Chakalis v. Elevator Solutions, Inc.
| Decision Date | 18 May 2012 |
| Docket Number | No. B221531.,B221531. |
| Citation | 12 Cal. Daily Op. Serv. 5467,141 Cal.Rptr.3d 362,205 Cal.App.4th 1557,2012 Daily Journal D.A.R. 6491 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Katerina CHAKALIS, Plaintiff and Appellant, v. ELEVATOR SOLUTIONS, INC., et al., Defendants and Respondents. |
OPINION TEXT STARTS HERE
Esner, Chang & Boyer, Stuart B. Esner, Los Angeles, Andrew N. Chang, Oakland, and Holly N. Boyer for Plaintiff and Appellant.
Bonetati & Kincaid and Mark L. Kincaid, Orange, for Defendant and Respondent Elevator Solutions, Inc.
Hanger, Steinberg, Shapiro & Ash, Woodland Hills, Paul V. Ash and Hillary D. Patton for Defendant and Respondent Fountain Springs HOA.
Grant, Genovese & Baratta, Irvine, James M. Baratta and Lance D. Orloff for Defendants and Respondents Karim Merat and Ross Morgan and Company, Inc.
When a defendant in a personal injury action contends that a non-party physician's treatment of the plaintiff caused part or all of the plaintiff's injuries, can the trier of fact find the physician comparatively at fault without evidence that the physician's medical malpractice caused the plaintiff's injuries? We conclude the trier of fact cannot make such a finding. In order to prevail on a defense of comparative negligence by a non-party physician, the defendant must prove each of the elements of a claim for medical malpractice.
In this case, plaintiff Katerina Chakalis sustained personal injuries after the elevator in her apartment building malfunctioned and fell six floors. She filed a complaint for negligence and premises liability against four defendants: (1) Elevator Solutions, Inc. (ESI), the elevator maintenance company that serviced the malfunctioning elevator; (2) Fountain Springs Manor Home Owners Association (Fountain Springs HOA), which owned or controlled the apartment building; (3) Ross Morgan & Company (Ross Morgan), the property manager; and (4) Karim Merat, Ross Morgan's agent.
The case went to trial and the jury returned a mixed verdict. Although the jury awarded plaintiff damages, it found that ESI was not liable to plaintiff. The jury instead found that Fountain Springs HOA was 25 percent at fault; Ross Morgan and Karim Merat were 15 percent at fault; plaintiff was 8 percent at fault; and a non-party, James Dahlgren, M.D., was 52 percent at fault. The trial court entered judgment in accordance with the special verdict.
On appeal plaintiff's main challenge to the judgment concerns the apportionment of fault to Dr. Dahlgren. This challenge has merit.
In Wilson v. Ritto (2003) 105 Cal.App.4th 361, 364, 129 Cal.Rptr.2d 336( Wilson ), the court held that a non-party medical doctor cannot be found comparatively at fault in a personal injury action unless the defendant proves with expert testimony the doctor failed to meet the applicable standard of care. Applying the logic and reasoning of Wilson, we conclude that a non-party medical doctor cannot be found comparatively at fault unless the defendant proves all of the elements of medical malpractice. We also conclude that a jury cannot find a non-party medical doctor comparatively at fault for the plaintiff's injuries unless the jury is instructed on the requirements of a medical malpractice claim.
Here, defendants did not prove the elements of breach and causation against Dr. Dahlgren with expert testimony, nor did they request jury instructions regarding medical malpractice. We therefore reverse the judgment with respect to Fountain Springs HOA, Ross Morgan and Karim Merat because the special verdict finding that Dr. Dahlgren was 52 percent at fault was contrary to law and not supported by substantial evidence.1
The jury's erroneous apportionment of fault to Dr. Dahlgren, however, is unrelated to its finding that ESI was not negligent or otherwise at fault for plaintiff's injuries. In the unpublished portion of the opinion, we conclude that there was substantial evidence to support this finding. Accordingly, we affirm the judgment with respect to ESI.
Plaintiff rented an apartment in West Hollywood. Before the accident plaintiff and ESI warned Fountain Springs HOA, Ross Morgan and Karim Merat about potential safety problems with the elevator in plaintiff's building.
On July 1, 2005, plaintiff came home after an evening socializing with friends. At about 2:20 a.m. she took the elevator up toward her penthouse apartment, which was six levels above the bottom floor. When the elevator reached the top level, it began shaking and going up and down. The elevator then suddenly dropped six floors, crashed into the bottom level, bounced up about six feet, and then bounced several more times before finally coming to a rest.
The elevator ceiling came completely dislodged and fell on top of plaintiff, causing a three and one-half centimeter laceration on her head. According to plaintiff, hydraulic oil spilled into the elevator and soaked her.
Emergency paramedics arrived at the scene at 3:08 a.m. Plaintiff was taken to Cedars Sinai hospital, where she was admitted into the emergency room at 3:27 a.m.
When plaintiff arrived in the emergency room she was initially treated by Dr. Sujal Mandavia. Plaintiff's chief complaints were that she had a headache and left shoulder pain. Dr. Mandavia found a laceration on plaintiff's head. He also conducted respiratory, heart, abdominal, neurologic and other exams, each of which indicated plaintiff was in normal condition, except that plaintiff had some tenderness on the left side of her back. Additionally, Dr. Mandavia ordered X-rays and a CT scan, both which came back negative.
Dr. Kenneth Corre examined plaintiff from “head to toe” at about 6:30 a.m. on the day of the accident. Except for tenderness in plaintiff's back and her laceration, Dr. Corre did not find any injuries. After consulting with other medical professionals at the hospital, Dr. Corre determined that plaintiff should be discharged and did not need to be admitted to the hospital. Plaintiff and her family objected and urged that she remain at Cedars Sinai,but she was nevertheless discharged that day.
On July 7, 2005, plaintiff went back to Cedars Sinai to have her stitches removed. Coincidently, Dr. Corre was on duty at the time and he was the physician who treated and examined her. Plaintiff complained about a number of ailments, including (1) a headache, (2) left shoulder pain, (3) low back pain, (4) feeling dysphoric, meaning she just did not feel right, and (5) hydraulic oil poisoning. In light of these complaints, Dr. Corre conducted another head to toe physical exam. Dr. Corre found that her laceration was healing well and that plaintiff was “absolutely healthy and minimally symptomatic.”
Dr. Corre concluded that plaintiff had a concussion, neck and low back strain, and insomnia, and that her complaints were way out of proportion to his findings. According to Dr. Corre, plaintiff expressed each one of her concerns “as though it were severe and as if it were life-threatening.” With respect to plaintiff's claim she was drenched with hydraulic oil on the day of the accident, Dr. Corre opined this claim was “impossible” because none of the physicians, nurses or paramedics who treated and examined plaintiff on the day of the accident made any note of smelling or seeing abnormal fluid on her body, breath, or clothing.
On July 21, 2005, plaintiff was examined by Dr. James Dahlgren. Although Dr. Dahlgren is not a board certified toxicologist, one of his fields of practice is toxicology and he has written papers on toxicology issues. Before seeing plaintiff, Dr. Dahlgren had not previously treated a patient with alleged hydraulic oil poisoning.
Dr. Dahlgren diagnosed plaintiff with hydraulic oil poisoning and placed plaintiff on a detoxification treatment plan. This plan consisted of (1) taking saunas 10–12 times a day, which was meant to help plaintiff sweat out toxic metals found in the hydraulic oil; (2) taking glutathione, which Dr. Dahlgren contended helps metabolize chemicals, including hydrocarbons found in hydraulic oil; (3) taking vitamin and mineral supplements; (4) and chelation, which is a method of removing heavy metals from the body by ingesting an agent that attaches to the metals.
To confirm his diagnosis, Dr. Dahlgren sent plaintiff's urine samples to a laboratory for testing. According to Dr. Dahlgren, the tests indicated that plaintiff had elevated arsenic and mercury levels in her body. Dr. Dahlgren conceded, however, that plaintiff could have had high levels of mercury in her body before the accident because she consumed large quantities of seafood.
After Dr. Dahlgren placed plaintiff on his detoxification treatment plan, plaintiff brought to him a sample of the hydraulic oil she claimed spilled on her during the accident. Dr. Dahlgren sent the sample to Del Ray Analytic (DRA) to determine whether there was mercury or arsenic in the hydraulic oil. The tests, however, did not detect either substance. Nonetheless, Dr. Dahlgren did not change his diagnosis because he believed DRA's tests had very high detection levels. Unless there was mercury or arsenic in amounts greater than two parts per million, these substances would not be detected. In Dr. Dahlgren's view, arsenic and mercury could still have been in the hydraulic oil in an amount that was toxic.
While plaintiff was undergoing her detoxification treatment, including chelation therapy, Dr. Dahlgren obtained a copy of the material safety data sheet (MSDS) for the hydraulic oil plaintiff claimed caused her poisoning. The MSDS is a document created by the hydraulic oil's manufacturer. It indicated that prolonged exposure to the hydraulic oil could cause skin irritation but did not warn of any other significant health concerns. Indeed, the MSDS...
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