Filed 3/3/20 Baca v. Martinez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOE BACA et al.,

Plaintiffs and Appellants,

v.

MICHELLE MARTINEZ,

Defendant and Respondent.

D072999

(Super. Ct. No. RIC 1310816)

APPEAL from a judgment of the Superior Court of Riverside, John W. Vineyard, Judge. Affirmed.

Spile, Leff & Goor and D.W. Duke for Plaintiffs and Appellants.

Kramer, deBoer & Keane and Jeffrey G. Keane, Scott E. Saunders for Defendant and Respondent.

Joe and Elizabeth Baca sued their family practice doctor, Michelle Martinez, M.D. (Dr. Martinez) for malpractice. In his opening statement at trial, defense counsel made several false or misleading statements regarding the evidence. The Bacas’ attorney did not object but later asked to cross-examine certain witnesses using the statements made by defense counsel. The superior court denied that request and, several days later, the Bacas moved for a mistrial. The superior court admonished defense counsel and issued a curative instruction to the jury but declined to grant a mistrial. The jury returned a unanimous verdict in favor of Dr. Martinez and the Bacas filed a motion for a new trial. The superior court concluded the Bacas had not been prejudiced and denied the motion.

On appeal, the Bacas contend the superior court erred by denying their requests for a mistrial and a new trial, and by not allowing their counsel to cross-exam witnesses using quotes from the opening statement. We find no error in the superior court’s rulings. As the superior court aptly observed, defense counsel did make a number of misleading statements, but the instructions to the jury and the statements made during closing arguments were curative, the evidence in favor of the verdict was overwhelming, and the Bacas suffered no prejudice as a result. We therefor affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Joe and Elizabeth Baca got married in 1991. Joe Baca (Baca) had a long history of medical issues but was relatively healthy for the first ten years of their marriage. He graduated college in early 2003 and began working in his field but quit several months later to pursue his own business.

Shortly thereafter, in July 2003, the Bacas were rear-ended at high speed while driving on the freeway. They initially declined to go to the hospital but went to the emergency room later that evening. Baca complained of pain in his knee and ankle and received a shot of morphine. He followed up with his primary care physician at the Bolivar Family Medical Clinic (Bolivar) that same week with complaints of “pain all over.” The doctor prescribed pain medication and ordered an MRI of Baca’s back. The results were normal, and there was no indication Baca suffered any serious injuries in the accident. However, Baca began taking significant amounts of pain medication on a regular basis.

Dr. Martinez started working at Bolivar in 2006 and Baca began seeing her as his primary care physician. Baca complained of various pains and she attempted to address his concerns, but he often declined testing or referrals that she offered. He was diagnosed with fibromyalgia in 2007 but declined further treatment. However, in 2008, he told Dr. Martinez he had found his own endocrinologist and fibromyalgia specialist and had begun an alternative treatment for the fibromyalgia. Eventually, Baca started requesting refills of his pain medication via letter, without being seen and, in June 2011, Dr. Martinez told him he needed to see a pain specialist and she could no longer provide pain medication.

Thereafter, Baca stopped seeing Dr. Martinez and consulted several other physicians. One physician noted Baca was using an inappropriate combination of medications. Like Dr. Martinez, he recommended that Baca follow up with a rheumatologist and pain clinic but noted Baca “was not interested in my comments.” Next, Baca saw Dr. Bonner, an endocrinologist. Dr. Bonner attempted to run adrenal studies, but concluded they were inconclusive due to Baca’s extensive use of the steroid Prednisone. He told Baca he needed to stop taking the Prednisone so they could do the appropriate testing, but Baca declined.

In May 2012, Baca found Dr. Diaz on the internet and made an appointment. Dr. Diaz was board certified in internal medicine but also practiced endocrinology. Baca told Dr. Diaz he had fibromyalgia and an adrenal insufficiency. He was taking prednisone and several different painkillers and indicated he “was near normal” with a low dose of Prednisone several months prior but had recently gotten worse. Like Dr. Bonner, Dr. Diaz recommended Baca reduce his dependence on Prednisone.

However, Dr. Diaz also tested Baca for hypopituitarism, a condition in which the pituitary gland does not secrete sufficient hormones, by inducing hypoglycemia and measuring the stress response of certain hormones. Baca’s growth hormone reached a peak value of 4.3 during the test. Believing a peak value below 5.0 indicated hypopituitarism, Dr. Diaz diagnosed Baca with the condition and prescribed human growth hormone, thyroid hormones, testosterone and Prednisone. Baca’s condition improved somewhat but he still felt unwell.

Malpractice Claim and Trial

In 2013, the Bacas sued Dr. Martinez for medical malpractice. Dr. Diaz provided the foundation for the case and served as the only medical expert for the Bacas. In a report submitted before the trial, Dr. Diaz opined Dr. Martinez had failed to provide the standard level of care because she failed to refer Baca to a specialist capable of diagnosing his hypopituitarism. He also opined the delay in diagnosis compromised Baca’s ability to live a full, productive life.

Beyond Dr. Diaz, the Bacas identified several damages experts, including Rhonda Louden, who was designated specifically on the topic of the cost of maintaining life-long in-home care. In a pre-trial motion in limine, the defense moved to exclude Louden and argued, in part, that her opinion lacked foundation as she relied on Dr. Diaz’s conclusion Baca would need full time care, while Dr. Diaz stated during his deposition that he was not certain if Baca would in fact need such care. The Bacas opposed the motion and indicated Dr. Diaz had said Baca would need full time care in two to five years and Louden was informed of that statement. Their counsel did not provide a declaration to support the opposition and did not submit any changes to Dr. Diaz’s deposition. Defense counsel withdrew the motion and the issue was reserved for cross-exanimation.

During opening statements, defense counsel incorrectly suggested Dr. Diaz had changed his deposition testimony regarding Baca’s need for long-term care. He also made several other false or misleading statements, the majority of which involved inaccurately attributing statements or direct quotes to Dr. Diaz or Dr. Martinez’s written medical records for Baca. The Bacas’ attorney did not object.

Trial Testimony

Baca and Dr. Diaz testified. Baca described his medical history and the treatment he received from Dr. Martinez and Dr. Diaz opined that Dr. Martinez fell below the standard of care by failing to refer Baca to a specialist capable of diagnosing Baca’s condition. He also indicated the consequences of hypopituitarism could be irreversible if left untreated for a period of five years, the disease was progressive, and Baca could require full time home care at some point.

On cross-examination, Dr. Diaz made several critical admissions. He said he had not seen many patients with hypopituitarism, he was not board certified in endocrinology, and Baca was the first patient he had seen whose hypopituitarism was not fully corrected by medication. Regardless, he had not encouraged Baca to get a second opinion and had not spoken to Dr. Bonner regarding his opinion adrenal studies would be inconclusive due to Baca’s use of Prednisone. Moreover, he had not done any research to determine if any other condition could produce the same results on the pituitary function test. He disagreed with the conflicting opinion of the defense expert, Dr. Singer, but stated he had not reviewed Dr. Singer’s opinion thoroughly and had only “tried” to read his deposition one time. Finally, he agreed Baca’s osteopenia—a thinning of the bones which he alleged Dr. Martinez did not pay sufficient attention to—could have been the result of chronic Prednisone use.

Part way through the cross-examination, Baca’s counsel indicated he had obtained a transcript of the opening statements, he believed some of the statements defense counsel made therein were “inflammatory and incorrect”, and he intended to read some of defense counsel’s statements to certain witnesses. Defense counsel objected, and the court sustained the objection. The court reasoned that opening statements were not evidence, the court had instructed the jury in that regard, and that quoting from the statement in the manner proposed would give “an evidentiary flavor and credibility that I think is inappropriate and prejudicial.” The court went on to explain that counsel could certainly ask questions about the underlying facts to draw out any inconsistency and could then point out the alleged inaccuracies during closing arguments, but that counsel could not directly quote the opening to witnesses.

Dr. Diaz’s testimony continued, and he further admitted he had not reviewed certain medical records, including portions of the records from Bolivar, before rendering his opinion. Defense counsel asked Dr. Diaz if he knew “that [Baca’s counsel] provided a declaration and said you changed your testimony from your deposition [regarding whether Baca would] need future home health care?” Although no such declaration existed, Dr. Diaz stated he did know that. The Bacas’ attorney did not object.

Motion for Mistrial

At the conclusion of Dr. Diaz’s testimony, and just over one week after the opening statements, the Bacas submitted a motion for mistrial and a request for a special jury instruction, related primarily to the opening statements. The motion identified eight alleged misrepresentations made by defense counsel in his opening statement, including the suggestion that Dr. Diaz had changed his deposition testimony. Defense counsel agreed he had misspoken, but explained he was confused by statements made in the opposition to the motion to exclude Louden. The court found the statement was problematic, particularly in light of the question to Dr. Diaz.

In addition, the court found four of the remaining eight statements included in the motion to be misconduct, irrespective of whether or not they were intentional. Specifically, the court found defense counsel improperly suggested a paraphrasing of Dr. Diaz’s deposition testimony was a direct quote, improperly suggested a paraphrasing of recommendations Dr. Martinez claimed she made to Baca were reflected in her charts, incorrectly stated the chart showed Dr. Martinez had referred Baca to an endocrinologist, and likely misspoke regarding the dates on which Baca received referrals to pain clinics. Finally, the court also expressed concern about the form of defense counsel’s questions, “especially leading questions with assumed facts”.

However, the court concluded the misstatements could be remedied through instructions to the jury and denied the motion. The court repeated the instruction in CALCRIM 106 to the jury, indicating the jury should not consider counsel’s statements or questions as evidence and further instructed the jury as follows: “During the trial there was a reference of questions to Dr. Diaz about—concerning an assertion that [the Bacas’ counsel] had filed a declaration with the Court stating that Dr. Diaz changed his deposition testimony. That declaration does not exist. It was a mistake. You are to disregard any comment or testimony regarding any such declaration.”

Dr. Singer’s Testimony

The trial continued, and the defense presented testimony from their own expert witness, Dr. Singer.

Dr. Singer was board certified in internal medicine and endocrinology and had also completed two internships in endocrinology. He had been practicing endocrinology for most of his career and served as the chief of pituitary service at the USC Keck Hospital from 1991 to 2014. In that role he had seen over 1600 patients with pituitary issues. Dr. Singer testified he had reviewed all of the medical records, including the testing done by Dr. Diaz, and did not believe Baca was suffering from hypopituitarism. He explained the results of the test Dr. Diaz performed were skewed by Baca’s long-term steroid use, the growth hormone level of 4.3 was now considered to be within the realm of normal in any event, and Baca had measurable levels of IGF (growth hormone) in his liver that would not have been possible if he had an underactive pituitary gland. In addition, he did not believe Baca’s symptoms were consistent with hypopituitarism. Further, even if Baca did have hypopituitarism, Dr. Singer opined the delay in diagnosis would not have resulted in any permanent injury.

Dr. Martinez’s Testimony

Finally, Dr. Martinez testified and described her treatment of Baca. She said Baca complained of pain related to the automobile accident in October 2006, so she ordered a nerve conduction study, but the results came back normal. He then complained of chest pain, but a cardiac workup came back negative. Dr. Martinez gave Baca a prescription for Vicodin and ordered a stress test. The results were normal, and, in January 2007, Baca indicated the chest pains had resolved. He continued to complain of neck pain, as well as knee pain, though, and requested a steroid injection, which she administered.

In February 2007, Baca reported he was doing much better but still had knee pain. Dr. Martinez ordered labs and an MRI, but Baca did not complete them. In August 2007, Baca told Dr. Martinez he had a “Lupus-like” autoimmune disorder as a child. She again recommended that he complete a full set of labs and also referred him for a colonoscopy and a rheumatology consult with Dr. Zimiri.

Dr. Zimiri conducted a full physical examination. He noted tender spots but no abnormalities and diagnosed Baca with fibromyalgia. A bone density scan showed some osteopenia in one area, which Dr. Zimiri attributed to Baca’s long-standing use of Prednisone. Dr. Zimiri recommended additional testing but Baca declined. He told Dr. Martinez he did not want treatment for the fibromyalgia and that he had learned to live with his pain.

In early 2008, Baca saw Dr. Bolivar and he encouraged Baca to go to the Loma Linda pain clinic. Baca visited the clinic once but decided not to go back after they refused to provide pain medication on his first visit. He continued to return to Bolivar to get prescription refills but did not complete labs or x-rays Dr. Martinez ordered. Around the same time, told Dr. Martinez he had seen Dr. St. Amand and he had confirmed the fibromyalgia diagnosis and put him on an alternative treatment regimen. He said he wanted to continue with Dr. St. Amand, but that the medication sometimes increased his pain.

In April 2009, Baca began sending Dr. Martinez letters requesting medication refills but stating he was too busy to come in. He indicated he was continuing to take medication prescribed by Dr. St. Amand for fibromyalgia but needed additional pain management. In April 2010, he suggested the pharmacy had made a mistake because he had run out of Endocet, a narcotic painkiller; he said he was not taking any more than two in one day but requested more two months later and said he was taking up to three a day. He also stated he was taking four times the prescribed amount of Prednisone on a daily basis.

Dr. Martinez was concerned Baca was trying to get additional prescription refills without being seen. She tried once again to refer him to a pain management clinic, but he refused so she told him she could no longer provide treatment for pain. The next time she heard from him was when he filed the malpractice lawsuit.

Closings and Verdict

In closing arguments, Baca’s counsel placed significant emphasis on the alleged misstatements in defense counsel’s opening statement, even going so far as to assert the defense had lied to cover up Dr. Martinez’s errors. In response, defense counsel reiterated the court’s instruction that the statements from the attorneys were not evidence and told the jury they should “take the opening statements and draw a line underneath them and wad them up and throw them in the trash can because nothing you heard is evidence.”

The jury unanimously concluded that Dr. Martinez had not been negligent in her treatment of Baca.

Motion for New Trial

After the verdict was entered, the Bacas moved for a new trial based on the alleged misconduct. They identified a total of 30 alleged misstatements made by defense counsel in his opening statement, including those instances previously raised in the mistrial motion. Defense counsel agreed his opening had been “sloppy, aggressive, and argumentative” and the superior court found there “was clearly some misconduct.” However, the court also found there was substantial evidence in the record to support the verdict on at least two separate grounds, with or without the misconduct, and that any misconduct was mitigated by instructions to the jury. The court explained that the only evidence Baca even had hypopituitarism in the first instance was the testimony of Dr. Diaz and stated, “[h]e was underqualified to say the least, not clear, and contradictory in his opinions.” In addition, the court found there was no evidence defense counsel’s statements influenced the jury’s deliberations. According, the court concluded the Baca’s had not been prejudiced and denied the motion.

The Bacas appeal.

DISCUSSION

On appeal, the Bacas reiterate 28 of the 30 alleged misstatements and contend the superior court erred by failing to grant either their motion for a mistrial or their motion for a new trial, and by precluding their counsel from asking certain witnesses questions based on the misstatements. Dr. Martinez contends the Bacas forfeited the foregoing arguments by failing to object to the alleged misstatements in a timely manner.

I. General Legal Principles

Attorney misconduct is an irregularity in the proceedings that can constitute grounds for a new trial. (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 802 (Cassim).) However, “[a] party ordinarily cannot complain on appeal of attorney misconduct at trial unless the party timely objected to the misconduct and requested that the jury be admonished.” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1411-1412 (Rayii); see also Sabella v. Southern Pacific Company (1969) 70 Cal.2d 311, 320.) Timely objections are particularly important in this context as attorney misconduct is often curable. (Rayii, supra, at p. 1412.) When an objection is made, the trial court has an opportunity both to prevent further misconduct by admonishing counsel and to preclude any potential for prejudice by instructing the jury to disregard any problematic statements. (Ibid.) In the absence of an objection, the misconduct cannot be cured and may instead continue. (Ibid.)

Moreover, even where there is clear misconduct that is not forfeited, reversal is warranted only where the misconduct is prejudicial. (Bigler-Engler v. Berg, Inc. (2017) 7 Cal.App.5th 276, 296 (Bigler-Engler).) Attorney misconduct is prejudicial if it is reasonably probable, when considering the entire record and any instructions given to the jurors, that the moving party would have received a more favorable result absent the misconduct. (Ibid.; see also Cassim, supra, 33 Cal.4th at pp. 802-803 [applying the Watson (People v Watson (1956) 46 Cal.2d 818) standard of prejudice to attorney misconduct in civil cases].)

On appeal, we review the record as a whole and make an independent determination regarding the prejudicial nature of the misconduct. (Bigler-Engler, supra, 7 Cal.App.5th at p. 296; Martinez v. Dept. of Transportation (2015) 238 Cal.App.4th 559, 568.) In making that determination, we consider the following factors: ” ‘(1) the nature and seriousness of the misconduct; (2) the general atmosphere, including the judge’s control of the trial; (3) the likelihood of actual prejudice on the jury; and (4) the efficacy of objections or admonitions under all the circumstances.’ ” (Bigler-Engler, supra, at p. 296.)

II. Analysis

A. Forfeiture

We turn first to forfeiture. Here, the Bacas’ attorney did raise at least some of the alleged instances of misconduct during the trial, but not for several days.

Opening statements occurred on September 15, 2015, and the Bacas’ attorney did not object to any statements made by defense counsel at that time. Counsel first raised the issue on the morning of September 23, when he informed the court he had obtained a transcript of the opening statements, some of defense counsel’s statements were “inflammatory and incorrect”, and he intended to read portions of those statements to certain witnesses during cross-examination. Five days later, on September 28, counsel filed his motion for a mistrial. The superior court addressed the issue and provided a curative instruction to the jury on September 30, approximately five days before closing arguments.

As the superior court was able to mitigate the harm, during the trial and before deliberations, by reminding the jury that the statements and questions of counsel were not evidence and instructing them to disregard the problematic question to Dr. Diaz, we decline to decide the matter based on forfeiture. (See Rayii, supra, 218 Cal.App.4th at

p. 1412.) However, we remain cognizant of the fact that the failure to object during the opening statement itself hindered the superior court’s ability to mitigate the harm by admonishing defense counsel to prevent further misstatements during the opening or instructing the jury, contemporaneously. (See Ibid.) It is with this idea in mind that we turn next to the prejudicial nature of the misconduct.

B. Prejudice

The superior court concluded at least certain of the statements made during the opening statement were misconduct but, in the context of the record as a whole, the misconduct was not prejudicial and does not warrant a new trial. (See Cassim, supra, 33 Cal.4th at pp. 802-803.) We agree.

As an initial matter, the parties spend much of their briefing debating whether and to what extent the 28 statements identified in the motion for a new trial and the Bacas’ opening brief were misleading. We have considered the entirety of the opening statement, and all of the alleged inaccuracies included therein, but need not and do not address the specifics of each individual alleged misstatement. Suffice to say, while some of the statements may have been a fair interpretation of conflicting evidence, we agree with the superior court’s conclusion some simply were not supported by the evidence and defense counsel was, at a minimum, careless in his recitation of facts and attribution of quotes to specific witnesses or documents. Attorneys are afforded leeway to argue their interpretation of the evidence during closing arguments but may not make inaccurate or misleading statements and, here, as defense counsel himself has acknowledged, his opening crossed that line. (See Cassim, supra, 33 Cal.4th at p. 802 [” ‘It is . . . well settled that misconduct [by counsel] has often taken the form of improper argument to the jury, such as by urging facts not justified by the record’ “].)

However, as discussed, counsel’s failure to object to the alleged misstatements during the opening statement only served to exacerbate the problem. (See Rayii, supra, 218 Cal.App.4th at p. 1412.) The Bacas contend defense counsel made “dozens” of misstatements during his opening, but at least some of those could have been prevented by a timely objection. Indeed, while discussing the mistrial motion, defense counsel acknowledged his opening was more like a closing and explained he tended to slip towards argument, particularly when opposing counsel does not object. Although we do not condone the implication that counsel’s observation of the rules should be governed by whether or not opposing counsel objects, it remains the case that a timely objection could have minimized the prejudicial nature of the opening as a whole. (Ibid.) The Bacas suggest their counsel was not aware of the misstatements until he obtained the transcript, but they also assert the factual misstatements were too numerous to have been made in error. We presume both attorneys had a sufficient understanding of the record to identify at least some of the inaccurate statements in real time.

Regardless, we are confident the jury reached its verdict based on the evidence and the verdict would have been no different in the absence of the misconduct. The superior court instructed the jury before, during, and at the conclusion of the trial that neither the statements nor the questions of counsel were evidence. We presume the jury understood and followed this instruction, regardless of any arguments made by the prosecutor. (See People v. Martinez (2010) 47 Cal.4th 911, 957; see also Cope v. Davidson (1947) 30 Cal.2d 193, 202 [“the effect of misconduct can ordinarily be removed by an instruction to the jury”].)

Further, during closing arguments, the Bacas’ counsel pointed out several of the misstatements and defense counsel acknowledged them and told the jury to throw the opening statements into the trash and to decide the case based solely on the evidence. We presume the jurors relied on the record, as directed by counsel and the court, and were capable of resolving any conflicts between the record and counsel’s statements. (See People v. Martinez, supra, 47 Cal.4th at p. 957.)

The Bacas argue the jury sat with the opening statement for some time and, therefore, could not have simply ignored it. We disagree. The Bacas’ attorney had an opportunity to discuss the verdict with the jury after the conclusion of the trial and admitted there was no indication the jury decided the case based on defense counsel’s statements or otherwise failed to follow the superior court’s instructions. In any event, as discussed, it was the Bacas’ failure to object that precluded the superior court from contemporaneously instructing the jury, and any prejudice resulting from the delay in the curative instruction must be borne by the Bacas. (See Rayii, supra, 218 Cal.App.4th at p. 1412.)

They also assert the court should have let their attorney cross-examine witnesses using direct quotes from the opening statement and the court’s refusal to allow such questions increased the prejudicial nature of the misconduct. As an initial matter, the Bacas provided no authority to this court or the superior court suggesting such questions would be appropriate. Instead, as the superior court explained, questions of that nature would have served only to emphasize the attorney’s statements, in direct contradiction to the instruction that the statements were not evidence. “It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination.” (People v. Farnam (2002) 28 Cal.4th 107, 187.) Here, the superior court’s ruling was well within the court’s broad discretion to make evidentiary rulings and control the proceedings.

In any event, counsel was able to ask questions regarding the evidence itself and was able to point out any inconsistencies between the attorney’s statements and the actual evidence during his own closing argument. The Bacas argue it was confusing for the jury to hear the questions outside the context of the opening but to the extent one of the alleged misstatements had any significant impact on the jurors, the testimony or evidence directly contradicting it would have had a similar affect.

The Bacas compare this case to Martinez v. Dept. of Transportation, supra, 238 Cal.App.4th 559, where the appellate court concluded egregious and pervasive attorney misconduct was prejudicial and warranted a new trial. (Id. at p. 561.) Again, we disagree. There, the misconduct continued throughout the trial without any corrective action from the court. (Ibid.) By contrast here, the misconduct occurred primarily during opening statements, the court admonished defense counsel and defense counsel acknowledged his own error to the court and to the jury during his closing statement, and the court further address the issue via the instructions to the jury. Thus, unlike the court in Martinez, the court in this case maintained control of the proceedings and adequately mitigated the misconduct.

Moreover, here, as the superior court also concluded, the overwhelming evidence supports the jury’s verdict. In order to prove their malpractice claim, the Bacas had to prove that Joe Baca had hypopituitarism, but Dr. Diaz presented the only evidence to support that diagnosis and the jury had ample reason not to find his testimony credible. Dr. Diaz admitted he had not seen many patients with hypopituitarism, he was not board certified in endocrinology, and Baca was the first patient he had seen whose hypopituitarism that was not corrected by medication. Despite this, Dr. Diaz did not seek a second opinion and did not speak to Dr. Bonner regarding his opinion that any adrenal studies would be inconclusive due to Baca’s use of Prednisone.

By contrast, Dr. Singer, the defense expert, was a board-certified endocrinologist whose practice focused almost exclusively on pituitary issues. Dr. Singer did not believe Baca was suffering from hypopituitarism and explained his symptoms were not consistent with the disorder, the results of the test Dr. Diaz performed were skewed by Baca’s long-term steroid use and were within the realm of normal in any event, and that Baca had measurable levels of IGF in his liver that would not have been possible if he had an underactive pituitary gland. Further, even if Baca did have hypopituitarism, Dr. Singer opined the delay in diagnosis would not have resulted in any permanent injury. Overall, Dr. Singer was both more qualified and more credible than Dr. Diaz and it is likely that the jury accepted the opinions of Dr. Singer over those of Dr. Diaz.

Further, even if the jury believed Baca had hypopituitarism, they still had to conclude Dr. Martinez acted below the standard of care by failing to either refer him to the appropriate specialist or to diagnose the hypopituitarism herself. To the contrary, though, there was evidence Baca did not accept Dr. Martinez’s recommendations for further testing or referrals to specialists. In addition, Baca informed Dr. Martinez he had found his own specialist and wished to continue treatment with him. Thus, sufficient evidence also suggests any failure on Dr. Martinez’s part to address Baca’s condition was the direct result of Baca’s own refusal to follow her recommendations.

In sum, considering the record as a whole, we conclude the superior court’s instructions to the jury were curative, particularly in light of the closing arguments, and the verdict was supported by overwhelming evidence. We therefore conclude it is not reasonably probable that the Bacas would have obtained a more favorable verdict in the absence of the alleged misconduct and, thus, any misconduct was not prejudicial.

C. Attorney’s Fees

As a final matter, the Bacas contend the attorney’s fee award must be overturned in the event that this court grants a new trial. As we instead affirm the judgment, we need not address this assertion.

DIPSOSITION

The judgment is affirmed. Parties are to bear their own costs on appeal.

O’ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.