Hinson v. Clairemont Community Hospital

• Decision Date: 15 March 1990
• Docket Number: No. D006876,D006876
• Citation: 267 Cal.Rptr. 503,218 Cal.App.3d 1110
• Court: California Court of Appeals Court of Appeals
• Parties: Linda HINSON, Plaintiff and Appellant, v. CLAIREMONT COMMUNITY HOSPITAL et al., Defendants and Respondents.

Page 503

267 Cal.Rptr. 503

218 Cal.App.3d 1110

Linda HINSON, Plaintiff and Appellant, v. CLAIREMONT COMMUNITY HOSPITAL et al., Defendants and Respondents.

No. D006876.

Court of Appeal, Fourth District, Division 1, California.

March 15, 1990.

As Modified April 11, 1990.

Thompson & McIntyre, Lowell, Robbin & McIntyre, Lowell, Robbin, Hamilton & McIntyre, Monty A. McIntyre, Lann G. McIntyre and Mitchel J. Olson, for plaintiff and appellant

Jennings, Engstrand & Henrikson, Hollywood & Neil, Douglas R. Reynolds, James J. Wallace II and Robert W. Frank, for defendants and respondents.

KREMER, Presiding Justice.

Linda Hinson appeals an adverse judgment on her complaint against Dr. Harrison Robbins and Clairemont Community Hospital for medical malpractice. ¹ On appeal, she contends the court erred in excluding evidence relevant to Robbins's skill and training; in applying Evidence Code section 1157 to deny her discovery requests; in bifurcating the issues of the hospital's corporate liability from the doctor's malpractice; and in applying Civil Code section 1431.2 relating to the allocation of noneconomic damages. Hinson also contends the jury's verdict is not supported by substantial evidence. We conclude reversible error did not occur and therefore affirm.

FACTS

On August 12, 1981 at Clairemont Community Hospital, Robbins operated on Hinson's nose and inserted an implant into her chin. The operations were to correct breathing problems and to improve Hinson's appearance. There were no apparent complications during the surgery. After the operations, Hinson's nose was asymmetrical, pulled up and very narrow and the chin implant was off-center, on the right side of her chin.

On December 7, in his office, Robbins removed the chin implant, trimmed a portion of the right side of the implant and replaced it.

On February 12, 1982, Robbins performed additional surgery on Hinson's nose and chin at Clairemont Hospital. The surgery on Hinson's nose was similar to that originally performed. The problems with Hinson's nose persisted and the chin implant sat very low on her chin. Robbins eventually removed the implant in late March 1982 in his office. Following the removal of the chin implant, Hinson developed an infection.

Robbins "felt badly for her and badly for the result of the surgery." He referred her to Dr. Aronsohn for consultation and additional surgery to correct the problems with her nose and chin. She saw Aronsohn three times during March and July 1982.

During this period, Hinson also consulted with Dr. Carson Lewis, Dr. Merell Oelsen, Dr. Frank Pavel, Dr. John Alexander and Dr. Gary Lee Nobel. She eventually elected to have Dr. Alexander perform additional surgery.

Alexander performed three surgeries on Hinson. In June 1983, Alexander intended only to release some of the scar tissue in her chin which was "causing a good bit of deformity" but during the operation decided to insert a new implant. In September 1983, Alexander operated on her nose. He noted a lack of "that cartilaginous septum at the membranous septal level," used cartilage from Hinson's ear to build up the bridge and released scar tissue which allowed the tip to drop down "a significant amount." In May 1984, Alexander operated on both her chin and nose. He placed an L-shaped implant in her nose and thinned out scar tissue in the chin. Following these surgeries, the appearance of Hinson's nose and chin were improved but not perfect.

Hinson had further surgeries performed by Dr. Dennis Nigro and by Dr. Shean between September 1983 and June 1986. During these surgeries, the implants in Hinson's nose and chin were removed, a bone graft was placed in her nose and the bones in her chin were cut and slid forward. ²

² At the time of trial, Hinson was contemplating additional surgery with Dr. Nigro.

DISCUSSION

I Exclusion of Evidence

Hinson contends the court erroneously excluded evidence relating to Robbins's training and practice.

Hinson complains the following evidence was erroneously excluded: (1) Robbins's termination from the residency program at Stanford University after two years because of his inadequate performance; (2) Robbins's termination from the Indiana University residency program because he was trying to perform surgery he was not qualified or competent to perform, he was believed to be dishonest by the physician who headed the Indiana residency program (Dr. Brown) and because he refused to repeat his third year; (3) Robbins's termination from employment by the Kaiser Permanente Medical Group in San Diego after one day because Robbins had been dishonest in failing to include all of the residency programs he had attended on his application and because Kaiser had received negative comments on Robbins's performance from the department heads at the residency programs at Stanford, Indiana and Connecticut Universities, and the Kaiser facilities in northern California where Robbins previously had been employed; and (4) Robbins's suspension of staff privileges at Sharp Memorial Hospital because Robbins was performing unnecessary surgeries (including the same type of surgery involved here) and was endangering the lives of patients.

Hinson argued the evidence was relevant "to the issue of whether [Robbins had] the degree of learning and skill ordinarily possessed by reputable physicians." She argued Robbins's training and education was relevant "under BAJI [6.00] because the degree of learning and skill ordinarily possessed by reputable physicians is one standard that the jury uses in order to determine the negligence issue." Hinson also argued the evidence was relevant to Robbins's veracity. The defendants moved to exclude the evidence before Hinson called Robbins as her first witness and sought to examine him as an adverse witness pursuant to Evidence Code section 776. ³

The trial court ruled Hinson could ask Robbins whether he had completed the residency programs at Stanford and Indiana Universities but not the reasons he failed to complete the programs. The court based its ruling on Evidence Code sections 352 ⁴ and 1101, subdivision (a). ⁵ The court permitted Hinson to ask Robbins if he was terminated from Kaiser's employment after only one day. When the court asked if Hinson wanted to ask anything else, she responded: "I think that's all I would ask him on that." As to the suspension of Robbins's privileges at Sharp Hospital, the trial court ruled the evidence was inadmissible pursuant to Evidence Code sections 352, 1101, subdivision (a) and 1104 ⁶ and A. Standard of Care

noted potential hearsay problems. While making its ruling, the court pointed out more than once that it was ruling on the admissibility of the evidence during the examination of Robbins under Evidence Code section 776. ⁷

Hinson first contends the exclusion was erroneous because the evidence was relevant to the standard of care in medical malpractice actions. She argues:

"The standard of care has two components. The first component addresses whether the doctor has the degree of learning and skill ordinarily possessed by similarly reputable physicians. The second component concerns whether the doctor used the care and skill ordinarily possessed by similar reputable physicians." (Emphasis by Hinson.)

Robbins and Clairemont point out "[t]he most frequent basis for malpractice suits is not whether the physician had a requisite amount of skill and knowledge, but rather as to whether s/he was negligent in the diagnosis or treatment." They argue "[t]he determination of whether a professional duty has been breached is based on the actions of other professionals of ordinary skill when faced with performance of similar tasks. [Citation.]" (Emphasis in original.) They see Hinson's argument as posing the following question: "If a plaintiff fails to prove at trial that the doctor did not use the requisite degree of skill, can she then go on to prove, or be granted a new trial to prove, that the doctor did not possess the requisite degree of skill?" (Emphasis added.)

These arguments are somewhat at cross-purposes. Hinson's argument is directed to the duty of a physician to possess a certain level of learning and skill, i.e., to the level of training, knowledge and skill the law requires of physicians, while Robbins's argument is directed to the elements necessary to prove medical malpractice, i.e., what must a plaintiff establish in order to recover for medical malpractice. Hinson is correct in that it is clear the law imposes on individuals a duty to have medical education, training and skill before practicing medicine and that practicing medicine without this education, training and skill is negligent. ⁸ Robbins is also correct in his assertion that a breach of that portion of the standard of care does not, in and of itself, establish actionable malpractice (i.e., one cannot recover from a person merely for The standard of care, as reflected in BAJI No. 6.00 ⁹ and Supreme Court cases is framed in terms of the "reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances." (Landeros v. Flood (1976) 17 Cal.3d 399, 408, 131 Cal.Rptr. 69, 551 P.2d 389, emphasis added; see also Bardessono v. Michels (1970) 3 Cal.3d 780, 788, 91 Cal.Rptr. 760, 478 P.2d 480.) The Restatement (Second) of Torts section 299A, comment e, explains that portion of the standard pertaining to possessing the requisite skill and knowledge as follows:

lacking medical knowledge unless that lack of medical knowledge caused injury to the plaintiff).

"In the absence of any such special representation, the standard of skill and knowledge required of the actor who practices a profession or trade is that which is commonly possessed by members of that profession or trade in good standing. It is not that of the most highly skilled, nor it is that of the average member of the profession or trade, since those who have less...