Articles Posted in California Court of Appeal

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Plaintiff filed suit for dental malpractice, alleging Dr. Nahigian had negligently performed oral surgery on her and Dr. Matar, as Dr. Nahigian's principal and employer, was vicariously liable for Dr. Nahigian's negligence. The trial court granted summary judgment for Dr. Nahigian and Dr. Matar. The court affirmed the grant of summary judgment for Dr. Nahigian based solely on the statute of limitations, expressly declining to reach the issue of causation. However, in regard to Dr. Matar, the court agreed with plaintiff that neither claim preclusion or issue preclusion applies in this case. Therefore, the court reversed the grant of summary judgment as to Dr. Matar and remanded for further proceedings. View "Samara v. Matar" on Justia Law

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This matter arose from Whitney Engler's use of a medical device, the "Polar Care 500," manufactured by Breg, Inc. (Breg) and prescribed by David Chao, M.D. Engler suffered injuries as a result of her use of the Polar Care 500, and she brought various tort claims against Chao, his medical group Oasis MSO, Inc. (Oasis), and Breg, among others. At trial, the jury considered Engler's claims for medical malpractice, design defect (under theories of negligence and strict liability), failure to warn (also under theories of negligence and strict liability), breach of fiduciary duty, intentional misrepresentation, and intentional concealment. With a few exceptions, the jury generally found in favor of Engler, and against the defendants, on these claims. The jury awarded $68,270.38 in economic compensatory damages and $5,127,950 in noneconomic compensatory damages to Engler. It allocated responsibility for Engler's harm: 50 percent to Chao, 10 percent to Oasis, and 40 percent to Breg. The jury made findings of malice, oppression, or fraud as to each defendant on at least one claim. In the punitive damages phase of trial, the jury awarded $500,000 against Chao and $7 million against Breg. The jury declined to award any punitive damages against Oasis. Breg, Chao, Oasis, and Virginia Bigler-Engler, as administrator of Engler's estate, appealed, raising numerous challenges to the judgment. In the published portions of its opinion, the Court of Appeal considered: (1) whether Engler's counsel committed prejudicial misconduct during trial; (2) whether the jury's awards of noneconomic compensatory damages and punitive damages were excessive; (3) whether the evidence supported the jury's verdict against Breg for intentional concealment in the absence of a transactional relationship between Breg and Engler (or her parents); (4) whether Oasis fell within the medical provider exception to the doctrine of strict products liability; (5) whether Breg was entitled to an instruction on the learned intermediary doctrine; (6) whether the Medical Injury Compensation Reform Act of 1975 (MICRA) and Proposition 51 applied to the jury's verdict; and (7) whether Engler's pretrial settlement offer under Code of Civil Procedure section 998 complied with the statute. In the unpublished portions of the opinion, the Court considered additional challenges to the sufficiency of the evidence, the trial court's jury instructions, and the trial court's evidentiary rulings. After review, the Court of Appeal reversed the judgment in part, concluding the jury's verdict as to several claims was not supported by the evidence, including Engler's intentional concealment claim against Breg and her strict products liability claim against Oasis. In light of this reversal of Engler's intentional concealment claim against Breg, the jury's punitive damages award against Breg had to be reversed too. Furthermore, the Court concluded the jury's award of noneconomic compensatory damages and the jury's award of punitive damages as to Chao were indeed excessive. Those awards were reversed and remanded for a new trial unless Bigler-Engler accepted reductions in those awards to $1,300,000 and $150,000 respectively. In all other respects, the judgment was affirmed. View "Bigler-Engler v. Breg, Inc." on Justia Law

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Plaintiff filed a medical malpractice action against his primary care physician, neurologist, and their employer, alleging that he was misdiagnosed in regard to the cause of his headaches. The court held that, when the plaintiff in a medical malpractice action alleges the defendant health care provider misdiagnosed or failed to diagnose a preexisting disease or condition, there is no injury for purposes of Code of Civil Procedure section 340.5 until the plaintiff first experiences appreciable harm as a result of the misdiagnosis, which is when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one. In this case, because there are disputed issues of material fact regarding whether plaintiff discovered his injury within the meaning of section 340.5 more than one year before he filed this action, the court reversed the trial court's grant of defendants' motion for summary judgment. View "Drexler v. Petersen" on Justia Law

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This matter arose from Whitney Engler's use of a medical device, the Polar Care 500, that was manufactured by Breg, Inc. (Breg) and prescribed by David Chao, M.D. Engler suffered injuries as a result of her use of the Polar Care 500, and she brought various tort claims against Chao, his medical group Oasis MSO, Inc. (Oasis), and Breg, among others. The jury made findings of malice, oppression, or fraud as to each defendant on at least one claim. In the punitive damages phase of trial, the jury awarded $500,000 against Chao and $7 million against Breg. The jury declined to award any punitive damages against Oasis. Breg, Chao, Oasis, and Virginia Bigler-Engler, as administrator of Engler's estate, appeal. After careful consideration of the parties' arguments on appeal of the outcome of the trial, the Court of Appeals reversed the judgment in part, concluding the jury's verdict as to several claims was not supported by the evidence, including Engler's intentional concealment claim against Breg and her strict products liability claim against Oasis. In light of this reversal of Engler's intentional concealment claim against Breg, the jury's punitive damages award against Breg had to be reversed too. The Court also concluded the jury's award of noneconomic compensatory damages and the jury's award of punitive damages as to Chao were excessive. Those awards were reversed the case remanded for a new trial unless Bigler-Engler accepted reductions in those awards to $1,300,000 and $150,000 respectively. In all other respects, the judgment was affirmed. View "Bigler-Engler v. Breg, Inc." on Justia Law

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Plaintiff and his wife filed suit against plaintiff's pain management physician, Howard L. Rosner, M.D., and Cedars for professional negligence and loss of consortium. Rosner's treatment rendered plaintiff a quadriplegic. A jury found that both Rosner and Cedars had been negligent, but that only Rosner’s negligence had been a substantial factor in causing plaintiff's severe injuries. The jury nonetheless apportioned 40 percent of fault to Cedars, apparently on the basis of its finding that Rosner was Cedars’s ostensible agent. Both defendants appealed. The court concluded that, under the circumstances, plaintiff knew or should have known that Rosner was not Cedars’s agent where he received actual notice and was treated in a nonemergency context. Therefore, Cedars’s motion for judgment notwithstanding the verdict should have been granted. The court also concluded that the jury's negligence finding was supported by substantial evidence; the special verdict form used in this case properly required the jury to make findings only as to ultimate facts for plaintiffs’ sole cause of action; the trial court was not required to grant a new trial, but instead acted properly to eliminate the ambiguity or inconsistency by striking the jury’s apportionment of fault; and substantial evidence supports the jury’s award of future economic damages and costs. Accordingly, the court affirmed with respect to Rosner and reversed with respect to Cedars. View "Markow v. Rosner" on Justia Law

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After plaintiff suffered injury during a gallbladder surgery that will have lifelong repercussions, she filed suit for malpractice, and sought damages for the resulting diminution in her earning capacity. The court held that the jury must fix a plaintiff’s future earning capacity based on what it is “reasonably probable” she could have earned. In this case, because plaintiff did not adduce any evidence to establish that it was “reasonably probable” she could have obtained employment as an attorney or any evidence on the earnings of lawyers, the trial court did not abuse its discretion in determining that the jury’s $730,000 award for lost earning capacity was not supported by substantial evidence. The court also concluded that, given the unusual facts of this case, the trial court acted within its discretion in granting a new trial on damages rather than entering a judgment notwithstanding the verdict for defendants. Accordingly, the court affirmed the grant of a new trial on damages, and provided additional guidance as to a handful of evidentiary issues likely to arise during the retrial. View "Licudine v. Cedars-Sinai Med. Ctr." on Justia Law

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Borrayo sued Dr. Avery, alleging medical malpractice during the course of treating her for a condition known as thoracic outlet syndrome. The condition, which caused intense pain in her right shoulder and scapula, numbness and swelling, painful grip, and weakness when raising her right elbow, was secondary to repetitive stress at work. Avery performed surgery that involved the removal of the right first rib. Plaintiff suffered adverse symptoms approximately 12 months following the surgery, including pain upon moving her right arm, and difficulty in swallowing food. The trial court granted Dr. Avery summary judgment, after sustaining his objection to her sole expert witness’s declaration. The court of appeal reversed, stating that plaintiff’s expert witness, a physician licensed to practice medicine in Mexico, was qualified to provide an opinion about the standard of care to which defendant was held. View "Borrayo v. Avery" on Justia Law

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Plaintiff filed suit alleging claims stemming from his medical care and treatment at Mercy Hospital when he was a prison inmate at Corcoran State Prison. On appeal, plaintiff challenged the trial court's dismissal entered in favor of Mercy Hospital after the trial court sustained defendant’s demurrer to plaintiff’s complaint on statute of limitations grounds. Plaintiff argues that the trial court erred because it failed to apply the tolling provision set forth at Code of Civil Procedure section 352.1, which grants a two-year tolling of the statute of limitations to persons who are imprisoned “for a term less than for life.” The court concluded that when the Legislature enacted section 352.1 and continued to use the same language from former section 352, stating that tolling would be granted to persons imprisoned “for a term less than for life,” the Legislature did so with knowledge and in light of Grasso v. McDonough Power Equipment, Inc.'s prior judicial construction thereof, and with an intention to continue that construction of the statutory language. Accordingly, Grasso remains good law. The court concluded that the trial court erred in sustaining the demurrer on statute of limitations grounds, which error stemmed from the trial court’s failure to apply the tolling provision in section 352.1 to plaintiff. Therefore, the court reversed the judgment. View "Brooks v. Mercy Hospital" on Justia Law

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In 2001, BioEnterics obtained FDA approval for the Lap-Band, “designed to induce weight loss in severely obese patients by limiting food consumption" by creation of a small gastric pouch. The FDA indicated that the Lap-Band’s labeling must “specify the requirements that apply to the training of practitioners who may use the device” and required annual progress reports on a postapproval study. BioEnterics's brochure states that surgeons planning laparoscopic placement must have specific experience, participate in a training program authorized by BioEnterics, be observed by “qualified personnel” during their first placements, have the equipment and experience necessary to complete the procedure via laparotomy if required, and report on their personal experiences using the device. In 2003, plaintiff underwent a surgical procedure to implant a Lap-Band, which eventually eroded into her stomach and her liver; Lap-Band tubing became entangled with her small intestine. During surgery to remove the Lap-Band she suffered a massive hemorrhaging from her liver, causing her to experience profound hypotension and systemic shock, resulting in brain damage. More than nine years later, plaintiff filed suit. The court of appeal affirmed dismissal of her claim that the company failed to adequately train physicians in the use of the Lap-Band, as preempted by federal law. View "Glennen v. Allergan, Inc." on Justia Law

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Jesse's father, Crow, a retired physician, was aware that Jesse had a history of fights and arrests, including brandishing a gun on the highway. Crow first met Ryann after she married Jesse and saw her fewer than 10 times. Once, Crow went to their house and found the couple intoxicated. Ryann was in pain and stated that her foot had been run over by a stranger. Crow’s wife arranged for Ryann to see Dr. Williams. Ryann’s injuries were consistent with her explanation. Ryann did not mention abuse. Ryann’s mother, Pipitone, later learned that Jesse had run over Ryann’s foot. Jesse, with help from Crow, paid Ryann $5,000. Ryann signed an agreement, stating that the incident was an accident; Pipitone signed as a witness. Pipitone eventually reported the abuse to the police. Ryann’s sister also reported. Ryann was not cooperative. Ryann admitted that Jesse had deliberately run her over, that she felt threatened, and that he had “guns and a lot of illegal things.” Six months after their marriage Jesse murdered Ryann, and with assistance, dismembered and dumped her body into the San Francisco Bay. Jesse committed suicide in jail. Pipitone brought a wrongful death action against Doctors Crow and Williams for failure to report suspected abuse under Penal Code 11160. The trial court granted the defendants summary judgment, on grounds of duty and causation. The court of appeal affirmed. View "Pipitone v. Williams" on Justia Law