Filed 3/26/20 Berrun v. County of San Bernardino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

EDGAR G. BERRUN,

Plaintiff and Appellant,

v.

COUNTY OF SAN BERNARDINO,

Defendant and Respondent.

E069711

(Super.Ct.No. CIVDS1418648)

OPINION

APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs, Judge. Affirmed.

Soheila S. Azizi for Plaintiff and Appellant.

Walker & Mann, Douglas K. Mann, and Jeffrey K. Keyes for Defendant and Respondent.

Edgar Berrun was born with only one kidney. By 2009, when he was only 19, he began having high blood pressure, due to narrowing of the artery that supplied his kidney. He went to Arrowhead Regional Medical Center (Arrowhead), where doctors installed a stent to keep the artery open.

A stent carries known risks of scarring, blockage, and recurrence. Thus, it was crucial for Berrun to come back for regular follow-up examinations. However, he did not. One of the key controverted factual issues is whether Arrowhead adequately advised him of the importance of follow-up.

In 2014, Berrun suddenly started having trouble breathing while running. He went back to Arrowhead. This time, doctors found that the crucial artery was completely blocked. New, small arteries were keeping the kidney alive, but only barely. The doctors told Berrun there was no surgical treatment option; he was going to have to go on dialysis while awaiting a transplant. Another key controverted factual issue is whether they consulted a vascular surgeon about possible surgical options before they told him this.

Berrun did not take this prognosis lying down. He left Arrowhead and went to three more hospitals, seeking some kind of treatment. At the third hospital, doctors operated on him in an attempt to restore blood flow to the kidney. However, the operation was a failure, because at that point, the kidney was too damaged. Berrun started dialysis. Eventually, he received a kidney from his brother. His long-planned career as a professional boxer ended before it began; his life span has been shortened; and he will need from two to four more transplants.

Berrun sued Arrowhead for malpractice. A jury found that Arrowhead was negligent, but its negligence was not a substantial factor in causing harm to Berrun.

Berrun appeals, contending:

1. The trial court erred by admitting a discharge summary, which was the only documentary evidence that a consultation with a vascular surgeon ever actually occurred.

2. The jury’s finding of negligence is inconsistent with its finding of lack of causation.

3. The special verdict form and the trial court’s response to a jury question, when taken together, confused the jury

We find no prejudicial error. Hence, we will affirm.

I

FACTUAL BACKGROUND

A. 2009: Placement of the Stent.

As of April 2009, Berrun was 19. He was an amateur boxer, hoping to turn professional.

Around 2008, Berrun was disqualified from a fight due to high blood pressure. He went to his regular clinic, which referred him to Arrowhead. Over several months, he took multiple tests, but Arrowhead could not seem to find the problem. To speed up the process, he went to a clinic in Tijuana “where they could check [his] whole body.”

In 2009, he went back to Arrowhead and showed doctors there his imaging results from Tijuana. The imaging revealed — for the first time — that Berrun had been born with only one kidney. It also revealed narrowing (stenosis) of the main artery to the kidney. However, “the kidney was not damaged at that time[.]”

On April 9, 2009, Dr. Tung Huynh at Arrowhead performed a procedure to widen the artery with a balloon (angioplasty) and then to place a stent in it.

Any time a stent is placed, there is a risk of scarring and of recurrence of stenosis. Accordingly, it would have been Dr. Huynh’s custom and practice to tell Berrun that he needed follow-up ultrasounds “to make sure that the vessel stays open.”

Berrun denied being told to follow up. He received discharge instructions telling him how to take care of high blood pressure. The space for “follow-up care,” however, was left blank.

On April 16, 2009, Berrun had an appointment with Dr. Dev Gnanadev, a vascular surgeon at Arrowhead. Like Dr. Huynh, Dr. Gnanadev’s custom and practice would have been to discuss follow-up care with Berrun. He would have told Berrun to come back every three months for an ultrasound. Medical records indicated that Berrun was given an order for an ultrasound and an appointment for July 16, 2009 to review the ultrasound results. Berrun, however, denied being told that he needed regular follow-up or that he should return for an ultrasound.

On May 14, 2009, Berrun had an appointment with Dr. Hai Phan, a nephrologist at Arrowhead. According to Berrun, Dr. Phan said, “[M]ake sure your blood pressure is okay and you are okay.” Dr. Phan merely told him to keep taking his medications, to follow up with his primary care physician, and to return if necessary.

Consistent with his claim that he was unaware of the July 19, 2009 appointment, Berrun did not keep it. On that date, he was in a boxing tournament in Indio. Arrowhead had a policy of phoning or sending a card to a patient who missed an appointment. Berrun denied receiving any such call or card.

At that point, Berrun understood that his “kidney was perfect,” and “the stenosis wasn’t a problem any more, it was high blood pressure that could kill [his] kidney.” He continued to monitor his blood pressure and to take his medication.

B. 2014: Blockage of the Stent.

On January 6, 2014, during a training run, Berrun suddenly could not breathe; he had to stop. He went to the emergency room at Arrowhead. His blood pressure was somewhere north of 200.

He was admitted to the hospital, where Dr. Kambiz Raoufi, a hospitalist, was responsible for coordinating his care.

According to the medical records, by January 10, an angiogram had been ordered and a consultation with a vascular surgeon had been requested. At that point, a vascular surgeon would have had to wait for the angiogram before rendering an opinion.

On January 14, 2014, a doctor at Arrowhead performed the necessary angiogram. It showed that the artery was completely blocked. The stent had caused scar tissue to form, resulting in the blockage. That process would take from six months to two years.

The blockage could not be opened. However, the lack of blood flow to the kidney had caused new (collateral) arteries to form, mostly serving the upper portion of the kidney. The formation of a new artery takes “months or years.” In the opinion of Dr. Phan, who was the treating nephrologist, Berrun “still ha[d] kidney function . . . .” “[T]he kidney [wa]s still getting some blood, just not enough . . . .”

Dr. Raoufi testified that he then consulted a vascular surgeon, who told him there were no surgical treatment options. However, he did not remember which vascular surgeon he consulted.

There were only two vascular surgeons at Arrowhead — Dr. Gnanadev and Dr. Milton Retamoz. Berrun’s 2014 medical records did not mention Dr. Gnanadev. Dr. Gnanadev was “positive” that he did not see Berrun in 2014.

Dr. Retamozo did not remember whether he saw Berrun or not. However, the January 10 medical records, which said that an angiogram was planned, also mentioned Dr. Retamozo, indicating that he was involved somehow.

Ordinarily, a consultation would be memorialized in a formal writing. It would be “very detailed,” including “the history and the physical and the laboratory work-up and images and . . . at the end . . . an assessment and plan . . . .”

There was nothing in Berrun’s medical records that was “anywhere close to a consultation.” There was only a single sentence in a discharge summary, written by Dr. Elizabeth De La Portilla, a first-year resident (a/k/a intern). It said: “Surgery was spoken to and there was no surgical intervention that would be offered at this time.”

Dr. De La Portilla testified that it was not necessarily unusual that there was no written consultation. “Sometimes we call consultants and they’re able to give us an indication after they’ve reviewed labs or imaging. If they don’t feel intervention is necessary, sometimes it just stops at a conversation.”

Dr. Raoufi told Berrun that there was no surgical treatment and that his only option was to go on dialysis and wait for a transplant. Berrun said, “[Then] what am I doing here? I can take the medication at home . . . .” According to Berrun, Dr. Raoufi said “[O]kay.”

Thus, on January 15, 2014, Berrun left Arrowhead; Dr. Raoufi testified that he advised him to stay.

Berrun went to the emergency room at Loma Linda University Medical Center. Like Arrowhead, they told him his only option was to go on dialysis and wait for a transplant.

He then went to St. Bernardine Medical Center. A doctor there said it did not have the facilities to treat him but referred him to UCI.

On February 3, 2014, he went to UCI. On February 6, 2014, doctors at UCI operated on him. Their plan was to try to restore blood flow to the kidney. If that did not work, they would perform an autotransplant, which would involve removing the kidney, attaching a new artery, and then replacing the kidney. And if that did not work, they would remove the kidney.

A biopsy done during the procedure showed that the kidney was too damaged for an autotransplant. Thus, the doctors removed it. Berrun went on dialysis. After he was on dialysis for about 15 months , his brother donated a kidney to him.

C. Expert Testimony.

1. Berrun’s nephrology expert.

Dr. Keith Klein, a nephrologist, testified as an expert for Berrun.

In his opinion, in 2009, Arrowhead failed to meet the standard of care by failing to contact Berrun repeatedly to make sure he came in for follow-up appointments.

In 2014, Arrowhead failed to meet the standard of care by concluding that the kidney could not be saved. “It was unequivocal the kidney could be saved . . . .”

First, Arrowhead misinterpreted the lab data. Berrun’s blood pressure, creatinine and potassium readings, urine concentration, and kidney size all indicated that his kidney was still functioning.

Second, after doing the angiogram, Arrowhead failed to get an opinion from a vascular surgeon. Berrun’s medical records did not indicate that a consultation with a vascular surgeon ever occurred. The bare recital in the discharge summary was “not acceptable” as documentation.

In Dr. Klein’s opinion, Berrun did not leave against medical advice, because leaving was not inconsistent with the only treatment offered — i.e., waiting for dialysis. It was reasonable for him to seek treatment elsewhere. However, the delay of the three or four weeks before he was treated at UCI “was fatal to the kidney.”

In the future, Berrun would probably need three or four more kidney transplants.

2. Berrun’s vascular surgery expert.

Dr. Willis Wagner, a vascular surgeon, testified as an expert for Berrun.

In his opinion, as of January 2014, Berrun’s kidney was still viable, as shown by the ultrasound and his high blood pressure. Had the doctors at Arrowhead believed the kidney was not viable, it would have been below the standard of care for them to give him an angiogram. An angiogram requires an injection of dye and thus impairs kidney function. Hence, it was below the standard of care not to offer Berrun a surgical option. Arrowhead’s documentation was also below the standard of care.

3. Arrowhead’s nephrology expert.

Dr. Stuart Friedman, a nephrologist, testified as an expert for Arrowhead.

In his opinion, in 2009, Arrowhead’s recommendations for follow-up care were “appropriate and within the standard of care[.]” According to the medical records, Berrun was told that he needed follow-up ultrasound to monitor the stent. Once he no-showed for the July 16, 2009 appointment, the standard of care did not require Arrowhead to do anything further. It was his responsibility to “present [himself] for follow-up.” His failure to do so ultimately caused him to lose his kidney.

In 2014, Arrowhead’s conclusion that there was no surgical option was correct. At that point, the damage to the kidney was irreversible and the kidney was not viable. According to lab tests, there was no significant decline in Berrun’s kidney function between Arrowhead and UCI. Dr. Friedman concluded, “[T]he die was cast unfortunately for Mr. Berrun’s kidney by the time he presented to Arrowhead.”

Finally, “the record keeping regarding the vascular surgery [consultation] . . . was within the standard of care.” It would be within the standard of care for a vascular surgeon to give an oral opinion.

Dr. Friedman did agree that Berrun’s life expectancy had been shortened. He would expect that Berrun would need two more transplants.

4. Arrowhead’s vascular surgery expert.

Dr. Samuel Wilson, a vascular surgeon, testified as an expert for Arrowhead. In his opinion, the care that Berrun received at Arrowhead met the standard of care in all respects.

In 2009, Dr. Gnanadev appropriately recommended periodic ultrasounds.

As of January 2014, Berrun’s kidney damage was irreversible. There was no surgical treatment, for two reasons. First, he could not have a bypass, because the angiogram did not show any artery that could appropriately be rerouted to the kidney. Second, he could not have an autotransplant, because that would have severed the new arteries that were keeping the kidney going.

Between Arrowhead and UCI, Berrun’s kidney function did not change. The operation at UCI was, in fact, unsuccessful, “as [Dr. Wilson] would have predicted.”

With proper medication, Berrun’s kidney could have continued to function for a year or more. Thus, but for the operation at UCI, he might have been able to avoid having to have dialysis at all while he was arranging a transplant.

According to Dr. Wilson, the failure to formally document the surgical consultation did not violate the standard of care, because Berrun left the hospital before there was time to dictate it. It is common to give a preliminary oral opinion. Under the circumstances, the discharge summary was “acceptable documentation within the standard of care . . . .”

II

PROCEDURAL BACKGROUND

Berrun filed this action in December 2014. He asserted a single cause of action, for medical negligence. Although his complaint named other defendants, by the time the case went to trial, the only defendant was Arrowhead.

In August 2017, the case was tried by a jury. The jury returned a special verdict finding that (1) Arrowhead was negligent, but (2) its negligence was not a substantial factor in causing harm to Berrun. The trial court therefore entered judgment against Berrun and in favor of Arrowhead.

III

THE BELATED ADMISSION OF THE DISCHARGE SUMMARY

Berrun contends that the trial court erred by admitting the discharge summary.

A. Additional Factual and Procedural Background.

Exhibits 1.415 and 1.416 were pages 1 and 2, respectively, of a “Discharge Summary” dated January 15, 2014. (Capitalization altered.) It had been dictated by Dr. De La Portilla. It stated, among other things: “Surgery was spoken to and there was no surgical intervention which could be offered at this time.”

In his opening statement, Berrun’s counsel referred to the discharge summary. He characterized it as saying, “surgery consulted; surgery discussed; won’t work.” He asserted, however, that the consultation never actually happened.

When Dr. De La Portilla testified, she was shown the discharge summary. She quoted it as saying, “surgery was spoken [to] and there was no surgical intervention which could be offered at this time . . . .” She testified that, in general, the information in a discharge summary was based on the patient’s chart and “discussion between the team members . . . .” However, she could not recall where she got this particular information.

During an exhibits conference, Arrowhead’s counsel sought to admit all medical records that had been “referred to [in] testimony.” Berrun’s counsel objected to all such medical records based on hearsay and lack of foundation. The trial court ruled that the medical records were hearsay and that no foundation had been laid for their admission under the business records exception (Evid. Code, § 1271) or the official records exception (id., § 1280). It added that, even if they were admissible under an exception, they contained another layer of hearsay that was not subject to any exception. Thus, it excluded them.

In closing argument, Berrun’s counsel stressed Arrowhead’s failure to introduce documentary evidence. Among other things, he said: “[B]ack there when you get the evidence, there’s not going to be a single hospital record. There’s not going to be a single document.” On this theme, he also said: “[W]e have three departments that have provided zero documentation about this very important event [i.e., the surgical consultation]. Then it shows up in a first-year intern’s discharge summary. How can that happen without negligence?”

After the jury had deliberated for not more than an hour and half, the trial court announced that it had reconsidered its ruling, solely with regard to the discharge summary; it had concluded that Dr. De La Portilla had laid a sufficient foundation.

Berrun’s counsel disputed that a sufficient foundation had been laid. He also asked, if the trial court adhered to its ruling, that it grant a mistrial. He argued, “[A] lot of rebuttal closing argument was spent telling the jury that . . . they would not be seeing any of these records . . . .” “[W]e are interrupting [the jury’s] deliberation process and we are saying, hey, look at this document, [I] told you it was not reliable and wasn’t introduced into evidence and here it is now.”

At the trial court’s direction, the bailiff retrieved the evidence folder, added Exhibits 1.415 and 1.416, and told the jury that an exhibit had been added, without specifically drawing its attention to those exhibits.

After deliberating for approximately three more hours, and after asking three questions unrelated to the discharge summary, the jury reached its verdict.

Berrun filed a motion for new trial, arguing that the trial court had erred by admitting the discharge summary. The trial court denied the motion.

B. Discussion.

The question of whether the trial court should have admitted the discharge summary, while interesting, is complicated. It involves such subsidiary questions as: (1) whether Dr. De La Portilla laid a sufficient foundation for admission of the discharge summary under either the business records exception or the official records exception; (2) whether second-level hearsay statements in the discharge summary were admissible (see Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6 [noting split of authority]); (3) whether the statement that there was no surgical treatment was an opinion rather than an act, condition, or event (see People v. Reyes (1974) 12 Cal.3d 486, 502-503); and (4) whether the discharge summary, even if inadmissible to show that there was no surgical treatment, was admissible to show that a consultation did occur or that the results of the consultation were conveyed to other treating physicians.

This is all a tempest in a teapot, however, because the admission of the discharge summary was harmless. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 353, subd. (b); Elsner v. Uveges (2004) 34 Cal.4th 915, 939.)

Dr. De La Portilla read the discharge summary into the record, without objection. Dr. Wilson also read it into the record. Dr. Raoufi, Dr. Retamozo, Dr. Klein, and Dr. Wagner, all testified to its existence and paraphrased its contents. Berrun’s counsel, in his opening statement, had already referred to the discharge summary and had summarized what it said. It was Berrun’s counsel who asked the very first question about the discharge summary and its contents. And at one point, Berrun’s counsel “put it up” (evidently meaning on the ELMO screen). Thus, the jury was fully aware of the discharge summary.

In moving for a mistrial, Berrun’s counsel complained that the admission of the discharge summary undercut his closing argument. In that argument, however, he said himself that the fact that a surgical consultation occurred “shows up in a first-year intern’s discharge summary.”

Finally, the trial court was careful not to give the jury the impression that the discharge summary was some kind of bombshell. It directed the bailiff to add it to the other exhibits and to tell the jury only that there was a new exhibit. Even if the jurors could tell which exhibit was new, given that they had already heard extensive testimony about it, they most likely concluded that it had simply been omitted by mistake.

IV

INCONSISTENT SPECIAL VERDICTS

Berrun contends that, in light of the jury’s finding that Arrowhead was negligent, there was insufficient evidence to support its additional finding that Arrowhead’s negligence was not a substantial factor in causing harm. As he recognizes, this boils down to a contention that the two findings are inconsistent.

“A fact finder may not make inconsistent factual determinations based on the same evidence. [Citation.]” (Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 707.)

“‘A special verdict is inconsistent if there is no possibility of reconciling its findings with each other. [Citation.]’ [Citation.]” (Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1038.) We “‘ . . . interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.’ [Citations.]” (Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 Cal.2d 452, 456-457.) “Where special verdicts appear inconsistent, if any conclusions could be drawn which would explain the apparent conflict, the jury will be deemed to have drawn them. [Citation.]” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424.)

“The standard of review for inconsistency in a special verdict is de novo. [Citation.]” (Trejo v. Johnson & Johnson (2017) 13 Cal.App.5th 110, 124, fn. omitted.)

A finding of negligence is not necessarily inconsistent with a finding of lack of causation. For example, a jury can find, in an appropriate case, that the defendant was negligent but the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries. (E.g., Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1317-1320.) It can also find, in an appropriate case, that the defendant was negligent under only one of several theories asserted by the plaintiff, and that there was no causation under that theory. (E.g., Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24-26.)

Because this was a medical malpractice action, Berrun had to present expert testimony that Arrowhead violated the standard of care. (See Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) Berrun’s experts identified three violations:

1. In 2009, failing to make sure Berrun came in for follow-up appointments.

2. In 2014, concluding incorrectly that surgery was not an option. This violation comprised two subsidiary violations:

a. Misinterpreting (or ignoring) lab data showing that the kidney was viable.

b. Failing to obtain a post-angiogram consultation with a vascular surgeon.

3. In both 2009 and 2014, failing to maintain adequate documentation.

Arrowhead’s experts, however, testified that in 2009, Arrowhead met the standard of care by telling Berrun to come in for an ultrasound every three months and by scheduling the first follow-up appointment for him. It was his responsibility to “present [himself] for follow-up.” Of course, Berrun’s experts disagreed; that merely raised a question of fact for the jury to decide.

Similarly, Arrowhead’s experts testified that, in 2014, Arrowhead met the standard of care by consulting with a vascular surgeon, who concluded, correctly, that there was no surgical option. Dr. Wilson explained (in convincing detail) why surgical treatment was contraindicated. He also noted that, when surgery was in fact done at UCI, just three weeks later, it failed. He added that lab reports showed that Berrun’s kidney function had not changed significantly during those three weeks. The jury was entitled to accept Dr. Wilson’s testimony.

Separately and alternatively, however, even assuming the surgical consultation never occurred, the jury could conclude, based on Dr. Wilson’s testimony, that that failure did not cause any harm to Berrun. Arrowhead’s decision not to operate, even if it was made without a surgical consultation — heck, even if it was made with a Ouija board — turned out to be correct. Arrowhead’s advice to manage his condition with medication, to go on dialysis when necessary, and to seek a transplant, was likewise correct. It did not harm him in any way. There was no good alternative. According to Dr. Wilson, the only thing that made Berrun’s condition worse was the operation at UCI.

Finally, Arrowhead’s experts testified that the failure to document the surgical consultation did not violate the standard of care. Even if it did, however, there was no evidence that that harmed Berrun in any way.

Either the consultation happened or it didn’t. If it did happen, then the only question is whether the surgeon’s conclusion met the standard of care. And for the reasons already discussed, even if it did not happen, there was substantial evidence that that failure did not harm Berrun.

In sum, then, the jury could properly find that: (1) Arrowhead was not negligent in 2009; (2) Arrowhead was negligent (in failing to obtain a surgical consult or in failing to document the surgical consult) in 2014; but (3) Arrowhead’s negligence in 2014 was not a substantial factor in causing harm.

Berrun states: “[T]he most plausible inference from the [j]ury’s finding of negligence . . . is that they found in favor of Berrun for every component of [his] theory for negligent diagnosis and treatment in both encounters with [Arrowhead] in . . . 2009 and 2014. It follows that the [j]ury accepted presentation of evidence by Berrun, as well as his expert witnesses . . . .” In other words — as Arrowhead correctly points out — Berrun asks us to assume that, if the jury believed any of his evidence, it must have believed all of his evidence. This is not the law. “‘[T]he jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses[,] thus weaving a cloth of truth out of selected available material. [Citations.]’” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.) Presumably it did so here.

We do not understand Berrun’s opening brief to argue that there was no substantial evidence of lack of causation at all. Rather, he says “[T]here is [a] lack of substantial evidence, in light of the [j]ury’s favorable findings of negligence . . . , to support . . . any finding [of lack of causation.]” (Italics added.) Similarly, he says, “[T]he admissible evidence presented to the [j]ury, and believed by them,” is insufficient to show lack of causation. (Italics added.) This simply restates his contention, just discussed, that the jury had to believe all of his evidence or none.

Nevertheless, in his reply brief, for the first time, he asserts flatly that he “established causation” and there was no substantial evidence of lack of causation.

He forfeited this contention by failing to raise it in his opening brief. (Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487, fn. 4 [“An appellant’s failure to raise an argument in the opening brief waives the issue on appeal.”].)

He doubly forfeited it by failing to set forth all of the relevant evidence — especially with regard to the opinions of Arrowhead’s experts. “[I]f, as [appellant] here contend[s], ‘some particular issue of fact is not sustained, [he is] required to set forth in their brief all the material evidence on the point and not merely [his] own evidence. Unless this is done the error is deemed to be waived.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881-882.)

Even if not forfeited, it lacks merit. If Arrowhead was negligent in 2009, one might have to conclude that Berrun was harmed. However, the opinions of Arrowhead’s experts provided substantial evidence that it was not negligent in 2009, and if it was negligent in 2014, that negligence did no harm.

V

THE SPECIAL VERDICT FORM AND

THE TRIAL COURT’S RESPONSE TO A JURY QUESTION

In a somewhat stream-of-consciousness argument, Berrun contends that the special verdict form, when combined with the trial court’s response to a question from the jury during its deliberations, was confusing.

A. Additional Factual and Procedural Background.

On the special verdict form, Question 1 asked, “Was [Arrowhead] negligent in the diagnosis or treatment of [Berrun]?”

Question 2 asked, “Was [Arrowhead]’s negligence a substantial factor in causing harm to [Berrun]?” If the jurors answered no, they were instructed to stop there. They did answer no, and hence they did stop.

Question 3 asked about the amount of damages.

Question 4 asked, “Was [Berrun] negligent?”

Question 5 asked, “Was [Berrun]’s negligence a substantial factor in causing his harm[?]”

Question 6 asked the jurors to apportion the “responsibility for [Berrun]’s harm” as between Arrowhead and Berrun.

Berrun’s counsel did not object to the special verdict form as given to the jury.

During deliberations, the jurors asked, “Does question #1 mean any negligence at all or is there a percentage of negligence (e.g. over 50%)?”

The trial court responded, “Any negligence is sufficient for question number 1. Any percentage would be included in your answer to question number 6.”

As far as the record reflects, Berrun’s counsel did not object to this response.

B. Discussion.

1. Forfeiture.

The caption of this argument merely asserts, again (see part IV, ante) that the special verdicts were inconsistent. As a result, Berrun has forfeited the rather different argument that he actually makes under this heading. (Cal. Rules of Court, rule 8.204(a)(1)(B); United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.)

Berrun additionally forfeited this argument by failing to object to either the special verdict form or the trial court’s response to the jury’s question. (Lynch v. Birdwell (1955) 44 Cal.2d 839, 851 [special verdict form]; Eng v. Brown (2018) 21 Cal.App.5th 675, 706 [trial court’s response to jury question].)

2. Merits.

Separately and alternatively, we also reject this argument on the merits.

As best we can understand Berrun’s argument, it is that the jury understood the trial court’s response — that it should not find percentages of fault until it reached question 6 — to mean that it had to answer “no” to question 2, as long as Berrun was even partially at fault.

The special verdict form was legally correct. If Arrowhead’s negligence was not a substantial factor in causing harm to Berrun, then Arrowhead simply was not liable.

Likewise, the trial court’s response was legally correct. In fact, it said the opposite of what Berrun now argues that it said. It said that, if the jury found any negligence by Arrowhead, it had to answer yes to question 1. It did not tell the jury what to do on question 2 at all. While it did tell the jury to postpone determining any percentages of fault until question 6, question 2 did not call for any percentages.

Question 2 simply asked whether Arrowhead’s negligence was a substantial factor in causing harm to Berrun. The jury had already been instructed that “[a] substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. . . . It does not have to be the only cause of the harm.” (Italics added.) (CACI No. 430.) The trial court’s response confirmed this; it indicated that the jury could determine whether Arrowhead’s negligence was a substantial factor in causing harm to Berrun without having decided yet whether it was the only cause.

Berrun suggests that the jury may have been “left with an erroneous understanding that the [c]ourt would later make findings as to the percentage of each party’s fault.” Again, however, the trial court said just the opposite — it said that the jury should determine percentages of fault once it got to question 6. We see no indication of jury confusion.

In sum, this argument appears to be a disguised version of the argument that we already rejected in part IV — that, if the jury found that Arrowhead was negligent, it had to find that Arrowhead’s negligence caused at least some of Berrun’s damages. The jury did not have to so find, and it did not so find.

Finally, in a highly compressed, one-sentence argument, Berrun asserts that a question from the jury indicated that it mistakenly believed the trial court would decide on “reductions for Berrun’s contributory negligence or for availability of Medicare and MediCal.” (Italics added.)

The jury question that he cites was asked during trial, not during deliberations, and evidently by only a single juror. The trial court allowed the jurors to propound questions for witnesses, in writing. They ended up propounding some 13 of these. Their second question was: “I’m understanding that he has Medi[ C]al and Medicare covering most of the costs. What does Mr. Berrun pay out of pocket?” After discussing the question with counsel, the trial court ruled that it was irrelevant.

This question did not relate to contributory negligence in any way. It related exclusively to Medicare and Medi-Cal. The trial court ruled that it was irrelevant. Berrun has not shown any error involving Medicare and Medi-Cal. He does assert that the question — i.e., not the answer — conflicted with CACI No. 5001 (“Insurance”). If so, that would hardly be surprising, as the jury had not been instructed yet. We must presume that, once it was, it followed the trial court’s instructions. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) No error appears.

VI

DISPOSITION

The judgment is affirmed. Arrowhead is awarded costs on appeal against Berrun.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.