Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC432648. Joan F. Burgess, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Cole Pedroza, Kenneth R. Pedroza, Joshua C. Traver; Synder, Walker & Mann, Walker & Mann, and Jeffrey A. Walker for Defendants and Appellants.
Cohen & Rudd and Lawrence J. Rudd for Plaintiff and Respondent.
OPINION
King , J.
I. INTRODUCTION
This appeal stems from a medical malpractice jury verdict in favor of plaintiff Patrick Didion against defendants Larry Couture, M.D., a family practitioner, Sharmila Patel, M.D., a gastroenterologist, and their employer, Riverside Medical Clinic (RMC). Didion claimed that Drs. Couture and Patel negligently failed to timely diagnose his colon cancer on or before May 16, 2003, when it was likely curable, and their employer, RMC, was liable for the doctors’ negligence pursuant to the doctrine of respondeat superior. In a special verdict, the jury found that both doctors were negligent, but also found that Didion was negligent and assigned 86 percent comparative fault to Didion, 4 percent to Dr. Couture, and 10 percent to Dr. Patel. The trial court entered judgment in favor of Didion, after reducing defendants’ damage liabilities in proportion to Didion’s 86 percent comparative fault.
Patrick Didion died on November 12, 2006, during the pendency of this appeal. His personal representative, Terry Marsolino, was substituted in his place as plaintiff and respondent. For ease of reference and to avoid confusion, we refer to plaintiff and respondent as Didion rather than Marsolino.
The jury found that Didion suffered noneconomic damages of $500,000; past lost earnings of $36,317; and present value, future lost earnings of $1,063,306. In noneconomic damages, Didion was awarded $20,000 and $50,000 against Drs. Couture and Patel, respectively ($20,000 equals 4 percent of $500,000; $50,000 equals 10 percent of $500,000). In economic damages, Didion was awarded $153,947 against both doctors, jointly and severally ($153,947 equals 14 percent of $36,317 plus $1,063,306), plus costs of $11,003. Against RMC, Didion was awarded $223,947 ($70,000 plus $153,947) plus costs of $11,003.
Didion moved for a partial judgment notwithstanding the verdict (JNOV) and a partial new trial, both on the issue of comparative negligence. The trial court granted the partial motion for JNOV, and in doing so reapportioned 100 percent of the fault to defendants and zero percent to Didion. At the same time, the court denied Didion’s motion for a partial new trial, but later granted it following Didion’s ex parte request for “clarification” of the order denying the motion. Following these posttrial orders, the court entered a new judgment in favor of Didion, awarding him 100 percent of his recoverable noneconomic and economic damages.
The trial court explained it was granting the motion for a partial new trial for the same reasons it granted the motion for a partial JNOV and as an alternative to its order granting the partial JNOV. The partial new trial, if any, was to be limited to the issues of causation and apportionment of fault.
In modifying the judgment following the partial JNOV, the trial court first reduced Didion’s $500,000 noneconomic damages to $250,000 pursuant to Civil Code section 3333.2. It then allocated the $250,000 noneconomic damages between Drs. Couture and Patel as follows: $71,500 to Dr. Couture (28.6 percent or 4/14) and $178,500 to Dr. Patel (71.4 percent or 10/14). Each doctor was also held jointly and severally liable for 100 percent of the present value of Didion’s total economic damages, or the sum of $1,099,623 plus costs. RMC was held liable for the sum of $1,349,623 ($250,000 plus $1,099,623) plus costs.
Defendants appeal from the judgment and the posttrial orders granting the partial JNOV and partial new trial. They claim the trial court erroneously (1) granted the motions for a partial JNOV and a partial new trial; (2) refused to give defense-proffered “but for” and “loss of chance” instructions on causation; and (3) calculated the amounts of pre- and postjudgment interest due on each doctor’s proportionate liability on the judgment. Defendants seek reversal of the order granting the partial JNOV and the order granting a new trial on the issues of causation and apportionment of fault, and will accept the jury’s verdict and 86/10/4 apportionment of fault, respectively, to Didion, Dr. Patel, and Dr. Couture. Alternatively, defendants seek reversal of the judgment based on their claims of instructional error.
We conclude that the motion for a partial JNOV was properly granted; therefore, the order granting a partial new trial is moot. We find defendants’ claims of instructional error without merit. Finally, we conclude the trial court properly calculated the amounts of pre-and postjudgment interest on each doctor’s proportionate liability on the judgment. We therefore affirm the order granting the partial JNOV and the judgment as modified by that order.
II. FACTS AND PROCEDURAL HISTORY
A. Summary of Claims and Defenses
As noted, Didion sued Dr. Couture, Dr. Patel, and their employer, RMC, for medical malpractice. He claimed the doctors negligently failed to diagnose his colon cancer in May 2003, or earlier, when it was likely curable—that is, when he had at least a 50 percent chance of being cured of the disease. He claimed RMC was liable for the doctors’ negligence based on the doctrine of respondeat superior.
Defendants denied they were negligent and claimed that, as of May 2003, Didion’s colon cancer was so advanced he had less than a 50 percent chance of being cured. Thus, defendants claimed their negligence, if any, was not a cause in fact of or a substantial factor in causing Didion’s injuries. They also asserted, as an affirmative defense, that Didion was negligent and his negligence was a cause in fact or a substantial factor in causing his own injuries.
B. The Five Colorectal Cancer Screening Methods
The parties’ medical experts generally agreed that, during the relevant time frame of August 2001 to May 2003, there were four types of colorectal cancer screening. The most common method was a fecal occult blood test or FOBT. An FOBT, also known as stool guaiac testing, looks for blood in the patient’s stool. Blood in the stool is evidence of bleeding in the digestive tract, possibly from a tumor or a precancerous polyp. If bleeding is detected, further investigation by a colonoscopy is warranted.
The second method was a test called a flexible sigmoidoscopy, which involves introducing a scope partway into the colon. The flexible sigmoidoscopy examines only the rectum and the “sigmoid’ segment of the colon, also known as the left, or descending, portion of the colon, which comprises approximately one-quarter of the entire colon. A flexible sigmoidoscopy could be performed in a primary care physician’s office without sedation.
The third method was a barium enema x-ray. The barium enema is a radiological study where a contrast agent is introduced into the colon and the colon is x-rayed. A barium enema may be performed in combination with a flexible sigmoidoscopy.
The fourth method was a colonoscopy. A colonoscopy is a procedure whereby a scope is introduced through the rectum to view the entire colon. This is the most thorough or sensitive screening test and is therefore the most likely to reveal the presence of colon cancer or precancerous polyps.
A fifth method which had screening significance and which could have been performed with any of the other four screening methods was a digital rectal examination or DRE. This involves introducing an examining finger through the rectum, to palpate approximately the first 10 centimeters of the colon and other body parts, such as the male prostate.
C. Didion’s Treatments With Family Practitioner Dr. Couture
Didion began treating with Dr. Couture in 2001. He saw Dr. Couture in August 2001 and again in September 2001. He was 51 years old at the time. During his first visit he presented with hypertension and neck problems; during his second visit he complained of hemorrhoids. During the second visit Dr. Couture conducted a fecal occult blood testing (FOBT) procedure and a digital rectal examination (DRE) to palpate for potential cancerous growths. Neither test disclosed any evidence of cancer. During the second visit Dr. Couture advised Didion to schedule a complete physical examination, but Didion never scheduled a complete physical.
According to Dr. Couture, his custom and practice on an initial patient visit was to order blood work and conduct some tests, then “cover everything” when the patient returned for a complete physical. The complete physical for Didion would have included a sigmoidoscopy, which examines the sigmoid colon or left side of the colon for cancer. Dr. Couture did not recall discussing colon cancer screening methods or options with Didion in August or September 2001, but it was his custom and practice to tell patients what will happen at a complete physical, which would have included a flexible sigmoidoscopy. Also, if Didion’s FOBT had been positive, that is, if it had revealed the presence of microscopic amounts of blood in Didion’s stool, then Dr. Couture would have ordered a colonoscopy at Didion’s complete physical.
Didion next saw Dr. Couture in March 2002. During that visit Didion complained of chest pains that came with activity and of recent symptoms of gastroesophageal reflux disease or GERD, for which he had been taking over-the-counter medication. Dr. Couture believed Didion may have had a heart problem based on numerous cardiac risk factors, which included his complaints of chest pain, his history of hypertension and high blood lipids, his age and weight, and the fact his father died of heart failure at age 63. Later tests revealed that Didion had a blocked blood vessel, and he had a stent placed in his coronary artery in August 2002. During the March 2002 visit Dr. Couture did not discuss with Didion his failure to schedule a complete physical or that the complete physical would have entailed a flexible sigmoidoscopy.
Dr. Couture saw Didion again in July 2002, February 2003, and on April 1, 2003. During each of these visits, Didion’s principal complaint concerned his GERD, which had improved with Prevacid. During the April 1, 2003, visit, Didion complained of having abdominal pain for the previous six months, usually in the lower abdomen. Dr. Couture understood that GERD does not cause lower abdominal pain but that colon cancer could.
As of April 1, 2003, Didion’s medical chart indicated he had not been adequately screened for colon cancer and had never scheduled the complete physical Dr. Couture recommended in September 2001. Still, Dr. Couture did not discuss with Didion the various screening options for colon cancer during the April 1, 2003, visit, nor did he perform any type of colon cancer screening. Instead, based on Didion’s complaint of lower abdominal pain and history of GERD, Dr. Couture referred Didion to Dr. Patel, a gastroenterologist, to determine the cause of his lower abdominal pain.
Didion’s visits with Dr. Couture, including the April 1, 2003, visit, were “focal examinations,” meaning the purpose of the visits was to focus on the causes of the specific complaints or symptoms Didion was experiencing. Dr. Couture did not recall ever asking Didion whether he had a family history of colon cancer or colitis, which, according to Dr. Couture, would have placed him at a higher than average risk of developing colon cancer. Dr. Couture did not consider Didion to be at a higher than average risk for colon cancer.
D. Didion’s Treatments With Gastroenterologist Dr. Patel
Didion first saw Dr. Patel on April 25, 2003. Dr. Couture’s progress notes, which Dr. Patel would have received before the April 25 visit as part of Didion’s medical chart, stated that Didion had been experiencing “cramping lower abdominal pain” for six months. Dr. Patel did not have an independent recollection of the April 25 visit, and testified at trial based on her consultation report. Her consultation report did not mention that Didion’s abdominal pain was in his lower abdomen. Instead, it stated that his abdominal pain was “diffuse,” meaning it was not in any specific area of his abdomen. Dr. Patel did not recall Didion telling her that his pain was in his lower abdomen, nor did she recall reading or receiving Dr. Couture’s progress notes.
Didion testified he told Dr. Patel he had been having pain in his lower abdomen, below his belly button. He also told Dr. Patel that his abdominal pain had been better since he stopped taking daily aspirin. Based on the improvement in Didion’s abdominal pain following his discontinuation of daily aspirin, Dr. Patel suspected the aspirin was causing gastritis or peptic ulcer disease. She was also concerned that Didion might have esophagitis or even cancer of the esophagus, based on his long-standing history of GERD. Neither lower nor diffuse abdominal pain is typically associated with GERD, however.
During the April 25, 2003, visit, Dr. Patel asked Didion whether he had a family history of colon cancer, because that would have put him at an increased risk for colon cancer. She did not ask him whether he had a family history of colitis, however, because she understood that even a family history of ulcerative colitis would not have put him at an increased or higher than average risk for cancer. She also did not discuss colorectal cancer screening options with Didion. Instead, based upon the history she obtained, she scheduled an esophagogastroduodenoscopy (EGD) to determine the cause of Didion’s diffuse abdominal pain. A colonoscopy, the most sensitive colorectal screening test, could have been, but was not, performed while Didion was sedated for the EGD.
Dr. Patel performed the EGD or “upper GI endoscopy” on Didion on May 16, 2003. The EGD involved introducing a camera through Didion’s mouth to view his esophagus, stomach, and the first part of his small intestine. Dr. Patel also checked for residual effects of Didion’s GERD, and for gastritis or ulcers, which would have explained his “diffuse” abdominal pain. The EGD was normal, except for a small hiatal hernia found in the gastroesophageal junction. Dr. Patel admitted the EGD was not likely to identify the cause of any lower abdominal pain.
Dr. Patel testified that her consultation or treatment notes of Didion’s April 25, 2003, visit did not recount any complaints of lower abdominal pain, and instead noted an improvement of the abdominal pain when Didion was off aspirin. Dr. Patel explained “[i]t would have been important” for her to know that Didion was having lower abdominal pain. She also said that the EGD or “upper GI test” would not have been the “first” test indicated for lower abdominal pain. She did not perform any test for lower abdominal pain because Didion did not report having lower abdominal pain.
As a result of being sedated with medications, Didion did not recall anything Dr. Patel may have said to him during the EGD or afterward in the recovery room. Dr. Patel had no recollection of the events of May 16, 2003, but testified it was her custom and practice to discuss the results of the EGD with the person who accompanied the patient. Didion’s then-fiance, Pamela Burton, accompanied Didion to the EGD procedure. Burton did not speak with Dr. Patel that day, but before she and Didion left the clinic, a nurse presented her with a discharge sheet which she signed, indicating she received it.
The discharge sheet included a line to fill in a date for a follow-up “office visit” with Dr. Patel. Dr. Patel left the line blank and instead wrote “[f]ollow up in 4-6 weeks” on the bottom of the discharge sheet. Didion believed this meant he was to call Dr. Patel’s office to obtain the results of the EGD, because neither he nor Burton knew the results of the EGD immediately after it was performed. Didion claimed he called Dr. Patel’s office around four days after the EGD and spoke to a nurse. He was told “everything... was fine” except for a hiatal hernia, a common condition.
Dr. Patel explained that her notation on the discharge sheet meant that Didion was to schedule an office visit four to six weeks after the EGD. She further explained it was not possible for patients to call her office for test results and receive them over the phone from a nurse. Nurse Linda Schreiber, who cared for Didion after the EGD, testified that RMC had a policy of calling the patient three times to follow up. Didion’s chart had notations of three attempted calls and a letter sent. Dr. Patel’s intent and purpose in instructing Didion to schedule a follow-up office visit with her was to determine whether he needed any further testing.
Didion never scheduled a follow-up office visit with Dr. Patel. One thing she was looking for in the EGD was ulcers, which she said could have been in “[a]ny part of the GI tract.” She would have followed the negative or normal EGD with an examination of Didion’s lower GI tract.
Didion also failed to schedule an appointment with Dr. Couture following the May 16, 2003, EGD, as Dr. Couture had instructed him to do. Didion did not see or attempt to see Drs. Couture or Patel again until the fall of 2004, 18 months after the EDG. Didion explained that, although his intermittent abdominal pain persisted following the EGD, he believed Dr. Patel had found nothing of significance and he just had to live with his intermittent abdominal pain.
E. The Discovery of Didion’s Colon Cancer
By September 2004, Didion’s abdominal pain had worsened and he returned to Dr. Couture. Blood tests revealed he had iron deficiency anemia, often a sign of colon cancer, especially when associated with abdominal pain. Still, Dr. Couture did not discuss colorectal cancer screening options with Didion, including a colonoscopy, in September 2004. Instead, Dr. Couture again referred Didion to Dr. Patel, who saw him on December 2, 2004. During that visit, Didion told Dr. Patel he was having significant lower abdominal pain and intermittent diarrhea. Because Didion was anemic, Dr. Patel performed another EGD and, on this occasion, also performed a colonoscopy. The colonoscopy revealed a cancerous mass nearly obstructing Didion’s right ascending colon.
Didion underwent surgery on December 29, 2004, with Dr. Oh. At that time, his colon cancer was an incurable stage 4. It had spread to five lymph nodes and, more significantly, to his liver. Following the surgery, Didion was referred to an RMC oncologist, Dr. Ghaleb Saab, who began chemotherapy treatments. Didion underwent several courses of chemotherapy which had some temporizing benefit. Didion died of colon cancer on November 12, 2006.
F. Only a Colonoscopy or Barium Enema Would Have Revealed Didion’s Colon Cancer
Both sides’ expert gastroenterologists, Dr. Ian Graham Renner for Didion and Dr. Robert Zipser for the defense, agreed that only a colonoscopy or a barium enema had a reasonable medical probability, or a greater than 50 percent probability, of revealing Didion’s cancer in May 2003. This is because Didion’s cancerous tumor was in his right ascending colon, specifically in the area of his ileocecal valve, between the ileum and the cecum. No expert testified that Didion’s cancer would have been discovered in the September 2001 to May 2003 time through FOBTs, digital rectal examinations, or flexible sigmoidoscopy tests.
According to Dr. Renner, Didion’s expert gastroenterologist, a digital rectal examination certainly would not have found Didion’s cancer, because Didion’s cancerous tumor was nowhere near the rectum or the first 10 centimeters of colon. For the same reason, a flexible sigmoidoscopy would not have revealed the cancer. The scope on a flexible sigmoidoscopy examines only the left or descending colon. It does not reach the transverse colon or the right, ascending colon. Also, an FOBT can easily miss colon cancer because tumors may bleed intermittently.
Didion claimed he would have undergone a colonoscopy between the fall of 2001 and May 16, 2003, had one been offered or recommended to him. But during this time frame, neither Dr. Couture nor Dr. Patel discussed any of the colon cancer screening options with Didion, although in September 2001 Dr. Couture had Didion perform an FOBT, which was negative.
Defendants presented evidence that, when Didion first treated with Dr. Couture in August and September 2001, he failed to disclose, either in his discussions with Dr. Couture or on Dr. Couture’s intake form, that his maternal grandmother had colitis and colon problems. He also failed to provide that history to Dr. Patel. Didion advised Dr. Oh that his grandmother had had colitis or colon problems after he was diagnosed with stage 4 colon cancer in December 2004.
Dr. Couture testified that, had Didion disclosed a family history of colitis and colon problems, he would have “place[d Didion] in a higher risk category for receiving preventative care treatment, such as colonoscopy.” Didion did, however, note on Dr. Couture’s intake form that he had a general family history of cancer. Dr. Couture testified he would have explored this history “in depth” with Didion at a complete physical examination had Didion scheduled one.
G. The Evidence Whether Didion’s Cancer Was Likely Curable in May 2003
There are four stages of colon cancer. Stage 4 is the most advanced stage and means the cancer has metastasized or spread to other organs in the body, including the liver. Stage 4 patients have a statistical five-year survival rate of less than 10 percent. It was undisputed that, in December 2004, Didion’s cancer was in stage 4; by that time it had spread to his liver and five lymph nodes. Didion was not likely curable in December 2004 because he did not have a statistical survival rate of greater than 50 percent.
Stage 3 means the cancer has not spread to the liver or other organs but has spread to the lymph nodes. In stages 3A and 3B, the cancer has spread to not more than three lymph nodes. The difference between stages 3A and 3B is that, in stage 3B, the cancer has penetrated three or fewer lymph nodes more deeply than in stage 3A. Stages 3A and 3B patients have a greater than 50 percent statistical five-year survivability rate. Thus, in stages 3A and 3B, the cancer is likely curable.
Stage 3C means the cancer has spread to at least four lymph nodes. Stage 3C patients have a statistical five-year survival rate of around 40 percent and are not likely curable. In stages 1 and 2, the cancer has not spread to the lymph nodes. In stage 1, it has not grown past the innermost part of the colon wall; in stage 2, it has not grown past the colon wall. Stages 1 and 2 patients are likely curable and have an even greater statistical five-year survival rate than stage 3A or 3B patients.
The principal dispute at trial among the parties’ medical experts was whether, in May 2003, Didion’s colon cancer was in stage 3A or 3B and likely curable, as Didion claimed, or in stage 3C or 4 and not likely curable, as the defense claimed. One of Didion’s experts, board certified oncologist Henry Rex Greene, M.D., testified there was a reasonable medical probability that Didion’s cancer was in stage 3A in May 2003, meaning it had spread to not more than three lymph nodes and was likely curable had it been diagnosed at that time. Dr. Greene also testified that, had Didion undergone a colonoscopy on May 16, 2003, or earlier, his cancer or precancerous polyp would have been discovered and, with appropriate treatment, likely would have been cured.
Didion also presented the expert medical testimony of Juan Lechago, M.D., Ph.D., an international authority on gastrointestinal pathology. Dr. Lechago agreed with Dr. Greene that Didion’s cancer would have been at stage 3A in May 2003 and therefore likely curable. In Dr. Lechago’s opinion, in May 2003 the cancer would not have traveled as deeply into the wall of Didion’s colon as it had by December 2004. In addition, at least two of Didion’s five lymph nodes which tested positive for cancer in December 2004 would have been cancer-free 19 months earlier in May 2003, because the two lymph nodes showed only microscopic amounts of cancer when removed in December 2004.
For the defense, Dr. Saab, Didion’s treating oncologist at the RMC, testified that in May 2003 Didion’s cancer was at an incurable stage 3C, meaning it had spread to more than four lymph nodes. In Dr. Saab’s opinion, Didion’s cancer had probably not spread to his liver in May 2003, but all five lymph nodes which tested positive for cancer in December 2004 were positive for cancer in May 2003, including the two that had microscopic amounts of cancer in December 2004. Thus, according to Dr. Saab, Didion was not likely curable in May 2003; at that time, his statistical chances of survival were between 25 and 40 percent. Dr. Saab also believed Didion’s cancer was slow growing, based on his observations of the cancer during the 15-month period he treated Didion and the cancer’s ever-increasing resistance to successive chemotherapy treatments.
The defense’s expert oncologist, Dr. James Padova, opined that Didion’s cancer was at an incurable stage 4 in May 2003. According to Dr. Padova, in May 2003 the cancer had already metastasized to Didion’s liver and to approximately three of the five lymph nodes in which it was found in December 2004. This meant that Didion’s chances of survival in May 2003 were less then 40 percent. Dr. Padova’s opinion was based, in part, on the theory of cancer “doubling times,” which, as applied to Didion, meant his cancerous tumor had doubled in size approximately every three months. Dr. Padova’s opinion was also based on the size and extent of the tumors found during the surgery Dr. Oh performed in December 2004, and on the inflammatory process found during the surgery, which could only be explained by a deeply penetrating cancer. Dr. Padova agreed with Dr. Saab that Didion’s cancer was slow growing.
Didion’s expert oncologist, Dr. Greene, disagreed with Dr. Padova’s doubling time theory. Dr. Greene observed that the theory was readily disproved by cases in which a metastasis is larger than the primary tumor. If the doubling time theory were valid, the metastasis would have occurred before the primary cancer. In addition, Dr. Saab and the defense pathology expert, Dr. Howard Steven Robin, agreed that tumor doubling time was no longer a clinically accepted theory. Dr. Robin was unable to determine the stage of Didion’s colon cancer in May 2003, however, and the defense expert gastroenterologist, Dr. Zipser, expressed no opinion whether Didion even had cancer in May 2003.
H. Didion’s Theory of Recovery Against Dr. Couture
Didion’s family practice expert, Dr. Melvyn Krause, opined that Dr. Couture breached the standard of care in three respects. First, he should have followed through with the routine colon cancer screening he began in 2001 when he performed the FOBT and DRE. According to Dr. Krause, an FOBT should be administered annually to patients over age 50, and criticized Dr. Couture for not administering an FOBT to Didion when he saw Didion again in 2002 and 2003, even though all of Didion’s visits with Dr. Couture were “focal” examinations and Didion never scheduled a complete physical with Dr. Couture.
Second, Dr. Krause opined that, when Dr. Couture received Dr. Patel’s report following the May 16, 2003, EDG, he should have recognized there was no examination of Didion’s lower abdominal symptoms. And, regardless of the fact that Didion told Dr. Patel his abdominal pain had improved, Dr. Couture should have called Dr. Patel and specifically requested that she evaluate Didion’s lower abdomen. Alternatively, Dr. Couture should have referred Didion to another specialist or substituted his own judgment in place of the specialist by ordering a colonoscopy or a barium enema.
Third, Dr. Krause opined that, at some point in time, but not necessarily during his initial visits with Didion in August and September 2001, Dr. Couture should have discussed “the entirety of methods of colon cancer screening” with Didion, so that Didion could have made an informed decision concerning what types of screening methods, if any, to undertake. Didion should have been educated on the risks and benefits of each method, including the FOBT, DRE, colonoscopy, barium enema, and flexible sigmoidoscopy. And, once Didion complained of lower abdominal pain, Dr. Couture should have known it may have been caused by colon cancer and should have recommended that he undergo either a barium enema or a colonoscopy.
Dr. Krause admitted, however, that Didion was asymptomatic for colon cancer in 2001; thus, at that point in time the FOBT and sigmoidoscopy recommendations were appropriate screening methods for Didion and fell within the standard of care. In addition, Didion never disclosed to Dr. Couture that he had a family history of ulcerative colitis, which, according to Dr. Krause, would have indicated that Didion was at an increased or higher than average risk of developing colon cancer.
Dr. Catherine Campion, a defense expert and board certified physician in family practice medicine, testified that, in her opinion, Dr. Couture did not breach the standard of care in his care and treatment of Didion. Contrary to Dr. Krause’s testimony, Dr. Campion testified that the standard of care in the 2001 to 2004 time frame did not require family practitioners to discuss the risks and benefits of all methods of colorectal cancer screening with asymptomatic patients who were not at higher than average risks of developing colon cancer. During the 2001 to 2004 time frame, the FOBT was within the standard of care for asymptomatic patients.
Dr. Campion admitted, however, that the EGD performed by Dr. Patel was not designed to evaluate a patient for lower abdominal pain, and lower abdominal pain is a symptom of colon cancer. But, according to Dr. Patel’s consultation report, Didion’s lower abdominal pain had improved after he stopped taking daily aspirin. Also, Dr. Couture’s April 1, 2003, progress note indicated that he instructed Didion to return to him if he had “any concerns” following his gastrointestinal consultation with Dr. Patel. Otherwise, Didion was to return to Dr. Couture “in one to two months.” Didion did not see Dr. Couture or complain about his lower abdominal pain again until the fall of 2004.
I. Didion’s Theory of Recovery Against Dr. Patel
Didion claimed Dr. Patel breached the standard of care in failing to recommend and perform a colonoscopy in May 2003. Didion’s gastroenterology expert, Dr. Renner, opined that, prior to performing the EGD, Dr. Patel should have considered the purpose of the referral and Didion’s complaint to Dr. Couture that he had lower abdominal pain or lower bowel pain. Dr. Patel also should have obtained a more detailed description of Didion’s complaint of abdominal pain, even though Didion told her it had improved after he stopped taking daily aspirin. Dr. Renner opined that, had Dr. Patel done either of these things she would have recommended, and Didion would have agreed to undergo, a colonoscopy in May 2003, when, according to his medical experts, his colon cancer was likely curable.
Second, Dr. Renner opined that, based on Didion’s complaints of abdominal pain and regardless of whether the pain was diffuse or in the lower abdomen, the standard of care required Dr. Patel to discuss routine colorectal cancer screening options with Didion at his initial visit with her on April 25, 2003. She did not do this, however, even though Didion was over age 50 and his chart showed he had not had adequate colorectal cancer screening.
Third, Dr. Renner opined that Dr. Patel should have provided Didion or his fiancé, Pamela Burton, with more specific discharge instructions following the EGD, by explaining that her written note “[f]ollow up in 4-6 weeks,” meant to schedule an office visit, instead of merely calling her office to obtain the EGD test results. The discharge instructions had a blank space following the phrase “post op office visit,” and this made the discharge instructions unclear.
The defense gastroenterology expert, Dr. Zipser, testified that Dr. Patel acted within the standard of care in recommending only an EGD for Didion on April 25, 2003, and not a colonoscopy. Didion’s reported symptoms and history of GERD indicated he was at risk of having or developing Barrett’s esophagitis, a disease in which the cells in the esophagus mutate and become cancerous. Also, Didion’s report that his abdominal pain had improved after he stopped taking daily aspirin indicated his abdominal pain was secondary to gastritis, another disease Dr. Patel believed he may have had. His reported symptoms and family history did not indicate he was at a higher than average risk of having or developing colon cancer.
Dr. Zipser further testified that persons with active coronary artery disease, such as Didion, should not be subjected to a barium enema or colonoscopy. A person is at a greater than average risk of developing colon cancer only if a first degree relative has had colitis or colon cancer. Also, abdominal pain can have many etiologies, including a hiatal hernia, and the May 16, 2003, EGD showed Didion had a hiatal hernia. Finally, Dr. Zipser opined that the standard of care did not require Dr. Patel to review Dr. Couture’s progress note, which indicated Didion had complained of lower abdominal pain. Instead, the standard of care allowed Dr. Patel to rely on what Didion told her concerning his abdominal pain—that it was diffuse and had improved after he stopped taking daily aspirin.
III. DISCUSSION
A. The Motion for Partial JNOV Was Properly Granted
Defendants first contend the trial court erroneously granted the partial JNOV in favor of Didion on the issue of whether Didion’s negligence was a substantial factor in causing his injuries. The trial court concluded there was insufficient evidence to support a finding that Didion’s negligence—in any of its possible respects—was a substantial factor in causing his injuries, because there was no expert medical testimony linking his negligence to either doctor’s failure to diagnose his colon cancer at a time when it was likely curable, that is, when he had at least a 50 percent chance of being cured of the disease. We conclude that the trial court was correct and properly granted the partial JNOV.
1. Standard of Review
Code of Civil Procedure section 629 provides, in pertinent part: “The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion... or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made....” When appropriate, a partial JNOV or JNOV on fewer than all of the issues in the action may be granted. (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 322-324.)
“‘The trial court’s discretion in granting a motion for judgment notwithstanding the verdict is severely limited.’ [Citation.] ‘“... The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] ‘A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.’ [Citation.]”’ [Citation.]” (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510, italics added.)
In reviewing an order granting a JNOV or partial JNOV, an appellate court must independently determine whether the record, viewed in the light most favorable to the verdict, contains any substantial evidence to support the verdict or partial verdict. (Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 829-830.) If not, then the JNOV or partial JNOV was properly granted and must be affirmed on appeal.
2. In Medical Malpractice Actions, Expert Testimony is Generally Required to Establish Causation Within a Reasonable Medical Probability
In a medical malpractice action, the law is well settled that the plaintiff must prove causation within a reasonable medical probability based upon competent expert testimony. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498, citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.) The same evidentiary requirement applies when, as here, a defendant in a medical malpractice action claims the plaintiff’s negligence was a substantial factor in causing the plaintiff’s injuries. The defendant must prove the plaintiff’s actions or inactions were a substantial factor in causing the plaintiff’s injuries—within a reasonable medical probability based on competent expert testimony. (Barton v. Owen (1977) 71 Cal.App.3d 484, 506 (Barton).)
As the court in Barton explained, using the former terms of contributory rather than comparative negligence and proximate cause rather than substantial factor, “where contributory negligence arises in a medical malpractice context there is need for the defendant to have offered expert testimony on the issue. Only experts can testify regarding the proximate effect of the plaintiff’s actions upon the aggravation of his condition. In much the same way that laymen are not qualified to judge whether a doctor has been negligent because of their lack of common knowledge on the subject, they also are not qualified from a medical standpoint to determine the effects of the ‘negligent’ acts of the plaintiff.” (Barton, supra, 71 Cal.App.3d at p. 506.)
Applying this principle, the court in Barton, supra, 71 Cal.App.3d at pages 506 and 507 reversed a medical malpractice judgment in favor of a defendant doctor on the grounds there was no expert medical testimony to support a jury instruction on the plaintiff’s contributory negligence, and it was reasonably probable that the jury based its defense verdict on the factually unsupported instruction. The defendant doctor treated the plaintiff for acute frontal sinusitis, and the plaintiff claimed he suffered a brain abscess and had to undergo a prefrontal lobotomy as a result of the doctor’s negligent treatment of his condition. (Id. at pp. 489-490.) The plaintiff’s failure to call the doctor for several days and limit his activities while he was in pain were insufficient, as a matter of law, to support a finding of contributory (or comparative) negligence on the part of the plaintiff, because there was no expert medical testimony that the plaintiff’s actions or inactions were a proximate cause (or a substantial factor) in causing his brain abscess. (Id. at p. 506.)
Similarly, in Preston v. Hubbell (1948) 87 Cal.App.2d 53, 62, there was no expert medical testimony that the plaintiff’s failure to follow her doctor’s orders concerning the care and medication of an infection or abscess in her jaw either caused or aggravated the abscess or necessitated an operation to remove it. The court said, “the questions whether the delay of a week or 10 days to secure further medical attention caused or aggravated the infection, and whether more prompt treatment would have obviated the operation, were for physicians and not laymen.” (Ibid.) Thus, the court concluded it was error to instruct the jury it could find the plaintiff was negligent based on her failure to follow her doctor’s orders, and the error was prejudicial. (Ibid.)
There are exceptions to the general rule that expert medical testimony is required to support an inference that a medical malpractice plaintiff’s or defendant’s negligence was a substantial factor in causing the plaintiff’s injuries. (Barton, supra, 71 Cal.App.3d at p. 506.) These exceptions arise when a doctor’s negligence “is ‘obvious’ to anyone as a matter of common sense, i.e., the leaving in of a sponge [during surgery]....” (Ibid.) “[S]o might there arise similar situations on the part of the plaintiff where his negligence is similarly ‘obvious.’” (Ibid.)
It is critical that expert medical testimony establish causation within a reasonable medical probability as opposed to a mere possibility. As the court in Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at pages 402 and 403 explained, “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” (Italics added.)
3. The Trial Court’s Decision
Following the jury’s special verdict finding Didion negligent and assigning him 86 percent comparative fault for his injuries, the trial court granted partial JNOV in favor of Didion on the grounds there was no expert medical testimony to support a jury determination that Didion’s negligence, in any of its possible forms, was a substantial factor in causing his injuries. In its written decision, the court, citing the above referenced case law, applied the settled principle that, “in a medical malpractice action[,] causation must be proven within a reasonable medical probability based upon competent expert testimony.”
The court listed several theories or factual bases upon which the jury could have concluded that Didion was negligent and which defendants raised in their opposition to Didion’s motion for the partial JNOV. Regarding each theory, the court said, “[L]ooking at all the acts defendants raise that could be the basis for Mr. Didion’s negligence is inconsequential, for there was no showing by any experts that had Mr. Didion done these acts it would have led to a diagnosis of colon cancer at a time [when] he was [likely] curable.” For the reasons we explain, the trial court was correct.
4. Analysis of Defendants’ Claims
Defendants claim there was substantial evidence, based on four distinct theories of Didion’s negligence, to support the jury’s finding that Didion’s negligence was a substantial factor in causing his injuries. We address these claims in turn.
(a) Didion’s Failure to See the Doctors Shortly After the May 2003 EGD
Defendants first argue there was substantial evidence to support a jury determination that Didion’s failure to follow up with Drs. Couture or Patel within four to six weeks following the May 16, 2003, EGD, or within the June to July 2003 time frame, was a substantial factor in causing either doctor’s failure to diagnose Didion’s colon cancer at a time when it was likely curable. Didion concedes the jury could have reasonably concluded he was negligent in failing to follow up with either doctor. But, he argues, there was no substantial evidence or expert medical testimony that either doctor would have diagnosed his colon cancer at a time when it was likely curable had he followed up with either doctor in June to July 2003.
The trial court agreed with Didion. It concluded, “There was no evidence presented at this trial that had plaintiff returned to follow-up with Dr. Patel four to six weeks after May 16, 2003, that Dr. Patel would have done a colonoscopy to have discovered Mr. Didion’s colon cancer, or that he would have had a greater than 50 percent chance of survival assuming the colon cancer was diagnosed at that time.” (Italics added.)
We agree with the trial court. Indeed, no medical expert testified that Didion’s cancer was likely curable or that Didion had a greater than 50 percent chance of being cured had his cancer been diagnosed and promptly treated at any time after May 2003, including in June or July 2003. Thus, even if Drs. Couture or Patel had recommended and Didion had undergone a colonoscopy in June or July 2003, there was no expert medical evidence that the cancer was likely curable at that time. It follows there was insufficient evidence to support a jury determination that Didion’s negligence, if any, in failing to follow up with Drs. Couture or Patel in June or July 2003 was a substantial factor in causing his injuries—specifically, in causing either doctor’s failure to diagnose his cancer at a time when it was likely curable.
Defendants argue that the jury could have reasonably inferred that Didion’s cancer was likely curable in June to July 2003 based on the testimony of Didion’s expert oncologist, Dr. Greene, and Didion’s expert gastrointestinal pathologist, Dr. Lechago. Both doctors testified that, in May 2003, Didion’s cancer was at stage 3A and carried an 80 percent statistical five-year survival rate. Thus, defendants argue, it was reasonable to infer that Didion had at least a 50 percent statistical survivability rate only one to two months later, in June and July 2003.
Defendants further point out that Dr. Lechago testified that “18 months, 19 months” before Didion underwent surgery to remove the cancer on December 29, 2004, Didion probably had no more than three cancerous lymph nodes. Based on this evidence, defendants maintain the jury could have reasonably inferred that Didion’s cancer was still at stage 3A or 3B and therefore likely curable as late as June 29, 2003, or 18 months before December 29, 2004.
Defendants invoke on the general principle that expert medical testimony may be circumstantial in nature, and the jury is entitled to draw reasonable inferences from it in determining the standard of care or causation. (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 280 & cases cited.) We agree that, as a general proposition, jurors may draw reasonable inferences based on circumstantial evidence, including circumstantial expert medical testimony. We disagree, however, that the jury in this case could have reasonably or permissibly inferred that Didion’s cancer was likely curable in June or July 2003 based on the expert medical testimony of Drs. Greene or Lechago.
It was unreasonable for the jury to have inferred, if it did infer, that Didion’s cancer was likely curable in June and July 2003 based on Drs. Greene’s and Lechago’s testimony that the cancer was at stage 3A and carried an 80 percent statistical survivability rate in May 2003. What is missing is expert medical testimony concerning how much further the cancer had progressed, or had not progressed, between May 2003 and June or July 2003. The evidence that the cancer was slow-growing or nonaggressive was insufficient to support a reasonable inference that the cancer was likely curable in June or July 2003, because there was no evidence indicating how slow growing the cancer was, or how far it had progressed by June or July 2003.
Nor was Dr. Lechago’s testimony that Didion probably had no more than three cancerous lymph nodes “18 months, 19 months” before his December 29, 2004, surgery sufficient to support a reasonable inference that the cancer was at stage 3A or 3B and therefore likely curable as late as June 29, 2003. Dr. Lechago’s testimony was focused on May 2003, not June to July 2003. His reference to 18 or 19 months before the December 29, 2004, surgery was to May 2003, not to June 2003 or June 29, 2003. Thus, any jury determination that Didion’s cancer was likely curable in June or July 2003 could have been based only on speculation, or on unfounded extrapolation of Drs. Greene’s and Lechago’s testimony that the cancer was likely curable in May 2003.
It is important to remember that Didion’s theories of recovery against Drs. Couture and Patel depended upon them discovering his cancer during or before the May 16, 2003, EGD, but not later. Accordingly, Didion was not concerned with presenting, and did not present, any expert medical testimony that his cancer was likely curable at any time after May 2003. The June to July 2003 time frame was relevant only to defendants’ affirmative defense that Didion was negligent in failing to schedule a follow-up office visit with Dr. Patel within four to six weeks following his May 16, 2003, EGD. The defense theory was that Dr. Patel would have scheduled a diagnostic appointment within two weeks after the six-week follow-up office visit, or by mid-July 2003, and by that time would have discovered the cancer.
Defendants did not, however, support the affirmative defense with any evidence that Didion’s cancer was likely curable in June or July 2003. For example, defendants did not elicit cross-examination testimony from Drs. Greene or Lechago that Didion’s cancer was likely curable after May 2003. Furthermore, defendants’ experts, Drs. Saab and Padova, testified that Didion’s cancer was at stage 3C or 4 and therefore not likely curable in May 2003. It is therefore understandable that, as a matter of trial strategy, defendants did not elicit evidence from Drs. Greene or Lechago that Didion’s cancer was likely curable in June or July 2003. Such evidence may well have undermined the defense theory that the cancer was not likely curable even in May 2003.
Defendants further argue that, based on Judicial Council of California Civil Jury Instructions, CACI No. 430, the jury could have reasonably inferred that Didion’s negligence in failing to follow up with the doctors during June to July 2003 was a substantial factor in causing his injury. The instruction told the jury: “A substantial factor in causing a harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” More specifically, defendants argue that, based on CACI No. 430, the jury “did not need an expert to opine to plaintiff’s survivability every month between May 2003 and December 2004. The jury could infer survivability in June/July 2003.” Not so.
In addition to CACI No. 430, the jury was instructed, based on the rule stated in Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at pages 402 and 403, that, “Causation must be proven within a reasonable medical probability based upon competent expert testimony.” As discussed, no expert testified that, within a reasonable medical probability, Didion’s cancer was curable in June or July 2003. The defense experts agreed that Didion’s cancer was not likely curable even in May 2003, and Didion’s experts did not address—either specifically or inferentially—whether his cancer was likely curable at any time after May 2003. It was therefore unreasonable for the jury to infer, if it did infer, that Didion’s cancer was likely curable in June or July 2003.
(b) Didion’s Failure to Fully Disclose His Family Medical History
Second, defendants claim there was substantial evidence to support a jury finding that Didion’s failure to tell Dr. Couture that he had a family history of colitis was a substantial factor in causing the doctor’s failure to timely diagnose his colon cancer, because if he had then Dr. Couture would have recommended that he undergo a colonoscopy well before May 2003. We disagree that there is substantial evidence to support this theory of causation.
As defendants point out, Dr. Couture testified that, in his view, a family history of colitis would have “place[d] [Didion] in a higher risk category for receiving preventative care treatment, such as colonoscopy.” (Italics added.) But Dr. Couture did not testify he would have recommended a colonoscopy or a barium enema for Didion—the only two tests that likely would have found Didion’s cancer—had Didion disclosed a family history of colitis or colon problems, at any time. Instead, Dr. Couture testified that, had he known Didion had a family history of colitis or colon problems, as Didion finally disclosed to his surgeon Dr. Oh in December 2004, he “[m]ore than likely” would have changed his “assessment or plan” for Didion.
Dr. Couture’s testimony thus did not establish that he would have recommended a colonoscopy or barium enema for Didion at a time when his cancer was likely curable, that is, during or before May 2003, had he known Didion had a family history of “colitis or colon problems.” Indeed, Dr. Couture further testified he did not recall asking Didion whether he had a family history of “colitis or colon problems” when Didion first complained of lower abdominal pain on April 1, 2003. Instead, he referred Didion to Dr. Patel to evaluate the problem.
Dr. Couture did testify that, had Didion disclosed a family history of ulcerative colitis, he “probably” would have recommended a colonoscopy. The evidence also showed that having a first degree family history of ulcerative colitis places a person at a higher than average risk of developing colon cancer. But there was no evidence that Didion had any family history of ulcerative colitis. Nor was there any evidence that Dr. Couture or Dr. Patel ever asked Didion whether he had a family history of ulcerative colitis. Thus, there is no substantial evidence linking Didion’s alleged negligence in failing to disclose a family history of “colitis or colon problems” to either doctor’s failure to timely recommend a colonoscopy or barium enema, or to diagnose Didion’s colon cancer at a time when it was likely curable.
(c) Didion’s Failure to Disclose His Lower Abdominal Pain to Dr. Patel
As defendants point out, substantial evidence supported a jury determination that Didion failed to disclose or adequately describe his lower abdominal pain to Dr. Patel during his April 25, 2003, consultation with her. Defendants argue that, if Didion had adequately described his lower abdominal pain to Dr. Patel, substantial evidence showed that Dr. Patel would have recommended and performed a colonoscopy when she performed the EDG on May 16, 2003. Thus, defendants argue, there was substantial evidence linking Didion’s failure to disclose his lower abdominal pain to Dr. Patel to Dr. Patel’s failure to diagnose his colon cancer at a time when it was likely curable.
The evidence does not support defendants’ argument. Dr. Patel did not testify she would have recommended or performed a colonoscopy on or around May 16, 2003, had she known Didion had been having lower abdominal pain. When asked whether she would have performed a colonoscopy with the May 16, 2003, EDG had Didion disclosed to her he was having lower abdominal pain, Dr. Patel responded, “I would have to guess.” She also said the EGD was not the “first” test she used to evaluate lower abdominal complaints, but only if lower abdominal pain was the patient’s only complaint. Contrary to defendants’ argument, Dr. Patel did not state or imply by her testimony that she would have performed a colonoscopy on May 16, 2003, had Didion told her he was having lower abdominal pain.
Also, when Dr. Patel performed a second EGD together with a colonoscopy on Didion in December 2004 and discovered his colon cancer, she said she recommended the colonoscopy at that time because Didion was anemic. When asked whether she would have recommended the colonoscopy in December 2004 based solely on Didion’s lower abdominal pain, she said she could not “speculate as to what I would have and would not have... done.” Thus, there was no evidence that Dr. Patel would have recommended a colonoscopy during or before May 2003, had Didion told her he was having lower abdominal pain during his April 25, 2003, consultation with her.
(d) Didion’s “Own Theories” of the Doctors’ Negligence
Lastly, defendants argue that Didion’s “own theories” of negligence on the part of Drs. Couture and Patel “relied on the jury concluding that Didion still had a probability of surviving if the cancer had been discovered in June/July 2003.” They note that “one of Didion’s charges against Dr. Patel was that she was negligent in not specifically instructing him to set up a follow-up office visit four to six weeks after the EGD. Naturally, a finding of causation on this theory would require that Didion’s cancer be curable upon being discovered four to six weeks after the May 16, EDG. [¶] Similarly, Didion claimed Dr. Couture should have specifically ordered a colonoscopy or sent Didion to a different specialist once he saw Dr. Patel’s report from the May 16 EDG. Causation under this theory would likewise require that the cancer if discovered by colonoscopy in June/July 2003, still be curable.”
Defendants further argue: “By placing these two theories before the jury, plaintiff implicitly acknowledged the expert testimony was sufficient to support the conclusion that plaintiff was curable in the June/July 2003 time frame. Thus, if the trial court were correct that (1) there needed to be evidence specific to June/July 2003 and (2) there was no such evidence, then plaintiff did not meet his burden of proof in establishing causation. To the extent there was sufficient evidence to support the verdict, then there was necessarily sufficient evidence to support the jury’s comparative fault allocation, even if one presumes the jury based its decision upon a failure to follow-up in June /July 2003.”
Defendants’ argument misses the mark. First, as Didion argues on this appeal, he made no attempt at trial to causally link Dr. Patel’s failure to provide him with unambiguous discharge instructions following the May 16, 2003, EDG, or Dr. Couture’s failure to order a colonoscopy or send Didion to a different specialist once he saw Dr. Patel’s report from the May 16 EDG, to either doctor’s failure to timely diagnose his colon cancer. As discussed, plaintiff’s medical experts testified that Didion’s cancer was at stage 3A and likely curable in May 2003, but did not testify, even on cross-examination, that it was likely curable at any time thereafter. Defendants’ medical experts consistently opined that the cancer was not likely curable, even in May 2003.
Didion’s evidence concerning each doctor’s post-May 2003 negligence was presented as a means of defending against the defense theory and affirmative defense that Didion was responsible for the delay in diagnosing his cancer. For example, Didion argued that Dr. Patel’s May 16, 2003, discharge instructions were ambiguous, and for this reason he was not negligent in failing to schedule a follow-up office visit with her within four to six weeks after the EGD. Didion also argued that Dr. Patel’s April 25, 2003, consultation report, which disclosed no indication or evaluation of Didion’s lower abdominal pain, should have led Dr. Couture to contact Dr. Patel and recommend that she perform a colonoscopy together with the May 16, 2003, EGD, or, alternatively, refer Didion to another specialist to evaluate his lower abdominal pain.
Moreover, there was indeed no substantial evidence linking either doctor’s alleged post-May 2003 negligence to their failure to diagnose Didion’s cancer during or before May 2003, when the evidence showed it was likely curable. More important, there was no evidence linking Didion’s alleged post-May 2003 negligence to either doctor’s failure to diagnose his cancer in May 2003. That there was no substantial evidence linking either doctor’s post-May 2003 negligence to Didion’s injuries is irrelevant to the trial court’s order granting the partial JNOV. (Cf. Bromme v. Pavitt, supra, 5 Cal.App.4th at pp. 1498-1499 [any alleged negligence on the part of the defendant doctor after June 1981 was not a substantial factor in causing the plaintiff’s death from colon cancer, as a matter of law, because the plaintiff’s cancer was not likely curable after June 1981].)
(e) Didion’s Other Actions and Omissions
Finally, there was no expert medical testimony linking any of Didion’s other acts or omissions—other than those discussed above—to defendants’ failure to timely diagnose his colon cancer during or before May 2003. For example, and as the trial court observed in its written decision granting the partial JNOV, “1. No expert testified that had Dr. Couture done a full physical exam he would have diagnosed the colon cancer at a time Mr. Didion could have been cured. [¶] 2. No expert testified that a flex[ible] sigmoidoscopy would have... allowed for an earlier diagnosis of Mr. Didion’s cancer at a time when he was still salvageable. [¶] 3. There was no expert testimony concerning the failure of plaintiff to return to Dr. Couture in a time period of 2001 to 2003 to establish that Dr. Couture would have diagnosed the cancer in that timeframe.”
B. The Alternative Order Granting a Partial New Trial is Moot
Defendants claim the trial court’s alternative order granting a partial new trial on whether Didion’s comparative negligence was a substantial factor in causing his injuries was both procedurally and substantively improper. It is unnecessary for us to consider this claim. In light of our conclusion that the partial JNOV was properly granted on the grounds there was insufficient evidence that Didion’s comparative negligence was a substantial factor in causing his injuries, the alternative order granting the partial new trial on the same issue is moot. (Code Civ. Proc., § 629; Cobb v. University of So. California (1996) 45 Cal.App.4th 1140, 1145-1146.)
C. Defense-proffered Instructions on “But For” Causation Were Properly Refused
As given, CACI No. 430 instructed the jury: “A substantial factor in causing a harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” Defendants did not request and the trial court did not give the fourth, bracketed sentence of the operative December 2005 standard-form version of CACI No. 430. That sentence would have told the jury: “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (CACI No. 430 (2006) p. 279.)
Defendants claim the trial court prejudicially erred in refusing to give one of three alternative instructions they proposed on “but-for causation,” in lieu of the first three sentences of CACI No. 430. Alternatively, defendants claim the trial court had a duty to give, sua sponte, CACI No. 430 in its entirety, including its fourth, bracketed sentence on but for causation. They argue that giving CACI No. 430 without its bracketed sentence failed to adequately instruct the jury on but for causation, which was an essential element of Didion’s malpractice claim against Drs. Couture and Patel. More specifically, they argue that CACI No. 430, as given, failed to adequately instruct the jury that, in order to find each doctor liable, to any extent, for Didion’s injuries, it had to find that but for the doctors’ negligence Didion’s cancer would have been discovered at a time when it was likely curable, that is, when he had a greater than 50 percent chance of surviving the cancer. Defendants claim the instructional error was prejudicial because the jury was confused on the issue of causation, as evidenced by their questions during deliberations.
Defendants’ three alternative instructions on but for causation would have told the jury: (1) “To prove defendants’ treatment caused harm, plaintiff must establish that defendants were negligent, and that without defendants’ negligence, plaintiff’s injuries would not have occurred”; (2) “Plaintiff must show that defendant[s] [were] a cause of plaintiff’s injuries. To be a cause of injury, plaintiff must show that but for the alleged malpractice, it is more likely than not the plaintiff would have obtained a more favorable result”; and (3) “Plaintiff must show that defendant[s] [were] a cause of plaintiff’s injuries. This requires the plaintiff to prove through expert testimony that but for the defendant[s’] alleged negligence, it is more likely than not the plaintiff would not have sustained her/his claimed injuries.”
We conclude that CACI No. 430 without its bracketed sentence adequately instructed the jury on cause-in-fact or but for causation. The fourth, bracketed sentence of CACI No. 430 would have clarified or made explicit what the first three sentences implied, namely, that conduct, or an act or omission, cannot be a substantial factor in causing harm unless but for that act or omission the harm would not have occurred.
Furthermore, if we were to conclude that the trial court erred in failing to instruct the jury more explicitly on but for causation, either with the bracketed sentence of CACI No. 430 or one of defendants’ three alternative proposed “but for” instructions, we would find the error harmless. Contrary to defendants’ argument, the jury’s questions during deliberations did not indicate they were confused about the issue of causation. Nothing in the jurors’ questions indicated they did not understand that, in order to find either doctor liable, to any extent, for Didion’s injuries, they had to find that the doctors’ negligence was a substantial factor or a cause in fact of those injuries—or that but for the doctors’ negligence Didion’s cancer would have been discovered at a time when it was likely curable.
1. Applicable Law/Cause in Fact
In negligence actions, including medical malpractice actions, the plaintiff generally has the burden of proving causation. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968.) The first element of legal cause is cause in fact. (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1185, pp. 552-553.) “California has definitively adopted the substantial factor test of the Restatement Second of Torts for cause-in-fact determinations. [Citation.] Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury. [Citations.]” (Rutherford v. Owens-Illinois, Inc., supra, at pp. 968-969.)
“Conduct can be considered a substantial factor in bringing about harm if it ‘has created a force or series of forces which are in continuous and active operation up to the time of the harm’ [citation], or stated another way, ‘the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another’ [citation].” (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 253.) “In a medical malpractice action the element of causation is satisfied when a plaintiff produces sufficient evidence ‘to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. [Citations.]’ [Citation.]” (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-1315.)
2. The Substantial Factor Test of CACI No. 430 Subsumes “But For” Causation
Defendants concede that the substantial factor test, as set forth in the Restatement Second of Torts, section 432, subdivision (1), page 430, subsumes the “but for” test of causation. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 (Mitchell); accord, Viner v. Sweet (2003) 30 Cal.4th 1232, 1239-1240 (Viner).) Section 432, subdivision (1) of the Restatement Second of Torts states, in pertinent part, that “the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.”
Defendants argue, however, that the substantial factor test as stated in the first three sentences of CACI No. 430 does not subsume the “but for” test because, as phrased, the instruction does not convey the critical concept that an actor’s negligence cannot be a substantial factor in causing a harm unless the harm would not have occurred in the absence of—or but for—the actor’s negligence. We disagree with this interpretation of CACI No. 430.
We first observe that, since the time of trial in June 2006, the Directions for Use of CACI No. 430 have consistently stated that the substantial factor test, as phrased in the first three sentences of the instruction, subsumes the “but for” test of causation. As noted, the instruction states: “A substantial factor in causing a harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” The fourth, bracketed sentence of the instruction states: “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.”
In June 2006, the Directions for Use provided that, “As phrased, this definition of ‘substantial factor’ subsumes the ‘but for’ test of causation—e.g., plaintiff must prove that but for defendant’s conduct, the same harm would not have occurred.” (Directions for Use of CACI No. 430 (2006), p. 279, italics added, citing Viner, supra, 30 Cal.4th at pp. 1239-1240.) Similarly, the current Directions for Use state, “As phrased, this definition of ‘substantial factor’ subsumes the ‘but for’ test of causation, that is ‘but for’ the defendant’s conduct, the plaintiff’s harm would not have occurred.” (Directions for Use of CACI No. 430 (2008), p. 287, italics added, citing Mitchell, supra, 54 Cal.3d at p. 1052; Rest.2d Torts, § 431, p. 428.) The current Directions for Use further state, “The optional last sentence makes this explicit, and in some cases it may be error not to give this sentence.” (Directions for Use of CACI No. 430 (2008), p. 287, citing Soule v. GM Corp. (1994) 8 Cal.4th 548, 572-573 (Soule).)
Accordingly, the Directions for Use of CACI No. 430 have consistently relied on Mitchell and Viner to support the proposition that the first three sentences of the instruction subsume the “but for” test of causation. As defendants point out, however, the decisions in Mitchell and Viner preceded the original publication of CACI No. 430 in September 2003, and the courts in both cases were referring to the substantial factor test as set forth in section 432, subdivision (1) of the Restatement Second of Torts or former BAJI No. 3.76, not the substantial factor test as set forth in the first sentence of CACI No. 430. (Viner, supra, 30 Cal.4th at p. 1240; Mitchell, supra, 54 Cal.3d at p. 1052.) Thus, as defendants further point out, neither Mitchell nor Viner stand for the proposition that the substantial factor test as stated in the first three sentences of CACI No. 430 subsumes the “but for” test of causation.
Nevertheless, the first sentence of CACI No. 430 subsumes the “but for” test of causation by necessary implication. As the current Directions for Use further state, the optional, bracketed sentence “makes... explicit” what the first three sentences effectively state—that is, that conduct is not a substantial factor in causing harm unless “but for” that conduct the harm would not have occurred. (Directions for Use of CACI No. 430 (2008), p. 287.) Indeed, by defining “a substantial factor” as “a factor that a reasonable person would consider to have contributed to the harm,” the first sentence effectively conveys the concept that conduct is not a substantial factor in causing harm unless “but for” that conduct the harm would not have occurred. (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1095-1096 [substantial factor test of CACI No. 430, first sentence, subsumes but for test of causation, and trial court is not required to give redundant instructions].)
At the time of trial the Directions for Use further stated, “The court should consider whether the bracketed language is appropriate under Viner, supra. The bracketed language may be used in addition to the substantial factor instruction except in cases of concurrent independent causes.” (Directions for Use of CACI No. 430 (2006), p. 279, italics added, citing Viner, supra, 30 Cal.4th at p. 1240; Barton, supra, 71 Cal.App.3d at pp. 503-504.) This is a reference to the settled rule that instructions on but for causation should not be given in cases involving concurrent independent causes, “which are multiple forces operating at the same time and independently, each of which would have been sufficient by itself to bring about the harm.” (Viner, supra, at p. 1240; Rest.2d Torts, § 432, p. 430.)
As applied to the present case, the given version of CACI No. 430 effectively told the jury it could not find that Dr. Couture’s negligence, in any of its possible forms, was a substantial factor in causing Didion’s injuries, unless it found that, but for Dr. Couture’s negligence, Didion’s cancer would have been discovered at a time when it was likely curable. Similarly, the instruction told the jury it could not find that Dr. Patel’s negligence, in any of its possible forms, was a substantial factor in causing Didion’s injuries, unless it found that, but for Dr. Patel’s negligence, Didion’s cancer would have been discovered at a time when it was likely curable. In other words, CACI No. 430 as given told the jury it could not find that either doctor’s acts or omissions were a substantial factor in causing Didion’s harm if the jury determined the same harm would have occurred in the absence of the doctors’ acts or omissions.
3. The Defense-proffered “But For” Instructions Were Not Pinpoint Instructions
The current Directions for Use state that “in some cases it may be error” not to give the bracketed sentence. (Directions for Use of CACI No. 430 (2008), p. 287, citing Soule, supra, 8 Cal.4th at pp. 572-573; Rest.2d Torts, § 432, subd. (1), p. 430.) Although a similar statement was not included in the Directions for Use in effect at the time of trial (Directions for Use of CACI No. 430 (2006), pp. 279-280), defendants rely on Soule, supra, at pages 572 and 573, to support their argument that the trial court erroneously denied their request to give one of three alternative instructions on but for causation in lieu of giving CACI No. 430 in its entirety.
More specifically, defendants invoke the settled principle, applied in Soule, that “[a] party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him [and] which is supported by substantial evidence.” (Soule, supra, 8 Cal.4th at p. 572.) In effect, defendants argue that their alternative instructions on but for causation constituted pinpoint instructions to which they were entitled upon request because substantial evidence supported them. (Id. at p. 581; People v. Saille (1991) 54 Cal.3d 1103, 1119.) Pinpoint instructions “relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case....” (People v. Saille, supra, at p. 1119.)
None of the proposed instructions on but for causation were pinpoint instructions, however, because none of them pinpointed a particular defense theory of the case to any particular facts. (Cf. Soule, supra, 8 Cal.4th at p. 573 [vehicle manufacturer entitled to requested instruction on but for causation because the proposed instruction pinpointed the defense theory that the plaintiff would have sustained the same injuries in the vehicle accident in absence of the vehicle design defect].) Instead, each of the proposed instructions on but for causation were stated in general terms, and would have merely substituted the “but for” rule of causation in lieu of the substantial factor test. As discussed, however, the substantial factor test of CACI No. 430, first sentence, subsumes the “but for” test. (Mayes v. Bryan, supra, 139 Cal.App.4th at pp. 1095-1096.)
See footnote 6, ante.
4. The Jury Was Not Confused About Causation
Defendants claim that questions the jurors posed to the court during deliberations indicated they were confused about the instructions on causation; thus, they argue, the failure to give one of their alternative instructions on but for causation was prejudicial. (Soule, supra, 8 Cal.4th at pp. 570-571, citing, e.g., LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876 [factors to be considered in assessing prejudicial effect of erroneous instruction include whether jury requested rereading of the erroneous instruction or related evidence].) We disagree there was any instructional error on causation or that the jury was confused about causation.
As defendants point out, during deliberations the jury asked the court: “What are the repercussions to the [doctors] if found negligent regardless of whether or not with harm,” “I think that what he was asking is what the impact is on the [doctors] for finding them negligent, but then not finding that their negligence did not cause any harm,” and “can we find negligence without finding negligence that causes 0% harm?”
None of these questions indicate that the jury was confused about the instructions on causation, or did not understand that, in order to find each doctor liable, to any extent, for Didion’s injuries, it had to find that, but for that doctor’s negligence, Didion’s cancer would have been discovered at a time when it was likely curable. Instead, the questions indicate the jury was simply conflating its duty to determine whether each doctor was negligent with its additional but separate duty to determine whether each doctor’s negligence, if any, caused harm to Didion and beyond that, the percentage of comparative fault, if any, attributable to each doctor.
D. Defendants Were Not Entitled to an Instruction on “Loss of Chance”
Defendants further claim that the trial court erroneously refused their requested instruction on “loss of chance,” specifically that, “If Patrick Didion’s chance of survival as of the April-May 2003 [time frame], was fifty-percent (50%) or less, you must find that [each doctor’s] negligence was not the cause of Didion’s injuries even if those acts or omissions further decreased Didion’s chances for survival.” Defendants argue that this instruction was necessary to ensure they would not be held liable in the event the jury determined that either doctor’s negligence merely diminished Didion’s chances of survival from 50 percent or less to an even lesser possibility. We disagree.
Although, as defendants point out, California law does not recognize the doctrine of loss of chance, which, as applied to medical malpractice actions, holds that a plaintiff may recover for negligence that merely reduces the plaintiff’s already-less-than-probable chances of survival (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603-1611), here the trial court properly refused the requested instruction on loss of chance because it was subsumed within the given instruction that, “Causation must be proven within a reasonable medical probability” or by a probability of greater than 50 percent. (Italics added.) (Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at pp. 402-403.) As noted, the trial court is not required to give redundant instructions. (Mayes v. Bryan, supra, 139 Cal.App.4th at p. 1096.)
E. Pre- and Postjudgment Interest Was Properly Calculated Against Each Doctor Based on Didion’s Total Economic Damages of $1,099,623
Pursuant to the judgment as modified following the trial court’s grant of the partial JNOV, Didion was awarded the entire amount of his present value economic damages of $1,099,623, as determined by the jury. These economic damages were awarded against Drs. Couture and Patel jointly and severally and against RMC in their entirety pursuant to the doctrine of respondeat superior. In addition, the trial court determined that Drs. Couture and Patel had rejected pretrial offers to compromise by Didion which were less than Didion’s total recoverable damages. (Code Civ. Proc., § 998.)
Accordingly, the trial court calculated prejudgment interest, against each doctor, based on (1) Didion’s total economic damages of $1,099,623, from and after September 28, 2005, the date the offers to compromise were made, plus (2) each doctor’s proportionate liability for Didion’s recoverable noneconomic damages of $250,000 (28.6 percent or 4/14 of $250,000 against Dr. Couture and 71.4 percent or 10/14 of $250,000 against Dr. Patel). (Civ. Code, § 3291; Code Civil Proc., § 998.) The trial court further calculated the amount of each doctor’s liability for daily, postjudgment interest, based on Didion’s total economic damages and each doctor’s proportionate share of Didion’s noneconomic damages. The judgment also provides that RMC is responsible for all of Didion’s damages, together with the “interest assessed on Dr. Couture and Dr. Patel.”
Defendants claim the trial court erroneously calculated pre- and postjudgment interest against each doctor individually based on Didion’s entire $1,099,623 in economic damages, because the doctors are only jointly and severally liable for these damages. They argue that the interest calculations against each doctor on the entire $1,099,623 sum, together with RMC’s liability for the interest payable by each doctor, means Didion “is recovering interest on the economic damages three times, once from each defendant.” We disagree.
Nothing in the judgment indicates Didion is entitled to double or triple recovery for his economic damages or interest on those damages. The trial court’s pre- and postjudgment interest calculations against each doctor were properly calculated based on each doctor’s total liability on the judgment, which includes the entirety of Didion’s present value economic damages of $1,099,623, even though that is a joint and several obligation. RMC is liable for all of Didion’s economic and recoverable noneconomic damages, including pre- and postjudgment interest on those damages.
IV. DISPOSITION
The order granting partial JNOV is affirmed, and the judgment as modified by the trial court is affirmed. The parties are to bear their own costs on appeal.
We concur: Ramirez, P.J., Gaut, J.
Here, however, and for the reasons explained below, the issue of whether Didion’s negligence, in any of its possible forms, substantially contributed to either Drs. Couture’s or Patel’s failure to timely diagnose his colon cancer was not “‘obvious’ to anyone as a matter of common sense.” (Barton, supra, 71 Cal.App.3d at p. 506.)
The parties agree that this case does not involve concurrent independent causes, however. The alleged negligent conduct of Drs. Couture and Patel operated in combination, not independently. Thus, the fourth bracketed sentence of the instruction could have been given in this case, and if given would have made explicit the “but for” test of causation that was subsumed in the first sentence of the instruction.