, Youre going to ask a question here; right?

We also disagree with plaintiff that the court was hostile to her counsels objections or overrul[ed] the vast majority of them. To the contrary, the court sustained a great number of plaintiffs counsels objections.

Finally, while we cannot address each of the examples of purported judicial misconduct identified in plaintiffs appellate brief, one requires comment. On page 31 of her opening brief, plaintiff asserts that: [T]he trial courts open hostility for virtually any objection asserted by counsel for Mrs. Patterson became so obvious that the trial court proceeded to openly explain to one of [the hospitals] witnesses in front of the jury that she would usually be overruling [plaintiffs counsels] objections. Plaintiff then quoted the following statement by the trial court in support: Usually Im going to say, overruled. Go ahead and answer, so that means you can answer. But dont go ahead and talk before I make a ruling.

What plaintiff does not tell this court is that the trial courts statement was made in response to the witnesss question about what overruled means. The full discussion is as follows:

The Court: Overruled. Excuse me. We cant have three people talking at once. Its bad enough to have two people talking at once. So, Mr. Vivoli, wait for him to finish his question before you interrupt with your objection. And the witness, you need to wait until the attorneys are through talking and Ive made a ruling before you start volunteering the answer because I have to make a ruling.

The Witness: Could I ask something? If you say, overruled, what does that mean?

The Court: Usually Im going to say, Overruled. Go ahead and answer, so that means you can answer. But dont go ahead and talk before I make a ruling.

Taken in context, it is clear that the court was not signaling that it usually would overrule plaintiffs counsels objections, but rather was explaining that if it overruled an objection, it usually would tell the witness that she then was free to answer the question. Plaintiffs suggestion to the contrary appears to be a deliberate manipulation of the record; at a minimum, it is utterly without merit.

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.

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[1] Other causes of action alleged in the initial complaint (for willful misconduct, breach of fiduciary duty, unfair business practices, and negligent infliction of emotional distress) were dismissed prior to trial and are not relevant to the present appeal. Plaintiffs three adult children, named as plaintiffs in the initial complaint, also were dismissed prior to trial.

[2] In contrast, plaintiffs expert was entitled to testify, and did in fact testify, that the hospitals fall-risk assessment of plaintiff was below the standard of care. Plaintiffs expert testified at some length about the factors that should be evaluated to determine if a patient is at risk of falls; that the hospital did not adequately assess plaintiffs risk of falls; and that if plaintiff had been properly assessed, her risk of falls would have been reduced.

[3] Q. Do you recall it was obvious to you that [plaintiffs scalp laceration] needed to be addressed immediately? [] A. [Dr. Shrader] It needed to be addressed, you know, within a period of time, yes. (Emphasis added.)