Hwang v. Kim

Filed 6/30/08 Hwang v. Kim CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Conrad R. Aragon, Judge. Affirmed.

Law Offices of James A. Kim and James A. Kim for Plaintiffs and Appellants.

Schmid & Voiles and Suzanne De Rosa for Defendant and Respondent.

* * * * * *

Appellants Taek Ki Hwang and Eun Kyung Hwang, husband and wife (hereafter sometimes referred to collectively as appellants), brought an action for medical malpractice against respondent Dae-Choong Kim, M.D. The gravamen of the case is that respondent told Mr. Hwang that he was HIV-positive. It turned out that respondents statement was based on an erroneous laboratory report and Mr. Hwang was not HIV-positive. The jury returned a verdict for respondent by a 12-0 vote. We affirm the judgment.

FACTS

Appellants were married in 2002. Mr. Hwang, a resident of Indonesia, completed U.S. immigration forms in October 2003 as part of the process of applying to become a U.S. citizen.

Mr. Hwang arrived at the Los Angeles airport from South Korea on October 8, 2003; he was scheduled for an Immigration and Naturalization Service (INS) interview the next day. Mrs. Hwang, who had known respondent and his wife for eight or nine years, called respondent and requested that he administer the INS medical examination the next day.

Respondent had performed more than 5,000 INS medical examinations. These examinations, including the examination performed on Mr. Hwang, included drawing blood for HIV and other lab tests.

Mr. Hwang intended to return to Indonesia right after the INS interview on October 9, 2003. Mr. Hwang needed to have the U.S. Department Civil Surgeon form, signed by respondent attesting to the results of the physical examination, when he was interviewed by the INS on October 9, 2003. In order to help out appellants, respondent obliged them by signing the form on October 9 and by dating the medical form as of October 6, 2003, even though the results of the lab tests were not as yet known. The form signed by respondent stated that Mr. Hwang was HIV negative. At trial, respondent testified that he very much regretted having signed the form without seeing the lab results.

Respondent received the lab results on October 17, 2003; the report was a positive HIV result. The test that was administered was the so-called Western Blot test. The test results that were reported were that 10 out of 10 antibodies appearing in the test showed HIV-positive results. While respondent did not appear to remember at trial the exact test results, he did remember that this first test showed more than two antibodies showing HIV, which meant that the test was positive for HIV.

The laboratory reporting to respondent was Primex Laboratory, which respondent characterized as a large Los Angeles laboratory. Respondent has used Primex for five years, sending to Primex an average of 20 tests daily. During that time, respondent had no problems with Primex, with no major mistake[s] having been committed by the lab.

It appears that Cedars-Sinai Medical Center had some involvement with the testing. Neither party has explained to us what that involvement was; our independent review of the record has not yielded an explanation. In any event, as we relate below, it was when Cedars-Sinai was contacted more than a month after the first test that it was revealed that the report of that first test had been in error and that Mr. Hwang was not in fact HIV-positive.

We note here that Primex was named as a defendant in appellants first amended complaint but that the case went to the jury only as to respondent Kim. Cedars-Sinai does not appear to have been named as a party.

When the initial test results were received on October 17, 2003, respondent called Mr. Hwang at home and, no one having answered, left a message for Mr. Hwang to call respondent.

Mrs. Hwang returned the call. She spoke to Mrs. Kim, respondents wife, who is a registered nurse and office manager for respondents practice. Mrs. Kim told Mrs. Hwang that the test results were confidential.

Because Mr. Hwang was at that time in Indonesia, respondent authorized his wife to inform Mr. Hwang of the test results by long-distance telephone. Mrs. Kim connected with Mr. Hwang in the evening of October 17 and told him of the test results. Mr. Hwangs reaction was limited to asking what HIV positive meant and Mrs. Kim explained that it was an AIDS-related virus. This appears to have been the extent of this conversation.

Mrs. Hwang came to respondents office the next day, understandably frightened and shocked. Respondent told her that the test results were correct and that appellants needed to see an HIV specialist as soon as possible. Mrs. Kim attempted to comfort Mrs. Hwang. Both women cried because Mrs. Kim, who had once stuck herself with an HIV-infected needle, knew how appellants felt.

The two women stayed in touch by phone for the next few days. Mr. Hwang was, according to his wife, busy in Indonesia and could not return to the United States for a while; Mrs. Hwang was told repeatedly that Mr. Hwang needed to return to consult with an HIV specialist.

Appellants appeared at respondents office on November 6, 2003, and were seen without an appointment. When questioned by respondent, Mr. Hwang denied all risk factors, such as blood transfusion or drug use. Because of these denials, respondent suggested a retest, which was done. Respondent also gave appellants the name and phone number of Douglas Cable, M.D., an HIV specialist. According to respondent, Mr. Hwang showed no emotion during this interview.

Much of the appeal is predicated on respondents handling of the results of the second test. The first part of the second test came back with a positive report and the second part was returned with an indeterminate report. According to respondent, this meant that Mr. Hwang continued to test HIV-positive. Mr. Hwang, who in the meantime had returned to Indonesia, was informed by telephone on November 17, 2003, that the second test had produced the same result as the first test.

In contending that respondent was wrong in treating the indeterminate result as an HIV-positive report, appellants ignore the trial testimony presented on this issue by Dr. Cable, whom appellants saw on November 24, 2003, as we relate below, and the testimony of Dr. Peter Katona (see text, post). Dr. Cable explained that general practitioners interpret indeterminate as positive. One reason for this is that if a person has AIDS, the body cannot produce antibodies and the test may come back as indeterminate.

Because appellants did not have insurance, they went to see Dr. Reed at the Orange County Health Care Agency. The visit to Dr. Reed set in motion the events that resulted in the discovery that the first and second test reports were erroneous.

Appellants went to see Dr. Cable on November 24, 2003; they had seen Dr. Reed earlier that day. According to Dr. Cable, Dr. Reed had called Cedars-Sinai and ascertained that the first report that showed 10 out of 10 bands as positive was in error and the second test only showed two positive bands, which meant that the tests were negative. In other words, Mr. Hwang was free and clear of an HIV infection, and Dr. Cable so informed appellants.

THE VERDICT

Two causes of action went to the jury. The first cause of action was for medical malpractice; the jury found that respondent had not been negligent in providing professional services to Mr. Hwang. On the second cause of action for negligent infliction of emotional distress, the jury was asked whether respondent and his wife had been negligent in the manner in which they advised appellants of the HIV test results, and here the jury returned a verdict of no.

DISCUSSION

1. The Verdict Is Supported by Substantial Evidence

In reviewing the evidence on . . . an appeal all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, italics added; see generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 359, pp. 408-410.)

Appellants contend that because the second test came back with an indeterminate conclusion, respondent should have informed them that Mr. Hwang was not HIV-positive.

There are two flaws in this contention. First, it is not supported by any evidence or authority. Second, it is contradicted by substantial evidence.

First. Appellants flatly claim that indeterminate means a non-positive result. If this is an argument, it should be supported by authority; if it is a statement of fact, there should be a reference to the record where such a fact is to be found. But appellants cite no authority, nor do they cite to the record. Standing alone, this is reason enough to reject appellants contention. (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [court will not consider argument for which no authority is cited]; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [if there are no references to the record, the court will not search the record for the evidence].)

Second. As we have noted, Dr. Cable testified that general practitioners interpret an indeterminate report as HIV-positive. (My experience is general practitioners interpret indeterminate as a positive, although a weakly positive.) The substance of Dr. Cables testimony is that treating an indeterminate report as an HIV-positive report conforms to the standard of care. Dr. Cable explained why this practice is followed: a person with AIDS may not produce any antibodies, and the report would come back indeterminate.

Dr. Peter Katona, another medical expert called by respondent, also testified that respondents handling of the first and second test results conformed to the standard of care.

There is substantial evidence in the form of the testimony of Drs. Cable and Katona that under the standard of care indeterminate is treated as positive, therefore we reject appellants contrary claim. (Crawford v. Southern Pacific Co., supra, 3 Cal.2d at p. 429.)

We also reject appellants claim that [e]xpert witnesses are not needed to explain what indeterminate means. As we have noted, Drs. Cable and Katona testified as to the standard of care. It is hornbook law that the medical standard of care is an appropriate subject of expert testimony; in fact, expert testimony is required on this issue. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, 46, pp. 580-581.) We think that it is manifest that expert testimony is required to state the standard of care and medical practice in HIV-testing, including the meaning and significance of an indeterminate report.

2. There Was No Error in the Jury Instructions

At the conclusion of the instruction on the negligent infliction of emotional distress, the trial court gave this additional instruction: This instruction does not apply to Mr. Hwangs claim for medical malpractice against [respondent]. Only the instructions relating to the standard of care for an internist, given in Instruction No. 501, apply to Mr. Hwangs claim for medical malpractice against [respondent].

Appellants contend that this additional instruction vitiated the negligent infliction of emotional distress claim because it instructs the jurors to apply the medical malpractice standard of care and not the reasonably prudent person standard of care.

Appellants contention is refuted by the very instruction they assail, which reminded the jury that, as far as the medical malpractice claim was concerned, the standard of care was stated in jury instruction No. 501,^[1]and not in the instruction on the negligent infliction of emotional distress. This is, of course, correct. In no sense did this additional instruction purport to tell the jury to apply the malpractice standard to the negligent infliction claim; it did the very opposite. Moreover, it appears, as respondent points out, that appellants had no objection to this instruction in the court below.^[2]

Respondent contends that the trial court erred in allowing appellants to sue for medical malpractice as well as the negligent infliction of emotional distress because the reporting of medical tests is a standard aspect of the rendition of medical services. But because respondent prevailed on both claims, whether or not they were improperly split, he is not aggrieved and therefore he has no appeal based on this purported error. (Winter v. Gnaizda (1979) 90 Cal.App.3d 750, 754.)

DISPOSITION

The judgment is affirmed. Respondent is to recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] Jury instruction No. 501 told the jury that respondent had to conform to the level of skill, knowledge and care in connection with reporting the HIV test results of other reasonable careful internists under the same or similar circumstances.

^[2] Appellants counsel was quite aware of the distinction between the medical standard of care applicable to the malpractice claim and the general standard that applied to the claim for negligent infliction of emotional distress. His lack of an objection to the instructions as given shows that he was satisfied that the instructions were correct on this issue, as indeed they were.