|||COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
223 Cal. Rptr. 859; 178 Cal. App. 3d 728
|||March 11, 1986
|||JIMMY D. MOORE, PLAINTIFF AND RESPONDENT,
PREVENTIVE MEDICINE MEDICAL GROUP, INC., DEFENDANT AND APPELLANT
|||Superior Court of Los Angeles County, No. 59642, Sara Kleban Radin, Judge.
|||Hillsinger & Costanzo, Horvitz & Levy, Barry R. Levy, David M.
Axelrad and Daniel J. Gonzalez for Defendant and Appellant.
|||Schlothauer & Ellison, William H. Newkirk and Al Schallau for Plaintiff
|||Opinion by Johnson, J., with Lillie, P. J., and Thompson, J., concurring.
[178 CalApp3d Page 733]
|||The appellant appeals from a judgment rendered against it in a medical
malpractice case. It contends the judgment should be reversed since the
trial court committed several errors in instructing the jury and the
[178 CalApp3d Page 734]
|||jury committed several acts of misconduct which deprived the appellant
of a fair trial.
|||Statement of Facts and Procedure Below
|||In 1977, the respondent, Moore, was an actor and real estate salesman.
His acting credits included television and magazine advertisements, television
shows, and theater and minor film productions. He was a member of the Screen
Actor's Guild. Through the guild, he learned the appellant, the Preventive
Medicine Medical Group (PMMG), offered a physical examination for about
|||On November 10, 1977, Moore went to the PMMG for an examination. He did
not have any specific complaints but had noticed a slight blurring of vision.
He was given a battery of tests. At the end of the examination, he made
an appointment for a followup consultation.
|||Moore returned to the facilities on December 8, 1977. He saw an internist,
Dr. Mason. Dr. Mason went over the results of the previous examination.
During this time, Moore told the doctor about a spot he had noticed on his
ear lobe. He asked the doctor if it was anything to be concerned about.
Dr. Mason looked at the spot and felt it. The doctor observed it was a very
small skin lesion. It was about two to three millimeters in size. He told
Moore it was a mole. He strongly recommended he see a specialist. He further
told him all pigmented skin lesions are suspicious in nature and until he
got it removed or studied microscopically, its exact nature wouldn't be
|||Moore did not immediately heed Mason's advice. However, on April 20, 1978,
he went to see Dr. David, a dermatologist. His central concern was a rash
he had on the back of his leg which was causing him trouble. While he was
at the doctor's office, Moore told him about the spot on his ear. The doctor
look at the spot and told Moore it should be removed immediately for a biopsy.
The doctor removed it on April 24, 1978.
|||David sent the biopsy specimen to a lab. It was put on a slide and sent
back to him. When he examined it, it looked cancerous. He sent it to a pathologist
for a consultation. The pathologist agreed with David's diagnosis.
[178 CalApp3d Page 735]
|||David discussed the matter with Dr. Wagner, a surgeon. He sent him the
pathologist's report and the slide of the mole. David discussed the matter
with Moore. He told him the biopsy came back and it was malignant melanoma.
The doctor referred him to Wagner. Moore went to see Wagner about two days
after this visit.
|||Wagner first saw Moore on May 15, 1978. Based on the pathology report
and his evaluation of Moore, Wagner determined surgery was necessary. He
determined he would have to remove part of Moore's left ear, along with
the glands in front of the ear and in the upper neck on the same side. He
also decided to remove the lymph nodes because of fear the cancer spread
|||Wagner operated on May 25, 1978. An analysis of the removed tissues showed
no evidence of any melanoma. As a result of the surgery, the lower third
of Moore's left ear was removed and there is a slight depression right below
the cheek. He suffers from numbness on the left side of his face and discoloration
in his chin and cheek. When Moore is extremely tired, his left eye and the
corner of his mouth will droop slightly. He is embarrassed by his physical
|||Due to his appearance, Moore has not attempted to do any modeling, commercials,
or acting since 1980.*fn2
|||On June 25, 1979, Moore filed a complaint for personal injuries and medical
malpractice against PMMG and Dr. Mason. The gravamen of the complaint was
the defendants failed to adequately examine and diagnose Moore's cancerous
conditions. In particular, the defendants failed to adequately warn Moore
of the potential dangers associated with a mole of the type he exhibited
and the repercussions if he didn't have the mole properly diagnosed.
|||Dr. Mason subsequently settled out-of-court with Moore for $5,000.
|||The case was tried before a jury in June 1984. The jury returned a verdict
on June 22, 1984. The jury found PMMG was negligent, the negligence was
a legal cause of the injury to the plaintiff, Moore was also negligent,
his negligence was a legal cause of his injury, the total amount of Moore's
injury was $733,000, and PMMG was 75 percent responsible while Moore was
25 percent responsible.
[178 CalApp3d Page 736]
|||On July 20, 1984, PMMG filed a motion for judgment notwithstanding the
verdict or, in the alternative, motion for a new trial. Among the arguments
raised by PMMG was that jury misconduct prejudiced PMMG's right to a fair
trial and the trial court committed prejudicial error in instructing the
jury. PMMG submitted juror declarations from three jurors to establish the
acts of jury misconduct. Moore did not file counteraffidavits.
|||Both of PMMG's motions were denied on August 24, 1984.
|||PMMG filed a notice of appeal on September 21, 1984.
|||I. The Trial Court Did Not Err in Giving an Instruction Defining Dr. Mason's
Duty of Disclosure.
|||PMMG contends the trial court erred in giving the jury BAJI No. 6.11.5.*fn3
PMMG argues the instruction was erroneously given since by its terms it
applies to doctors who provide diagnosis or treatment, not to doctors such
as Mason who simply refer patients to specialists. Moreover, it was a question
of fact whether Mason's advice to Moore was adequate, yet by instructing
the jury in this manner, the court implicitly instructed them Mason had
an affirmative duty to tell Moore about the potential cancer and the risks
involved if he failed to see a specialist about the mole.
|||In Truman v. Thomas (1980)
27 Cal. 3d 285
165 Cal. Rptr. 308
611 P.2d 902]
, the Supreme Court established what has been termed the "informed
refusal" doctrine. This doctrine describes a physician's responsibilities
to a patient when that patient refuses diagnostic testing before a diagnosis
is made and treatment recommended. In a nutshell, a doctor has a duty to
disclose all material information to his patient which will enable that
patient to make an informed decision regarding the taking or refusal to
take such a test.
[178 CalApp3d Page 737]
|||In Truman, the respondent was the Truman's family doctor. He saw the appellant
frequently for a six-year period. During that period, the doctor on several
occasions informed Truman she should have a pap smear. She refused to take
the test since she could not afford the cost. The doctor never informed
Truman of the potential consequences of failing to take a pap smear, i.e.,
fatal cervical cancer. In April 1969, Truman contacted a urologist. Based
on his examination, he made an appointment for her to see a gynecologist.
The gynecologist subsequently discovered a cancerous tumor had largely replaced
her cervix. Although treatment was attempted, Truman died as a result of
this cancer. Her children brought a wrongful death action against the doctor
arguing the failure of the doctor to give a pap smear proximately caused
Truman's death. In instructing the jury, the trial court refused to give
the appellants' proposed instruction based on the theory of informed refusal.
The jury returned a verdict finding Thomas free of any negligence. The appellate
|||The Supreme Court, in reversing the decision, concluded a jury could properly
find Thomas breached his duty of care when he failed to inform Truman of
the consequences of failing to take a pap smear and the appellants' proposed
instruction should have been given. In describing a physician's duty of
care in this context, the court stated: ". . . [a] physician recommending
a risk-free procedure [whether for treatment or diagnosis] may safely forego
discussion beyond that necessary to conform to competent medical practice
and to obtain the patient's consent. [Citation omitted.] If a patient indicates
that he or she is going to decline the risk-free test or treatment, then
the doctor has the additional duty of advising of all material risks of
which a reasonable person would want to be informed before deciding not
to undergo the procedure." (Truman v. Thomas, supra,
27 Cal. 3d at p. 292.
|||In making its analysis, the court relied substantially on the principles
established in Cobbs v. Grant (1972)
8 Cal. 3d 229
104 Cal. Rptr. 505
502 P.2d 1]
, the case in which the court established the "informed consent"
doctrine. In this case, the court held "as an integral part of the
physician's overall obligation to the patient there is a duty of reasonable
disclosure of the available choices with respect to proposed therapy and
of the dangers inherently and potentially involved in each." (Id.,
at p. 243.) This holding was based on four essential postulates. First,
the knowledge of patient and doctor are not in parity. Second, an adult
of sound mind exercises control over his own body and, in exercising this
control, has the right to determine whether or not to undergo medical treatment.
Third, a patient's consent to a proposed treatment must be an informed one.
Fourth, due to the nature of the physician-patient relationship, the physician
has an obligation to the
[178 CalApp3d Page 738]
|||patient which transcends arms-length transactions. Based on these postulates,
a physician has a duty to inform his patient of all information necessary
to make a knowledgeable decision concerning a proposed treatment. (Id.,
at p. 242.) Moreover, the court refused to measure the scope of the duty
to inform by a community professional standard. (Id., at pp. 243-245.) "[The]
test for determining whether a potential peril must be divulged is its materiality
to the patient's decision. (Id., at p. 245.)
|||The challenged instruction in the case at bar was based on the holding
in Truman. PMMG contends although the instruction is accurate in describing
the principles of law established in Truman, it was not applicable to the
facts of this case. As PMMG argues, Truman involved a case in which a patient
refused a recommended procedure and her treating physician knew it. In the
case at bar, Mason was merely the referring physician and had no reason
to suppose Moore would not take his advice to see a specialist. While we
recognize these factual distinctions, we reject PMMG's challenge.
|||We believe the rationale underlying the holdings in Cobbs and Truman compels
us to conclude Mason had a duty to disclose to Moore all material information
which would enable Moore to make an informed decision whether to see the
specialist or not.*fn4 Such material information
included the risk to Moore if he was not examined by the specialist.*fn5
Without knowledge of such risks, Moore was not in a position to make an
informed decision concerning the doctor's recommendation. The fact Mason
was not going to do the actual diagnosis underscores the importance of relaying
this information to Moore at the time of his visit. Mason would not learn
whether Moore went to the specialist or refused to heed his advice. Indeed,
Moore in essence rejected the testing proposed by Mason when he failed to
go see the specialist as recommended by Mason.*fn6
However, at that point, Mason was no longer in a position to impress upon
Moore the significance of his decision not to take his advice. Thus, although
the case at bar is factually distinguishable from Truman, we fail to see
how such distinction should be
[178 CalApp3d Page 739]
|||of legal significance. Mason failed to disclose to Moore the risk he faced
if he failed to have his mole properly tested.*fn7
Yet, Mason knew he would not have another opportunity to discuss with Moore
the seriousness of this decision. Thus, it was incumbent on Mason to provide
Moore this information during his visit so Moore could make an informed
decision. Clearly if Mason had had the capability to conduct a diagnosis
on Moore and Moore had refused, the principles of Truman would have applied.
We do not believe a different result should occur simply because a referring
physician is not in a position to ever learn whether a proposed test was
refused. (See also Gates v. Jensen (1979) 92 Wn.2d 246 [595 P.2d 919, 923]
["The physician's duty of disclosure arises . . . whenever the doctor
becomes aware of an abnormality which may indicate risk or danger. [Citation
omitted.] The facts which must be disclosed are all those facts the physician
knows or should know which the patient needs in order to make the decision
[regarding the course which the patient's medical care will take]. To require
less would be to deprive the patient of the capacity to choose the course
his or her life will take."]; accord Keogan v. Holy Family Hospital
(1980) 95 Wn.2d 306 [622 P.2d 1246].)
|||We agree with PMMG's contention that by instructing the jury in this manner,
the jury was obligated to find Mason negligent if it found Mason had failed
to disclose to Moore all material information necessary to make an informed
decision including the risk to Moore if he failed to undergo the proposed
testing. However, as discussed above, we believe such a result was an appropriate
one. The failure of Mason to disclose material information to Moore rendered
Mason liable for any injuries legally caused by Moore's subsequent refusal
to submit to testing. It was of course a factual matter for the jury to
determine whether Mason had indeed failed to disclose material information.
However, no recourse to the standards of practice among the medical profession
was required. (See Cobbs v. Grant, supra,
8 Cal. 3d at p. 243
["The scope of the physician's communications to the patient . . .
must be measured by the patient's need, and the need is whatever information
is material to the decision. Thus the test for determining whether a potential
peril must be divulged is its materiality to the patient's decision."];
Miller v. Kennedy (1974) 11 Wn.App. 272 [522 P.2d 852, 862], adopted in
full by the Washington Supreme Court at 85 Wn.2d 151 [530 P.2d 334] ["Once
it has been established by expert medical testimony that a risk existed,
then the existence of the risk is the patient's business; and it is not
for the medical profession to establish a criteria for the dissemination
of information to the patient based upon what doctors feel the patient should
[178 CalApp3d Page 740]
|||The trial court properly instructed the jury in this regard.
|||II. Reversal Is Not Required Due to Jury Misconduct
|||In the case at bar, PMMG submitted three sworn juror declarations alleging
numerous instances of jury misconduct. It contends, based on these declarations,
it was denied a fair trial such that reversal is required. (See fn. 8.)
|||A. The Declarations Did Not Establish an Agreement by the Jury to Include
Attorney's Fees and Taxes in the Recovery.
|||PMMG contends the jury improperly considered the amount of attorney's
fees and taxes Moore would be forced to pay out of any award he recovered
when it was deciding the amount of compensation he should receive. In making
this argument, PMMG emphasizes the declaration of Judith Montoya. In her
declaration, Montoya stated a juror raised the issue of the amount of any
award which Moore would have to pay to his attorney in attorney's fees.
Taking into account the attorney's probable percentage of the recovery and
taxes Moore would have to pay, the juror stated the amount of award given
to Moore should be about a million dollars. Another juror stated 40 percent
of any award would probably go to Moore's attorney. However, to establish
misconduct requiring reversal, juror declarations must establish "[an]
express agreement by the jurors to include such fees in their verdict, or
extensive discussion evidencing an implied agreement to that effect."
(Krouse v. Graham (1977)
19 Cal. 3d 59
, 81 [
137 Cal. Rptr. 863
562 P.2d 1022]
; accord Tramell v. McDonnell Douglas Corp. (1984)
163 Cal. App. 3d 157
, 172 [
209 Cal. Rptr. 427].
) The declarations in the case at bar do not meet this requirement. The
declarants do not suggest an express
[178 CalApp3d Page 741]
|||agreement was reached and the discussion they relate could hardly be characterized
|||B. A Juror's Statement That the Award for Pain and Suffering Was Low in
Comparison to the Awards in Unrelated Cases Does Not Require Reversal.
|||Montoya stated in her declaration a juror informed the other jurors that
because of his previous knowledge of other malpractice suits, the $500,000
awarded Moore for pain and suffering was cheap. We are hard pressed to understand
how such a statement could constitute reversible misconduct since in the
same declaration Montoya stated the jury awarded Moore $500,000 for pain
and suffering. Thus, the juror's statement concerning awards in other suits
did not result in the jury giving Moore a higher award than planned.
|||PMMG contends certain jurors may have been concerned that $500,000 was
too much for pain and suffering. However, upon learning this amount was
not excessive when compared to awards given in other actions, they may have
either been reassured or simply decided not to hold out for less. We find
this contention to be mere speculation with no support in the submitted
declarations. Moreover, this contention essentially asks us to examine jurors'
subjective reasoning processes. This is not acceptable under
|||C. A Juror's Discussion About Her Own Physical Deformity and Its Effects
Was Not Improper.
|||All the declarants state during deliberations relative to the jury's discussion
about Moore's pain and suffering damages, the foreperson became very emotional.
She discussed a physical deformity which she had previously never told anyone
about. Moreover, she told them she knew about pain and suffering, and no
amount of money could compensate her. PMMG contends the foreperson's discussion
of her personal experience with the subject matter of the jury's deliberation
was improper and the jury may have been improperly influenced by the foreperson's
|||We do not believe the foreperson's comments warrant reversal. Jurors do
not enter deliberations with their personal histories erased, in essence
retaining only the experience of the trial itself. Jurors are expected to
[178 CalApp3d Page 742]
|||functioning human beings, bringing diverse backgrounds and experiences
to the matter before them. Indeed, the purpose of voir dire is to provide
counsel the opportunity to learn about a prospective juror's background,
experiences, and philosophy as it relates to the matter to be heard. In
the case at bar, the foreperson was only asked a few questions on voir dire,
all of them by Moore's counsel. With respect to the issue of pain and suffering,
she was merely asked whether she would have any difficulty awarding money
damages for pain and suffering if justified by the evidence. She replied
she would not. The only question asked by PMMG's counsel which even indirectly
touched on this issue was a question asked to all the prospective jurors
as a whole. The jurors were asked if they could put aside natural sympathy,
listen to the evidence objectively, and not reach a judgment by means of
passion or prejudice. All the jurors agreed they could. We believe if PMMG
did not desire jurors on the panel who had any personal experience with
pain and suffering which they might relate during the jury's deliberations
counsel for PMMG should have questioned the prospective jurors in this regard.
It is inappropriate after-the-fact to complain about the particular background
and experiences which a given juror brought to the deliberation process.
Our conclusion would of course be different had the foreperson on voir dire
denied any personal feelings relative to this issue. (Compare Smith v. Covell
100 Cal. App. 3d 947
, 952 [
161 Cal. Rptr. 377]
; see also People ex rel. Dept. Pub. Wks. v. Curtis (1967)
255 Cal. App. 2d 378
, 388-389 [
63 Cal. Rptr. 138].
|||As the declarations establish, the foreperson was not the only juror to
become emotional during this aspect of the deliberations. Declarants Montoya
and Powell both state the deliberations in general became very heated and
emotional. If jury deliberations involving delicate subjects such as pain
and suffering damages were subject to attack every time particular jurors
became emotionally charged, very few jury verdicts would be affirmed. (See
Tillery v. Richland (1984)
158 Cal. App. 3d 957
, 977 [
205 Cal. Rptr. 191].
|||D. The Jury Did Not Improperly Infer PMMG's Liability From Evidence Mason
Entered Into an Out-of-court Settlement With Moore.
|||PMMG contends certain of the jurors in the case at bar disregarded the
trial court's admonition not to draw any inference of liability from evidence
[178 CalApp3d Page 743]
|||of Mason's out-of-court settlement. PMMG argues, given this misconduct,
reversal is required.
|||Declarant Montoya states two jurors discussed Mason's settlement with
Moore and concluded since PMMG was responsible for the actions of its employees,
it must be guilty as well. Other jurors agreed with this position. However,
declarant McCune reported a different version. He stated several jurors
stated since Mason settled with Moore, this was an implication of guilt.
Given Mason was an employee of PMMG, PMMG was inferred to be guilty. However,
this was to be decided by the jury. A reasonable reading of McCune's declaration
suggests that although several jurors felt PMMG's liability could be inferred
from the fact that Mason settled, the jury recognized it had to decide the
issue itself. Given this reading, the declarations were inconsistent on
this issue. It is the role of the trial court to resolve an inconsistency
in this regard. The court's decision will not be reversed on appeal absent
a showing the trial court clearly abused its discretion. (Bardessono v.
3 Cal. 3d 780
, 795 [
91 Cal. Rptr. 760
478 P.2d 480].
) No showing has been made in the case before us.
|||E. A Juror Improperly Fashioned a Formula for Computing Damages for Injury
to Moore's Future Capacity as a Real Estate Salesman.
|||In discussing the amount of award Moore should receive for future loss
of earnings, one of the jurors fashioned a particular formula to arrive
at the correct award of damages for loss of future income in the real estate
field. This formula was not based on any evidence which had been presented
during trial, but was derived from the juror's personal experience. The
jury awarded Moore damages based on the application of this formula.
|||Such action on the part of the jury was inappropriate and Moore's award
must be reduced by the amount he was awarded for loss of future income in
the real estate industry. The declarations, however, are inconsistent as
to the amount Moore was awarded. Declarant McCune states Moore was awarded
$18,000 for the future loss of earnings in the real estate field. Declarant
Montoya states Moore was awarded $48,000. We believe since the inconsistent
declarations were both submitted by PMMG, PMMG should be bound by the figure
least favorable to its position or $18,000.
|||III. The Trial Court Did Not Err in Instructing the Jury It Could Award
Moore Damages for Loss of Future Earning Capacity Suffered as a Result of
|||PMMG contends the jury should not have been instructed it could award
damages for loss of future income since there was no evidence to
[178 CalApp3d Page 744]
|||show PMMG was responsible for any harm to Moore's career as a model and
an actor.*fn11 Indeed, PMMG contends,
the evidence shows Moore's acting and modeling career would have been destroyed
even had Mason informed Moore of the cancer risk and Moore acted immediately
since surgery was inevitable.
|||"Even though an instruction is couched in proper language it is improper,
if it finds no support in the evidence, and the giving of it constitutes
prejudicial error if it is calculated to mislead the jury. [Citations.]"
(Davenport v. Stratton (1944)
24 Cal. 2d 232
, 254 [
149 P.2d 4]
; accord Solgaard v. Guy F. Atkinson Co. (1971)
6 Cal. 3d 361
, 370 [
99 Cal. Rptr. 29
491 P.2d 821].
) However, "[a] party is entitled to have the jury instructed on his
theory of the case, if it is reasonable and finds support in the pleadings
and evidence or any inference which may properly be drawn from the evidence."
(Western Decor & Furnishings Industries, Inc. v. Bank of America (1979)
91 Cal. App. 3d 293
, 309 [
154 Cal. Rptr. 287].
) We find there was evidence in the record which supported the giving of
|||Both parties agree that even at the time of Moore's examination by Mason,
Moore's cancer was such that removal of all or part of Moore's ear lobe
would have been required. Moreover, Moore's talent agent testified a person
with any physical appearance disabilities or deformities would have no opportunities
in commercials or modeling since a perfect appearance is required. PMMG
contends this uncontroverted evidence demonstrates the jury instruction
was inappropriate. However, Moore's talent agent also testified Moore could
still pursue a career in straight acting, although his chances of getting
a role would only be one out of ten. The roles would have to call for the
type of deformity Moore suffered from. Moreover, Dr. Wagner, an expert witness
for Moore, testified if the lesion found in Moore's ear lobe had been less
than .75 millimeters, he would not have had to do the surgery to Moore's
jaw. As discussed above, he still would have had to remove part of the ear
or ear lobe, but could have done a skin graft. Thus, if Moore had been operated
on sooner, the extent of his physical deformities would have been significantly
reduced. As such, his opportunities in straight acting would have increased.
Given this, the instruction was properly given.
[178 CalApp3d Page 745]
|||PMMG also contends the trial court should have expressly instructed the
jury it should limit its award of damages to compensation for the incremental
injury Moore may have suffered because of Mason's conduct. We disagree.
|||As a general rule, there is no duty to instruct in the absence of a specific
request by a party. (Agarwal v. Johnson (1979)
25 Cal. 3d 932
, 951 [
160 Cal. Rptr. 141
603 P.2d 58].
) PMMG did not request the above instruction. However, some courts have
held a court has a duty to instruct sua sponte on the proper measure of
damages. (Pepper v. Underwood (1975)
48 Cal. App. 3d 698
, 708-709 [
122 Cal. Rptr. 343]
, disapproved on other grounds in Stout v. Turney (1978)
22 Cal. 3d 718
, 730 [
150 Cal. Rptr. 637
586 P.2d 1228]
; see Agarwal v. Johnson, supra,
25 Cal. 3d at p. 951.
) Even if we assume a trial court has such a sua sponte duty, we believe
the trial court satisfied this duty in the case at bar.
|||As the court instructed the jury, "The defendant has the burden of
establishing by a preponderance of the evidence all of the facts necessary
to prove the following issues: (1) that the plaintiff was negligent; and
(2) that plaintiff's negligence contributed as a legal cause to the injury
and damage claimed to have been suffered . . . . If, under the court's instructions,
you find that the plaintiff is entitled to a verdict against the defendant,
you must then award plaintiff damages in an amount that will reasonably
compensate him for each of the following elements of claimed loss or harm,
. . . provided that you find that such harm or loss was or will be suffered
by him and legally caused by the act or omission upon which you base your
finding of liability." (Italics added.) Thus, the jury was specifically
instructed Moore could only be compensated for harm or loss which was legally
caused by Mason's act or omission. The trial court properly instructed the
|||PMMG also complains the jury did not segregate the elements of damages
it awarded so it is unknown whether the jury actually awarded damages for
lost future earning capacity. However, since PMMG submitted the special
verdict form which the jury used and never objected to the form of the verdict
as returned, it waived any right to challenge the actual form of the verdict.
(Lynch v. Birdwell (1955)
44 Cal. 2d 839
, 851 [
285 P.2d 919]
; Niles v. City of San Rafael (1974)
42 Cal. App. 3d 230
, 239 [
116 Cal. Rptr. 733].
[178 CalApp3d Page 746]
|||IV. No Error Resulted Due to the Failure of the Jury Verdict to Distinguish
Between Economic Losses and Noneconomic Losses
provides in relevant part, "(a) In any action for injury against a
health care provider based on professional negligence, the injured plaintiff
shall be entitled to recover non-economic losses to compensate for pain,
suffering, inconvenience, physical impairment, disfigurement and other non-pecuniary
damage. (b) In no such action shall the amount of damages for noneconomic
losses exceed two hundred fifty thousand dollars ($250,000)." In the
case at bar, the jury returned a verdict in the amount of $733,000. However,
the jury did not distinguish between economic and noneconomic losses in
its verdict. PMMG contends the trial court should have instructed the jury
sua sponte that it had to segregate its award in the above manner. We disagree.
|||We believe it was incumbent on PMMG to request a special verdict form
which would have required the jury to segregate the amounts in the manner
it now desires. As discussed earlier, the special verdict form which the
jury used was requested by PMMG. Even when the jury returned with its verdict,
PMMG still did not object to its form. As such, PMMG has waived any objection
to the form of the jury verdict. (Lynch v. Birdwell, supra,
44 Cal. 2d at p. 851
; Wright v. Title Ins. & Trust Co. (1969)
274 Cal. App. 2d 252
, 262 [
79 Cal. Rptr. 12]
; Niles v. City of San Rafael, supra,
42 Cal. App. 3d at p. 240.
) Such a position is also consistent with California Rules of Court, rule
230, which provides, "Whenever a party desires special findings by
a jury, he shall, before argument, unless otherwise ordered, present to
the judge in writing the issues or questions of fact upon which such findings
are requested, in proper form for submission to the jury, and serve copies
thereof upon all other parties."
|||We find the authority relied upon by PMMG distinguishable. For instance
in Pressler v. Irvine Drugs, Inc. (1985)
169 Cal. App. 3d 1244
215 Cal. Rptr. 807]
, a case involving
, defense counsel asked the trial court how the
affirmative defense should be handled prior to final argument. Counsel also
submitted special interrogatories relative to this section before the jury
retired. Given these action, the appellate court expressly concluded counsel
had not waived its client's right to the section's required reduction. (Id.,
at pp. 1248-1249.)*fn13
[178 CalApp3d Page 747]
|||American Bank & Trust Co. v. Community Hospital (1984)
36 Cal. 3d 359
204 Cal. Rptr. 671
683 P.2d 670
, 41 A.L.R.4th 233], discussed in Pressler and relied upon by PMMG is also
distinguishable. The central issue in that case was whether Code of
is constitutional.*fn14 The trial court
had ruled it was unconstitutional. The Supreme Court disagreed. (Id., at
pp. 368-378.) The issue addressed by the court of relevance to the case
at bar was the proper disposition of the case in light of the court's decision.
Because the defendant had not raised the issue of periodic payments until
after the jury returned a verdict, the jury did not make a finding as to
the amount of future damages it was awarding. Due to the untimeliness of
the defendant's request, the plaintiff had not been able to ask for additional
special verdicts to assist in this matter. Although the Supreme Court suggested
a new trial might be appropriate in such a context, it did not order one
in the case before it. The plaintiff had died in the interim and thus granting
a new trial would not restore the status quo. Under the facts of the case,
the court upheld the court's lump sum award in the interests of justice.
(Id., at p. 378; see also Pressler v. Irvine Drugs, Inc., supra,
169 Cal. App. 3d at p. 1251
, fn. 20.)
|||We believe the discussion in American Bank & Trust Co. and the dictim
in Pressler is inapposite to the case at bar. We are not faced with a situation
in which a party's untimeliness in requesting a special verdict worked to
the detriment of the opposing party. In the case at bar, PMMG's failure
to segregate economic from noneconomic losses was a mistake for which only
it is responsible. As such, we do not believe retrial on the issue of damages
is required. (See Fein v. Permanente Medical Group (1985)
38 Cal. 3d 137
, 156 [
211 Cal. Rptr. 368
695 P.2d 665]
; but see Semsch v. Henry Mayo Newhall Memorial Hospital (1985)
171 Cal. App. 3d 162
, 169-170 [
216 Cal. Rptr. 913].
|||V. The Trial Court Did Not Err by Failing to Instruct the Jury as to the
Definition of Proximate Cause.
|||PMMG contends the trial court erred in allowing the jury to take BAJI
NO. 14.02*fn16 into the jury room since
he never instructed them as to the concept of "proximate cause."
[178 CalApp3d Page 748]
|||In discussing with counsel the jury instructions it would submit to the
jury, the court stated it would instruct according to principles of legal
rather than proximate cause. The court determined it would read the jury
the definition of legal cause, BAJI No. 3.76, and BAJI No. 14.00,*fn17
not No. 14.02. The court read the jury BAJI No. 3.76 and BAJI No. 14.00,
modifying the latter instruction by replacing the words "legally caused"
for "proximately caused." However, when the jury was given written
instructions to take into the jury room, they were given BAJI 14.02 which
was not modified.
|||Although obviously it was error to give the jury this instruction in the
form it was given, we do not believe the error was prejudicial. The court
read the jury the definition for legal cause and read them 14.00 as modified,
thus properly instructing the jury. While we recognize the jurors may not
have remembered the court's oral recitation once they were in the jury room,
they were given the definition of legal cause in written form and the special
verdict which the jury returned used the language of "legal cause."
Given this record, we believe it is a reasonable conclusion the jury properly
determined Moore's damages based on a legal cause analysis.
|||VI. Although the Trial Court Erred in Instructing the Jury as to Moore's
Life Expectancy, Such Error Was Not Prejudicial.
|||In instructing the jury as to Moore's life expectancy, the court stated
according to a table of mortality, the life expectancy of a male person
aged 46 years is 30.5 additional years. Moore was 46 years old at the time
of trial. However, this reading of the mortality table was in error. The
life expectancy of all males aged 46 was 27.9 years and for all white males
was 28.2 years. PMMG contends the jury's determination of damages for a
lifelong injury such as Moore's pain and suffering may have been overstated
due to this inaccurate information. We disagree.
|||When the court's instruction is read as a whole, it becomes purely speculative
whether the jury based any of its damage awards on this improper
[178 CalApp3d Page 749]
|||figure. As the court stated: "According to a table of mortality,
the life expectancy of a male person aged 46 years is 30.5 additional years.
This is not conclusive. It is an average life expectancy of persons who
have reached that age. This figure may be considered by you in connection
with other evidence relating to the probable life expectancy of plaintiff,
including evidence of his occupation, health, habits and other activities,
bearing in mind that many persons live longer and many die sooner than the
average." (Italics added.) Given the slight error in the number of
years stated and the other factors which the jury could properly take into
account in determining Moore's life expectancy, we do not believe the court's
error in this regard was prejudicial.
|||VII. The Judgment Against PMMG Should Be Modified to Allow Credit for
Dr. Mason's Out-of-court Settlement.
|||PMMG contends the judge erred in entering judgment for the full amount
of damages for which the jury found PMMG responsible. The court should have
reduced PMMG's liability by the amount of Dr. Mason's settlement. Moore
concedes that this is the case. As such, Moore's award of $549,750 shall
be reduced to reflect the earlier settlement.*fn18
|||The judgment is reduced by $18,000 -- the amount the jury awarded Moore
for the future loss of earnings in the real estate field. PMMG is also given
credit for the amount of Dr. Mason's settlement ($5,000). In all other respects,
the judgment is affirmed. Respondent to recover costs.
|||The judgment is reduced by $18,000 -- the amount the jury awarded Moore
for the future loss of earnings in the real estate field. PMMG is also given
credit for the amount of Dr. Mason's settlement ($5,000). In all other respects,
the judgment is affirmed. Respondent to recover costs.
|||*fn1 This scenario is based on Mason's
trial testimony. Moore testified Mason looked at the spot on his ear and
felt it, but told him it was nothing to be concerned about.
|||*fn2 As will be discussed infra, Moore's
agent testified a perfect appearance is necessary to be a model or do commercials.
Since that time, Moore has solely been involved in business activities.
|||*fn3 This instruction provides:
"It is the duty of a physician to disclose to his patient all material
information to enable the patient to make an informed decision regarding
the taking or refusal to take a diagnostic test. "Material information
is information which the physician knows or should know would be regarded
as significant by a reasonable person in the patient's position when deciding
to accept or reject the diagnostic test or procedure. To be material a
fact must also be one which is not commonly appreciated. "Failure
of the physician to disclose to his patient all material information,
including the risk to the patient if the test is refused, renders the
physician liable for any injury, the legal cause of which was the patient's
refusal to take the test if a reasonable and prudent person in the patient's
position would not have refused the test if all material information had
|||*fn4 This is not a case in which no
diagnostic testing was recommended. (Compare Jamison v. Lindsay (1980)
108 Cal. App. 3d 223
, 230-231 [
166 Cal. Rptr. 443].
) As Mason testified, he told Moore the mole should be removed or studied
microscopically so that it could be properly diagnosed.
|||*fn5 PMMG contends the link between
the recent appearance of a skin growth like a mole and skin cancer is a
matter of common knowledge. PMMG cites no support in the record for this
position. Indeed, one of Moore's expert witnesses testified to the opposite
|||*fn6 When Moore went to see the dermatologist,
it was not because of the mole on his ear. He went to see him because he
had a rash on the back of his leg. While being examined, Moore commented
about the spot on his ear.
|||*fn7 Mason did not even testify he believed
Moore understood the nature of the risk he faced.
|||*fn8 We do agree, however, these declarations
were properly admissible for the purpose of raising the issue of jury misconduct.
provides the standards for the admissibility of juror declarations. In interpreting
this provision, the Supreme Court in People v. Hutchinson (1969)
71 Cal. 2d 342
, 349 [
78 Cal. Rptr. 196
455 P.2d 132]
stated, this section distinguishes "between proof of overt acts, objectively
ascertainable, and proof of the subjective reasoning processes of the individual
juror, which can be neither corroborated nor disproved . . . ." Only
declarations of the former can properly be considered. Thus, improper influences
"open to sight, hearing, and the other senses and thus subject to corroboration
[citation omitted]," can be proved under this section. (Id., at p.
350.) While certain aspects of the submitted declarations did not satisfy
the requirements of section 1150, in all essential respects they complied
with the requirements discussed above.
We also note Moore did not submit counter declarations. Thus the acts
alleged in PMMG's declarations are deemed admitted. (See Tapia v. Baker
160 Cal. App. 3d 761
, 766 [
206 Cal. Rptr. 803].
|||*fn9 We note the jury only awarded Moore
$733,000. Thus the juror who recommended that the jury award Moore about
one million dollars was not heeded.
|||*fn10 We note particularly in the
context of pain and suffering deliberations, the personal background and
experiences of the individual jurors will often exert a role in the deliberations.
This is due to the nebulous nature of pain and suffering compensations.
Indeed, as the trial court instructed the jury, "No definite standard
or method of calculation is prescribed by law by which to fix reasonable
compensation for pain and suffering, nor is the opinion of any witness required
as to the amount of such reasonable compensation."
|||*fn11 PMMG alleges Moore's claim for
lost future earnings was limited to his future earnings as a model and actor.
Although not critical to our decision, we do not believe the record substantiates
this contention. For instance, the stipulation to this effect, offered by
PMMG, was never accepted by opposing counsel. Moreover, while it is true
that PMMG's counsel in his closing argument emphasized Moore's loss of earnings
in his acting and modeling career, counsel never explicitly told the jury
Moore's claim for loss of future earnings was limited to his acting and
|||*fn12 Even had there been no evidentiary
support for an award of damages for lost future earning capacity, this instruction
would have cured any error. (See Little v. Stuyvesant Life Ins. Co. (1977)
67 Cal. App. 3d 451
, 466-468 [
136 Cal. Rptr. 653].
|||*fn13 In Pressler, the court did not
accept counsel's special interrogatories because they were confusing. The
court decided accurate interrogatories did not have to be prepared until
the jury returned and the court was faced with a net award in excess of
$250,000. The court was concerned about the constitutionality of section
3333.2 and didn't want to address this issue if unnecessary. (Ibid.)
|||*fn14 This section provides in relevant
part: "(a) In any action for injury or damages against a provider of
health care services, a superior court shall, at the request of either party,
enter a judgment ordering that money damages or its equivalent for future
damages of the judgment creditor be paid in whole or in part by periodic
payments rather than by a lump-sum payment if the award equals or exceeds
fifty thousand dollars ($50,000) in future damages."
|||*fn15 We recognize PMMG submitted
uncontroverted posttrial juror declarations stating the jury awarded Moore
$500,000 for pain and suffering. However, in light of its earlier actions,
PMMG had already waived its rights under section 3333.2.
|||*fn16 This instruction provides, "The
total amount of plaintiff's damages is the amount that will reasonably compensate
him for each of the following elements of claimed loss or harm, provided
that you find that such loss or harm was [or will be] suffered by him and
was proximately caused by the act or omission . . . of the defendant, if
you so find. The total amount of damages shall include: [medical expenses,
lost earning capacity, pain and suffering.]" (Italics added.)
|||*fn17 As the court instructed, "If,
under the court's instructions, you find that the plaintiff is entitled
to a verdict against the defendant, you must then award plaintiff damages
in an amount that will reasonably compensate him for each of the following
elements of claimed loss or harm, subject to being reduced as you will be
instructed . . . provided that you find that such harm or loss was or will
be suffered by him and legally caused by the act or omission upon which
you base your finding of liability."
|||*fn18 Moore contends sanctions should
be imposed against PMMG for bringing this appeal. We believe such an action
would be totally inappropriate.
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