Judge: Randy Rhodes, Case: BC657035, Date: 2023-01-04 Tentative Ruling

Case Number: BC657035    Hearing Date: January 4, 2023    Dept: F51

Dept. F-51 

Date: 1/4/23

Case #BC657035

MOTION FOR NEW TRIAL

Motion Filed: 12/1/22

MOVING PARTY: Plaintiff Ariel Weeks

RESPONDING PARTY: Defendant Anthony Chin, M.D.

NOTICE: OK

RELIEF REQUESTED: Plaintiff moves for a new trial.

TENTATIVE RULING: The motion is denied.

BACKGROUND

This is a medical malpractice action arising out of Defendant’s medical treatment of Plaintiff during her pregnancy, allegedly resulting in the loss of her child. Plaintiff’s pregnancy proceeded normally until Defendant became concerned with her high blood pressure and increased risk of stroke. In August 2016, Defendant recommended on three separate occasions that Plaintiff undergo induction, and she ultimately agreed to be induced on August 15 if she had not gone into labor by that date. On the evening of August 14, Plaintiff went into labor, and went to the hospital early the next morning. By the time Plaintiff arrived at the hospital, the fetus was no longer alive, and the cause of death was determined to be a cord accident cutting off its blood supply.

On 4/7/17, Plaintiff filed her complaint against Defendant alleging the sole cause of action of Medical Negligence.

On 10/19/22, the jury trial for this action commenced. On 11/2/22, the Court entered the jury’s 10/27/22 special verdict finding that Defendant was not negligent in his medical treatment of Plaintiff. On 11/22/22, Plaintiff filed her notice of intent to move for a new trial.

On 12/1/22, Plaintiff filed the instant motion for a new trial. On 12/9/22, Defendant filed his opposition. On 12/27/22, Plaintiff filed her reply.

ANALYSIS

“A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” (Code Civ. Proc. § 656.) A new trial may be granted upon application of the party aggrieved if, inter alia, there are irregularities in court or jury proceedings, or insufficient evidence to support the verdict, and the substantial rights of that party are thereby materially affected. (Code Civ. Proc. § 657.) A new trial is not justified simply because there was some irregularity or error – prejudice must be shown as well. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872.)

Here, Plaintiff moves for a new trial on the bases that (1) the Court erred in refusing to give the jury her requested instructions, and (2) the verdict should be overturned for insufficient evidence.

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1.      Jury Instructions

Plaintiff argues that the Court erroneously refused to instruct the jury on Judicial Council of California Civil Jury Instructions (“CACI”) 532, 533, 534, and 535. (Pl.’s Mot., 1:24–26.) CACI 532 and 533 relate to failure to obtain informed consent, and CACI 534 and 535 relate to the failure to adequately inform of the risks of nontreatment, or “informed refusal.” According to Plaintiff, these instructions are mandatory in the instant case because a doctor has a duty to provide adequate information to a patient about the risks of a given medical procedure, and in turn, the risks of declining a medical procedure. Here, Plaintiff argues that the induction was the medical procedure requiring informed consent and/or refusal.

As Defendant observes, Plaintiff did not allege in her complaint any cause of action for lack of informed consent or lack of informed refusal. (Def.’s Opp. 3:23–4:7.) Furthermore, the first element of the theory of informed consent is that the defendant physician have performed a medical procedure on the plaintiff. (Judicial Council of California Civil Jury Instruction 533.) Here, Plaintiff does not allege that Defendant performed any procedure on her, and thus no informed consent was required. (Def.’s Opp., 4:14–15.) Therefore, CACI 532 and 533 are inapplicable in this action.

Defendant also argues that CACI 534 and 535, which address the theory of informed refusal, are inapplicable because (1) Plaintiff never refused the induction, and (2) Defendant did explain the risks of forgoing an induction to Plaintiff. (Id. at 4:23, 5:9.) Defendant contends that he and Plaintiff discussed her induction on several occasions, and Plaintiff had agreed to be induced “if she had not gone into labor by her 41st week of gestation.” (Id. at 4:27–28.) Plaintiff does not dispute this contention, but instead argues in reply that “refusal” in this context should be interpreted to include acts of refusal, and Plaintiff therefore necessarily refused to be induced because she never underwent the procedure. (Pl.’s Reply, 1:17–23.)

The elements of CACI 535, entitled Risks of Nontreatment, are as follows: (1) the defendant did not perform the medical procedure on plaintiff; (2) the defendant did not disclose to the plaintiff the important risks of refusing the medical procedure; (3) a reasonable person in the plaintiff’s position would have agreed to the procedure if that person had been adequately informed about the risks; and (4) the plaintiff was harmed by the failure to have the procedure performed. (Judicial Council of California Civil Jury Instruction 535.) Under these elements, a plaintiff need not have necessarily refused a treatment for the jury instruction to apply.

Notwithstanding the Court’s acceptance of Plaintiff’s interpretation of CACI 535, the Court nevertheless finds that Defendant did in fact warn Plaintiff that she was at risk for a stroke due to her high blood pressure, and the parties agreed thereafter that Plaintiff would be induced if she did not deliver by August 15. (Def.’s Opp. 5:9–13.) Plaintiff argues in reply that this testimony does not automatically meet the standard for “informed” refusal. (Pl.’s Reply, 1:28–2:2.) Even the Court were to accept Plaintiff’s argument, the refusal of this jury instruction did not prejudice Plaintiff.

The Court notes that Plaintiff makes no showing in her motion that she was prejudiced by the Court’s refusal to instruct the jury as to CACI 532, 533, 534, and 535. Defendants argue that Plaintiff is not prejudiced because her theory of informed refusal “was already considered and rejected by the jury under the ‘medical negligence’ theory.” (Def.’s Opp., 6:4–5.) Defendant further contends that “Plaintiff is not prejudiced because she pursued her ordinary medical negligence theory for Dr. Chin not sooner insisting upon an induction, which theory the jury rejected.” (Id. at 6:25–26.)

Moreover, as Defendant notes, the jury’s verdict finding Defendant was not negligent in his medical treatment of Plaintiff would remain the same even if given the requested jury instructions, because the loss of the child was ultimately attributed to a cord accident potentially relating to Plaintiff’s delay in going to the hospital, not due to any of Defendant’s conduct regarding informed consent or Plaintiff’s refusal of an induction. (Id. at 6:27–7:7.) Without any mention of prejudice against her, Plaintiff has not sufficiently shown that a new trial is warranted due to the Court’s refusal to instruct the jury as to CACI 532, 533, 534, and 535.

2.      Insufficient Evidence

“A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc. § 657.)

Here, Plaintiff argues that, “among other things, the evidence in support of the verdict is insufficient given that there was never any testimony that plaintiff was warned of the risks of not having an induction.” (Pl.’s Mot., 4:23–24.) Defendant argues in opposition that he testified before the jury that he informed Plaintiff of the risk of stroke based on her high blood pressure. (Def.’s Opp., 7:24–26.) Defendant also notes that the jury heard his expert’s testimony that Defendant complied with the medical standard of care, and ultimately found this testimony credible when finding for Defendant. (Id. at 7:17–21.)

The Court notes that neither party has proffered any trial transcripts nor has otherwise referenced any evidence to substantiate their arguments beyond their respective attorneys’ declarations. Based on the foregoing, the Court finds that Plaintiff has not met her burden to show that the jury would have reached a different decision had they considered additional testimony concerning informed consent or informed refusal.

CONCLUSION

The motion is denied.