Filed 9/24/19 Walker v. Ghazal 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

NATASHA WALKER,

Plaintiff and Appellant,

v.

RONNY GHAZAL et al.,

Defendants and Respondents.

D075548

(Super. Ct. No. CIVDS1417853)

APPEAL from a judgment and postjudgment order of the Superior Court of San Bernardino County, Thomas S. Garza, Judge. Affirmed.

Hunt & Adams and John C. Adams III for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza and Matthew S. Levinson; Davis, Grass, Goldstein & Findlay and Jeffrey W. Grass for Defendants and Respondents.

Natasha Walker appeals a judgment and related postjudgment order in favor of Ronny Ghazal and San Bernardino Medical Orthopaedic Group, Inc. (collectively, Ghazal) following a jury trial on Walker’s cause of action for medical battery. In a special verdict, the jury found that Ghazal had performed a medical procedure without Walker’s consent, but that the procedure did not cause Walker any harm.

On appeal, Walker contends the jury’s findings are inconsistent and irreconcilable. She claims the trial court’s judgment should be reversed and the matter remanded for a new trial limited to damages. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

“As required by the rules of appellate procedure, we state the facts in the light most favorable to the judgment.” (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 532, fn. 1.) Additional facts will be discussed where relevant in the following section.

In September 2013, Walker injured her right knee while dancing. The next morning, her knee was very painful and swollen. It was difficult for her to stand or walk. Walker was a cashier assistant at Costco. Because her job required her to stand, kneel, and lift heavy objects, her injury left her unable to work. Walker went twice to a hospital emergency room, but her condition did not improve.

Three or four weeks after her injury, Walker was still unable to work. Because she was not using her quadriceps muscle, it was beginning to atrophy. Walker consulted Ghazal, who is a board-certified orthopedic surgeon with more than 20 years of experience. Ghazal’s initial examination revealed that Walker had a tilted or misaligned patella. He recommended an MRI to determine whether there were any other issues with her knee.

Based on the MRI, it appeared Walker had a small tear of the anterior horn of the lateral meniscus. She had also sprained a ligament in her knee. Ghazal suggested physical therapy, but Walker did not want to do physical therapy. She wanted surgery, which she believed would quickly fix her knee issues. Walker and Ghazal discussed two potential surgical options: (1) meniscus surgery to repair the tear and (2) a lateral release procedure to correct her misaligned patella. Walker understood that the lateral release procedure would require more recovery time, so she told Ghazal she did not want that surgery. They planned for meniscus surgery only.

Walker signed two consent forms that specifically identified only the meniscus surgery, although one form had language authorizing Ghazal to perform any additional procedure he deemed necessary in the event of unexpected or unforeseen conditions during surgery. Despite this language, Walker believed she had not consented to a lateral release procedure.

Ghazal performed arthroscopic surgery on Walker’s knee in December 2013. During surgery, Ghazal discovered that Walker’s meniscus was not torn. The only thing wrong with Walker’s knee was her misaligned patella. This misalignment was likely causing Walker’s symptoms because it was rubbing her femur and wearing away the cartilage. Ghazal could not realign the patella manually, and he concluded that physical therapy was unlikely to be helpful based on the severity of Walker’s condition. The only thing that would help Walker was the lateral release procedure. Ghazal therefore performed that procedure. After the surgery, he told Walker that her meniscus was not torn and that he had done the lateral release procedure.

Walker wore a knee brace for several weeks and went to 12 or 15 physical therapy sessions. Her knee remained in pain, however, and she said it spread to her upper thigh. She felt her leg muscles become weaker. In Ghazal’s assessment, however, Walker did not try hard enough to strengthen her quadriceps muscle after the surgery.

Soon after the surgery, Walker went to another physician because she was confused about why she did not have a torn meniscus. That physician told Walker that Ghazal had performed the correct surgical procedure based on her condition and he did not recommend any course of treatment other than what Ghazal had prescribed.

Walker continued to see Ghazal regularly over the course of the next year. He provided her with doctor’s notes informing Costco that she could not return to work. Ghazal testified that he let his patients determine when they felt able to return to work; he does not force them to go back.

Eventually, just prior to a year after her injury, Walker returned to work because otherwise Costco would have the option of terminating her employment. But she felt she could not comfortably do the job and stopped working approximately a year later. At trial, she explained, “I can’t stand long, it’s hard for me to sit long, my sciatic nerve kills me continually. The front of both sides of my knee, when I’m walking, sometimes mid-stride, my knee will give out.” On cross-examination, however, Walker admitted that she stopped working because of depression, which she documented in a doctor’s note from a psychiatrist. She said her depression was caused by “what was going on,” i.e., her difficulty working.

Approximately a year before trial, Walker was involved in a car accident and injured her neck. She consulted a different orthopedic surgeon, David Petersen. He diagnosed her with two ruptured disks in her spine and a significant foraminal stenosis. He also examined her right knee. He found some subpatellar roughness, irritation, and muscle atrophy. He suggested physical therapy to help Walker strengthen her quadriceps muscle. Petersen wrote a note to excuse Walker from jury duty based on her ruptured disks. At trial, however, Petersen asserted that he “wrote the note because of her knee, but [he] felt that it would work better if [he] put ruptured disk.” Walker went to another doctor, who also recommended physical therapy, but no additional treatment. Walker did not do additional physical therapy because she felt it was not helpful.

By the time of trial, Walker believed her condition had not improved. She reported additional pain in her lower back, her hip, her sciatic nerve, her Achilles tendon, and her feet. But she could do most everyday activities, including showering, driving, shopping, and housework.

At trial, Walker presented testimony from a vocational rehabilitation counselor. The counselor assumed for purposes of her testimony that Walker could not return to her job at Costco. She concluded that Walker would only be able to do sedentary work in the future and that she would need technical classes to obtain the skills necessary for such work.

Walker also presented testimony from an economist, who calculated her past and future economic losses. The economist calculated past economic damages based on the loss of Walker’s income and benefits as a Costco employee, offset by the income she actually earned. These damages totaled approximately $109,000. She calculated future economic damages based on the same loss of Costco income and benefits, offset by the income and benefits Walker would be able to earn doing sedentary work. The present value of these damages ranged from $395,000 to $438,000, depending on various assumptions.

For his defense case, Ghazal retained an orthopedic surgeon, Thomas Grogan, to testify as a medical expert witness. Grogan reviewed Walker’s medical records and examined her in his orthopedic clinic. Based on his review, he agreed with Ghazal that Walker’s misaligned patella was causing the bulk of her knee symptoms at the time of her surgery. Ghazal’s lateral release procedure corrected this misalignment. Based on x-ray images taken after surgery, Grogan opined that Walker had a good result from the lateral release procedure. Without the procedure, Walker would have continued to have discomfort and pain in her knee.

Grogan believed that Walker should have been able to return to work at Costco within four to six weeks after the surgery. It normally takes patients three to six months to feel back to normal, but Grogan has never had a patient take more than six months to recover, unless something else was wrong.

Grogan’s physical examination did not reveal any abnormalities in Walker’s knee. The ligaments in her knee were stable, her gait was normal, and she had a normal range of motion. She had no swelling in her knee, and her cartilage appeared smooth and functional. She had normal strength in her quadriceps and no significant atrophy. An MRI taken six months before trial was normal. Based on his examination, Grogan did not see any reason why she could not return to her job at Costco immediately. He could not discern any medical reason why she was not working. He did not attribute any injury to the lateral release procedure.

While Walker did complain of right knee pain and discomfort, Grogan believed it may have been caused by abnormalities in her right hip. Her hip showed signs of a cartilage tear. Because the lining of the hip joint is connected to the same nerve root as the knee joint, patients can feel pain in their knee that is actually caused by an issue with the hip.

Ghazal also presented testimony from an economist, who disputed Walker’s damages calculations, and a private investigator, who conducted surveillance of Walker and recorded videos of her activities. These videos showed Walker unloading bags of groceries, carrying them into her home, and walking quickly in bare feet.

In its jury instructions, the trial court set out the elements comprising Walker’s cause of action for medical battery: (1) that Ghazal performed a medical procedure without Walker’s consent, or that Walker consented to one medical procedure but Ghazal performed a substantially different medical procedure; (2) that Walker was harmed; and (3) that Ghazal’s conduct was a substantial factor in causing Walker’s harm. (See CACI No. 530A.) The court told the jury, “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor if the same harm would have occurred without that conduct.” (See CACI No. 430.)

The parties agreed to present a special verdict form to the jury, which covered the elements of medical battery in two questions. The first question asked, “Did [Ghazal] obtain the consent of [Walker] to perform the lateral retinacular release procedure to her right knee on December 2, 2013?” The second question asked, “If your answer to Question No. 1 was ‘no,’ was [Ghazal’s] failure to obtain consent to perform the lateral retinacular release procedure to [Walker’s] right knee a substantial factor in causing injury to [her]?”

After closing arguments and deliberations, the jury returned its verdict. It answered “No” to the first question (on consent) by a vote of 12 to 0. It answered “No” to the second question (on causation and harm) by a vote of 11 to 1.

Walker filed motions for a partial new trial and for partial judgment notwithstanding the verdict. Both motions argued that the jury’s finding of no consent was inconsistent with its finding of no causation or harm. Walker claimed that the jury’s finding of no consent, as well as the evidence presented at trial, compelled a finding that Walker had been harmed. Walker requested judgment notwithstanding the verdict on the issue of harm and a new trial limited to damages. The trial court denied both motions, and Walker appeals.

DISCUSSION

Walker contends the jury’s finding of no consent is irreconcilably inconsistent with its finding of no causation or harm. She primarily argues that the jury’s finding of no consent requires a finding of harm as a matter of law. We disagree that the jury’s findings are irreconcilably inconsistent. The jury could reasonably have found that Walker did not consent to the lateral release procedure, but that she had not proved that the procedure caused her any appreciable harm.

“A special verdict is inconsistent if there is no possibility of reconciling its findings with each other. [Citation.] If a verdict appears inconsistent, a party adversely affected should request clarification, and the court should send the jury out again to resolve the inconsistency. [Citation.] If no party requests clarification or an inconsistency remains after the jury returns, the trial court must interpret the verdict in light of the jury instructions and the evidence and attempt to resolve any inconsistency.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357-358 (Singh).)

“On appeal, we review a special verdict de novo to determine whether its findings are inconsistent.” (Singh, supra, 186 Cal.App.4th at p. 358.) ” ‘ “A verdict should be interpreted so as to uphold it and give it the effect intended by the jury . . . .” ‘ [Citation.] 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.” (Wysinger v. Automobile Club of Southern Cal. (2007) 157 Cal.App.4th 413, 424 (Wysinger).)

“With a special verdict, unlike a general verdict or a general verdict with special findings, a reviewing court will not infer findings to support the verdict. [Citations.] ‘ ” ‘Where the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error.’ ” [Citations.]’ [Citation.] ‘The appellate court is not permitted to choose between inconsistent answers. [Citations.]’ [Citation.] The proper remedy for an inconsistent special verdict is a new trial.” (Singh, supra, 186 Cal.App.4th at p. 358.)

As noted, Walker contends the jury’s findings were inconsistent as a matter of law. She bases her contention on the law of medical battery. “A battery is an intentional and offensive touching of a person who has not consented to the touching. [Citations.] Although typically a battery is a violation of a person’s wishes to avoid bodily contact that is hostile, aggressive or harmful, the tort is committed if there is unwanted intentional touching of any kind.” (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266 (Conte).) “A typical medical battery case is where a patient has consented to a particular treatment, but the doctor performs a treatment that goes beyond the consent. ‘When an action is based upon the theory of surgery beyond consent, the gist of such action is the unwarranted exceeding of the consent. This is a theory of medical battery.’ ” (Id. at p. 1267; accord, Cobbs v. Grant (1972) 8 Cal.3d 229, 239 (Cobbs).) This theory of medical battery is distinguishable from medical negligence because it does not require proof that the physician deviated from the standard of care. “[A] physician who performs a medical procedure without the patient’s consent commits a battery irrespective of the skill or care used.” (Conte, at pp. 1266-1267.)

A patient must prove more than lack of consent, however. She must prove she was harmed as a result of the unwanted procedure. (So v. Shin (2013) 212 Cal.App.4th 652, 669 (So); Barouh v. Haberman (1994) 26 Cal.App.4th 40, 46, fn. 4 (Barouh); Ashcraft v. King (1991) 228 Cal.App.3d 604, 611; see Aas v. Superior Court (2000) 24 Cal.4th 627, 646 [“[A]ppreciable, nonspeculative, present injury is an essential element of a tort cause of action.”].) The court’s jury instructions here told the jury that Walker must separately prove she “was harmed” and Ghazal’s conduct “was a substantial factor in causing [her] harm.” (See CACI No. 530A.) The verdict form likewise separated the elements of Walker’s cause of action into two questions: “Did [Ghazal] obtain the consent of [Walker] to perform the lateral retinacular release procedure to her right knee on December 2, 2013?” and “If your answer to Question No. 1 was ‘no,’ was [Ghazal’s] failure to obtain consent to perform the lateral retinacular release procedure to [Walker’s] right knee a substantial factor in causing injury to [her]?” The jury answered “No” to both questions.

Because lack of consent, on one hand, and causation and harm, on the other, are separate elements that Walker must prove, the jury’s disparate findings on these issues were not necessarily inconsistent. As one court explained, in the context of a conventional negligence action, “In a broad sense, the jury’s findings are easy to reconcile: the jury found [defendant] breached his duty of care in some way . . . that was not a substantial factor in causing harm to [plaintiff]. This [was] not a case in which the jury made inconsistent findings when answering two essentially identical factual questions pertaining to different theories of liability.” (Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1320.)

Walker maintains that medical battery is different. She asserts, “[E]very surgical (bodily) ‘touching’ entailed in the physician actually performing the entire unconsented to procedure (as well as all of its related resulting post-surgical contacts and residuals) constituted ‘harm’ upon Ms. Walker’s person as a matter of law.” (Bold and underlining omitted.) Walker would collapse the separate elements of battery (unwanted touching, harm, causation) into a single element (unwanted touching) where medical battery is at issue. Walker cites no authority for this legal proposition, and we are aware of none. The authorities Walker does cite either confirm the traditional elements of battery apply in the medical context (So, supra, 212 Cal.App.4th at p. 669; Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495; Barouh, supra, 26 Cal.App.4th at p. 46, fn. 4) or do not address the elements of harm and causation at all (Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 105-106; Conte, supra, 107 Cal.App.4th at pp. 1266-1268; Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938). While courts commonly describe an unwanted medical procedure as battery to distinguish it from mere negligence (see, e.g., Cobbs, supra, 8 Cal.3d at p. 239), these courts do not state or imply that the fact of the unwanted procedure is all that must be proved.

While in many cases, even most, a patient subjected to an unwanted surgery will easily be able to prove causation and harm to some extent, they remain factual questions for the jury to decide on the specific evidence presented. (See, e.g., Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 780 [“Cause in fact, as well as proximate cause, is ordinarily a fact question for the jury.”].) The jury here found that Walker had not proved either causation or harm. Our role in this appeal is simply to determine whether there is any possibility of reconciling that finding with the jury’s finding of no consent. (See Singh, supra, 186 Cal.App.4th at p. 357; see also Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 540-541.) “[I]f any conclusions could be drawn which would explain the apparent conflict, the jury will be deemed to have drawn them.” (Wysinger, supra, 157 Cal.App.4th at p. 424.)

Based on our review of the record, the jury could reasonably have found that Walker had not proved the lateral release procedure caused her any harm. It could have concluded that the harm claimed by Walker (various medical ailments and consequent inability to work) was not caused by the lateral release procedure. The jury could have believed the testimony of Grogan, the defense medical expert, that the lateral release procedure was a success, Walker’s knee was normal, nothing prevented her from working, and any pain in her leg was caused not by her knee but by her hip. Indeed, Walker admitted that she had pain and could not work before the surgery, which discredited her assertion that the lateral release procedure caused those conditions. She also admitted having pain and discomfort apart from her knee, including her sciatic nerve, that impacted her ability to work.

While there was evidence that the lateral release procedure generally required more recovery time than meniscus surgery, the jury was not required to believe that Walker’s recovery time was any longer as a result of the lateral release procedure, especially given Grogan’s testimony described ante. Walker did not present any medical expert testimony linking the procedure itself to her lack of recovery, and the jury had ample reason to disbelieve Walker’s own testimony in total. She worked at Costco for a substantial period after the procedure, and she later told Costco she could not work because of depression, rather than knee issues. She admitted she could and did engage in normal, everyday activities. Petersen, her more recent treating physician, mentioned certain knee issues, but the jury had reason to disbelieve his testimony as well. He admitted misrepresenting the true reason for excusing Walker from jury service, so the jury could reasonably find his testimony unpersuasive on other topics.

At the very least, the record reveals conflicting evidence and inferences regarding the existence of the harm claimed by Walker and whether it was caused by the lateral release procedure, as well as significant credibility questions. Under these circumstances, “[i]t was within the jury’s prerogative to disbelieve plaintiff and [her] witnesses, to believe defendant, and to conclude plaintiff had failed to sustain [her] burden of proof by a preponderance of the evidence.” (Barouh, supra, 26 Cal.App.4th at p. 44.)

Walker argues that the jury’s finding that she did not suffer harm could only be justified where there was “conclusive medical evidence establishing that there was absolutely no significant difference in impact upon Ms. Walker between performing just a ‘meniscus surgery’ versus a ‘lateral release procedure’ . . . .” This argument improperly shifts the burden to the defendants on an essential element of her cause of action. It is unpersuasive.

Walker also appears to argue that the issue of “harm” should be seen as distinct from the issue of “injury,” the former being inherent in the unwanted medical procedure and the latter being a question of damages only. We have already explained that it was Walker’s burden to show harm caused by the unwanted medical procedure as an element of her cause of action for medical battery. But, even assuming Walker’s distinction has any validity, her argument is unpersuasive here because the special verdict form uses the word “injury” only. Thus, even assuming there would be an inconsistency between a finding of no consent and a finding of no harm, the jury here did not find no “harm”—it found no “injury.” Walker does not argue there is any inconsistency between a finding of no consent and a finding of no “injury,” as she defines it. And, to the extent there is any ambiguity in this language of the special verdict form, Walker waived any claim of error on appeal by failing to object. (See Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1093, fn. 6.)

Finally, we note that Walker’s requested relief in this appeal (a new trial limited to damages) would not be available even if we agreed that the jury’s findings were irreconcilably inconsistent. ” ‘Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law.’ [Citations.] ‘The appellate court is not permitted to choose between inconsistent answers.’ ” (Zagami, supra, 160 Cal.App.4th at p. 1092.) If there were an irreconcilable inconsistency, neither finding could stand. The entire action would need to be retried. (See Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345-1346.)

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.