Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. CV-252791. Arthur E. Wallace, Judge.
Hoyt E. Hart II and Jeffrey Isaac Ehrlich for Plaintiffs and Appellants.
Clifford & Brown, Patrick J. Osborn and John R. Szewczyk for Defendant and Respondent Catholic Healthcare West.
Le-Beau -Thelen, Dennis R. Thelen and W. Steven Shayer for Defendant and Respondent Reagan Bellinghausen, M.D.
OPINION
Gomes, J.
This appeal follows a court trial and defense verdict on a claim for medical malpractice arising out of the delivery of plaintiff Elaina Valdepena (Elaina), who was born in the emergency room (ER) of Mercy Hospital on Truxtun (Mercy Truxtun) in Bakersfield in November 1999 at 25 weeks gestation. Elaina has cerebral palsy and mental retardation. In 2004, Elaina brought this professional negligence action through her mother and guardian ad litem Kelly Smith (Smith), against Catholic Healthcare West, dba Mercy Hospital (the Hospital), and the ER doctor, Dr. Reagan Bellinghausen.
Elaina asserts the verdict is not supported by substantial evidence and the trial court erred in excluding certain testimony from Smith’s treating obstetrician. For the reasons stated below, we affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
Smith found out she was pregnant in July 1999, when she was 17. She began receiving prenatal care at Clinica Sierra Vista, but switched her prenatal care to Dr. Armi Walker, an obstetrician/gynecologist, when her pregnancy was in its 20th or 21st week.
On November 18, 1999, after Smith got up around 9 p.m. to urinate, she saw a streak of bright red blood about an inch wide on the toilet paper. Smith placed a pad on and woke her father, telling him she was bleeding and needed to go to the hospital. Her father drove her to Mercy Truxtun, which had the closest ER to their home. Mercy Truxtun does not have an obstetrical ward, labor and delivery services, or a neonatal intensive care unit.
On their arrival, they walked into the emergency department’s lobby, where Smith was placed in a wheelchair and taken back to the emergency department. Smith was triaged at 9:50 p.m. by Tesie Dasch (Dasch), a registered nurse who had worked at Mercy Truxtun full-time since 1980. Dasch asked Smith questions and made notes on a triage sheet, which showed that Smith was 18 years old, her obstetrician was Dr. Walker, and Smith reported vaginal bleeding with sharp lower abdominal pain continuously for 30 minutes. Dasch took Smith’s vital signs, which were within normal limits. She also took a fetal heart tone using a hand-held Doppler, which showed a fetal heart tone within normal limits of 155. To use the Doppler, the nurse puts gel on the patient’s abdomen, turns the Doppler on, places it on the abdomen and presses down, listening for the baby’s heartbeat. The side of Dasch’s hand would have been on Smith’s belly during this procedure and she would have felt any contraction against the side of her hand. Dasch’s custom and practice is to chart any contact with a patient, and to chart the most important things without neglecting patient care. If there had been a contraction, Dasch would have charted it.
The Doppler was the only equipment available at Mercy Truxtun’s emergency room to assess fetal distress or condition. Mercy Truxtun did not have an external or internal fetal monitor, or tocolytic monitors.
The whole triage process took about 10 minutes. Dasch triaged Smith as a Category 2, which meant that she could wait a little while to be seen, but Dasch immediately took Smith to the treatment area by wheelchair. Smith’s condition at the time did not suggest to Dasch that Smith was in labor.
At 9:59 p.m., Dasch charted that Smith was at that time more relaxed, but continued to have intermittent lower abdominal pain, which indicated that the sharp lower abdominal pain had subsided. Dasch also noted that Smith had worn one maxi pad since the beginning of her symptoms, which indicated the bleeding was not significant. At 10:05 p.m., Dasch charted the ER doctor was aware of Smith’s presence. Dasch had no recollection of the patient load in the ER that night.
Dr. Bellinghausen, a board certified emergency medicine physician with many years of experience, was on duty at Mercy Truxtun the night of November 18, 1999. His first contact with Smith was at 11:04 p.m. He took a patient history and learned, inter alia, that Smith had some vaginal bleeding which began at 9:30 p.m., had used only one pad and had some lower abdominal pain. Dr. Bellinghausen palpated Smith’s abdomen and used the Doppler to obtain a fetal heart rate, which was 155. During the course of the examination, Smith told Dr. Bellinghausen she had an ultrasound at 20 weeks and thought she was told the placenta was low. Based on the history and examination, Dr. Bellinghausen’s differential diagnosis was placenta previa (where the placenta is lying right over the cervix), placenta abruption (where the placenta breaks away from the fetus) and preterm labor, although his primary concern was placenta previa. While Dr. Bellinghausen considered whether Smith was in preterm labor, the examination and history did not show that she was in preterm labor.
Dr. Bellinghausen ordered a pelvic ultrasound, Foley catheter, CBC and heparin lock. The heparin lock was ordered to provide intravenous access for fluids, medication or analgesics in case the need for any of those arose. The ultrasound was needed to rule out placenta previa and abruption before a pelvic examination could be performed, because there is a great risk of hemorrhaging if a pelvic examination is performed when the patient has either condition. At some point the CBC came back within normal limits showing no significant bleeding.
Dr. Bellinghausen did not call Smith’s obstetrician, Dr. Walker, at that time because he knew from experience that an obstetrician would want to know the ultrasound results and whether he had worked the patient up before being called so the obstetrician would have the information needed to decide on a course of action. Dr. Bellinghausen would call an obstetrician immediately upon a patient’s presentation to the ER if she was hemorrhaging with cyclical type of abdominal cramps and low blood pressure. When the patient only had some abdominal pain and minimal vaginal bleeding which was not consistent with labor, as Smith did, he did not think the standard of care required him to call immediately. Assuming the ultrasound results came back showing no placenta previa or fetal abnormalities, Dr. Bellinghausen’s plan was to then perform a pelvic exam and depending on those results, call Dr. Walker.
At 11:20 p.m., Deborah Pinkham (Pinkham), a registered nurse who had worked at Mercy Truxtun’s ER since December 1990, placed a Foley catheter in Smith in preparation for the ultrasound. The process took approximately 10 minutes and put her in contact with Smith’s perineum. If Pinkham, who did not have an independent recollection of that night, had seen any bleeding, she would have charted it. The chart, however, did not state anything about bleeding at that time, which suggested to Pinkham that she didn’t see any.
At 11:30 p.m., a nurse put in the heparin lock. At 11:50 p.m., a nurse took Smith, who was not complaining of pain at that time, to the ultrasound by wheelchair. From Smith’s arrival at the emergency department to the time she was taken to the ultrasound, her condition basically was unchanged and stable. Four films were taken during the ultrasound, which lasted 22 or 23 minutes – the first at 11:59 p.m. on November 18 and the last one at 12:22 a.m. on November 19. The ultrasound study showed that at 12:09 a.m., the fetal heart rate was 149 beats per minute, which was within the normal range for a fetus of this gestational age. At 12:10 a.m., Smith’s vital signs were taken and were within normal limits, indicating she was still hemodynamically stable. Following the ultrasound, Smith was back in the ER by 12:30 a.m.
It was noted on Smith’s chart at 1:30 a.m. that prior to that time, Smith had been on and off a bedpan three times, feeling like she needs to defecate, but without any increased or active bleeding. It is not unusual for an ER patient to feel the urge to have a bowel movement and Smith did have one. Nothing was charted to indicate Smith ever had any significant bleeding, was ever on a downhill course, or was ever unstable from a hemodynamic point of view.
Dasch documented a late entry for 2:00 a.m. that Smith felt like pushing and the ER doctor was made aware of that information. Dr. Bellinghausen’s custom and practice would have been to see Smith as soon as he could after learning of the 2:00 a.m. report of the urge to push. As Dr. Bellinghausen explained, with that information “in a perfect world ... where nothing else [was] going on in the department, I’m going to try to get to that patient as soon as possible.” That he did not come sooner told him “something else [was] going on,” but he didn’t have a specific recollection of what that was or the workload in the ER that night. Dr. Bellinghausen did not have a specific recollection of checking on Smith before she delivered, but testified it was his usual and customary practice to look in on a patient, observe the patient, and tell the patient what was happening. Smith did recall a man coming into her room and letting her know that they were waiting for the ultrasound tech to look at the ultrasound. At trial, she did not believe the man was Dr. Bellinghausen. In an earlier deposition, Smith testified the man was a physician who was light haired and tall.
Sometime between 2:15 and 2:20 a.m., Smith passed fluid and thought she had “peed.” Smith’s mother, who was in the room with her, stepped out of the room, looked at some people near the nurse’s station and asked if someone could come check on Smith because Smith thought she had peed. Smith’s mother went back into the room and either saw blood or Smith told her there was blood. Smith’s mother went back out and reported there was now blood. Smith’s mother then went back into the room and saw the baby on the table. Pinkham heard the yelling and went into the room, where she saw the baby being born without physician or nurse assistance. A chart entry states that at 2:20 a.m., Smith’s mother was yelling that the baby had come out, and Dr. Bellinghausen and a nurse were at the bedside.
Dr. Bellinghausen had learned the results of the ultrasound through a verbal report sometime shortly before Smith delivered to the effect that there was no evidence of fetal abnormalities, placenta previa or placenta abruption, and the gestational age was 25 weeks, six days. According to Dr. Bellinghausen’s ER report, he was getting ready to go to Smith to perform a pelvic examination when he heard family calling from the room that the baby was being born.
The baby, Elaina, was born at 2:25 a.m. with a birth weight of one pound, six ounces, or 638 grams. Due to Elaina’s gestational age of 25 weeks, Elaina was considered a high-risk baby. Elaina was diagnosed with respiratory distress syndrome, a common problem for her gestational age and weight due to the immaturity of the respiratory system. At birth, Elaina was floppy, with a heart rate of around 50 to 60 and agonal respirations, which means she was making irregular attempts at breathing. Hospital personnel began bagging Elaina with a neonatal bag at 100 percent and started CPR. Dr. Bellinghausen attempted to intubate Elaina with the smallest tube he had on the pediatric cart. When that was unsuccessful, he continued bagging. At 2:40 a.m., an anesthesiologist came and intubated Elaina with a smaller tube. At 3:05 a.m., Dr. Mathilda Klupsteen, a neonatologist, arrived and took over Elaina’s care. By 3:30 a.m., Dr. Walker was present and removing the placenta. Both Smith and Elaina were transferred to Mercy Southwest, where Elaina was placed in the neonatal ICU.
Elaina suffers from mental retardation, with an I.Q. between 60 and 70, and cerebral palsy. The cerebral palsy causes major spasticity and tightness in her legs and to a lesser degree, in her arms, and she cannot walk without considerable support.
An evaluation of the placental tissue revealed that Smith had severe acute chorioamnionitis consistent with premature rupture of membranes, which means she had an infection and severe inflammation of the placenta, particularly where it attached to the uterine wall, which could have caused pain and irritation.
Smith’s subsequent treating obstretrician in a later pregnancy obtained a history of Smith’s pregnancy with Elaina which indicated Smith did not have any uterine contractions and only vaginal bleeding on presentation to the ER. Smith had a second pregnancy, which resulted in a premature birth at 25 weeks gestation. A suspicion of cervical incompetence was entertained as to Smith’s first and second pregnancies based on the premature births. Consequently, during Smith’s third pregnancy, a cervical cerclage was performed, which consists of placing a suture into the neck or mouth of the womb so it will not widen prematurely.
II. Trial
At trial, Elaina advanced multiple bases for her medical malpractice claim, claiming both Dr. Bellinghausen and the nursing staff breached the standard of care in numerous ways. A significant portion of the trial was consumed with expert medical testimony concerning these bases for the asserted professional negligence claim, as well as causation. Elaina’s experts included: (1) Dr. Lisa Kellman, an ER physician at Alhambra Hospital who was board certified by the American Board of Emergency Medicine; (2) Dr. Andrea Morrison, a pediatric neurologist; and (3) Dallas Poffenroth, a registered nurse who was a certified emergency nurse. The experts called by Dr. Bellinghausen and the Hospital included: (1) Dr. Michael H. Forman, an emergency physician at Tri-City Hospital in Oceanside, California, who was board certified in emergency medicine; (2) Dr. Maureen Sims, a pediatrician with a specialty in neonatology (newborn intensive care); (3) Dr. Herb Brar, an obstetrician/gynecologist with a specialty in perinatology (high-risk obstetrics); and (4) Sheila Shea, a registered nurse who is a certified emergency nurse.
After hearing all of the testimony, as well as closing arguments, the trial court took the case under submission. The trial court subsequently issued a written intended decision, finding that neither Dr. Bellinghausen nor the Hospital had breached the standard of care. Elaina filed objections to the decision, which the court treated as a request for a statement of decision. The court ordered defense counsel to prepare and file a formal statement of decision for the court’s consideration. The defendants jointly filed a proposed statement of decision, to which Elaina filed objections. The court overruled Elaina’s objections and signed the proposed statement of decision.
In the statement of decision, the trial court found (1) Elaina failed to meet her burden of proof that the care and treatment rendered by Dr. Bellinghausen was deficient and a departure from the standard of care; (2) Elaina failed to meet her burden of proof that the care and treatment rendered by the Hospital’s nursing staff fell below the standard of care; (3) Elaina failed to establish causation between any of the defendants’ alleged acts or omissions and the fact a pre-term delivery occurred at approximately 2:20 a.m. on November 19, 1999; (4) it could not conclude some act or omission by any defendant “played a substantial factor” in Elaina’s clinical outcome; and (5) Elaina’s outcome was most likely explained by her low birth weight and prematurity. Based on these findings, the trial court entered judgment in favor of Dr. Bellinghausen and the Hospital.
DISCUSSION
I. Legal Principles
“‘[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.”’” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
With respect to the standard of care, “‘[t]he law demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient. [Citations.] The same degree of responsibility is imposed in the making of a diagnosis as in the prescribing and administering of treatment. [Citations.]’ [Citation.] ‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.’” (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 279.)
As specific to a medical malpractice claim, the element of causation requires that the plaintiff prove within a reasonable medical probability based on competent medical testimony that the health professional’s negligent care caused the injury or death. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403 (Jones); see also Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117; Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-1315.) “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.” (Jones, supra, 163 Cal.App.3d at p. 403.)
Elaina asserts there is not substantial evidence to support the trial court’s findings regarding the standard of care and causation. In making this assertion, Elaina “is in fact claiming that [s]he proved negligence as a matter of law, and such is not established unless the only reasonable hypothesis is that negligence existed.” (Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099.) In order for us to reverse the judgment on this ground, we would have to hold that “it would have been impossible from all the evidence for the [court] to find” that the defendants were not negligent or Elaina had not met her burden to prove the defendants were negligent. (Byrum v. Brand (1990) 219 Cal.App.3d 926, 947.) The issue of a defendant’s negligence may be determined as a matter of law only if reasonable persons can draw but one conclusion from the evidence. (Horn, supra, 147 Cal.App.3d at p. 1099.) “‘Only where no fact is left in doubt and no deduction or inference other than negligence can be drawn by the [trier of fact] from the evidence can the court say, as a matter of law, that negligence is established....’” (Ibid.) Elaina has neither contended nor established she has met this high standard.
We nevertheless will address Elaina’s claims. Although Elaina asserted multiple bases for her claims that Dr. Bellinghausen and the Hospital violated the standard of care, on appeal she challenges the trial court’s findings regarding only three of those theories with respect to Dr. Bellinghausen and only two of those theories with respect to the Hospital’s nursing staff. Specifically, Elaina contends Dr. Bellinghausen deviated from the standard of care required of a competent ER physician by: (1) failing to reevaluate Smith after his initial evaluation at 11:04 p.m.; (2) failing to contact Smith’s obstetrician, Dr. Walker; and (3) failing to pursue a transfer to a fully-equipped facility. With respect to the Hospital’s nursing staff, Elaina asserts they violated the standard of care required of competent ER nurses by: (1) failing to assess Smith’s abdomen; and (2) failing to attend to Smith once her condition changed. Elaina asserts the trial court’s findings on these points in favor of the defendants, as well as its finding that Elaina failed to prove any of defendants’ acts or omissions played a substantial factor in Elaina’s clinical outcome, are not supported by substantial evidence.
“‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’ [Citation.] The substantial evidence standard of review is applicable to appeals from both jury and nonjury trials.” (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.)
We address Elaina’s claims against Dr. Bellinghausen and the Hospital in turn.
II. Claims Against Dr. Bellinghausen
A. The Alleged Standard of Care Violations
1. The Failure to Reevaluate Smith
Elaina asserts Dr. Bellinghausen breached the standard of care by failing to reevaluate Smith after his initial 11:04 p.m. evaluation. Specifically, Elaina argues that once Dr. Bellinghausen learned at 2:00 a.m. that Smith had been on and off the bedpan three times and was having the urge to push, he should have reevaluated Smith right away. She further argues that given her standard of care expert’s testimony that it was below the standard of care for Dr. Bellinghausen to see Smith only once, it was Dr. Bellinghausen’s burden to provide some evidence to support his justification for failing to attend to her thereafter.
On this issue, the trial court found that Elaina did not meet her burden of establishing that Dr. Bellinghausen’s contacts with Smith after his initial evaluation were inadequate such that the standard of care was violated. The trial court noted that while Dr. Bellinghausen did not have any actual memory of the evening in question, he did testify that by custom and practice he typically would look in on ER patients to follow them over time and nursing personnel typically would advise him if there appeared to be a material change in the patient’s clinical circumstances. The court explained that Smith’s testimony that on at least two occasions after Dr. Bellinghausen’s initial evaluation and before 2:20 a.m., she recalled a physician being present in her room, lent credibility to Dr. Bellinghausen’s testimony.
The evidence supports the trial court’s decision. Elaina’s standard of care expert, Dr. Kellman, testified that Dr. Bellinghausen did not meet the standard of care because there were “infrequent reevaluations.” Dr. Kellman did not explain why more frequent reevaluations were required, other than to testify that a patient like Smith “probably should have her vital signs done every one to two hours,” and if there is a significant change in her complaints, her vital signs and fetal heart tones should be checked. Dr. Kellman, however, testified a nurse typically gets the vital signs and fetal heart tones, while the ER physician takes the history and performs a physical. As Dr. Bellinghausen points out, since Dr. Kellman admitted it is the nurse, not the doctor, who takes the vital signs and fetal heart tones, this testimony does not support a finding that Dr. Bellinghausen violated the standard of care in this respect.
Dr. Kellman also opined, however, that Dr. Bellinghausen breached the standard of care by failing to check on Smith and reevaluate her after her complaints of pelvic pressure, the need to defecate multiple times, and feeling the urge to push. Dr. Kellman believed these signs showed a good possibility Smith was in labor and required Dr. Bellinghausen to see Smith and reevaluate her.
There is no evidence in the record that Dr. Bellinghausen was told at 1:30 a.m. that Smith had been on and off the bedpan three times and had an urge to defecate. The record does show, however, that Dr. Bellinghausen was notified of the urge to push at 2:00 a.m. Shortly before Smith delivered at 2:20 a.m., Dr. Bellinghausen learned the results of the ultrasound and was getting ready to go to Smith to perform a pelvic examination when he heard family call from the room that the baby was being born. He was charted as being at Smith’s bedside at 2:20 a.m. Since Dr. Bellinghausen only learned of Smith’s changed condition at 2:00 a.m., the issue is whether Dr. Bellinghausen violated the standard of care by not coming to reevaluate Smith between 2:00 a.m. and when she delivered.
Elaina relies on Dr. Bellinghausen’s own testimony to show he violated the standard of care. As Elaina points out, Dr. Bellinghausen testified that if nothing else was going on in the department, he would have tried to get to Smith “as soon as possible” upon learning of her urge to push, and if he had the time, he would have checked on her “immediately.” He did not know exactly what happened, but testified his usual and customary practice upon hearing that information would have been to go to her if he “didn’t have something else that was really restraining me,” and that he didn’t go immediately told him “something else was going on, and I don’t have a specific recollection of what was going on.” Elaina asserts this testimony shows he should have reevaluated her right away, and if his excuse for failing to do so was the workload in the ER, it was his burden to prove the ER was in fact busy.
Dr. Bellinghausen, however, was not testifying to the standard of care required of him, but instead was testifying as to his custom and practice, i.e. it was his practice to respond immediately to a patient after receiving information like that which he received about Smith unless he was dealing with a more pressing matter. This testimony can support a finding that he acted in accordance with his custom and practice on this occasion, i.e. that a more pressing matter prevented him from getting to Smith sooner than he actually did. (Evid. Code, § 1105.) Since Dr. Bellinghausen was testifying as to his custom and practice, he was not required to present any evidence on how busy the ER was that night.
Even if there was no other pressing matter or the ER was not busy, however, Elaina has not shown that the 20 minutes it took for him to get to Smith violated the standard of care as a matter of law. A reasonable inference from the evidence is that Dr. Bellinghausen attended to Smith as soon as possible after receiving the report of her urge to push, as during those 20 minutes he received the ultrasound results and was getting ready to go in and perform a pelvic exam. While Dr. Kellman testified generally that Dr. Bellinghausen should have reevaluated Smith because of Smith’s complaints, she never testified that the 20 minute response time was unreasonable, especially in light of the evidence that Dr. Bellinghausen was on his way to evaluate Smith when Elaina was being born. Moreover, Dr. Bellinghausen’s standard of care expert, Dr. Forman, testified that the observations about Smith that were charted at 1:30 and 2:00 did not require Dr. Bellinghausen to do anything other than to wait for the ultrasound results, since he could not “manage” Smith until he had a diagnosis. Dr. Forman also testified that Dr. Bellinghausen met the standard of care in all material respects relative to his care of Smith and he managed Smith appropriately. Because Dr. Bellinghausen had just received the ultrasound results and was on his way to see Smith, the trial court reasonably could conclude Elaina failed to prove the standard of care was violated.
2. The Failure to Contact Dr. Walker
Elaina next contends Dr. Bellinghausen breached the standard of care by failing to call and consult with Smith’s treating obstetrician, Dr. Walker. On this point, the trial court concluded no standard of care violation was proven. The trial court noted that Elaina’s standard of care expert, Dr. Kellman, opined that the standard of care obligated Dr. Bellinghausen to contact Dr. Walker after his initial history and examination of Smith, while Dr. Bellinghausen’s standard of care expert, Dr. Forman, testified the standard of care did not require Dr. Bellinghausen to contact Dr. Walker until after he had completed his workup of Smith. The court also noted that both Dr. Forman and Dr. Kellman testified that the timing for contacting an outside physician is often a judgment call. The court explained that when it reviewed and analyzed the conflicting opinions of the two experts, it was not persuaded by a preponderance of the evidence that the standard of care was violated.
Elaina contends the court erred in reaching this conclusion because Dr. Forman’s opinion was conclusory, not based on the specific facts of the case, and is contradicted by the evidence. She also contends the trial court erroneously excluded “critical evidence” that would have supported her on this issue. We disagree.
Dr. Kellman opined that in cases such as Smith’s, where the ER physician is attempting to rule out placenta previa or abruption, or preterm labor, and the patient has an obstetrician, the ER should call the obstetrician “early, early, early,” because the obstetrician might know if the patient has previa and can be part of the workup of the case. Dr. Kellman believed an early consultation is important when the patient has a second trimester bleed because (1) an obstetrician usually wants to be involved fairly early on, (2) the obstetrician might have information that would help with treatment, and (3) since Mercy Truxtun could not monitor Smith, the obstetrician might help the ER doctor plan for monitoring. In Dr. Kellman’s experience, an obstetrician wants to know when his or her patient is in an ER with symptoms like Smith’s. Dr. Kellman opined that Dr. Bellinghausen did not meet the standard of care because he did not call the obstetrician.
Dr. Kellman admitted ER physicians are trained to assess patients like Smith and perform workups, and there is an element of medical judgment an ER physician has to make relating to the time for calling an obstetrician under circumstances such as Smith’s. When asked if she agreed there were instances where it would be acceptable for the ER doctor to wait to call the obstetrician until after obtaining the ultrasound results, Dr. Kellman responded the ER doctor would not be faulted for calling before “and it’s often acceptable to call after an ultrasound, but typically it’s a good idea to call the OB before the baby is born, not after.” While Dr. Kellman was not suggesting the doctor could predict in advance when a preterm patient might have a baby, she thought that Dr. Bellinghausen should not have waited “two and a half hours” after the ultrasound was done to get the results. Dr. Kellman admitted it was not Dr. Bellinghausen’s fault that Mercy Truxtun did not have a 24-hour, in-house radiology service and the ultrasound had to be sent to an off-site radiologist to be interpreted.
Dr. Kellman’s practice is to call a patient’s obstetrician every time she has a patient who is 24 to 25 weeks pregnant and has a history of some bleeding and cramping, but whether she does so before receiving the ultrasound results depends on the case and is really a matter of medical judgment. In this case, she would have called the obstetrician earlier, talked to the ultrasound technician to get a preliminary report, or had the nursing staff call to see where the ultrasound report was. Dr. Kellman testified that although she knows the ultrasound technician is not a radiologist and cannot give an official report, the technician often can give enough information that can be passed onto the patient’s obstetrician and to allow the physician to proceed.
In contrast to Dr. Kellman’s opinion, Dr. Forman opined the standard of care did not obligate Dr. Bellinghausen to call Dr. Walker at the time he completed the initial physical and history. Dr. Forman explained the ER physician’s role is to evaluate the patient and then contact the patient’s physician if appropriate or necessary. In Dr. Forman’s experience, for the vast majority of patients their physicians want to know what the ER doctor’s history and physical showed, as well as any test results, which establishes a reasonable picture of the case. The two physicians can then decide whether the patient’s treating physician needs to come in, the patient can go home, or other plans are necessary.
Dr. Forman testified the standard of care would be to call the obstetrician within a reasonable period of time after having the ultrasound results, depending on patient load. The time it takes to get an ultrasound is “very variable,” and depends on whether the ultrasound technician is already in the hospital or needs to come into the hospital from home, which can take hours from the time the ultrasound is ordered. The ultrasound then has to be transmitted and read by the radiologist. In Dr. Forman’s experience, the three hour interval between the time the ultrasound was ordered at 11 p.m. and Dr. Bellinghausen learned of the results around 2 a.m. was “really fast” given the time of night.
Dr. Forman testified that in a hospital without labor and delivery or obstetrics, it is reasonable to wait three and a half hours before calling the patient’s obstetrician when the suspected conditions are preterm labor, placenta previa or placenta abruption, because in emergency medicine the evaluation is done first and then the obstetrician is called in “this type of case.” Dr. Forman explained that ER doctors have training in emergency medicine and know “what the workup is,” which Dr. Bellinghausen ordered. When the workup is completed, the ER doctor has enough information to have a plan and to be certain the patient is stable, and when a specialist is called, “unless you can show them that you have an extremely unstable situation, then they’re going to ask to ‘Call me back after the tests are done, and then we’ll get a plan, and then I’ll decide what to do.’”
Dr. Forman did not agree that the absence of facilities for delivery at Mercy Truxtun made it more important to contact Dr. Walker before Dr. Bellinghausen completed his evaluation because ER doctors do not call specialists every time someone with a potential complication “hits the door,” and treating physicians do not “get out of bed and run in unless you can demonstrate to them you have an unstable situation or something you don’t know how to manage yourself.” While there are some exceptions to this, this case was not an exception and actually was a common case. Dr. Forman agreed it may have been reasonable to call for assistance in managing the case, but it is not the standard of care, even if there is a potential for obstetric complications in a hospital that is not equipped to manage them.
As the summaries of their testimonies show, Dr. Kellman and Dr. Forman offered conflicting testimony about the standard of care with respect to the ER physician’s obligation to contact a patient’s treating obstetrician in cases like Smith’s. As the trier of fact, the court was free to accept Dr. Forman’s opinion and reject Dr. Kellman’s. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204 [“‘resolution of conflicts in the evidence, assessment of the credibility of witnesses and the weight to be given the opinions of experts were all matters within the exclusive province of the trier of fact.’”]
Elaina contends the court erred in accepting Dr. Forman’s opinion because it was conclusory and not supported by the evidence. Elaina asserts Dr. Forman never adequately explained why a treating obstetrician would not be called when a patient in Smith’s condition is in a hospital not equipped to handle the differential diagnoses with which the ER physician was working. Dr. Forman, however, testified that in such a situation a call was not required before an evaluation was completed because ER physicians constantly deal with potential emergencies; consequently, they do not contact a treating physician immediately unless the patient is unstable or has a condition the ER physician doesn’t know how to manage, which was not the case here, since the treating physician wants to know the results of the tests and evaluation before coming in. In our view, this testimony adequately explains the reasons for Dr. Forman’s opinion based on the facts of the case, i.e. that given Smith’s stable condition and Dr. Bellinghausen’s experience, the standard of care did not obligate him to contact Dr. Walker before obtaining the ultrasound results merely because Mercy Truxtun did not have an obstetrics department or was not capable of providing ongoing fetal monitoring. Dr. Bellinghausen’s testimony was fully consistent with Dr. Forman’s, as he testified that when a patient like Smith presents with symptoms that are not consistent with preterm labor, the standard of care does not require him to immediately call the patient’s obstetrician.
Elaina next contends Dr. Forman’s opinion is flawed because it did not address Dr. Kellman’s testimony that Dr. Bellinghausen could have obtained a preliminary report of the ultrasound results from the technician. While Dr. Kellman testified there was enough information in this case that Dr. Bellinghausen could have asked the technician for a preliminary report and called the obstetrician, she did not testify that failing to obtain a preliminary report from the technician was below the standard of care. Instead, she testified as to her own practice of obtaining such reports. Dr. Kellman’s real criticism was the length of time it took Dr. Bellinghausen to obtain the ultrasound results, and she explained that to shorten that time, he could have asked the technician for a preliminary report or had nursing staff call to obtain the report from the radiologist. Dr. Forman addressed this issue when he testified that the ultrasound results were obtained “real fast.” It was within the court’s province to accept Dr. Forman’s testimony over Dr. Kellman’s on this point.
Finally, Elaina contends the court improperly excluded testimony she attempted to elicit from Dr. Walker to rebut Dr. Forman’s and Dr. Bellinghausen’s testimony that treating physicians do not want to be called before all the test results are received. At trial, Elaina’s counsel asked Dr. Walker what her customary response would be when she is told that her patient is admitted to an ER and suspected of having placenta previa. Counsel for both defendants objected on the ground it was a hypothetical that called for expert opinion testimony from a witness who was not designated as an expert and had expressed a desire not to give expert testimony. The court sustained the objection because Dr. Walker was never called that night and therefore what she would have done is an opinion outside the course of her actual treatment of Smith. Elaina’s counsel made an offer of proof that if Dr. Walker was allowed to answer the question, she would have testified that if she had been told at midnight her patient was in the ER with vaginal bleeding and abdominal pain and suspected placenta previa, her custom and practice would have been to go to the ER and attend to her patient directly.
We review the trial court’s decision to exclude proffered evidence for abuse of discretion, the standard that generally applies to appellate review of a trial court’s evidentiary rulings. “The trial court is ‘vested with broad discretion in ruling on the admissibility of evidence.’ [Citation.] ‘[T]he court’s ruling will be upset only if there is a clear showing of an abuse of discretion.’ [Citation.] ‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.”’” (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431 (Tudor Ranches); see also People v. Brown (2003) 31 Cal.4th 518, 534; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972.) Where evidence is found to be excluded erroneously, the ultimate question on appeal is whether absent that error it is reasonably probable a result more favorable to the appellants would have been reached. (Tudor Ranches, at pp. 1431-1432.)
Elaina argues Dr. Walker’s testimony is admissible under Evidence Code section 1105, which provides that “[a]ny otherwise admissible evidence of habit or custom is admissible to prove conduct on a specific occasion in conformity with the habit or custom.” She contends the testimony was relevant to Dr. Bellinghausen’s and Dr. Forman’s factual assertions that she would not have wanted to receive a call before all of the test results were in and she would not have done anything had she been called sooner. The problem with Elaina’s contention, however, is that Dr. Walker’s testimony was not being offered to prove what she actually did that night, but instead was being offered to show what she would have done had she been called. Accordingly, her testimony, even if characterized as habit or custom, was not admissible under Evidence Code section 1105, because it was not being used to prove conduct on a specific occasion.
For this reason, the case on which Elaina relies, Dincau v. Tamayose (1982) 131 Cal.App.3d 780 (Dincau), is distinguishable. In that case, the appellate court concluded the trial court did not err in admitting evidence under Evidence Code section 1105 that a doctor and his staff had a habit of responding in a particular manner to calls about children’s conditions. (Id. at pp. 793-796.) The evidence was used to show that the doctor and his staff, who had no recollection of a mother’s telephone call to the doctor’s office regarding her sick child, were not negligent because they responded to the telephone call in accordance with their habit. (Id. at p. 794.) In contrast here, Dr. Walker’s testimony was not being elicited to show that Dr. Walker actually responded according to her custom and practice, and therefore was not admissible under Evidence Code section 1105.
In sum, there is no basis for overturning the trial court’s resolution of the conflicting expert opinions. While Elaina would like us to reject Dr. Forman’s testimony, on appeal we cannot reweigh the evidence and we do not consider Dr. Forman’s testimony so inherently lacking in credibility as to be unworthy of consideration. “The testimony of witnesses who were apparently believed by the trier of fact may be rejected on appeal only if that testimony was physically impossible of belief or inherently improbable without resort to inferences or deductions.” (DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 195.) At most the record before us reveals the presentation of contrary evidence by Elaina, which does not subject Dr. Forman’s testimony to repudiation or doubt. (Ibid.) Elaina simply has not proven a breach of the standard of care as a matter of law.
3. The Failure to Facilitate Smith’s Transfer
Dr. Kellman testified that one of the minimal standard of care items for a patient like Smith was to investigate transfer options. In Dr. Kellman’s opinion, since Mercy Truxtun did not have the ability to monitor Smith, Dr. Bellinghausen should have begun thinking about where Smith was going to be transferred and “start[ed] that process.” Dr. Kellman believed Dr. Bellinghausen should have called another hospital with monitoring capabilities and told them he had a second trimester bleed who would need monitoring, explained what he was doing, and either have the hospital hold a bed or see if the hospital had room for her. Dr. Kellman did not testify, however, that an actual transfer was required or medically necessary.
Dr. Forman, however, explained that under the Emergency Medicine Treatment and Labor Act (EMTALA), every patient who comes to an emergency department must be evaluated without regard to his or her ability to pay and cannot be transferred or discharged without a medical screening exam being performed to the extent of the hospital’s capabilities to determine if the patient is stable. Both Dr. Forman and Dr. Kellman agreed it would have been a clear violation of EMTALA and the standard of care if Dr. Bellinghausen had ordered her transfer after his initial examination at 11:04 p.m. Dr. Forman did not believe a transfer could have been made until the ultrasound results were received.
Dr. Forman admitted that under EMTALA, it would have been possible for Dr. Bellinghausen to effect a transfer to a higher level of care any time he deemed it medically necessary, but believed it was a judgment call as to whether to move Smith to a hospital better equipped to manage her. Dr. Forman explained that in this case, it would have been risky to transfer Smith without having at least done some reasonable testing to try to determine if there was an imminent delivery, as Dr. Bellinghausen did, because Smith could have delivered during the transfer.
In its statement of decision, the trial court did not make any explicit findings on this issue. Elaina does not contend the lack of such findings is error. Instead, she asserts there is no evidence to support a finding that Dr. Bellinghausen did not breach the standard of care in failing to investigate and arrange for Smith’s transfer because there is no evidence that responds to Dr. Kellman’s testimony. We disagree. Dr. Forman testified that under EMTALA, a transfer could not have been made until the ultrasound results were received. While Dr. Forman admitted EMTALA did not prevent Dr. Bellinghausen from transferring Smith if he deemed it medically necessary, he also explained that whether to transfer Smith was a judgment call and it would have been risky to transfer Smith before doing testing to determine if delivery was imminent. Since the standard of care did not require Dr. Bellinghausen to actually transfer Smith before he completed his testing, a reasonable inference can be made that the standard of care also did not require Dr. Bellinghausen to investigate transfer options until after he received the ultrasound results. Since Dr. Forman’s testimony supports a finding that Dr. Bellinghausen did not breach the standard of care in this respect, Elaina has not shown he was negligent as a matter of law.
The trial court did state in its intended decision that with respect to Elaina’s criticism of Dr. Bellinghausen for failing to make provisions for Smith’s transfer to a facility with a para-natal department, federal regulations prohibited Smith’s transfer until a full assessment of her condition had been made, which had not been completed when Elaina was born. This finding was not included in the statement of decision.
B. Causation
Elaina contends the trial court’s findings regarding causation are not supported by the record. We disagree.
With respect to any claim that the defendants’ omissions caused Elaina’s delivery that night, Dr. Brar, a defense expert, testified that Elaina’s delivery could not have been prevented. He explained that Smith had an incompetent cervix, a congenital condition where the cervix is unable to hold the pregnancy in place beyond the mid-trimester, resulting in a preterm spontaneous birth from the cervix widening without any contractions playing a role. In Dr. Brar’s opinion, Elaina’s delivery could not have been prevented with reasonable medical certainty or probability at the time Smith came to the ER, neither could it have been delayed a significant time. Even if the health care providers had known at 1:00 or 2:00 a.m. that Smith had an incompetent cervix, nothing could have been done to stop the delivery.
Elaina’s standard of care expert, Dr. Morrison, testified that defendants’ omissions injured Elaina when she suffered a brain injury which caused her cerebral palsy and mental retardation. Dr. Morrison opined that both the brain injury and Elaina’s extreme prematurity caused her cerebral palsy. According to Dr. Morrison, Elaina experienced decreased oxygen and blood pressure sometime after the last good heart rate was taken around midnight that caused her to suffer major damage to the white matter around the hollow spaces in the brain, called periventricular leukomalacia (PVL). The PVL affects both her ability to move, i.e. cerebral palsy, and her intellectual functioning. Because Elaina was not monitored after the ultrasound, the first sign of injury was when Elaina was delivered, as shown by her decreased heart rate, being “floppy,” and the trouble she was having breathing and maintaining a heartbeat. Dr. Morrison opined the brain injury began sometime between midnight and 2:20 a.m., continued through the resuscitation and stopped within the first day or so of her transfer to Mercy Southwest. Dr. Morrison did not know how much, if any, injury Elaina had suffered at the time she was found on the bed and did not think Elaina could have been in the same condition she was at birth for a “huge long time,” because, if she had been, she probably would have died. In Dr. Morrison’s opinion, Elaina’s cerebral palsy is not related solely to her prematurity.
Dr. Morrison further opined that Elaina suffered a perinatal birth asphyxia “in her prematurity,” that caused her to suffer hypoxic ischemic encephalopathy (HIE), which was a result of inadequate oxygenation and blood pressure, as well as excessive acidosis in her blood. Elaina’s prematurity made her more vulnerable to HIE which, in Dr. Morrison’s opinion, was 100 percent due to the circumstances of the perinatal period, explaining that “[g]iven a very small infant of this gestational age, the events which occurred harmed her. Or did not occur. The things that didn’t happen led to harm too.” Other contributing factors to the perinatal birth asphyxia were Elaina’s “very marked prematurity and being delivered in a hospital that wasn’t set up to handle this ....” Contributing factors to Elaina’s HIE included the spontaneous delivery in bed; the lack of fetal monitoring, through which hospital personnel would have recognized a problem; no obstetrician; no neonatal intensive care unit team standing by to help after delivery; and the lack of equipment that would have been available in a delivery room in a hospital with a NICU. In Dr. Morrison’s opinion, Elaina probably would have been normal or had very minimal impairment if she had been delivered in a hospital that was set up and ready to handle the delivery.
Dr. Sims offered an opinion contrary to Dr. Morrison’s. Dr. Sims opined that Elaina’s prematurity was the “overwhelming factor” that reasonably explained Elaina’s outcome, i.e. her cerebral palsy and mental retardation. Even if Elaina had been born in ideal circumstances, according to national statistics her mortality rate was 40 percent. Of those infants who survive, 25 percent have a “very severely abnormal outcome,” which Dr. Sims defined as severely retarded and nonfunctional, needing total care, another 25 percent have a milder outcome, and more than 50 percent, even if they do not have cerebral palsy and mental retardation, end up having “very special needs and have special care.” The mortality rates and risks are increased if the mother has chorioamionitis because the baby may become infected and studies show the “inflammatory mediators” can actually cause PVL. In Dr. Sims’s opinion, Elaina’s morbidity and mortality would have been higher than the statistics because of the compromises at birth, which included the chorioamnionitis, Smith’s bleeding before the birth, and Elaina being born lifeless. Elaina suffered from most of the problems typically seen in premature infants of her birth weight and gestational age.
Dr. Sims also testified Elaina’s risk for cerebral palsy was increased by the administration after birth of a steroid that had been shown to have a very close link with neuro-developmental poor outcome and cerebral palsy. She also believed there was a “hefty chance” the PVL was caused by an inflammatory response Elaina suffered due to Smith’s chorioamnionitis. Regardless of the circumstances of Elaina’s birth, Dr. Sims believed her outcome was not unexpected.
Dr. Sims had read Dr. Morrison’s deposition and she “didn’t really have criticism” of that testimony. Dr. Sims agreed it was likely Elaina had hypoxia, since she was born lifeless, but without fetal monitoring or cord gasses, it was impossible to say how much, how long, or the degree of hypoxia, and she had no idea how much hypoxia Elaina had in utero. Dr. Sims also agreed there “likely may have been some reduction in blood flow,” i.e. some ischemia, at birth. In Dr. Sims’s opinion, however, a premature baby is vulnerable to having white matter loss even if there is no hypoxia or ischemia. Dr. Sims testified Elaina suffered some amount of white matter injury, and hypoxia and ischemia remain possible causative factors, but from an undulating course of mild swings in oxygen and blood pressure through the newborn period, not as an acute event. Dr. Sims explained that she would not say Elaina suffered from HIE because neonatologists do not use the term “hypoxic ischemic brain injury” to define preterm babies. In her deposition, however, Dr. Sims testified that hypoxic brain injury was a possible contributing cause of the cerebral palsy and retardation, but it could have been a lack of oxygen or blood flow that was happening right before delivery, or her precipitous delivery.
In its statement of decision, the trial court found, based on Dr. Brar’s testimony that Smith was never in preterm labor and Elaina’s delivery could not have been prevented, that Elaina failed to establish causation between any of the defendants’ alleged acts or omissions and the fact a preterm delivery occurred at approximately 2:20 a.m. on November 19, 1999. In addition, the court could not conclude from Dr. Morrison’s testimony that the defendants’ alleged acts or omissions played a substantial factor in Elaina’s clinical outcome because Dr. Morrison was unable to allocate the neurological insult she believed Elaina suffered between the injury that occurred in utero and any additional injury that may have occurred after delivery. The court also pointed to Dr. Sims’s opinion, which it found credible, that none of the defendants’ acts or omissions resulted in harm or injury to Elaina and the “global picture” Elaina presented after delivery was completely consistent with the fact of prematurity.
Elaina does not challenge the trial court’s finding that she failed to prove the premature delivery was due to any of the defendants’ acts or omissions. Instead, she contends the trial court erred in concluding she failed to prove her hypoxic, ischemic injury was due to any act or omission of defendants. Elaina asserts the trial court’s findings on this issue are not consistent with the record because they do not acknowledge Dr. Sims’s testimony that she had no criticism or disagreement with Dr. Morrison’s opinions. Elaina contends because of this, Dr. Sims’s testimony must be seen as consistent with Dr. Morrison’s opinion that (1) the cause of Elaina’s cerebral palsy and mental retardation was not related solely to her prematurity, and (2) the cause of her brain injury, to a reasonable medical probability, was a perinatal birth asphyxia and HIE. Elaina also contends that the suggestion that she cannot prevail unless she can show what portion of her injury occurred in utero ignores the facts of the case and is contrary to the law of causation. Elaina asserts to prove causation it is enough to show that the process that caused Elaina’s injury began in utero, while under defendants’ care.
To prove causation, Elaina was required to produce evidence from which it could be inferred “‘“that in the absence of [Dr. Bellinghausen’s] negligence, there was a reasonable medical probability [Elaina] would have obtained a better result.”’” (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1093 (Mayes).) Based on Dr. Sims’s testimony that Elaina’s prematurity was the overwhelming factor in her outcome and that even if she had been born in ideal circumstances her outcome was not unexpected, the trial court reasonably could infer that even if Dr. Bellinghausen had done the things Elaina asserts he should have – investigated a transfer, reevaluated Smith, and called Dr. Walker – there was not a reasonable medical probability she would have obtained a better result, i.e. she would not have sustained a brain injury that caused her cerebral palsy and mental retardation.
Although Dr. Sims’s opinion on this point conflicted with Dr. Morrison’s, Elaina asserts the trial court should have viewed Dr. Sims’s opinion as consistent with Dr. Morrison’s because Dr. Sims testified she “didn’t really have criticism” of Dr. Morrison’s deposition testimony. This assertion is without merit. Dr. Sims’s statement that she didn’t really have a criticism of Dr. Morrison’s testimony does not necessarily mean she agreed with Dr. Morrison’s conclusions. Obviously, she did not because she differed with Dr. Morrison on a number of issues, including whether Elaina’s outcome would have been different had she been born under ideal circumstances. To the extent Elaina is claiming the trial court should have rejected Dr. Sims’s testimony because she had no criticism of Dr. Morrison’s testimony, the claim fails.
Elaina also asserts she was not required to prove what portion of her injury occurred in utero to show causation. She reasons it was sufficient for her to prove that the process that led to her injury began in utero. As Elaina acknowledges, she was required to prove that Dr. Bellinghausen’s negligent conduct was a substantial factor in bringing about her harm. (See Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481 (Leslie G.).) All of Dr. Bellinghausen’s omissions Elaina contends were negligent occurred before Elaina’s birth. Thus, in order to prove his omissions were a substantial factor in bringing about her harm, she had to prove that she sustained harm while in utero. Although Dr. Morrison testified she believed Elaina’s injury occurred somewhere between midnight and 2:20 a.m., she also testified that she didn’t know how much, if any, injury Elaina had suffered when she was found on the bed. Dr. Sims also could not say how much hypoxia Elaina experienced while in utero. From this testimony, the trial court could find that it could not conclude it was more likely than not that Elaina’s injury began in utero and therefore could not conclude within a reasonable medical probability that Dr. Bellinghausen’s omissions played a substantial factor in Elaina’s outcome.
Finally, even if Elaina had shown she sustained injury while in utero, she does not point to any evidence showing that had Dr. Bellinghausen done the things she claims he should have, i.e. he investigated a transfer, reevaluated Smith before she delivered, or called Dr. Walker, she would not have suffered a brain injury. Although Dr. Morrison opined that Elaina would have been normal, or had minimal impairment, if she had been born in a hospital that could handle the delivery, and the events that occurred or did not occur harmed her, she never explained how Dr. Bellinghausen’s failure to investigate a transfer, reevaluate Smith or call Dr. Walker, caused Elaina’s brain injury. Without such evidence, the trial court reasonably could conclude, as it did, that Elaina failed to prove Dr. Bellinghausen’s omissions played a substantial factor in Elaina’s clinical outcome.
III. Claims Against the Hospital
Elaina contends the judgment in the Hospital’s favor must be reversed because it is not based on substantial evidence. Specifically, Elaina challenges the trial court’s findings on two standards of care she claims the nursing staff breached: (1) failure to adequately assess Smith’s abdomen or periodically reassess it; and (2) failure to attend to Smith once her condition changed. She also contends the trial court erred when it found she failed to prove causation.
With respect to the standard of care issues, Elaina’s nursing expert, Poffenroth, testified that every patient who comes in with abdominal pain should have an abdominal exam, “whatever that abdominal exam is going to be. And that means putting your hands on the abdomen, noting what kind of pain it is, how often it is, where the pain is, where the pain goes to, where the pain radiates to, any bleeding at that time that’s associated with the pain, and bowel sounds, which is just a standard abdominal exam for any patient with abdominal pain.” Poffenroth could not find any indication that such an exam was performed and therefore opined the nursing staff failed to meet the standard of care. Poffenroth explained that if such an exam had been performed, the nurses would have been able to tell whether there was any tightening of the uterus or contractions, which would indicate early labor. Poffenroth also opined the nursing staff breached the standard of care by failing to stay with Smith after they learned she had to an urge to push at 2:00 a.m.
The Hospital’s nursing expert, Shea, did not agree with Poffenroth’s opinion regarding the nurses’ failure to document an abdominal examination because a nurse did obtain the fetal heart tone when Smith was brought back to a treatment area, which would have exposed the abdomen completely. Shea explained it would have taken awhile to find the fetal heart tones and during that process, the nurse would have been visualizing and assessing the abdomen. Shea testified the nurses also assessed Smith’s abdomen before she was taken to ultrasound and when the urinary catheter was inserted. Shea opined that after the nurse informed the ER physician at 2:00 a.m. that Smith felt like pushing, the nurse had met the standard of care. Under the standard of care, the nurse needed to await further instructions from the physician, and although the nurse should have had a “heightened awareness of what’s going on,” she thought that was demonstrated by the nurse “actually putting it together and analyzing that data.” Shea agreed the nurses should have attended to and assisted Smith after 2:00 a.m., and while she didn’t see any evidence in the record that they had done so, it was not an entry she expected to see in writing, although it was something she expected to happen.
With respect to the failure to assess Smith’s abdomen, the trial court found (1) the nurses did assess Smith during virtually every contact and charted any significant findings, (2) there was not sufficient evidence to demonstrate the failure to chart the assessments amounted to a breach of the standard of care, (3) the assessments were appropriate and consistent with the standard of care, (4) the nursing staff carried out all physician orders timely and appropriately; and (5) Poffenroth’s criticism that the nurses failed to adequately and regularly assess Smith’s abdomen presupposes she was in labor and the standard of care required such attention for that reason, but Smith was never in preterm labor. The trial court did not make a specific finding with respect to the failure to stay with Smith after 2:00 a.m., but did find the nursing staff did not breach the standard of care by missing the signs of impending delivery, as there were explanations other than preterm labor for Smith’s symptoms and Smith was never in preterm labor.
We need not decide whether the trial court’s findings on these standard of care issues were erroneous because even if the nursing staff was negligent in failing to assess Smith’s abdomen or stay with her after 2:00 a.m., there is no evidence these omissions caused the harm Elaina suffered, namely her brain injury.
As explained in section II, B, ante, the trial court found Elaina failed to prove causation because (1) Smith was never in preterm labor and Elaina’s delivery could not have prevented; and (2) it could not conclude the defendants’ acts or omissions played a substantial factor in Elaina’s clinical outcome, as Dr. Morrison could not allocate the neurological insult Elaina suffered between injury that occurred in utero and injury that occurred after birth and Dr. Sims testified Elaina’s condition was completely consistent with her prematurity. As we have also explained, to prove causation, Elaina must prove the nursing staff’s omissions were substantial factors in bringing about her harm. (Leslie G., supra, 43 Cal.App.4th at p. 481.) Put another way, she must show that in the absence of the nursing staff’s negligence, there is a reasonable medical probability she would have obtained a better result. (Mayes, supra, 139 Cal.App.4th at p. 1093.) Based on the evidence, the trial court reasonably could infer that even if the nursing staff had done the things Elaina asserts they should have, there was not a reasonable medical probability she would have obtained a better result, i.e. she would not have sustained a brain injury that caused her cerebral palsy and mental retardation.
Poffenroth explained that a hands-on abdominal examination should be performed on any patient with abdominal pain. She further explained the reason for performing such an examination on a pregnant patient, namely to determine if the patient is having contractions which could indicate early labor and to provide a baseline to assess changes the patient might experience while in the ER. According to Dr. Brar, however, Smith, with her incompetent cervix, would not have experienced any contractions. The trial court accepted Dr. Brar’s testimony, which it found credible. Elaina does not challenge the trial court’s decision to accept Dr. Brar’s testimony; she even states in her reply brief that “[t]here was no dispute that [Smith] suffered from an incompetent cervix, nor about the result of this condition.” Since Smith did not experience contractions, the failure to assess her abdomen could not have caused Elaina’s harm, i.e. her brain injury, as even if the nurses had assessed the abdomen, they would not have felt any contractions.
The evidence also supports the conclusion that even if the nursing staff had stayed with Smith after she felt the urge to push at 2:00 a.m., Elaina would not have obtained a better result. Poffenroth essentially testified a nurse should have stayed with Smith to help deliver the baby. Dr. Sims testified, however, that while Elaina was bruised when she was born, the uncontrolled delivery did not result in any trauma that could have caused her cerebral palsy. Moreover, as Dr. Brar testified, the nurses would not have been able to stop the delivery. The birth happened almost instantaneously after Smith’s membranes ruptured. Based on this evidence, the trial court reasonably could conclude that even if the nurses had stayed with Smith, Elaina’s birth and brain injury would not have been prevented.
Moreover, as explained in section II. B., ante, Dr. Sims’s testimony that Elaina’s prematurity was the overwhelming factor in her outcome, which would have been expected even had she been born in a fully equipped hospital, supports the trial court’s conclusion that even if the nursing staff had done the things Elaina asserts they should have, i.e. assessed her abdomen or stayed with her, there was not a reasonable medical probability she would have obtained a better result, i.e. she would not have sustained a brain injury that caused her cerebral palsy and mental retardation. In addition, Dr. Morrison’s inability to determine whether Elaina was injured while in utero supports the trial court’s finding that it could not conclude it was more likely than not that Elaina’s injury began in utero and therefore could not conclude within a reasonable medical probability that the nursing staff’s omissions played a substantial factor in Elaina’s outcome.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: Cornell, Acting P.J., Kane, J.