Plunkett v. Spaulding, C016864

• Court: California Court of Appeals
• Citation: 52 Cal.App.4th 114,60 Cal.Rptr.2d 377
• Decision Date: 21 January 1997
• Docket Number: No. C016864,C016864
• Parties: , 52 Cal.App.4th 1513B, 97 Cal. Daily Op. Serv. 485, 97 Daily Journal D.A.R. 745 Donna M. PLUNKETT, Plaintiff and Appellant, v. Joseph T. SPAULDING, Defendant and Respondent.

Page 377

60 Cal.Rptr.2d 377 52 Cal.App.4th 114, 52 Cal.App.4th 1513B, 97 Cal. Daily Op. Serv. 485, 97 Daily Journal D.A.R. 745 Donna M. PLUNKETT, Plaintiff and Appellant,
v.
Joseph T. SPAULDING, Defendant and Respondent. No. C016864. Court of Appeal, Third District, California. Jan. 21, 1997.
As Modified on Denial of Rehearing Feb. 18, 1997.
Review Denied April 16, 1997.

Page 379

[52 Cal.App.4th 118] Murphy, Pearson, Bradley & Feeney, Mark E. Ellis, for Plaintiff and Appellant.

[52 Cal.App.4th 119] Craddick, Candland & Conti and Charles Bond & Associates, Charles Bond for Defendant and Respondent.

SCOTLAND, Associate Justice.

This appeal poses the question whether a party who intends to call a treating physician to testify at trial not only as to the physician's treatment of a patient, but also to give an expert opinion on the standard of care that another physician should have employed when treating the patient, must provide an expert witness declaration during discovery. (Code Civ. Proc., § 2034, subds. (a)(2) & (f)(2); further section references are to the Code of Civil Procedure unless otherwise specified.)

Donna M. Plunkett (plaintiff) designated two of her treating physicians as persons whose expert opinion testimony she expected to offer in evidence in this medical malpractice action. (§ 2034, subd. (a)(1).) At trial, she sought to elicit their testimony not only regarding their treatment of her, including diagnosis and prognosis, but also concerning their expert opinions on the standard of care that Dr. Joseph T. Spaulding (defendant) should have used when he treated plaintiff. The court sustained defendant's objection to the latter testimony on the ground that plaintiff had not provided defendant with expert witness declarations which are required for any designated expert who "has been retained by any party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action[.]" (§ 2034, subds. (a)(2) & (f)(2).) The court then denied plaintiff's motion to submit a tardy expert witness declaration setting forth expected standard of care testimony by one of her treating physicians. (§ 2034, subd. (l).)

On appeal, plaintiff contends expert witness declarations were not required for these witnesses, even if she intended to elicit standard of care testimony from them, because they were not " 'retained' by [her], meaning hired and then paid a fee in return for providing an opinion as an expert witness. [They] were simply physicians who were currently treating [her]." We disagree.

Page 380

As we shall explain, expert witness declarations would not have been required if the treating physicians were expected to testify only as to their treatment of plaintiff, including diagnosis and prognosis. However, when in addition to this testimony they were asked to provide expert opinions on the standard of care that defendant should have used in treating plaintiff, they became experts "retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial [52 Cal.App.4th 120] of the action[.]" (§ 2034, subd. (a)(2).) That plaintiff did not pay a monetary retainer to her treating physicians for this testimony is immaterial. Applying an ordinary, common sense meaning of the statutory language in a manner consistent with its evident purpose, we conclude section 2034, subdivision (a)(2) applies to either a paid or unpaid agreement to express an expert opinion on the standard of care that should have been employed by another physician.

Consequently, the trial court correctly held that plaintiff was required to provide expert witness declarations concerning her treating physicians' expected standard of care testimony and that her failure to do so was a basis to exclude said testimony. (§ 2034, subd. (j).)

We conclude, however, the court erred in ruling on plaintiff's motion to submit a tardy expert witness declaration for one of her treating physicians. Because the court did not consider and apply all of the factors which the statute requires to be taken into account, it abused its discretion in denying the motion. Finding the error prejudicial, we shall reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was diagnosed with cervical cancer. Defendant, a surgeon and urologist, was employed by plaintiff to diagnose and treat her cancer. He performed surgery, during which plaintiff's uterus, bladder and other surrounding tissues were removed.

Following the surgery, plaintiff learned from another physician that the cancer had spread to some adjacent lymph nodes. Radiation to treat the cancerous lymph nodes was administered by Dr. Lanceford M. Chong, a radiologist. Thereafter, plaintiff was treated by Dr. Kimberly Fillmore, an obstetrician/gynecologist.

Plaintiff sued defendant, and other doctors who are not parties to this appeal, for medical malpractice. The complaint alleges defendant "failed to conform to the applicable standard of care in treating [plaintiff] and failed to properly diagnose and treat her cervical cancer condition," which resulted in the unnecessary removal of her bladder and the spread of cancer in her lymph nodes. The complaint further alleges defendant failed to properly disclose all the material information, including information concerning "radiation treatment, or other alternative treatments," necessary to enable plaintiff to make an informed decision regarding medical intervention. According to the complaint, if plaintiff had been informed properly, she would have pursued treatment earlier, and would have elected treatment different from, or additional to, the surgery performed by defendant.

[52 Cal.App.4th 121] Plaintiff timely gave defendant information concerning witnesses from whom she expected to elicit expert testimony at trial. (§ 2034, subd. (a).) She provided the names and addresses of eleven "unretained experts," including Dr. Chong and Dr. Fillmore. She also identified two "retained experts" and provided an expert witness declaration for each of the retained experts, stating their qualifications, the nature of their expected testimony, their agreement to testify at trial, the fact they would be sufficiently familiar with the action to submit to a meaningful oral deposition, and the experts' hourly rates for doing so. (§ 2034, subds. (a)(2) & (f)(2).)

Defendant identified his experts in a similar fashion, naming four physicians, including himself, whose expert opinions he expected to offer in evidence at trial. For each, defendant submitted an expert witness declaration in compliance with section 2034, subdivisions (a)(2) and (f)(2). Defendant expressly "reserve[d] the right to call as an expert witness any and all of plaintiff's subsequent treating physicians (nonparty-nonretained experts) whose identities are well-known to plaintiff.

Page 381

These individuals shall be asked questions regarding standard practice, causation, injuries and the nature and extent of damages. This list includes, but is not necessarily limited to, the following: Richard Nelson, M.D., Bala Marar, M.D., Thomas K. Steckle, M.D., John Trelford, M.D., William Gra[v]es, M.D., Robert Hoellsworth, M.D., Lanceford M. Chong, M.D., and Phillip R. Gordon, M.D." No expert witness declaration was submitted for any individual whom defendant identified as a "nonparty-nonretained" expert.

Defendant did not take the depositions of Dr. Chong or Dr. Fillmore.

In his opening statement to the jury, plaintiff's counsel stated his intention to call Dr. Chong and Dr. Fillmore to testify that defendant "fell below the standard of care in his explanation to [plaintiff] and his prescription and removal of [her] bladder." According to counsel, the testimony of Dr. Chong and Dr. Fillmore, and that of plaintiff's retained expert, Dr. Melvin Shiffman, would show plaintiff's bladder did not have to be removed because radiation therapy combined with radical hysterectomy surgery (1) is a treatment within the standard of practice for cervical cancers, (2) would have been a reasonable alternative treatment for plaintiff's cancer, and (3) is an alternative that should have been disclosed to plaintiff so she could have decided whether to choose it rather than the surgery performed by defendant.

Defendant moved to preclude Dr. Chong and Dr. Fillmore from testifying as to the applicable standard of care in treating cervical cancers, arguing plaintiff's failure to submit expert witness declarations for Dr. Chong and Dr. Fillmore precluded her from introducing their testimony on a physician's [52 Cal.App.4th 122] standard of practice. (§ 2034, subd. (j)(2).) Claiming he was surprised by plaintiff's announcement that she intended to elicit from Dr. Chong and Dr. Fillmore testimony "on the subject of standard practice," defendant asked the court to limit their testimony to the witnesses's percipient observations and treatment of plaintiff.

Plaintiff responded that, because she had not "retained" Dr. Chong or Dr. Fillmore, expert witness declarations were not required concerning their testimony, regardless of whether she expected to elicit their expert opinions on the applicable standard of care.

The trial court ruled in defendant's favor, holding the statutory scheme required plaintiff to submit expert witness declarations for treating physicians Chong and Fillmore if she desired to elicit their testimony concerning the standard of care. Because plaintiff failed to provide such declarations, the court ruled Dr. Chong and Dr. Fillmore would be permitted to testify only about their knowledge and treatment of plaintiff.

Thereafter, plaintiff took testimony from Dr. William Graves, a gynecologist who examined plaintiff, diagnosed her cervical cancer, referred her to defendant for surgery, and assisted defendant in the surgery. On direct examination, Dr. Graves testified concerning...