Filed 9/1/20 Dolgin v. Million CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

ROSEANNA DOLGIN,

Plaintiff and Appellant,

v.

CAROLYN MILLION, M.D.,

Defendant and Respondent.

A156213

(San Francisco County

Super. Ct. No. CGC 15-549483)

In this medical malpractice case, Roseanna Dolgin alleged that a cosmetic procedure performed by Dr. Carolyn Million caused her to become incontinent. Following a jury trial, judgment was entered in favor of Million. On appeal, Dolgin contends Million’s trial counsel committed prejudicial misconduct during closing argument. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Dolgin’s Medical Condition and Fistula

Dolgin suffers from Crohn’s disease, an inflammatory bowel condition that is incurable but may be controlled by treating the inflammation. Dolgin has this disease in her colon and perianal region. During the relevant time period, Dolgin elected to forgo standard medical therapy for Crohn’s, which is to administer biologics and other medications.

Dolgin’s Crohn’s disease caused her to develop an anal fistula, a tubular connection between her rectum and vagina, which created an additional passage for excreting fecal material. Dolgin’s trial expert, Dr. Sang Won Lee, testified that Dolgin’s fistula originated in the anal canal, ran through the internal and external sphincter muscles and exited through an opening near the vaginal wall.

According to Dr. Lee, an accepted treatment for this type of complex fistula is to perform a fistulotomy. The first step of the procedure is to insert a “draining” seton (a flexible thread material), which opens the area so that infection-causing material can drain out. Once the inflammation settles, a “cutting” seton is threaded through the opening and tied at the ends. By gradually tightening the seton, the doctor cuts through muscle, which causes scar tissue to form and closes the fistula. Lee acknowledged that fecal incontinence is always a risk with this procedure, explaining: “[B]y slowly cutting through [the] fistula tract and your sphincter muscle, you’re hoping that things will scar slowly so that the sphincter muscle will come together, heal and fuse itself. But in the end, you’re still cutting through the sphincter muscle. So there’s a concern and there’s a worry that [the procedure] can result in compromise in the sphincter function afterwards.”

II. Treatment of the Fistula

In September 2009, Dolgin consulted with Dr. Ahmed Alkoraishi, a colorectal surgeon at Kaiser, about surgical options for treating her fistula. Dr. Alkoraishi does not recommend surgical treatment of a fistula or any surgery for a Crohn’s patient because the disease is best treated by the least aggressive option, which is medication. However, Dolgin refused medication treatment.

Over several months, Alkoraishi performed several procedures on Dolgin’s fistula. Initially he inserted a draining seton, a rubber band-like material that attaches to itself, to keep the fistula open so it can drain. Although Alkoraishi uses drainage setons in his practice, he does not use cutting setons to treat anal fistulas because of the risk of cutting into the sphincter muscle and causing fecal incontinence. After the drainage procedure was completed, Dolgin rejected the option of medication, so Alkoraishi inserted a fistula plug. Subsequently he attempted to block the passage with “fibrin glue” in lieu of another plug. Alkoraishi also removed an external growth so it would not impede the healing process. These procedures did not permanently close Dolgin’s fistula.

At trial, Dolgin testified that she agreed to the procedures performed by Dr. Alkoraishi because they did not pose any risk of incontinence. Dr. Alkoraishi testified that every procedure he performed on Dolgin’s fistula involved a risk of fecal incontinence, and Dolgin was informed of that risk before she consented to each procedure. After Alkoraishi’s testimony, Dolgin changed her trial testimony and admitted that she knew the procedures Alkoraishi performed carried a risk of fecal incontinence.

In January 2014, Dolgin traveled to India to obtain treatment for her fistula from Dr. Mukul Patel. Dolgin testified that she initially planned to go to India for treatment in 2010 or 2011 but she postponed the trip because she got pregnant and had a baby and then she decided to try and see if Dr. Alkoraishi could repair the fistula. Under cross-examination, Dolgin admitted that she had to postpone her India trip because her passport was taken away for legal reasons.

Dr. Patel performed “Kshara Sutra” surgery on Dolgin’s fistula. He described the procedure at trial while testifying via live video with the assistance of an interpreter. The procedure involved cutting into Dolgin’s fistula, inserting a metal probe that passed through the sphincter muscle, then inserting a seton string into the fistula tract, the two ends of which were tied together. The seton, which was coated in herbs, was replaced weekly for several months, with the intention that the binding would cut out the bad tissue and drain it away so new tissue could form and permanently close the opening. Dolgin and her mother learned how to change the seton before they returned to California and then Dr. Patel monitored Dolgin’s progress by emails and photographs that Dolgin sent to him.

At trial, Patel acknowledged that a cutting seton is a very dangerous treatment for a Crohn’s patient and can cause fecal incontinence. According to Patel, the Kshara Sutra is not a cutting seton because although it cuts it also heals. During the surgery that Patel performed on Dolgin, he also removed a “papilla” and a hemorrhoid from inside the anal canal near the fistula opening, and an external skin tag.

By March 2014, Dolgin was growing impatient with the process of treating her fistula by changing the setons. She asked Dr. Patel if she could speed up the process by tying the seton tighter. Dr. Patel advised Dolgin that the seton was cutting into two muscles and she should not attempt to hurry the process, but she could tie the seton a bit tighter.

III. Dolgin’s Skin Tag

In May 2014, Dolgin complained to Dr. Patel about a large skin tag that had developed outside of her anus, which she wanted removed because it was unsightly. Patel advised her to wait until the seton procedure was completed.

In July 2014, Dolgin consulted the defendant, Dr. Carolyn Million about removing the skin tag. Million, a general surgeon, had been operating a private practice as a colorectal surgeon since 2006. During Dolgin’s first appointment, Million conducted a physical examination and observed a small piece of seton in Dolgin’s fistula. The parties presented conflicting evidence to the jury about what happened next.

At trial, Million testified that she offered to remove the piece of seton because it appeared that the area around it had already healed. Million denied offering to cut out the remainder of Dolgin’s fistula. She also testified that there was never a consideration of removing the skin tag that day. According to Million, Dolgin elected to let the seton come out on its own and Million offered to do a re-check in six to eight weeks.

Dolgin testified that during her first appointment, Million offered to “cut [the fistula] open and finish the job,” Dolgin declined the offer, and then they agreed it would be best to wait to remove the skin tag. Dolgin admitted that Million did advise her that if the skin tag was removed that day, it could grow back.

After Dolgin’s first appointment with Dr. Million, Dolgin sent Dr. Patel an email report that she had consulted with a colorectal surgeon who recommended that she wait until the seton procedure was completed before removing the skin tag.

On September 18, 2014, the final piece of seton came out of Dolgin’s body. The next day, she returned to Million’s office to have her skin tag removed. Dolgin had completed an informed consent form during her first visit. On the second visit, Million discussed the risks and benefits of the procedure, which focused on risks of having Crohn’s disease. In Million’s view, incontinence was not a significant risk of a skin tag removal that involved excision of tissue outside the body.

During a discussion prior to the procedure, Dolgin expressed concern over the “extent” of the excision. She stated that she wanted only a portion of the skin removed near the tip of the skin tag. Million disagreed with this proposal because it would have left Dolgin with a “large, bulky skin tag.” Million felt that it did not make sense to put Dolgin through the risk of the procedure without giving her the cosmetic result she wanted. Million took pictures of the area so they could discuss the excision plan. She also suggested deferring the procedure but Dolgin was anxious to get it done.

Million testified that after they discussed the matter, Dolgin elected to proceed with removal of the entire skin tag. During Dolgin’s testimony, she acknowledged that before Million performed the procedure Dolgin said “Okay” and told Million to use her “discretion.” But Dolgin maintained that her consent was qualified by an express directive not to remove any of Dolgin’s “healing” tissue, swollen tissue, or the “hard stuff” that was “going to soften” over time. Dolgin testified further that when she saw the specimen that Million had removed she was shocked because it was much larger than her skin tag. She took a photograph of the specimen to show Dr. Patel because she was so concerned.

Dolgin testified that almost immediately after the skin tag removal, she noticed that she could no longer fully clench her sphincter and that a few weeks later, she began to experience fecal incontinence for the first time in her life.

IV. Subsequent Medical Consultations and Procedures

On November 6, 2014, Dolgin consulted with Dr. Alkoraishi. Dolgin reported that she had undergone a “fistulotomy,” but she did not tell Alkoraishi that it was performed in India by Dr. Patel who used cutting setons. Nor did she report that Dr. Million had excised an external skin tag the day after the seton procedure was completed. Alkoraishi made a note in Dolgin’s file that she had “seen an outside surgeon who seems to have done an extensive fistulotomy on the left anterior side. This rendered her incontinent to liquid stool . . .” Alkoraishi performed a rectal exam, and concluded that Dolgin’s sphincter muscle was functioning, although he noted a slight decrease in its “resting tone.”

After her appointment with Dr. Alkoraiashi, Dolgin consulted four or five other colorectal surgeons. During these visits, Dolgin did not seek treatment for incontinence. Instead, she was doing research about her “best treatment options” for improving the appearance of her perianal region, which did not “look right.” She was also looking for an expert witness for the lawsuit she planned to file against Dr. Million.

On February 5, 2015, Dolgin had another appointment with Dr. Alkoraishi. After performing a rectal exam and an ultrasound, Alkoraishi concluded that Dolgin had a “disruption” of 25 percent of the sphincter muscle in the region where the partial fistulotomy had been performed. Alkoraishi referred Dolgin to a urogynecologist and to a plastic surgeon.

On February 10, 2015, Dolgin was examined by Dr. Michelle Morrill, a urogynecologist at Kaiser. Dr. Alkoraishi’s referral included information that Dolgin had undergone several attempts to repair her fistula, including a seton procedure. Alkoraishi also shared the results of the ultrasound he performed on Dolgin. Morrill thought those results could be explained by scar tissue in the sphincter caused by stretch damage, either from delivery of a child or from the setons.

During her visit with Dr. Morrill, Dolgin reported that she had an office surgery the previous September and was suffering from fecal incontinence. Dolgin did not disclose that she had received treatment in India from Dr. Patel. Morrill asked if Dolgin had taken Imodium, a medication that “slows the contractility of the intestines in order to slow the push on the contents of the rectum.” Dolgin reported that she had not “yet” tried Imodium, but she was doing Kegel exercises. Morrill did not make any notes regarding the frequency of the reported incontinence or a need to use pads.

Dr. Morrill performed a visual exam of Dolgin’s perianal region and a rectal exam. Morrill concluded that Dolgin’s “rectoanal inhibitory reflex” was normal, as was her anal squeeze and tone. She told Dolgin that she did not find a sphincter defect and recommended two courses of action: neuromodulation, which is a nerve stimulation treatment similar to acupuncture; and evaluation by a plastic surgeon to address Dolgin’s concern about the appearance of her perianal region.

In December 2015, Dolgin filed a complaint against Million, seeking damages for medical negligence, failure to secure informed consent and loss of consortium. Dolgin alleged that Million excised an excessive amount of tissue during the skin tag removal, causing severe injury to Dolgin’s anus and sphincter muscle, which resulted in “regular incidents of fecal incontinence, sexual dysfunction and emotional distress.”

In August 2016, Dolgin made another appointment with Dr. Morrill because she was pregnant and wanted to discuss the appropriate mode of delivery. After a rectal exam showed that Dolgin continued to experience good tone and squeeze, Morrill advised her there was a high likelihood of vaginal delivery without obstetric laceration. In October 2016, Dolgin gave birth to her second child. The baby was delivered at home, without any complications.

In March 2017, Dolgin began neuromodulation therapy, and had periodic follow-up visits with Dr. Morrill. In April, Dolgin reported she felt 30 percent improved from the therapy, but she still wanted surgery. Dr. Morrill advised she would not perform a sphincteroplasty absent indications of a sphincter defect. In June, Dolgin reported 30 to 40 percent improvement, but when a question arose about whether it made sense to continue the therapy, Dolgin stated that she could be 50 percent improved.

On October 2, 2017, Dr. Morrill had a telephone discussion with Dolgin and Dolgin’s mother about the risks and benefits of an exam under anesthesia and a possible sphincteroplasty if a defect in the anal sphincter was found. The plan was to do this procedure in conjunction with the cosmetic surgery that Dolgin was going to have done. Dr. Morrill made it clear that she would not perform a sphincteroplasty without finding a sphincter defect.

On October 10, 2017, Dr. Morrill conducted her exploratory procedure in tandem with Dolgin’s cosmetic surgery. Morrill found no evidence of an anatomic or functional sphincter muscle defect. She also performed an electric stimulation test, which showed normal contraction throughout the sphincter.

V. The Jury Verdicts

The jury trial in this case was conducted over several days in August and September 2018. On September 7, the jury was instructed regarding the elements of Dolgin’s causes of action for medical negligence and failure to obtain informed consent. The court also instructed the jury regarding the two categories of damages that Dolgin was claiming: economic damages for past and future medical expenses; and noneconomic damages for “Past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress.”

The jury began deliberating on the afternoon of September 7, 2018. On Monday, September 10, the jury returned their verdict, which was recorded on special verdict forms. Nine of the twelve jurors found that Million was negligent in the treatment of Dolgin. However, eleven of the twelve jurors found that Million’s negligence was not a substantial factor causing harm to Dolgin. Ten jurors found that Dolgin gave her informed consent to the excision surgery.

DISCUSSION

Dolgin contends the judgment must be reversed because Million’s attorney committed prejudicial misconduct during closing argument.

I. Legal Principles

“[M]isconduct by counsel in closing argument . . . can constitute prejudicial error entitling the aggrieved party to reversal of the judgment and a new trial.” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 802 (Cassim).) To establish reversible error, three requirements must be met.

First, the complaining party must have preserved the claim for appellate review. (Cassim, supra, 33 Cal.4th at p. 794.) “In addition to objecting, a litigant faced with opposing counsel’s misconduct must also ‘move for a mistrial or seek a curative admonition’ [citation] unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice [citation]. This is so because ‘[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial.’ [Citation.] The rule is the same for civil and criminal cases.” (Cassim, at pp. 794–795.)

Second, in order to establish substantive misconduct, the complaining party must demonstrate that the objectionable comment exceeded a wide latitude of propriety. (Cassim, supra, 33 Cal.4th at p. 795.) “For example, ‘[w]hile a counsel in summing up may indulge in all fair arguments in favor of his client’s case, he may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences.’ [Citation.] Nor may counsel properly make personally insulting or derogatory remarks directed at opposing counsel or impugn counsel’s motives or character. [Citation.] Additional examples abound; these are but a few.” (Id. at p. 796.)

Finally, “ ‘[i]t is not enough for a party to show attorney misconduct. In order to justify a new trial, the party must demonstrate that the misconduct was prejudicial. [Citation.] As to this issue, a reviewing court makes “an independent determination as to whether the error was prejudicial.” [Citation.] It “must determine whether it is reasonably probable [that the appellant] would have achieved a more favorable result in the absence of that portion of [attorney conduct] now challenged.” [Citation.] It must examine “the entire case, including the evidence adduced, the instructions delivered to the jury, and the entirety of [counsel’s] argument,” in determining whether misconduct occurred and whether it was sufficiently egregious to cause prejudice.’ ” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 296; see also Cassim, supra, 33 Cal.4th at p. 800.)

II. Impugning Dolgin’s Credibility

Dolgin first complains that defense counsel committed misconduct by expressing her personal opinion that Dolgin was not a credible witness because her lawsuit was financially motivated.

A. Additional Background

Dolgin’s trial counsel, Mr. Nevin, addressed the issue of damages during the later part of his closing argument. Nevin argued that Dolgin was entitled to an award of $19,231.84 for her past economic loss including medical expenses attributable to the allegedly negligent skin tag removal. He argued further that Dolgin would need nerve therapy for the rest of her life and requested an award of $177,281.28 (reduced to current value) to cover that expense. Finally, Nevin argued that Dolgin’s noneconomic damages were significant, although somewhat unusual because she was not seeking compensation for her physical pain. Instead, Dolgin sought compensation for her suffering, which was the pain to her “soul.”

Nevin proposed that the jury make separate awards for each of the four years that Dolgin has already suffered from incontinence that would be commensurate with her “grief” over the loss of her “body part.” Specifically, Nevin argued Dolgin was entitled to $100,000 for the first year and the second year of incontinence, and $30,000 for the third and fourth year that she has suffered with this injury. In addition, Nevin argued, “[a]s for her future, I’m asking that you give her $10,000 per year for the 44 years for the rest of her life when she has incontinence.”

Arguing that Dolgin was entitled to at least $440,000 in future general damages, Nevin urged the jury to consider separately the pain, suffering, disfigurement, anxiety and grief that Dolgin had suffered. Nevin explained that he was focusing on the concept of suffering because he thought it was important and wanted to share his perspective of what it means to suffer, what it means, he said, “to the internal person, the soul, the animation of life, as I call it.” In light of Dolgin’s suffering, Nevin concluded, it would be “appropriate, fair, just and reasonable” to award $444,000 as future general damages.

Near the beginning of the defendant’s closing argument, Million’s trial counsel, Ms. Madden, stated: “So I believe[,] and I am not—math is not my strength, but I believe counsel just asked you to award roughly over $800,000 to Ms. Dolgin at the conclusion of this case. That’s an interesting number. That’s an interesting fact, and I’m going to return to that, because I think it plays into what this case has really been all about, what this case has been all about clearly from the start for Ms. Dolgin, and it’s the money.”

While addressing preliminary matters, Madden stated that the jury would be “charged” with assessing witness credibility and then argued that Dolgin was not a credible witness, offering three examples. First, counsel recounted Dolgin’s testimony that she chose treatments for her fistula that did not pose a risk of fecal incontinence, which was inconsistent with other evidence showing that Dolgin consented to the procedures Dr. Alkoraishi performed after being advised they did carry a risk of fecal incontinence. Second, counsel argued that Dolgin’s testimony that she used Imodium between November 2014 and February 2015 was contradicted by Dr. Morrill’s medical records reflecting that Dolgin reported that she “[n]ever tried Imodium.” Third, counsel urged the jury to consider evidence that after Dolgin’s skin tag was removed, her “focus” had been on pursuing litigation rather than pursuing treatment for incontinence.

Madden returned to the issue of Dolgin’s credibility when discussing the issue of damages. Reiterating that Dolgin’s damage claims were “interesting,” counsel stated that she thought the jury would “see” that “the damage claims are not rooted in fact necessarily, or truth, and that has been true from the onset of this lawsuit.” As an example, counsel reminded the jury that in an early stage of litigation, Dolgin had claimed that she would not be able to experience vaginal childbirth because of the perianal excision performed by Dr. Million. Counsel argued that Dolgin had to abandon this damage claim after October 2016, when she vaginally delivered her child during a home birth without experiencing any damage to her perineum.

B. Analysis

Dolgin argues that defense counsel committed misconduct during the argument summarized above because she attacked Dolgin’s credibility by sharing her personal belief that this case was “really . . . all about” money.

Dolgin failed to preserve this claim for review; she did not object to any of the remarks summarized above, let alone request an admonition. As noted, Madden attributed a financial motivation to Dolgin at the beginning of her closing argument. If Dolgin had objected then, and the court had agreed the remark was improper, an admonition could have cured potential prejudice and foreclosed subsequent similar remarks.

In her reply brief, Dolgin contends that she did make an objection during defense counsel’s closing argument. But the single objection that Nevin made during defense counsel’s closing involved a different argument that was challenged for a different reason than the arguments that Dolgin makes for the first time in this appeal.

Even if this claim was not forfeited, we reject Dolgin’s contention that the challenged remarks constituted misconduct. Irrelevant attacks on the character of a party constitute misconduct because the law “prohibits hitting below the belt,” and “[t]he basic rule forbids an attorney to pander to the prejudice, passion, or sympathy of the jury.” (Martinez v. Department of Transportation (2015) 238 Cal.App.4th 559, 566–567.) In this case, however, Dolgin’s credibility was a material disputed issue and Madden did not commit misconduct by attacking it based on evidence that was presented to the jury.

Dolgin intimates that Madden’s arguments were improper because they were couched as opinions. We reject the overbroad notion that using words like “I think” to argue about what the evidence shows constitutes misconduct. “ ‘ “ ‘ “The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury.” ’ ” [Citations.] “Counsel may vigorously argue his case and is not limited to ‘Chesterfieldian politeness.’ ” ’ ” (Cassim, supra, 33 Cal.4th at pp. 795–796.)

Importantly, Dolgin does not contend that Madden argued any fact that was not in evidence. “ ‘ “An attorney is permitted to argue all reasonable inferences from the evidence, . . .” [Citation.] “Only the most persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the bounds of propriety.” ’ ” (Cassim, supra, 33 Cal.4th at pp. 795–796.) Here, the challenged remarks summarized above were within the bounds of propriety.

Dolgin relies on Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, which does not support her claim. In that personal injury case against a car manufacturer, plaintiff’s counsel described defense experts as “ ‘evasive’ ” and told the jury that he had never seen witnesses like them “ ‘who just would not answer a question.’ ” (Id. at p. 860.) The appellate court rejected the contention that this was an improper “personal opinion on the credibility of these witnesses,” finding that defense counsel was permitted to argue reasonable inferences from the evidence and to comment on the “demeanor of a witness indicating recalcitrance.” (Id. at pp. 860–861.) Brokopp supports our conclusion that defense counsel’s remarks were not expressions of personal opinion, but reasonable inferences supported by the trial evidence.

Dolgin contends that Madden’s argument was misconduct for the separate reason that she personally attacked Dolgin’s trial counsel. Dolgin does not identify a single remark that was directed at her trial counsel. Instead, her theory is that defense counsel’s alleged attack on Dolgin’s credibility necessarily impugned the character and integrity of her attorney. The premise of this argument fails; as explained, defense counsel did not commit misconduct by challenging Dolgin’s credibility. Beyond that, we are not persuaded that an implied slight of this nature constitutes misconduct.

III. Misrepresenting Evidence

Dolgin contends that defense counsel committed misconduct by misrepresenting the trial evidence pertaining to informed consent.

A. Additional Background

During plaintiff’s closing argument, Mr. Nevin relied on Dr. Lee’s expert testimony to establish “that there was a woeful act of informed consent.” Counsel emphasized to the jury that consent was not sufficient because the consent had to be informed, and the “heart of the issue” in this case was that a patient could not give consent if she had not been adequately informed of the risk.

Developing this theory, Nevin argued that Million had a duty to disabuse Dolgin of her “dangerous misunderstanding” that the unfavorable cosmetic appearance of her skin tag was sufficient justification for the excision. Nevin argued that his client’s decision to take a chance of undoing the “magnificent success” of Dr. Patel’s procedure, “was very, very bad informed consent.” He urged the jury to consider Dr. Lee’s testimony, which established that such a dangerous procedure should never have been done.

During the defendant’s closing argument, Madden stated: “So let’s look at informed consent a little bit here. So informed consent, we know consent was given. Dr. Sang Lee said consent was given. There wasn’t any dispute in the case that—and Ms. Dolgin herself testified she said she may regret it; she may be remorseful about it, but she testified that she said, okay, use your discretion. [¶] There was—the one thing the parties agreed on is that there was a discussion involving photographs that were taken at that time by Dr. Million that Dr. Million said, ‘This is the area that I’m recommending that we excise,’ and that Dr. Million told her, ‘You do not have to proceed with this.’ And that Ms. Dolgin said, ‘Okay,’ and Ms. Dolgin’s words on the stand ‘Use your discretion.’ There was consent to the procedure.”

Continuing with this theme, Madden argued that Dolgin had “adequate information of the risks and what she would be exposed to in going forward with this surgery before she gave that consent.” Counsel then discussed the relevant trial evidence, including testimony about the risks of the skin tag removal, the information about those risks that was provided to Dolgin, and the consent form that Dolgin signed.

B. Analysis

Dolgin argues that defense counsel committed misconduct by telling the jury that Dolgin’s informed consent to the skin tag removal procedure was “ ‘undisputed.’ ” Contending that the issue of consent was “hotly disputed,” Dolgin argues that defense counsel committed misconduct by making a “flat-out misrepresentation of the testimony at trial.” Expanding this claim in her reply brief, Dolgin complains that defense counsel misled the jury by conflating the issue of informed consent to a mere skin tag removal with informed consent to the more extensive surgery that Million allegedly performed.

First, Dolgin failed to preserve this issue for review by lodging an objection in the lower court. Second, the challenged argument was not misconduct. An attorney commits misconduct during closing argument by referring to or assuming facts not in evidence. (Cassim, supra, 33 Cal.4th at p. 796.) However, she has wide latitude to argue about what the evidence shows. Here, defense counsel argued that the evidence showed that Dolgin gave consent to the procedure and that her consent was informed. The trial evidence supports both prongs of this argument.

Dolgin’s claim that defense counsel told the jury that Dolgin’s informed consent was “undisputed” is based on a misreading of the record and an improper conflation of two separate points that Madden made. First, Madden told the jury that Dr. Lee acknowledged consent was given. Indeed, in response to a question whether Dolgin was anxious to have her skin tag removed, Dr. Lee testified, “I know she consented to having the skin tag removed. So I’m sure she desired or she had wanted to have the skin tag removed.” Madden’s second point to the jury was that there was no dispute that the parties made specific statements to each other while discussing the excision plan. This argument is a fair representation of Dolgin’s trial testimony. Dolgin testified that when she discussed the excision plan with Million, Dolgin said “Okay” and told Million to use her discretion. Dolgin also acknowledged that Million offered to postpone the procedure. Because Madden’s informed consent argument was a reasonable interpretation of the trial evidence, it was not misconduct. To the extent the evidence or the law supported a contrary argument, Dolgin had the opportunity, through her lawyer’s rebuttal argument, to explain to the jury the basis on which she was indeed contesting informed consent.

DISPOSITION

The judgment is affirmed. Respondent is awarded costs on appeal.

 

_________________________

TUCHER, J.

WE CONCUR:

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STREETER, Acting P. J.

_________________________

BROWN, J.

Dolgin v. Million (A156213)