Opinion
G053546
07-13-2018
NADINE FROESCH, Plaintiff and Respondent, v. ISRAEL P. CHAMBI, Defendant and Appellant.
Herzfeld & Rubin, Michael A. Zuk, Benedon & Serlin, Douglas G. Benedon and Wendy S. Albers for Defendant and Appellant. Hunt & Adams, and John C. Adams III for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00680714) OPINION Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Affirmed. Herzfeld & Rubin, Michael A. Zuk, Benedon & Serlin, Douglas G. Benedon and Wendy S. Albers for Defendant and Appellant. Hunt & Adams, and John C. Adams III for Plaintiff and Respondent.
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Defendant Israel P. Chambi appeals from a judgment after a verdict in favor of plaintiff Nadine Froesch in her lawsuit for medical malpractice, battery, and fraud. Chambi contends the trial court erred in not granting his nonsuit motion on the fraud cause of action, the jury erroneously awarded duplicative damages for fraud, and argues the court erred when it instructed the jury on the willful suppression of evidence.
We conclude substantial evidence supported the trial court's denial of Chambi's nonsuit motion, and Chambi fails to affirmatively show the jury awarded duplicative damages. Finally, substantial evidence supported the court's instruction on the suppression of evidence. Finding no basis to overturn the judgment, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
"In summarizing the facts, we view the evidence in favor of the judgment." (Roby v. McKesson Corp. (Roby) (2009) 47 Cal.4th 686, 693-694.)
In 1999, neurosurgeon Chambi successfully performed surgery on Froesch to relieve pain in her right buttocks caused by a nerve entrapment condition.
In March 2011, Froesch, who had suffered a partial left leg amputation in 1986 and used a prosthesis, traveled to Indiana to undergo a limb reconstruction surgery performed by an orthopedic surgeon who specialized in surgeries for amputees. Approximately a year later, the same surgeon performed a second surgery to remove bone spurs in her left leg, and a third surgery to remove a neuroma on the peroneal nerve near the fibula head of her residual limb. The orthopedist testified he completely removed a long segment of Froesch's peroneal nerve near the fibula head and had discussed the procedure with Froesch. These surgeries eliminated Froesch's pain and left her without any sensation on the outside portion of her residual limb.
In August 2012, Froesch consulted Chambi for pain in her left buttocks. Froesch testified Chambi did not examine her lower left limb during the August 2012 office visit. Nor did Chambi recommend peroneal nerve surgery or talk to her about surgery on her lower left leg.
On September 25, 2012, Froesch received an e-mail from Chambi's office requesting preoperative testing to confirm she was healthy enough for surgery. The diagnosis on the prescription read "pre-op testing for sciatic nerve decompression surgery."
On October 16, Chambi's office sent Froesch an e-mail confirming an October 19 surgery. The e-mail listed the surgery as "left sciatic nerve, post cutaneous, inferior gluteal nerve decompression, left femoral nerve." Froesch saw the term left femoral nerve and believed it was part of the piriformis surgery.
Patricia Robles, a registered nurse at the surgery center, called the same day and spoke to Froesch about the surgery. The record documenting the phone call lists the surgical procedure as "decompression left sciatic nerve."
On October 17, Chambi faxed the surgery center a preoperative order listing two operations - decompression of the left sciatic and gluteal nerves and decompression of the left peroneal nerve. The surgery center generated an informed consent form based on this preoperative order. The surgery center's records did not document that a subsequent phone call was placed to Froesch after receiving the pre-operative order.
Chambi's October 18th preoperative report contained several significant inaccuracies. It failed to mention Froesch was an amputee, erroneously asserted Chambi had conducted another physical examination, and stated plaintiff had pain radiating into her nonexistent left foot. Chambi's report also claimed he performed a motor examination measuring muscle strength and sensory loss in Froesch's nonexistent left foot. Chambi later admitted he did not examine Froesch on October 18, and the information in the report was taken from the August consultation. He claimed due to the errors in the report he conducted a further examination of Froesch on the morning of the surgery and dictated a new report.
Before Froesch's surgery, Robles marked her body with an "x" on her left hip area and an "x" on her left thigh. Froesch assumed the mark on her thigh meant Chambi would operate on the left side of her body. Nevertheless, Froesch asked Robles if she could write "no" on her left leg, but the nurse rejected her request.
Froesch's signature appears on an informed consent form listing both decompression of the left sciatic, posterior cutaneous and inferior gluteal nerves, and decompression of the left peroneal nerve. Froesch testified she never saw or reviewed a consent form listing a peroneal nerve decompression, explaining she was in bed getting ready to go into surgery when Robles presented folded papers for her to sign. She did not remember seeing the description of the procedures Chambi would perform and Robles did not discuss the matter with her. Froesch asserted she would not have knowingly consented to peroneal nerve surgery because her Indiana orthopedist had surgically repaired that limb, she would not allow another doctor to cut into the repaired limb, and the orthopedist told her he had removed the peroneal nerve. The anesthesiologist's records reflected he began anesthesia before the time Chambi testified he arrived at the surgery center.
Chambi testified the lower portion of the left piriformis muscle had been transformed into scar tissue, which caused pressure on the sciatic nerve. He removed the scar tissue, about 80 percent of the muscle, and left the healthy muscle attached.
Concerning the second surgery, Chambi testified the lining or fascia of the peroneal muscle was too thick, putting pressure on the peroneal nerve. He cut the lining to release the pressure on the nerve.
Chambi's report on the peroneal operation stated that while Froesch was under anesthesia, he examined her lower leg and discovered a thickness in her peroneal nerve. Because this might cause future problems, he believed the decompression procedure was clinically indicated. Chambi billed the insurance company $9,700 for this second procedure.
Froesch awoke from surgery and felt pain in her lower left leg. She was shocked and devastated when she saw the incision on her left leg, yelling "why did he cut my leg." Nurses confirmed Froesch was upset postsurgery about the surgery on her leg. One recalled Froesch in the recovery room stating she did not ask Chambi to do surgery on her leg because she did not have a nerve there. When Froesch and her sister confronted Chambi after he returned to the surgery center three hours later, Chambi said, "Nadine, I'm so sorry for cutting your leg. I'm so sorry for not discussing it with you."
Soon after Froesch arrived home, her limb swelled at the incision point and she was in "incredible pain." Chambi could not explain why she had swelling, but he told her to stay in bed and elevate her leg.
Froesch was bedridden after the surgery, but eventually resumed activities using her prosthesis. She had to use devices to help her walk, it was painful to wear her prosthesis, and she had difficulty taking care of her young daughter.
The Indiana orthopedist testified Chambi's procedure caused the muscle in Froesch's leg to herniate through the fascia, which he surgically repaired in May 2013. Froesch experienced complications after this surgery and required a second surgery in August 2013.
In December 2013, Froesch, still experiencing sciatic pain, underwent a second left piriformis surgery by a UCLA neurosurgeon. This surgery successfully relieved her sciatic pain.
Froesch's prosthetist, who was close to finishing a custom-fitted permanent prosthesis at the time of Chambi's surgery, testified Froesch's "limb totally changed" after Chambi's surgery. He had to fabricate a new prosthesis after Froesch recovered from the orthopedist's subsequent surgeries in 2013. At trial in January 2016, Froesch wore wearing the new prosthesis and was pain-free, explaining she felt like she finally had returned to the place she was in before Chambi's October 2012 surgery.
The Indiana orthopedist testified Chambi's peroneal nerve decompression surgery was below the standard of care. He testified the surgery had no medical benefit because there was no peroneal nerve to decompress since he had removed the nerve in April 2012. It was also below the standard of care to cut into Froesch's amputated leg without learning about previous medical treatment for that limb.
The UCLA neurosurgeon testified Froesch's left piriformis muscle was still compressing her sciatic nerve, explaining the muscle "seemed to be intact," and did not appear to have been manipulated or cut. The surgical procedure Chambi claimed to have used was not a procedure he would expect to see performed "from a neurological practice" or with "our body of knowledge."
Froesch's operative complaint alleged Chambi negligently performed the left piriformis release procedure and intentionally performed an unnecessary peroneal nerve surgery on her amputated left leg without her consent. Concerning the fraudulent concealment cause of action, Froesch's counsel argued the evidence demonstrated Chambi performed the peroneal nerve surgery without Froesch's consent for economic gain and she never would have agreed to the surgery had he told her. Following trial, the jury returned a verdict awarding Froesch $1,000,000 in noneconomic damages: $200,000 for medical negligence; $500,000 for medical battery, and $300,000 for fraudulent concealment.
II
DISCUSSION
A. The Trial Court Did Not Err in Denying Chambi's Nonsuit Motion on the Fraud Cause of Action
Chambi argues, as a matter of law, Froesch could not assert a separate cause of action for fraud apart from her battery claim and therefore the trial court erred when it denied Chambi's nonsuit motion on the fraud cause of action.
The cardinal rule of appellate review is that the trial court's judgment is presumed correct and prejudicial error must be affirmatively shown. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) "In reviewing the denial of a motion for nonsuit or directed verdict, appellate courts, like trial courts, must evaluate the evidence in the light most favorable to the plaintiff. [Citation.] Reversal of the denial of a motion for nonsuit or directed verdict is only proper when no substantial evidence exists tending to prove each element of the plaintiff's case." (Adams v. City of Freemont (1998) 68 Cal.App.4th 243, 263.)
Chambi argues Froesch's fraud claim "amounted to nothing more than the assertion that Dr. Chambi intentionally performed a peroneal nerve surgery without obtaining her consent," and as such, "constitutes a claim for battery, not fraud." Chambi relies on out-of-state authority for the proposition a patient may not seek a cause of action for fraud separate from a cause of action for medical battery where the injury suffered is premised on lack of consent. (Spinosa v. Weinstein (N.Y. 1991) 168 A.D.2d 32, 41-42 (App.Div.2d Dep't 1991) (Spinosa).) Chambi suggests Spinosa should govern because it involves a similar factual situation and no California authority is directly on point.
Spinosa, however, does not involve a similar factual situation. In Spinosa, the court held a doctor's failure to inform a patient about surgical risks is a form of medical malpractice based on negligence rather than battery. Spinosa therefore affirmed the trial court's dismissal of a fraud cause of action predicated on the plaintiff's claim the physician "promised her beautiful feet, and she relied upon this promise to her detriment in consenting to surgery." (Spinosa, supra, 168 A.D.2d at p. 41.) Spinosa offers no guidance here. Even if we assume Spinosa's statement of the law applies in California, Spinosa did not involve a patient's lack of consent to a surgical procedure. On that point, the Spinosa court noted concurrent claims for assault and battery may be proper in "'nonexigent situations involving no consent at all.'"
"Where separate items of compensable damage are shown by distinct and independent evidence, the plaintiff is entitled to recover the entire amount of damages, whether the amount is expressed by the jury in a single verdict or multiple verdicts referring to different claims or legal theories." (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1159.) Here, Froesch presented evidence she suffered past and future physical pain, mental suffering, loss of enjoyment of life, physical impairment, inconvenience, anxiety, and emotional distress. Froesch also showed those damages might vary between the battery and fraudulent concealment causes of action. Specifically, the evidence Froesch presented allowed the jury to assess noneconomic damages for past physical pain, physical impairment, inconvenience, and loss of the enjoyment of life on the battery claim. The evidence also supported awarding separate damages on the fraudulent concealment cause of action for mental suffering and emotional distress for her doctor's intentional breach of trust. Substantial evidence supported the trial court's denial of Chambi's nonsuit motion. B. The Fraud and Battery Damages Were Not Duplicative
Chambi contends allowing Froesch to recover damages for both battery and fraud amounts to impermissible double recovery, and claims the special verdict form erroneously permitted the jury to assess noneconomic damages individually for each cause of action. Chambi claims the fraud damages constitute a disguised award of punitive damages. We conclude Chambi has not affirmatively shown the jury awarded duplicative damages.
"'[A] special verdict's correctness must be analyzed as a matter of law.' [citation]." (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678.) As such, "[w]e analyze the special verdict form de novo. [Citation.]" (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325.)
The trial court instructed on medical negligence, medical battery, and concealment. Each instruction informed the jury that Froesch must prove she suffered harm and if she met that burden CACI No. 3900 instructed the jury to decide how much money or damages would compensate her for the harm. The special verdict form directed the jury to award only noneconomic damages. Accordingly, the court instructed the jury with CACI No. 3905(A) on types of past and future noneconomic damages, including physical pain, mental suffering, loss of enjoyment of life, physical impairment, inconvenience, anxiety, humiliation, and emotional distress.
CACI No. 3934 informed the jury that Froesch sought damages on more than one legal theory, but that "each item of damages may be awarded only once regardless of the number of legal theories alleged." The instruction listed the theories as medical negligence, medical battery, and concealment. The instruction further provided, "The following items of damages are recoverable only once under all of the above legal theories: 1. Past and future physical pain, mental suffering, loss of enjoyment of life, physical impairment, inconvenience, anxiety, humiliation, and emotional distress."
The full instruction the trial court gave per CACI No. 3934 reads as follows: "Plaintiff seeks damages from Israel P. Chambi, M.D. under more than one legal theory. However, each item of damages may be awarded only once, regardless of the number of legal theories alleged. [¶] You will be asked to decide whether Israel P. Chambi, M.D. is liable to plaintiff under the following legal theories: [¶] 1. Medical negligence; [¶] 2. [¶] Medical Battery; [¶] 3. Fraud. [¶] The flowing items of damages are recoverable only once under all of the above legal theories: [¶] l. [¶] Past and future physical pain, mental suffering, loss of enjoyment of life, physical impairment, inconvenience, anxiety, humiliation, and emotional distress.
The trial court also gave Chambi's requested special verdict form, with one alteration. On the form, the jury found Chambi was negligent in the care and treatment of Froesch and his negligence was a substantial factor in causing her harm. The verdict form asked the jury to determine "Froesch's damages for physical pain, mental suffering, emotional distress and loss of enjoyment of life related to" such negligence. The jury wrote in "$200,000."
As to battery, the jury found Chambi did not obtain Froesch's consent to perform the left peroneal nerve decompression and this was a substantial factor in causing Frosech's injury. The verdict form asked the jury to determine "Froesch's separate damages, if any, for physical pain, mental suffering, emotional distress and loss of enjoyment of life related to" the failure to obtain consent. (Italics added.) The jury wrote in "$500,000."
Finally, on the fraud or concealment cause of action, the jury found Chambi intentionally failed to disclose a fact that Froesch did not know and reasonably could not have discovered before Chambi performed the peroneal nerve decompression and he intended to deceive her by concealing the fact he intended to perform that procedure. The jury further found Froesch reasonably would have behaved differently had the omitted information been disclosed, and the concealment of intention was a substantial factor in causing her harm. The verdict form asked the jury the following question: "What are [] Froesch's separate damages, if any, related to [] Chambi's [] intentional concealment of such fact." (Italics added.) The jury wrote in "$300,000."
Chambi argues the $300,000 award of damages for fraud duplicates or overlaps the $500,000 award for battery. He states Froesch's claims for battery and fraud are different legal theories to establish liability for the same harm: "In this case, both the battery and fraud claims arose from the same alleged injury - the unconsented to peroneal nerve surgery - and caused the same damages. Allowing the jury to award non-economic damages under different theories for the same harm is impermissible duplicative or double recovery."
While we might agree the battery and fraudulent concealment claims arose from the same injury - the unconsented to peroneal nerve surgery - and caused the same damages (Weinstock v. Eissler (1964) 224 Cal.App.2d 212 [battery and fraud based on lack of consent same cause of action expressed under different legal theories]), the record shows the jury awarded Froesch $1 million in noneconomic damages for the total harm suffered.
Here, the trial court instructed the jury with CACI No. 3934, which advised the jury to award "each item of damages," namely "past and future physical pain, mental suffering, loss of enjoyment of life, physical impairment, inconvenience, anxiety, humiliation, and emotional distress," only once. Chambi provides no evidence the jury failed to follow this instruction. Absent contrary evidence, we must presume the jury followed the trial court's instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
Chambi admits the court instructed the jury against awarding duplicative damages regardless of the number of legal theories alleged, but claims the instruction did not tell the jury how to avoid awarding duplicative damages, claiming the jury either ignored or was confused by this instruction. We disagree the instruction caused confusion or led the jury to award duplicate damages based on the multiple theories presented. Moreover, a party may not claim a legally correct jury instruction was too general or incomplete unless the party requested a clarifying instruction. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.) Chambi did not request the court clarify the instruction and therefore forfeited the issue.
Chambi relies on our decision in Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1612 (Plotnik) to support his claim that a special verdict awarding emotional damages under several different legal theories constitutes an impermissible double recovery where a plaintiff suffers a single injury. In Plotnik, we concluded the primary right doctrine did not allow plaintiffs to recovery on four causes of action for violation of a single right. The opinion, however, is silent on whether the trial court instructed the jury not to return duplicative damages. In contrast, the trial court explicitly instructed the jury against awarding duplicative damages and Chambi presents no compelling reason why we should assume the jury ignored the court's clear directive.
The special verdict form in question here unambiguously stated the damage awards for battery and fraud would be "separate" from the award for negligence. At trial, Chambi conceded inserting the word "separate" in the special verdict form "might be an appropriate middle ground," but now asserts the trial court's alteration of the original wording of the special verdict form from "additional" damages to "separate" damages did not prevent a duplicative damage award.
Chambi drafted and submitted the special verdict form he now challenges on appeal. A party requesting a special verdict form that did not require the jury to segregate the damage amount forfeits the right to complain on appeal that the instruction failed to segregate damage amounts. (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 746.) Because plaintiff failed to raise the issue of invited error and forfeiture, we do not address the issue further.
"Absent some contrary indication in the record, we presume the jury follows its instructions [citations] 'and that its verdict reflects the legal limitations those instructions imposed' [citation]." (Cassim v. Allstate Ins. Co. (2004 33 Cal.4th 780, 803-804.) "Jurors are presumed to have understood instructions and to have correctly applied them to the facts as they find them." (Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 523.) Here, the trial court not only instructed the jury against awarding duplicate damages with CACI No. 3934, but the special verdict form also asked the jury what "separate damages, if any," should be awarded for each of Froesch's claims.
The record reflects the jury did not award duplicate or overlapping damages for medical battery and concealment. (Cf. Plotnik, supra, 208 Cal.App.4th at p. 1612 [plaintiff not entitled to more than a single recovery for each distinct item of compensable damage supported by the evidence].) In other words, although the jury spread the noneconomic damages award among the legal theories presented in the special verdict form, nothing suggests the jury did not believe Froesch suffered total harm compensable in the amount of $1 million. Froesch did not receive an impermissible double recovery.
The "Directions for Use" for CACI No. 3934 advise using the instruction in conjunction with verdict form CACI No. VF-3920 "to avoid the jury's awarding the same damages twice under different causes of action, counts, or legal theories, or failing to distinguish sufficiently what damages are being awarded under what cause of action, count, or legal theory." The trial court used Chambi's special verdict form instead of CACI No. VF-3920.
As the record reflects, the jury intended to award $1 million in noneconomic damages and did not award duplicate damages for battery and fraud. We are thus confident that had the jury been presented with only two theories (medical negligence and battery) the result would have been the same. Therefore, no conceivable prejudice resulted from the submission of both battery and fraud claims to the jury.
Chambi's claim the jury's award of $300,000 was a "disguised punitive damage award" is also meritless. The court instructed the jury (CACI No. 3924): "You must not include in your award any damages to punish or make an example of defendant. Such damages would be punitive damages, and they cannot be part of your verdict. You must award only the damages that fairly compensate plaintiff for her loss." Nothing suggests the jury did not follow this directive. C. The Trial Court Did Not Err When It Instructed the Jury on the Suppression of Evidence
The trial court instructed the jury over Chambi's objection with a version of CACI No. 204: "You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party." Chambi contends the court erred in giving this instruction because no evidence showed Chambi suppressed any evidence. We disagree.
We review the claim an instruction lacked supporting evidence under the substantial evidence test. (Bihun v. AT & T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 992, overruled on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664.) The surgery center nurses testified at their depositions they reviewed the original report or chart, but a nurse later testified the original file no longer existed. Chambi had access to the file containing the original consent form Froesch signed. Based on Froesch's evidence she was never informed about the peroneal nerve procedure and it was not medically necessary, the jury could infer the original consent form did not identify that procedure, and Chambi added the procedure after he saw how upset Froesch was after the surgery. The jury also could assume the original file would have contained the original "change order" addressing the second operation.
Froesch also argued Chambi may have destroyed photographs he took on his cell phone showing Froesch's condition in May 2013. Chambi claimed he lost these photos when his cell phone fell into a swimming pool. Chambi presents evidence he did not suppress any evidence, but the trial court cannot weigh the evidence in deciding whether to give the instruction, but merely decides whether a proposed instruction has evidentiary support. The court did not err in deciding sufficient evidence supported the instruction.
Finally, any conceivable error in providing the instruction was harmless. The instruction simply told the jury "if" it found a party destroyed evidence then it "may" decide the evidence was unfavorable. The instruction did not inform the jury that Chambi, or any other party, concealed or destroyed evidence. Compelling evidence supported Froesch's claim she did not consent to the peroneal surgery and Chambi was negligent. It is not reasonably probable the instruction prejudicially affected the verdict. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983 [instructional error requires reversal only where error prejudicially affected the verdict].)
III
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.