SUZUKAWA, J.
Plaintiff and appellant Nathan Rivas (Nathan or plaintiff), now three years old, was born extremely prematurely. When he was five months old, he underwent surgery at defendant Children's Hospital Los Angeles (CHLA) to repair bilateral inguinal hernias. The surgery was performed by defendant Dean Anselmo, M.D. (Dr. Anselmo), a pediatric surgeon and a principal of defendant Children's Hospital Los Angeles Medical Group (Medical Group). Following the surgery, Nathan manifested significant neurological impairments.
At trial, Nathan contended that his father, Eduardo Rivas (Mr. Rivas or father), did not consent to the surgery. The jury rejected Nathan's claim and entered judgment for defendants.
After judgment was entered, Nathan's counsel received a copy of a "Statement of Deficiencies and Plan of Correction" (Plan of Correction) from the Department of Public Health (DPH), informing him that DPH's investigation of counsel's complaint about the quality of Nathan's care was complete. Nathan then filed a motion for new trial, urging that the Plan of Correction was newly discovered evidence that was material to his claims. The trial court disagreed and denied the motion.
On appeal, Nathan contends that the trial court erred in denying his motion for new trial because the Plan of Correction contained evidence that was material and admissible to support his claim that his father did not give informed consent to the hernia surgery. We disagree and affirm.
Nathan was born prematurely on June 9, 2007, at 24 or 25 weeks gestation. He remained hospitalized in the Neonatal Intensive Care Unit (NICU) at Glendale Memorial Hospital (Glendale Memorial) until November 15, 2007. While at Glendale Memorial, Nathan required ventilator support for significant periods of time because his lungs had not fully matured. He also suffered low blood pressure, respiratory distress syndrome, pulmonary interstitial emphysema, retinopathy, an intraventricular hemorrhage, and large bilateral inguinal hernias (descent of portions of the intestine into the scrotum). Because of his extreme prematurity, he was also at significant risk of developmental delay.
On November 15, 2007, Nathan was transferred from Glendale Memorial to CHLA to have his bilateral inguinal hernias surgically repaired. The surgery was performed by Dr. Anselmo on November 16, 2007. Dr. Samuel Yanofsky administered the anesthesia for the surgery, and Dr. Stefano Giuliani, a surgical resident, assisted with the surgery.
Following the surgery, Nathan manifested significant neurological impairments. At two and a half years old, he could not swallow, walk, or talk, and he exhibited intellectual development typical of a four- to 10-month-old child. He was respirator-dependent and was fed through a feeding tube inserted into a surgical opening into his stomach. He exhibited microcephaly (small head size) and hypotonia (low muscle tone). He may also have cerebral palsy.
Nathan, through his father as guardian ad litem, filed the present action on March 10, 2009. He filed the operative first amended complaint on June 12, 2009. The first amended complaint asserted a single cause of action for professional negligence against CHLA, the Medical Group, Dr. Anselmo, Dr. Giuliani, and Dr. Yanofsky. It alleged that defendants failed to obtain informed written consent to perform the inguinal hernia surgery and negligently performed the surgery, causing Nathan to suffer complete neurological impairment.
On January 27, 2010, Nathan voluntarily dismissed Dr. Giuliani; on February 5, 2010, the court summarily disposed of the claims against Dr. Yanofsky pursuant to stipulation. On March 24, 2010, the case went to trial against Dr. Anselmo, CHLA, and the Medical Group on plaintiff's claims that Dr. Anselmo negligently failed to obtain consent to surgery.
At trial, plaintiff contended that his significant neurological deficits resulted from the November 16, 2007 inguinal hernia surgery, to which his father did not consent. Mr. Rivas testified he was at home with his older son the night before the surgery. While at home, he received a phone call from Dr. Giuliani and social worker Marisha Madrigal. The call lasted approximately 10 minutes. Ms. Madrigal told him CHLA would not do the exams Mr. Rivas had requested because they were not necessary. Mr. Rivas then spoke to Dr. Giuliani, who told him the hernia surgery was minor and the only possible complication of the surgery was an infection that would be easy to control with antibiotics. Mr. Rivas told the social worker "that if she could prove to me that everything would come out okay, if she could guarantee everything was going to come out okay, that I would be there the next morning and that I still would like to see the results in writing."
Mr. Rivas testified that he arrived at the hospital at approximately 7:00 a.m. the next morning to visit Nathan and to speak to a doctor. He spent about 20 minutes with Nathan, but the doctor was not present and a nurse said that she had not been able to locate him. The nurse told Mr. Rivas to wait in the cafeteria and she would call him on his cell phone when the doctor was available. Mr. Rivas subsequently received three phone calls from the nurse, who said she was doing everything possible but had not been able to locate the doctor. Mr. Rivas said he did not speak to Dr. Anselmo prior to the surgery.
Following the surgery, Nathan "was completely transformed." When Mr. Rivas spoke to the social worker later that day, she said Nathan had gotten sick and "possibly the best thing that could happen was to just disconnect him from the machines."
Mr. Rivas said that although he knew his son was being transferred to CHLA on November 15, he believed the transfer was for testing and evaluation, not for surgery. He testified that he never signed a consent to surgery.
The hospital's witnesses testified that Mr. Rivas gave informed consent to the surgery and that Nathan's neurological and breathing deficits resulted not from the surgery, but rather from his extreme prematurity and underlying chronic lung disease.
Dr. Robert Gall, Nathan's treating physician at Glendale Memorial Hospital, testified that he and Mr. Rivas had many discussions, beginning at least as early as September 25, 2007, about transferring Nathan to CHLA to surgically repair his inguinal hernias. During those discussions, Mr. Rivas indicated that he wanted to have Nathan transferred to CHLA "sooner rather than later." When Nathan was transferred on November 15, 2007, Mr. Rivas was "well informed that the reason for the transfer was to have the hernia surgery."
Dr. Giuliani, the surgical resident, testified that Mr. Rivas was present at the hospital the evening of November 15, 2007, and that they spoke face-to-face for more than 30 minutes. During that conversation, Dr. Giuliani went through the surgical consent form with Mr. Rivas and explained the surgery and possible complications, including death, injury to the brain or nervous system, infection, bleeding, and lesion to the testicle. At the conclusion of the discussion, Dr. Giuliani signed the portion of the consent form that stated: "I have explained the patient's condition, need for treatment, procedure and the risks[, relevant] treatment options and their risks, likely consequences if those risks occur, the significant risks and problems specific to this patient. I have given the patient/guardian an opportunity to ask any questions and raise any concerns which I have answered as fully as possible. I am of the opinion that the patient/parent/guardian understood the above information."
Dr. Giuliani testified that Mr. Rivas did not sign the consent to surgery on the evening of November 15, telling the doctor that he wanted to take the consent form home to discuss it with members of his family. Dr. Giuliani made a copy of the consent form for Mr. Rivas and suggested that he return to the hospital before 7:30 the next morning to discuss the surgery with the attending surgeon, Dr. Anselmo. The following morning, Dr. Giuliani told Dr. Anselmo that Mr. Rivas had not yet consented to surgery, and Dr. Anselmo said that he would "take care of it." Later that day, Dr. Giuliani assisted with Nathan's surgery; at the conclusion of surgery, Nathan was stable and breathing on a ventilator.
Nurse Martha Samuel testified that she was Nathan's nurse the night before the surgery and was present at Nathan's bedside during a lengthy conversation between Dr. Giuliani and Mr. Rivas. At the end of that conversation, Mr. Rivas said he wanted to speak to the surgeon and anesthesiologist before signing the surgical consent form. Dr. Giuliani suggested that Mr. Rivas return to the hospital in the morning when the surgeon and anesthesiologist would be available to talk to him. Nurse Samuel remained on duty until 7:30 the next morning; before she left, she told Nurse Julye Henley that Mr. Rivas had not yet signed the surgical consent form.
Dr. Anselmo testified that he arrived at the hospital at about 5:45 a.m. on November 16, 2007. Dr. Giuliani told him that he had had an extensive discussion with Mr. Rivas the night before and that Mr. Rivas essentially was agreeable to the surgery, but wanted to speak to the attending surgeon before signing the consent form. Sometime between 8:30 and 9:00 a.m., Dr. Anselmo went to the NICU to speak to Mr. Rivas, but he was not there. Dr. Anselmo asked Nurse Julye Henley to place a call to Mr. Rivas. When Mr. Rivas answered, Dr. Anselmo identified himself as the attending pediatric surgeon who was scheduled to operate on Nathan and said that Nurse Henley was also on the line. He offered to meet Mr. Rivas in person, but Mr. Rivas said that was not possible because he was not at the hospital. Dr. Anselmo asked whether Mr. Rivas had any questions about the hernia surgery. Mr. Rivas asked whether he could take Nathan home and delay the surgery. Dr. Anselmo advised against delaying the surgery because of the risk that the bowel could become stuck in the hernia sack and require emergency surgery. Dr. Anselmo also discussed the risk of bleeding and of infection, and he told Mr. Rivas there was risk from the anesthetic that the anesthesiologist would discuss with him. After this discussion, Mr. Rivas said he consented to the surgery. Nurse Henley confirmed with Mr. Rivas that he had consented to the surgery and then she signed the surgical consent form. Dr. Anselmo called the operating room to let the charge nurse know that the surgery could proceed. There were no surgical complications as a result of the surgery.
Nurse Julye Henley testified that Mr. Rivas was not in the NICU on the morning of the surgery. At Dr. Anselmo's request, she placed a call to Mr. Rivas, introduced herself, handed the phone to Dr. Anselmo, and then got on another telephone extension. After Dr. Anselmo obtained Mr. Rivas's consent to the surgery, Nurse Henley confirmed the consent. She then signed the surgical consent form.
Dr. Yanofsky testified that an anesthesia resident reviewed the anesthesia consent form with Mr. Rivas the night before the surgery. Immediately before the surgery, Dr. Yanofsky had a face-to-face discussion with Mr. Rivas in the NICU during which he asked whether Mr. Rivas had any further questions or concerns regarding the anesthesia. Mr. Rivas said he did not, and Dr. Yanofsky and a nurse took Nathan from the NICU to the operating room. There were no complications with the surgery from an anesthesia or surgical point of view.
Marisha Madrigal, a social worker at CHLA, testified that Mr. Rivas contacted her many times prior to November 15, 2007, to attempt to have Nathan transferred to CHLA for hernia surgery. She met Mr. Rivas for the first time on the afternoon of November 16, shortly after the surgery had taken place. At that meeting, Mr. Rivas expressed relief that the surgery had been performed. Ms. Madrigal never participated in any informed consent discussions with Mr. Rivas, either on November 15 or at any other time. She never suggested to Mr. Rivas that Nathan be removed from life support.
Dr. Perry Lubens, a pediatric neurologist, testified as a defense expert. It was his opinion that Nathan's neurological condition resulted from his premature birth and possibly an underlying neuromuscular disease. In his opinion, the hernia surgery did not contribute in any way to Nathan's neurological impairments. He testified that his opinion was supported by cranial ultrasounds performed the day of surgery and two days after surgery, which did not show any evidence of infarction (tissue death) or hemorrhaging. His opinion also was supported by an EEG of Nathan's brain, taken a few weeks after the surgery, which was normal. Dr. Lubens said that taken together, those tests suggested it was very unlikely there had been an acute injury to Nathan's brain shortly before the tests were done.
With regard to informed consent, the court instructed the jury as follows: "Plaintiff, Nathan Rivas, claims that he was harmed by Defendant's negligence. To establish this claim, Plaintiff must prove all of the following: One, that Defendant was negligent; two, that the Plaintiff was harmed; . . . and, three, that Defendant's negligence was a substantial factor in causing Plaintiff's harm."
"In this case, Nathan Rivas could not consent to the surgery because he is a minor. In this situation, the law allows Eduardo Rivas to give consent on behalf of Nathan Rivas. You must decide whether Eduardo Rivas consented to the surgery performed on Nathan Rivas. A patient's consent to a medical procedure must be informed. A patient gives an informed consent only after the surgeons have fully explained the proposed procedures. The surgeons must explain the likelihood of success and the risks of agreeing to a surgery in language that the patient can understand. The surgeons must give the patient as much information as he needs to make an informed decision including any risk that a reasonable person would consider important in deciding to have the proposed surgery and any other information, skilled practitioners would disclose to the patient under the same or similar circumstances. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the surgery is performed. The surgeons are not required to explain minor risks that are not likely to occur. Plaintiff, Nathan Rivas, claims that Defendant, Dr. Anselmo, was negligent because he performed surgery on the Plaintiff without first obtaining Eduardo Rivas's informed consent. To succeed on this claim, the Plaintiff must prove all of the following: One, that Dr. Anselmo performed surgery on the Plaintiff. Two, that Eduardo Rivas did not give his informed consent for the procedures. Three, that a reasonable person in Eduardo Rivas's position would not have agreed to the surgery if he had been fully informed of the results and risks of the surgery; and, four, that the Plaintiff was harmed by a result or risk that Dr. Anselmo should have explained before the procedures were performed."
On April 13, 2010, the jury returned a special verdict as follows:
Judgment was entered on May 5, 2010, and notice of entry of judgment was served on May 21, 2010.
Plaintiff timely filed a motion for new trial on May 17, 2010. He asserted that shortly after this action was filed, his counsel served an interrogatory that asked whether CHLA had filed a report of adverse event with the DPH in connection with Nathan's hernia surgery, as allegedly required by Health and Safety Code section 1279.1.
Defendants opposed the new trial motion. They contended that the Plan of Correction was neither "`material to [plaintiff's] case'" nor "`likely to produce a different result'" because "[t]he Plan of Correction sets forth the exact same information that the CHLA staff testified to at trial." Further, defendants urged that the Plan of Correction was inadmissible pursuant to Health and Safety Code section 1280, subdivision (f), and that newly discovered evidence used for impeachment only is not a basis for a new trial.
The trial court denied the motion for new trial on June 24, 2010. This timely appeal followed.
Code of Civil Procedure section 657 provides: "The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] . . . [¶] (4) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial."
"`In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: "`1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.'" [Citations.]' (People v. Delgado (1993) 5 Cal.4th 312, 328.) `In addition, "the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable." [Citation.]' (Id. at p. 329.)" (People v. Howard (2010) 51 Cal.4th 15, 43.)
When we review an order denying a new trial, we review the entire record and make an independent determination as to whether the claimed error was prejudicial. (Ajaxo Inc. v. E*Trade Financial Corp. (2010) 187 Cal.App.4th 1295, 1307; City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872.)
Plaintiff contends the trial court should have granted a new trial on the basis of newly discovered evidence contained in the Plan of Correction. Specifically, he urges that the following language in the Plan of Correction is highly relevant to his failure-of-consent claim:
Plaintiff contends the quoted language is highly material to the issue of consent. He urges defendants "`explained away' the absence of Dr. Anselmo's signature from the hospital's Practitioner Informed Consent Form by suggesting that it was not required. The jury accepted this argument and found in favor of defendants. [¶] However, Defendant Hospital's Plan of Correction submitted to the Department of Public Health acknowledged that `Physician B [Dr. Anselmo] should have, on the morning of the 16th, added his signature to the signature of Physician C [Dr. Giuliani].'
We do not agree with plaintiff that, had he been able to introduce the Plan of Correction at trial, it is reasonably probable that the jury would have reached a different result.
Here, the Plan of Correction fails to establish the foundational facts necessary under Evidence Code section 1272 to use the absence of Dr. Anselmo's signature on the consent form to show that consent was not obtained. Contrary to plaintiff's contention, the Plan of Correction does not say that hospital policy "mandat[ed]" or "requir[ed]" that informed consent be documented by the physician who obtains the consent; it says only that such documentation is "ideal[]." It thus does not demonstrate that in the regular course of business Dr. Anselmo would have signed the consent form had consent been obtained, or that the absence of Dr. Anselmo's signature is a trustworthy indication that consent did not occur.
Further, in our view the Plan of Correction was unlikely to have swayed the jury's evaluation of the evidence, including the witness testimony. This case was essentially a credibility contest, with the plaintiff and defense witnesses offering two fundamentally different versions of the events leading up to Nathan's November 16, 2007 hernia surgery. For example, Mr. Rivas testified that Nathan was transferred to CHLA for testing, not surgery, while Dr. Gall testified that Mr. Rivas well understood, based on months of conversations, that Nathan was transferred so that his hernias could be surgically repaired. Mr. Rivas testified that he spoke briefly on the telephone the evening before the surgery to social worker Marisha Madrigal and Dr. Giuliani, who told him that the only possible complication of the surgery was an infection that could be treated easily with antibiotics; Dr. Giuliani and Nurse Samuel testified that Dr. Giuliani had a lengthy, in-person discussion with Mr. Rivas about the possible complications of the hernia surgery, which included death and injury to the brain or nervous system, and Ms. Madrigal testified that she was never part of a consent discussion with Mr. Rivas. Mr. Rivas testified that he was at the hospital no later than 7:00 a.m. the morning of the surgery, while Dr. Anselmo and Nurse Henley testified that he was not. And Mr. Rivas testified that he never spoke to Dr. Anselmo the morning of the surgery or gave consent to the surgery, while Dr. Anselmo and Nurse Henley testified that Dr. Anselmo had a five- to 10-minute telephone conversation with Mr. Rivas, witnessed by Nurse Henley, during which Dr. Anselmo advised him of some of the risks of surgery, answered his questions, and obtained consent for surgery.
The verdict makes clear that the jury believed the defense's version of events and disbelieved Mr. Rivas's. The Plan of Correction was unlikely to have led to a different result: While it arguably undermined the testimony of defense witnesses that Dr. Anselmo's signature was not required on the consent form, it otherwise confirmed the defense witnesses' version of events in every respect, including, most significantly, that Mr. Rivas "gave his consent to the surgery after being advised of the risks and benefits of the surgery in a language he understood." Based on the foregoing, the admission at trial of the Plan of Correction is unlikely to have made a different verdict reasonably probable.
City of Los Angeles v. Decker, supra, 18 Cal.3d 860, cited by plaintiff, does not suggest a different result. There, the principal valuation issue in an eminent domain trial was the highest and best use of residential property taken by the city. The homeowner's expert testified that the highest and best use was for the construction of airport-related facilities, such as airport parking. The city's experts testified that it was very unlikely that any developer would undertake the development of airport-related facilities, and thus that the highest and best use of the property was residential. (Id. at p. 864.) The jury adopted a valuation of the property based on residential use. (Id. at p. 865.) Following entry of judgment, the homeowner moved for a new trial after discovering that three weeks after judgment, the board of airport commissioners had approved a final environmental impact report recommending a parking facility in the relevant area. The trial court denied the motion, but the Supreme Court reversed, concluding that the city's attorney had committed misconduct when, knowing that its own airport board had determined there was a need for airport parking and the homeowner's property was suitable for that purpose, argued to the jury that there was no need for airport parking and that the claim of such a need was speculative. (Id. at p. 871.)
The present case is distinguishable. In Decker, a new trial was required because a document made available to the homeowner shortly after entry of judgment directly supported her contention and undermined that of the city with regard to the principal issue at trial, i.e., the valuation of the subject property. Here, the relevant document neither supports plaintiff's contention nor undermines defendants' with regard to the principal issue of consent. Thus, Decker does not suggest that a new trial should have been granted in this case.
The judgment and order denying the motion for new trial are affirmed. Defendants shall recover their costs on appeal.
WILLHITE, Acting P.J. and MANELLA, J., concurs.
