Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV022999
Mihara, Acting P. J.
Appellant Shaylene Fitzgerald brought a medical malpractice action against surgeon Robert Mitchell, respondent El Camino Hospital, and respondent anesthesiologist Edwin R. Lee. The superior court sustained El Camino Hospital’s demurrer to her cause of action against it for negligently failing to disclose information about anesthesia. Fitzgerald’s failure to obtain informed consent cause of action against Lee was summarily adjudicated against her. Fitzgerald’s failure to obtain informed consent cause of action against Mitchell was tried to a jury along with her negligence cause of action against Mitchell, Lee, and El Camino Hospital. The jury returned a special verdict finding no negligence.
On appeal, Fitzgerald contests (1) the superior court’s sustaining of El Camino Hospital’s demurrer, (2) its summary adjudication of her informed consent cause of action against Lee, (3) the sufficiency of the evidence to support the jury’s verdict in favor of Lee and El Camino Hospital, and (4) the trial court’s responses to two jury questions. We conclude that the superior court erred in summarily adjudicating Fitzgerald’s informed consent cause of action against Lee, but we reject the remainder of Fitzgerald’s contentions. Consequently, we reverse the judgment as to Lee and remand for further proceedings.
I. Factual Background
Fitzgerald suffered from severe sweating under her arms. This condition, known as hyperhidrosis, is caused by a nerve malfunction. Fitzgerald first consulted Mitchell on April 7, 2004. He recommended a surgical procedure called thoracoscopic dorsal sympathectomy. Mitchell had performed this type of surgery over a hundred times. This procedure is designed to alleviate hyperhidrosis by interrupting the nerve impulses that cause it. This surgical procedure is performed in the chest cavity, and it does not involve the neck. Fitzgerald returned to see Mitchell a week after her initial consultation, and she decided to have the procedure. The surgery was scheduled for May 7, 2004.
When Mitchell advised Fitzgerald regarding the risks arising from the surgery, he did not discuss any risk of brachial plexus injury because such injury was not considered a risk of this type of surgery. Mitchell had never seen a brachial plexus injury from this procedure, and “[the brachial plexus is] not in the area that we’re doing the surgery....” Mitchell left to the anesthesiologist to discuss with Fitzgerald the risks from general anesthesia. El Camino Hospital had produced a general pamphlet for surgery patients, but it apparently did not provide a copy of this pamphlet to Fitzgerald. This pamphlet identified as among the “[r]are complications” that “may occur during any type of anesthesia” “nerve damage resulting in numbness or paralysis,... from limbs’ being in one position for a long time.”
Fitzgerald was wheeled into the operating room at 9:20 a.m. on May 7, 2004. Just before she entered the operating room, Fitzgerald signed a written consent to the surgical procedure and the anesthesia. She was awake and alert, and she moved herself from the gurney to the operating table. Lee, the anesthesiologist for Fitzgerald’s surgery, was not employed by El Camino Hospital; he was an independent contractor. El Camino Hospital’s nurses assisted Lee and Mitchell in the operating room.
The operating table had armboards attached to its sides. El Camino Hospital had a “protocol” to “secure arms to the armboards with a narrow soft safety strap when the patient is positioned in the supine position for surgery.” This protocol stated: “Do not abduct shoulder greater than 90 degrees from the side to reduce risk of nerve brachial plexus injury.” General anesthesia is induced while the patient is supine (lying on his or her back), and then the patient is positioned for surgery. The protocol’s arm positioning directions do not state whether they were intended to apply between the inducement of anesthesia and the positioning of the patient for surgery.
It was not Lee’s practice to secure a patient’s arms to armboards before placing the patient under anesthesia. Lee administered some IV sedation to Fitzgerald at 9:33 a.m. He began inducing anesthesia at 9:38 a.m. It takes about a minute for the anesthesia to take effect. After the patient is asleep, the breathing tube is inserted. Both of Fitzgerald’s arms were on the armboards at that time, and Lee never saw Fitzgerald’s right arm off of the armboard. The right armboard was angled along Fitzgerald’s side during induction to allow the nurse to stand beside her and assist Lee as Lee intubated Fitzgerald. Lee’s practice was to continuously hold the intubation tube in place while the patient was positioned for surgery. The nurse assisted Lee in the process of placing the breathing tube. Once the breathing tube was properly placed, Mitchell arrived in the operating room. Fitzgerald’s head and neck were not extended or stretched during the induction process.
Lee believed that there was “very little risk” of an arm falling off the armboard between induction and positioning, and he was not aware of any technique that would pose no risk of the arm falling off the armboard. His assessment was that it was safer for the patient to not strap the arms to the armboards during this brief period due to the risk that the armboard could fall off the table and drag the patient’s arm down. He also was concerned that the surgeon might not notice that the arms were secured and would attempt to position the patient without removing the straps, thereby straining the patient’s arms. The nurse who was assisting Lee, on the other hand, had a practice of lightly securing the patient’s arms to the armboards with a strap or tape once the patient was sedated. She would then remove the straps when the surgeon entered the room so that the armboards could be moved and the patient positioned for surgery.
When Mitchell entered the operating room a few seconds after the breathing tube was placed, Lee was holding the breathing tube, and the nurse was standing next to Fitzgerald’s right side. Fitzgerald had not yet been positioned for surgery. Mitchell noticed that Fitzgerald’s right lower arm was off the armboard and hanging down toward the floor. Her right shoulder was on the table, and her upper right arm was positioned on the table; only her right lower arm was hanging, and her right hand was drooping four to six inches below the operating table. Her right arm was abducted more than 90 degrees, which is called hyperabduction. Her left arm was on an armboard at 90 degrees. Because Mitchell arrived in the operating room shortly after Lee induced anesthesia, and the nurse was standing next to the right armboard with Lee at the head of the table, Mitchell was certain that Fitzgerald’s arm had been off of the armboard for only “a matter of seconds.” Hyperabduction can cause brachial plexus stretch or traction. The brachial plexus is a collection of nerve roots that runs from the spinal column into the arm. The brachial plexus is located in the neck, not in the chest cavity. In certain situations, an extreme brachial plexus stretch can cause injury to the brachial plexus. Mitchell had seen “hundreds” of arms off of armboards, and he had “never seen an injury” as a result. Nor had he ever heard of a brachial plexus injury from an arm falling off an armboard. It was not uncommon for an arm to fall off the armboard during the very short period of time after induction of anesthesia and before the patient was positioned for surgery.
Mitchell gently picked up Fitzgerald’s right forearm and placed it on the armboard. Then he and the other medical personnel rolled Fitzgerald onto her right side to position her for surgery. At that point, any straps on the arm would have been removed because it was time to position the patient for surgery. Fitzgerald was positioned laterally on her right side for the first part of the surgery, which lasted 70 minutes. There was no pressure on her brachial plexus during the surgery. The surgery commenced at 9:57 a.m. and lasted about two and a half hours. There were no complications during the surgery.
After the surgery, Mitchell was called to the recovery room because Fitzgerald’s “right hand did not appear to be functioning properly and she had severe pain in her neck and arm.” An MRI showed no sign of injury to the brachial plexus, but such injuries often do not show up on MRIs. Fitzgerald was subsequently found to have suffered an injury to the lower trunk of her brachial plexus. Mitchell was “at a loss to explain” what had caused Fitzgerald’s injury, as “ordinarily this type of injury doesn’t occur following this type of procedure.” The surgery successfully eliminated Fitzgerald’s hyperhidrosis. It was only long after the surgery that it was discovered that Fitzgerald had a rare bony spinal abnormality in her neck (the C7 transverse process) which made her much more susceptible to brachial plexus injury.
II. Procedural Background
Fitzgerald filed an action for negligence and failure to obtain informed consent against El Camino Hospital, Lee, and Mitchell. The operative pleading is the second amended complaint. This pleading alleges four causes of action. El Camino Hospital’s demurrer to the fourth cause of action, which alleged that it had negligently failed to disclose information about anesthesia, was sustained without leave to amend. Lee moved for and obtained summary adjudication of Fitzgerald’s third cause of action, which alleged that he had failed to obtain her informed consent. Her negligence cause of action against all three defendants and her failure to obtain informed consent cause of action against Mitchell proceeded to a jury trial.
The jury returned a special verdict in which it answered a single question as to each defendant. “Were any of the defendants negligent in the medical care and treatment of plaintiff Shaylene Fitzgerald?” The jury answered no as to Lee, Mitchell, and El Camino Hospital. The court entered judgment on the jury’s verdict in favor of Lee, Mitchell, and El Camino Hospital.
Fitzgerald moved for judgment notwithstanding the verdict (JNOV) and a new trial as to Lee and El Camino Hospital. She claimed that she was entitled to judgment or a new trial because neither Lee nor El Camino Hospital had produced evidence to rebut the res ipsa presumption, and no explanation had been provided for how her arm could have fallen off the armboard in the absence of negligence. The court denied her motions. Fitzgerald filed a timely notice of appeal from the judgment in favor of Lee and El Camino Hospital.
III. Discussion
A. Demurrer
Fitzgerald asserts that the superior court erred in sustaining without leave to amend El Camino Hospital’s demurrer to her cause of action against El Camino Hospital for “negligently fail[ing] to disclose information about anesthesia.” She had alleged that El Camino Hospital had negligently failed to provide her with a copy of its pamphlet on the general risks of anesthesia. This pamphlet identified as among the “[r]are complications” that “may occur during any type of anesthesia” “nerve damage resulting in numbness or paralysis,... from limbs’ being in one position for a long time.” Fitzgerald alleged that El Camino Hospital had voluntarily undertaken to provide this pamphlet to her. The court concluded that her allegations “are insufficient to establish that defendant owed a duty to disclose.”
This section of Fitzgerald’s opening brief is confusingly entitled “Summary Adjudication in Favor of the Hospital.”
Her legal argument on this issue in her opening brief on appeal borders on the nonexistent. She asserts: “Since the facts support a negligence theory based on a voluntary undertaking to advise patients about the risks of anesthesia, the general demurrer should not have been sustained without leave to amend.” This single sentence is followed by two unexplained case citations. Her reply brief contains no legal authority whatsoever to support this contention. The two cases she cites stand for the proposition that “a person may become liable in tort for negligently failing to perform a voluntarily assumed undertaking even in the absence of a contract so to do.” (Valdez v. Taylor Automobile Co. (1954) 129 Cal.App.2d 810, 817; Daniels v. DeSimone (1993) 13 Cal.App.4th 600, 609-610.) Fitzgerald’s allegations did not contain any indication that El Camino Hospital had agreed to disclose the risks of her surgery or anesthesia or had actually undertaken to disclose to her any information about the risks of her surgery or anesthesia. Instead, the crux of her allegations was that El Camino Hospital had not provided her with any information whatsoever. No voluntary undertaking cause of action may be premised on such allegations.
B. Summary Adjudication
Fitzgerald maintains that the superior court erred in summarily adjudicating her failure to obtain informed consent cause of action against Lee.
1. Background
Lee moved for summary adjudication of Fitzgerald’s failure to obtain informed consent cause of action against him. He argued in his points and authorities that he did not have a duty to inform Fitzgerald of a risk of brachial plexus injury because such an injury was not a known risk of “surgical positioning.” He asserted that expert opinion was admissible to establish the known risks and that evidence that a certain risk was not ordinarily disclosed by other physicians was relevant to whether the risk was minor or remote.
Lee’s separate statement of undisputed facts regarding the informed consent cause of action was brief. He asserted that it was undisputed that Mitchell had told Fitzgerald that the surgery would be under general anesthesia and that Fitzgerald had signed a consent form prior to the procedure. Lee admitted that he “does not recall talking to the patient about the potential for brachial plexus injury in the procedure.” He asserted that it was undisputed that the standard of care did not require Lee to obtain Fitzgerald’s “informed consent to surgical positioning” or to advise Fitzgerald “of the risk of brachial plexus injury as a result of positioning or the arm falling off the armboard.”
The evidence that Lee submitted in support of his motion included Fitzgerald’s signed consent form, Mitchell’s deposition testimony, and a declaration from Lee’s anesthesiology expert, Jeffrey L. Swisher. Mitchell had testified at his deposition that he had not informed Fitzgerald of the risk of a brachial plexus injury or of the risks of anesthesia. Swisher declared that he was “familiar with the standard of care applicable to anesthesiologists.” He opined: “The standard of care does not require that the anesthesiologist obtain the patient’s separate consent to surgical positioning or specifically inform the patient that brachial plexus injury might occur as a result of surgical positioning. The standard of care does not require that the anesthesiologist advise the patient that her arm might fall off an arm board and result in injury as this would be a very rare occurrence. I have never heard nor read of a brachial plexus injury of this nature occurring in this fashion.”
Fitzgerald’s separate statement in opposition to Lee’s motion asserted that “[i]nformed consent is not a standard of care question” so it was immaterial whether the standard of care required Lee to inform Fitzgerald of the risk of brachial plexus injury or to obtain her informed consent. Fitzgerald relied on the general pamphlet produced by El Camino Hospital for surgery patients as evidence that brachial plexus injury is among the known risks of general anesthesia. Fitzgerald also filed a written objection to the admissibility of Swisher’s declaration. She urged: “Whether there is a duty to disclose the possible risks from surgery, including nerve injury and paralysis, is not determined by expert testimony. Arato v. Avedon, (1993) 5 Cal.4th 1172, 1191. It is set by law rather than by the custom of physicians. Cobbs v. Grant 8 Cal.3d 229, 243.” Fitzgerald’s points and authorities in opposition to Lee’s motion did not contain any substantive opposition to Lee’s motion as to the failure to obtain informed consent cause of action except to note that she had objected to Swisher’s declaration.
The superior court overruled Fitzgerald’s evidentiary objection and granted Lee’s motion for summary adjudication of the failure to obtain informed consent cause of action against him. “The Declaration of Dr. Jeffrey L. Swisher is sufficient to meet Defendants’ initial burden to establish that Dr. Lee had no separate duty to obtain a second informed consent from Plaintiff before the procedure.... Here, while the sufficiency of the consent is disputed, it is undisputed that non-moving defendant Dr. Robert Mitchell discussed consent to surgery under general anesthesia with Plaintiff.... [¶] The burden having shifted, Plaintiff has not produced any evidence to controvert Dr. Swisher’s statement that an anesthesiologist has no duty to obtain a separate consent.”
2. Analysis
Fitzgerald contends that the superior court erred in summarily adjudicating her informed consent cause of action against Lee. She renews her evidentiary objection to Swisher’s declaration and contends that there were triable issues of fact.
Fitzgerald’s evidentiary objection was not meritorious. “The physician’s duty to disclose is twofold. ‘First, a physician must disclose to the patient the potential of death, serious harm, and other complications associated with a proposed procedure. [Citation.]’ [Citation.] ‘Second, “[b]eyond the foregoing minimal disclosure, a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances.” ’ ” (Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1134 (Wilson).) While expert opinion regarding the standard of care for disclosures is not relevant to the first category of disclosures, it is relevant to the second category of disclosures. “[I]n an appropriate case, the testimony of medical experts qualified to offer an opinion regarding what, if any, disclosures—in addition to those relating to the risk of death or serious injury and significant potential complications posed by consenting to or declining a proposed treatment—would be made to the patient by a skilled practitioner in the relevant medical community under the circumstances, is relevant and admissible.” (Arato v. Avedon (1993) 5 Cal.4th 1172, 1191 (Arato).) As Swisher’s declaration regarding the standard of care was potentially relevant to the scope of the second category of disclosures, it was not inadmissible.
Expert testimony regarding the known risks of the procedure is admissible and relevant to the first category of disclosures.
On the other hand, Fitzgerald’s challenge to the superior court’s summary adjudication ruling has merit. “Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo.” (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210.) “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.... A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, at pp. 850-851.)
The first question is whether Lee made a prima facie showing that there were no triable issues of fact as to whether he had a duty to disclose the risk of brachial plexus injury to Fitzgerald.
Although Lee’s points and authorities in support of his motion suggested that brachial plexus injury was not a known risk of undergoing this type of surgical procedure under general anesthesia, his separate statement did not assert that this was an undisputed fact, and he produced no evidence to support such a proposition. Instead, Lee’s separate statement asserted that it was an undisputed fact that the standard of care did not require Lee to obtain Fitzgerald’s “informed consent to surgical positioning” or to advise Fitzgerald “of the risk of brachial plexus injury as a result of positioning or the arm falling off the armboard.”
The scope of a physician’s duty to obtain informed consent is not primarily circumscribed by the standard of care. “[T]he duty to disclose risks of death, serious injury, or significant complications is not defined by the custom or practice of the medical community. Instead, such a potential peril must be divulged if it would be material to the patient’s decision, regardless of the custom in the profession.” (Spann v. Irwin Memorial Blood Centers (1995) 34 Cal.App.4th 644, 655; see also Wilson, supra, 142 Cal.App.4th at p. 1134; Arato, supra, 5 Cal.4th at p. 1191.)
Neither Lee’s separate statement nor the evidence he submitted in support of his motion established that the risk of brachial plexus injury was not a risk of serious harm or a significant complication associated with undergoing this type of surgery under general anesthesia. Nor did he establish that the risk of brachial plexus injury would not be material to a patient’s decision whether to undergo this procedure. The sole evidence he submitted on these issues was Swisher’s declaration, and it was insufficient.
Swisher’s declaration did not assert that a brachial plexus injury was not serious harm or that a brachial plexus injury was not a complication associated with undergoing this type of surgery under general anesthesia. Instead of addressing the complications associated with this type of surgery under general anesthesia, Swisher’s opinions were almost exclusively expressly premised on the standard of care. As we have explained above, a physician’s primary duty of disclosure is not circumscribed by the standard of care. Lee attempts to avoid this serious flaw in Swisher’s declaration by relying on a single sentence of Swisher’s declaration that was not premised on the standard of care. Swisher stated: “I never heard nor read of a brachial plexus injury of this nature occurring in this fashion.” This sentence did not establish that a brachial plexus injury was not a complication associated with this type of surgery under general anesthesia. Swisher’s words “in this fashion” referred back to the previous sentence of his declaration in which he narrowly focused his opinion on the risk that the patient’s “arm might fall off an arm board and result in injury....” Hence, the sentence upon which Lee relies said only that Swisher had not heard or read of a brachial plexus injury being caused by an arm falling off of an armboard, not that he had not heard or read of a brachial plexus injury being associated with this type of surgical procedure under general anesthesia. Swisher’s declaration left open whether he had heard or read of a brachial plexus injury being associated with this type of surgical procedure under general anesthesia by some mechanism other than an arm falling off of an armboard.
Swisher’s declaration also did not establish that the risk of a brachial plexus injury was immaterial to a patient’s decision. Swisher stated: “The standard of care does not require that the anesthesiologist obtain the patient’s separate consent to surgical positioning or specifically inform the patient that brachial plexus injury might occur as a result of surgical positioning.” (Italics added.) At most, Swisher’s declaration supported a conclusion that the risk of brachial plexus injury did not fall within the category of additional disclosures required of a physician by the standard of care, but it did not purport to establish that a physician had no duty of disclosure because this risk was not a serious harm or complication associated with undergoing this type of surgery under general anesthesia.
Swisher’s wording was limited. He stated only that the standard of care did not require disclosure of the risk of this type of injury from “surgical positioning.” Lee’s evidence did not clarify whether the risks of “surgical positioning” included all of the risks associated with undergoing this type of surgical procedure under general anesthesia.
The superior court premised its summary adjudication ruling on its finding that “Lee had no separate duty to obtain a second informed consent from Plaintiff before the procedure.” “The existence of a duty is not an immutable fact of nature, but rather an expression of policy considerations providing legal protection. [Citation.] Thus, the existence and scope of a defendant’s duty is a question for the court’s resolution.” (Shin v. Ahn (2007) 42 Cal.4th 482, 488.) The duty to obtain informed consent arises from the patient’s “interest in autonomous decisionmaking.” (Arato, supra, 5 Cal.4th at p. 1184, italics added.) “[T]here is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.” (Cobbsv. Grant (1972) 8 Cal.3d 229, 243.)
Lee makes no significant effort to defend the superior court’s reasoning on appeal.
Lee’s own evidence established that Mitchell had not informed Fitzgerald generally of the risks of general anesthesia or specifically of the risk of brachial plexus injury. While it might be true that an anesthesiologist would have no duty to inform a patient of risks that the anesthesiologist knew the patient’s surgeon had already disclosed to the patient, Lee made no such showing here. Indeed, his evidence disclosed quite the opposite. Under these circumstances, the policies underlying the duty to obtain informed consent required Lee to make the requisite disclosures to Fitzgerald so that she could make an informed decision whether to proceed with the operation. Lee’s evidence did not support the superior court’s conclusion that Lee had no duty to disclose to Fitzgerald the risks of undergoing this type of surgical procedure under general anesthesia.
Lee argues that he was entitled to summary adjudication on his alternate theory of lack of causation. However, his separate statement and his evidence did not assert that it was an undisputed fact that a reasonable person would have consented to the procedure even if she had been informed of the risk of brachial plexus injury. Hence, he could not obtain summary adjudication on this theory.
Lee also suggests that the superior court’s error in summarily adjudicating this cause of action was harmless because Mitchell prevailed at trial on the informed consent cause of action against him. We disagree. The evidence at trial was that Mitchell left to Lee the task of disclosing the risks of anesthesia to Fitzgerald. Since the jury could have concluded that Lee, rather than Mitchell, was responsible for making such disclosures, its verdict in favor of Mitchell did not absolve Lee of that responsibility.
As Lee did not meet his initial burden on his motion for summary adjudication, the superior court erred in granting his motion.
C. Sufficiency of the Evidence
Fitzgerald asserts an appellate challenge that she identifies as a challenge to the sufficiency of the evidence to support the jury’s verdicts in favor of Lee and El Camino Hospital.
1. Expert Testimony At Trial
Numerous expert witnesses testified at trial. Fitzgerald presented the testimony of retired surgeon Ronald J. Stoney. Stoney testified that a brachial plexus injury does not “[o]rdinarily” occur after this type of procedure in the absence of negligence. Stoney opined that Fitzgerald’s injury was a “traction injury.” He explained that hyperabduction of an arm can cause traction on the brachial plexus. Stoney concluded that “malposition [of Fitzgerald’s arm] was the triggering event of this injury.” He opined that Fitzgerald probably had a soft tissue anomaly in her neck associated with her C7 bony abnormality that made her more susceptible to a brachial plexus injury. Stoney did not claim that Mitchell should have known that Fitzgerald had such an anomaly, and he conceded that the injury might not have occurred in the absence of the anomaly. Stoney testified that this “is a rare injury,” and the presence of the anomaly “would greatly increase the risk of this kind of an injury....” Stoney admitted that he had never read of, heard of, or experienced a patient suffering a brachial plexus injury due to an arm coming off the armboard or the operating table “in the preoperative pre-positioning phase.” Nor was he aware of any report of any such injury anywhere.
Fitzgerald also presented expert testimony from anesthesiologist William Mazzei. Mazzei testified that he had “never once heard of a case of a peripheral nerve injury caused to a patient in the OR by the patient’s arm coming off the armboard or the table.” Mazzei nevertheless testified that allowing an arm to come off an armboard while the patient is anesthetized always violates the standard of care. Mazzei admitted that he had had arms come off armboards in the operating room, but “[l]uckily” none of the patients had been injured. Mazzei testified that Lee and the nurses were negligent in allowing Fitzgerald’s arm to fall off the armboard.
Mitchell’s expert, surgeon Richard Whyte, testified that Mitchell had met the standard of care. He explained that arms occasionally fall off of armboards, but he had never known that to cause any injury. Whyte characterized Fitzgerald’s injury as “an extremely rare complication.” Whyte asserted that Fitzgerald’s arm falling off the armboard was a substantial factor in causing the brachial plexus injury along with Fitzgerald’s preexisting C7 abnormality and neuropathy. Whyte testified that this injury can occur in the absence of negligence.
El Camino Hospital’s expert testified that the nurses had acted within the standard of care. He asserted that an arm coming off of an armboard happens occasionally and is not generally the result of negligence. In his opinion, an arm coming off an armboard was only a problem if it was not noticed and remained in an awkward position for hours. He testified that the standard of care did not require the nurses to strap or otherwise affix the patient’s arms to armboards between induction and positioning. This expert estimated that the risk of this kind of injury in this type of surgery was near one in a million. He did not believe that the brachial plexus injury was caused by the arm coming off the armboard, but instead by the surgery itself.
Lee presented the expert testimony of anesthesiologist Jeffrey Swisher. He testified that Lee met the standard of care. Swisher noted that arms “not infrequently” come off of armboards, but there is no significant risk of injury so long as the arm is only briefly off of the armboard. He testified that it was unnecessary to secure the arms between induction and positioning because this was a period of just a few seconds during which there was no significant risk of injury if an arm fell off an armboard. Swisher did not believe that the arm falling off the armboard had caused the brachial plexus injury, and he had never heard of such an injury being caused by such an event. He also testified that arms come off of armboards in the absence of negligence. Swisher asserted that a brachial plexus injury can occur in the absence of negligence.
Defense expert neurologist Yuen So testified that nerve injury can occur even with all appropriate precautions during a surgical procedure. Fitzgerald’s brachial plexus injury could have occurred during positioning despite all appropriate precautions having been taken. For instance, Fitzgerald’s vulnerability to neurogenic thoracic outlet syndrome could have caused the aggravation of the brachial plexus during the surgery due to the fact that she was lying on one side for a significant period. He asserted that nerve injury is “a known risk of general anesthesia.” So also testified that pressure injury to the brachial plexus is a known risk of surgery in general, but such an injury is “extraordinarily rare” in this type of surgery. So stated that it was impossible that the arm off the armboard for five or ten seconds could have caused the brachial plexus injury. Even with Fitzgerald’s C7 anomaly, So testified that it was highly unlikely that the arm off the armboard caused the injury.
2. Argument and Jury Instructions
Fitzgerald’s counsel argued both res ipsa loquitur and general negligence to the jury. He urged the jury to consider res ipsa first and proceed to consider evidence of negligence only if it failed to find that res ipsa had been established.
The jury was given general negligence instructions and instructions on res ipsa loquitur. All of the jury instructions and the special verdict form were agreed to by all parties. The jury was instructed: “The plaintiff claims that she was harmed by defendants’ negligence. To establish this claim, the plaintiff must prove all the following: [¶] 1. The defendants were negligent; [¶] 2. The plaintiff was harmed; and [¶] 3. That defendants’ negligence was a substantial factor in causing the plaintiff’s harm.” “The fact that a particular injury suffered by a patient as the result of medical treatment is something that rarely occurs does not, in itself, prove that the injury was probably caused by the negligence of those in charge of the medical treatment.” “A medical specialist is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful medical specialists would use in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as ‘the standard of care.’ ”
“In this case, plaintiff may prove that the negligence of one or more of the defendants’ [sic] caused her harm if she proves all of the following: [¶] 1. The plaintiff’s harm ordinarily would not have occurred unless someone was negligent. In deciding this issue, you must consider only the testimony of the expert witnesses; [¶] 2. That the harm occurred while plaintiff was under the care and control of defendants; and [¶] 3. That plaintiff’s voluntary actions did not cause or contribute to the events that harmed her. [¶] If you decide that plaintiff did not prove one or more of these three things, then: [¶] you must decide whether one or more of the defendants were negligent in light of the other instructions I have read. [¶] If you decide that plaintiff proved all of these three things, you may, but are not required to, find that one or more of the defendants were negligent or that one or more of the defendants’ negligence was a substantial factor in causing plaintiff’s harm, or both. [¶] You must carefully consider the evidence presented by both plaintiff and each of the defendants before you make your decision. You should not decide in favor of plaintiff unless you believe, after weighing all of the evidence, that it is more likely than not that one or more of the defendants were negligent and that their negligence was a substantial factor in causing plaintiff’s harm.”
3. Alleged Breach of “Protocol”
Fitzgerald argues on appeal that substantial evidence does not support the jury’s finding that El Camino Hospital was not negligent because the evidence indisputably established that there was a breach of El Camino Hospital’s “protocol.” Fitzgerald claims that evidence that her arm was off the armboard and hyperabducted established that the protocol was breached and therefore that El Camino Hospital was negligent. In her opening brief, she cites no legal authority for the proposition that a breach of this protocol was necessarily negligence. Instead, she presents a confusing argument in which she alleges that El Camino Hospital was contractually bound to comply with the protocol. As she brought no breach of contract claim against El Camino Hospital, this argument is irrelevant.
In her reply brief, Fitzgerald contends that the protocol “established the standard of care” and cites Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472 (Dillenbeck) to support this proposition. Dillenbeck does not support that proposition. “These rules [such as the protocol] are admissible, however, only as evidence of the component requirements of due care. As one factor in this determination their evidentiary effect depends entirely on their persuasiveness with the individual trier of fact. [Citation.] This limitation allows ample opportunity for the employer to explain that he established a given rule, not as a reflection of his opinion as to what specific conduct comports with due care, but solely from an excess of caution.” (Dillenbeck, at p. 480, italics added.) While evidence of El Camino Hospital’s protocol was admissible evidence on the issue of the standard of care, this protocol did not establish the standard of care.
Fitzgerald claims that “[t]he verdict that the Hospital was not negligent means that the jury found that the protocol was not breached[,]” which she claims is not supported by substantial evidence. There was evidence that Fitzgerald’s arm was off the armboard after induction but before positioning, and it was disputed whether the protocol applied during this precise period. Thus, the mere fact that her arm was off the armboard during that period did not establish a breach of the protocol. Even if the protocol required Fitzgerald’s arms to be secured during induction and after positioning, her arms would necessarily have to be released in between in order for her to be properly positioned for surgery. There also was a factual dispute at trial as to whether Fitzgerald’s arms were actually secured during induction. No one could remember, but the nurse’s habit was to secure the arms, while Lee’s practice was to leave the arms free. In light of this factual dispute, a jury could have found that the protocol was not breached during induction. Furthermore, the evidence did not indisputably establish that the protocol set the applicable standard of care. El Camino Hospital’s expert testified that the nurses complied with the standard of care and that the standard of care did not require the nurses to strap or otherwise affix Fitzgerald’s arms to armboards between induction and positioning. Fitzgerald’s contention lacks merit.
4. Res Ipsa Loquitur
Fitzgerald contends that she established the elements of res ipsa loquitur as a matter of law. She maintains that the burden of producing evidence then shifted to Lee and El Camino Hospital, they failed to meet that burden, and she was therefore entitled to prevail.
“In California, the doctrine of res ipsa loquitur is defined by statute as ‘a presumption affecting the burden of producing evidence.’ (Evid. Code, § 646, subd. (b).) The presumption arises when the evidence satisfies three conditions: ‘ “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” ’ ” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826, citation omitted; Ybarra v. Spangard (1944) 25 Cal.2d 486, 489.)
“ ‘[T]he applicability of the doctrine of res ipsa loquitur depends on whether it can be said, in the light of common experience, that the accident was more likely than not the result of [defendants’] negligence. [Citations.] “Where no such balance of probabilities in favor of negligence can be found, res ipsa loquitur does not apply.” ’ ” (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 442 (Zentz).) “[I]t must appear... that the accident is of a type which probably would not happen unless someone was negligent. In the absence of such a probability there would be no basis for an inference of negligence which would serve to take the place of evidence of some specific negligent act or omission.” (Zentz, at pp. 442-443.)
Fitzgerald repeatedly suggests that the burden of producing evidence shifted as soon as she made a “prima facie showing” of the res ipsa conditions. The cases she cites in support of this proposition do not support it. In Dierman v. Providence Hospital (1947) 31 Cal.2d 290 (Dierman), the res ipsa conditions were undisputed, and therefore established as a matter of law. (Dierman, at pp. 294-295.) In Ragusano v. Civic Center Hospital Foundation (1962) 199 Cal.App.2d 586 (Ragusano), the issue was whether there was sufficient evidence of the res ipsa conditions to overcome a nonsuit motion. (Ragusano, at pp. 588-589, 597.) Neither of these cases held that a plaintiff’s prima facie showing in support of the res ipsa conditions caused the burden to shift. In Ales v. Ryan (1936) 8 Cal.2d 82 (Ales), a sponge was left in the abdomen during a surgical procedure, and res ipsa was established as a matter of law. (Ales, at pp. 88, 93, 95, 99.) Thus, when the court in Ales referred to a “prima facie case” in the res ipsa context, it was describing the situation where res ipsa has been established as a matter of law, thereby creating a prima facie case of negligence, which shifts the burden to the defense. (Ales, at p. 99.)
Fitzgerald assumes that res ipsa shifts the burden whenever a plaintiff presents evidence that could support a res ipsa presumption. She is incorrect. “If the facts which would give rise to a res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference....” (Evid. Code, § 646, subd. (c)(1), italics added.) It is a question of fact for the jury whether a plaintiff has established the three conditions necessary for the res ipsa presumption to arise. (Newing v. Cheatham (1975) 15 Cal.3d 351, 359.) The burden of producing evidence shifts to the defense only if the plaintiff establishes the res ipsa conditions as a matter of law or the factfinder concludes that the res ipsa conditions have been established.
Accordingly, the question before us is whether plaintiff established the res ipsa conditions as a matter of law. The only res ipsa condition that was disputed was whether a brachial plexus injury is the type of injury that probably would not occur during this type of surgical procedure in the absence of negligence. Fitzgerald’s expert Stoney gave confusing and internally inconsistent testimony on this point. The following colloquy occurred on direct examination. “Q [by Fitzgerald’s trial counsel] And ordinarily, do you get a brachial plexus injury following a bilateral dorsal sympathectomy? [¶] A [by Stoney] No, you do not. [¶] Q Ordinarily, do you get a brachial plexus injury of the type that Shaylene Fitzgerald suffered in the absence of negligence somewhere in the operating room? [¶] A If you’re relating this injury to an operative event, yes. [¶] Q Ordinarily, do you get this injury in the absence of negligence somewhere during the procedure? [¶] A Yes. [¶] Ordinarily you do get it? [¶] A If there’s negligence; yes. [¶] Q Okay. And ordinarily, in the absence of negligence, do you get it? [¶] A No, you do not.” (Italics added.) Subsequently, on redirect, Fitzgerald’s counsel asked Stoney: “Ordinarily, do you see this injury following this procedure unless somebody was negligent somewhere, whether it was positioning, padding, or something else?” He replied: “No, you don’t.”
Fitzgerald’s position is that Stoney’s testimony established this res ipsa condition as a matter of law. We disagree. Stoney certainly provided testimony on both direct examination and redirect examination upon which a jury could have relied to find that this res ipsa condition had been satisfied. However, a rational factfinder could have equally well chosen to discount Stoney’s testimony on the ground that he had given internally inconsistent testimony on this point. Stoney’s initial “Yes” response to the question “Ordinarily, do you get this injury in the absence of negligence somewhere during the procedure” affirmed that, ordinarily, a brachial plexus injury after this procedure occurs in the absence of negligence. It was only after significant effort by Fitzgerald’s counsel that he was able to get Stoney to give the desired response, which was precisely the opposite testimony. Rational jurors could have concluded that Stoney had lost any credibility on this point by his contradictory answers. This conclusion could also have been buttressed by the testimony of the defense experts that there were numerous possible non-negligent causes of Fitzgerald’s brachial plexus injury. Consequently, we reject Fitzgerald’s argument that she established res ipsa as a matter of law.
Fitzgerald points out that El Camino Hospital did not produce evidence that brachial plexus injuries ordinarily occur in the absence of negligence. Since Stoney’s testimony itself supported such a conclusion, it is irrelevant that El Camino Hospital did not produce such testimony.
Because the jury could have rationally concluded that Fitzgerald had failed to establish the first res ipsa condition, it was not obligated to apply the res ipsa presumption. For this reason, we reject Fitzgerald’s contention that the burden of producing evidence shifted to El Camino Hospital and Lee.
Fitzgerald makes subsidiary contentions that she was entitled to prevail because neither Lee nor El Camino Hospital produced evidence identifying the precise cause of her injury or establishing that they were not negligent in any respect. All presumptions must be drawn in favor of the jury’s verdict. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Here, we must presume that the jury rejected Fitzgerald’s res ipsa argument on the ground that she had failed to establish the first res ipsa condition. Consequently, the burden of producing evidence did not shift to Lee or El Camino Hospital.
Fitzgerald also contends that she was prejudiced by the trial court’s “in limine order” regarding res ipsa because this “ruling[]... altered Dr. Lee’s burden of producing evidence and it allowed the jurors to determine whether res ipsa applied based on how the injury can happen as opposed to how the injury probably happened and whether it ordinarily occurs in the absence of negligence.” The problem with this contention is that the record does not establish that the trial court made any in limine rulings of this kind.
During in limine discussions, the court explained that “[a] lot of my rulings on this are going to have to be made as we go.” Although the court was convinced that “[t]he second and third prong seem pretty well satisfied[,]” it noted that the first prong was the subject of dispute. The court discussed its understanding of the first prong, but then said “having said that, I’m going to wait and see.” This is the only reference in the reporter’s transcript to in limine discussions of res ipsa.
Fitzgerald’s reply brief in support of her new trial and JNOV motions was accompanied by a piece of paper entitled “Res Ipsa Loquitur Rulings” which she claimed was the trial court’s in limine rulings. Nothing else in the record contains any support for this claim. This piece of paper consisted entirely of a single page of text with no insignia of its source and no file stamp or signature. The relevant portion of the text states: “A defense expert cannot simply state that there are other possible non-negligent explanations for the injury. But, if a defense witness has established one of the defenses above—for instance, ‘No that is not the case, that it ordinarily would not have occurred unless someone were negligent’—he/she could be asked about other possible explanations for the injury, about which the witness may not have an opinion with reasonable medical certainty or probability, as long as the other alternative causes are supported by some evidence.”
Fitzgerald has failed to preserve an adequate record to establish that this piece of paper constitutes the trial court’s in limine rulings on res ipsa. Even if we assume that this piece of paper does constitute the trial court’s in limine rulings, we cannot see how this portion of the alleged ruling was erroneous. An expert who testifies that this type of injury is not likely the result of negligence may be permitted to explain this answer by identifying possible non-negligent explanations for the injury even if no single non-negligent explanation is probable.
Fitzgerald seems to suggest that the trial court erred in overruling her relevance objection to testimony by Lee’s expert Swisher regarding “how an injury like this can occur in the absence of negligence.” The context of this portion of Swisher’s testimony was that it followed Swisher’s testimony that the injury was probably not the result of negligence. Swisher then went on to explain that the preexistence of Fitzgerald’s C7 anomaly “could have explained” her injury. While evidence of possible, rather than probable, causes of a certain type of injury are not directly relevant to dispute the first res ipsa condition, Swisher’s testimony was not limited to that context. Fitzgerald proceeded on two theories at trial. One was res ipsa, and the other was that her injury had been caused by her arm falling off of the armboard. Testimony about possible causes of her injury other than her arm falling off the armboard was relevant to help buttress the expert testimony by several defense witnesses that it was impossible or highly unlikely that her injury had been caused by her arm falling off the armboard. In this context, Swisher’s testimony was relevant. The trial court did not err in overruling Fitzgerald’s relevance objection.
D. Responses to Jury Questions
Fitzgerald challenges the trial court’s written responses to two questions that the jury submitted to the court during deliberations. The first question read: “If we find that the standard of care was met by one or more of the defendants, do we consider res ipsa?” The court responded in writing: “You are obligated to review all the evidence as to each defendant in light of all the instructions on negligence, including res ipsa. If you need further clarification, please ask.” The second question read: “Is negligence, as referenced on pg. 29, defined on pages 24 & 25?” Page 29 was the res ipsa instruction, which contained numerous references to “negligence.” Pages 24 and 25 were instructions on the standards of care for physicians and nurses, which described negligence as the failure to comply with the standard of care. The court responded in writing: “Yes.”
Fitzgerald contends that the jury’s first question suggested that it had considered negligence before res ipsa, and she urges that the trial court erred in failing to tell the jury to consider res ipsa before it considered negligence. We find no fault in the trial court’s response. The jury’s reference to page 29 in its other question indicated that it was not disregarding res ipsa. The court’s response correctly told the jury that it was required to consider res ipsa. We cannot see how Fitzgerald could have been prejudiced by the trial court’s response to the jury requiring it to consider res ipsa.
Fitzgerald claims that the court’s response to the jury’s second question created confusion about her burden of proof and incorrectly stated the law. The court’s response neither said nor implied anything about the burden of proof. Instead, the court’s response simply and correctly affirmed that the word “negligence” refers to the failure to comply with the standard of care. We see no risk of confusion or prejudice in this simple and accurate response.
IV. Disposition
The judgment as to El Camino Hospital is affirmed. The judgment as to Lee is reversed. That matter is remanded to the superior court with directions to vacate the order granting Lee’s summary adjudication motion and enter a new order denying summary adjudication of Fitzgerald’s failure to obtain informed consent cause of action against Lee. El Camino Hospital shall recover its costs on appeal. Lee and Fitzgerald shall bear their own costs on appeal.
WE CONCUR: McAdams, J., Duffy, J.