NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

MOORE, ACTING P. J.

In this medical malpractice case, the primary argument set forth below by plaintiff Hahn T. Vu was that defendant and emergency room physician True Luu McMahan1 was negligent in failing to transfer Vu to a facility equipped to provide a particular treatment for strokes. The only issue raised in this appeal, which followed a defense verdict and a denial of Vu's motion for new trial, is whether CACI No. 508, which addresses the duty to refer a patient to a specialist, is analogous to the duty to transfer to a different facility. We conclude that Vu has failed to establish error on this point, and accordingly, we affirm the judgment.

I

FACTS

Vu's opening (and only) brief in this appeal is inadequate. Her three-page statement of facts cites to the record only twice, and one of those citations is incorrect. It is not that Vu cited to the wrong place in the record; many of the "facts" set forth appear nowhere in the record. Further, Vu's statement of facts is entirely self-serving, ignoring any evidence that does not support her argument.

The record itself is also so incomplete as to be unhelpful. Vu's appendix is 128 pages long and includes mostly documents that are not evidentiary in nature. The 248-page reporter's transcript includes only the testimony of expert witnesses who testified at trial (three of Vu's and one of McMahan's — and we cannot tell if this was all of the expert testimony).

We would be amply justified in dismissing this appeal on the ground that Vu's brief and the record are inadequate. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109.) Given the limited nature of the legal issues presented, and in the interests of justice, we exercise our discretion to proceed to the extent reasonably possible. Our statement of facts is cobbled together from the limited appendix and reporter's transcript Vu filed, supplemented by McMahan's appendix. To the extent we omit any fact, Vu has waived its inclusion. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

It is not disputed that on March 28, 2012, Vu, age 65, went to Garden Grove Hospital Medical Center's emergency room with symptoms of a stroke, where she was treated by McMahan, a board-certified emergency physician. The main issue in this case, at least as far as this appeal is concerned, was time. The administration of a thrombolytic medication known as TPA can improve outcomes for stroke victims, but the medication must be administered within a certain time window. Generally, this time period is from three to four and a half hours after onset of symptoms. As relevant to this appeal, the key issue is whether Vu should have been transferred to UCI, which is a comprehensive stroke center, for the administration of TPA and related treatment. She was not transferred but, according to her, checked herself out and went to UCI after the time window had expired.

Vu filed the instant action for medical malpractice in 2013. As relevant here, the complaint alleged defendants (which included the hospital as well as McMahan) negligently failed to transfer her to another facility capable of treating her.

At trial, Vu requested the jury be instructed with CACI No. 508, entitled Duty to Refer to a Specialist. The version of CACI No. 508 Vu requested is, unsurprisingly, not in the record, but the form instruction reads as follows: "If a reasonably careful [insert type of medical practitioner] in the same situation would have referred [name of patient] to a [insert type of medical specialist], then [name of defendant] was negligent if [he/she] did not do so. [¶] However, if [name of defendant] treated [name of patient] with as much skill and care as a reasonable [insert type of medical specialist] would have, then [name of defendant] was not negligent."

The court declined the instruction, stating it did "not believe that the thrust of the plaintiff's case supports this instruction, nor do I believe this was the thrust of the plaintiff's arguments up until this point, . . . I don't think that the defendant was necessarily being asked to address this specific duty issue." Counsel for Vu argued the "duty to transfer is analogous and consistent with a duty to refer to a specialist." The court did not change its ruling.

After deliberating for the better part of two days, which included asking a question of the court and requesting a reading of certain testimony, the jury reached a verdict, concluding McMahan was not negligent in Vu's diagnosis, care, or treatment.

Vu moved for a new trial on the CACI No. 508 instruction issue, and the court denied the motion. The court concluded that "the opinion necessary to support giving CACI [No.] 508 regarding referring Plaintiff to a specialist was not presented in that direct form to the jury at trial. Rather, at trial Dr. [Bernard] McNamara [Vu's expert on the standard of care] testified initially that Dr. McMah[a]n breached the standard of care by not recognizing that TPA could be given to a stroke patient within 4.5 hours of the first symptoms of a stroke (as opposed to the 3 hour window utilized by Defendant), and not making TPA available to Plaintiff in a timely manner. Specifically, Dr. McNamara testified as follows: `She [Defendant] fell below the standard of care in basically not recognizing that there was a 4 1/2 hour window in this particular case and following through with whatever it was going to take to get . . . her mobilized to start TPA and get transferred to a stroke center as quickly as possible. . . .' Transferring Plaintiff to a stroke center following starting the TPA is not the same as referring Plaintiff to a specialist, and Dr. McNamara did not testify that referral to a specialist was part of the standard of care."

The court also stated that while various witnesses had testified about the option of transferring patients to a stroke center, "such testimony does not necessarily support a specific standard of care regarding referral to a specialist. Nevertheless, the jury certainly could have considered the failure to transfer in considering Dr. McMah[a]n's alleged negligence as reflected in CACI [No.] 502.2 If, as plaintiff contends, there was sufficient expert testimony to conclude that Dr. McMah[a]n's failure to transfer Plaintiff to UCI (or even to refer her to a specialist) fell below the standard of care, then that alleged failure would have been encompassed by the language of CACI [No.] 502, and presumably would have been sufficient to support a finding of negligence."

Finally, the court found that even if CACI No. 508 should have been given, the failure to do so did not warrant a new trial because she did not establish it prejudiced her right to a fair trial.

Vu filed the instant appeal.

II

DISCUSSION

We review questions of instructional error de novo. (Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1373.)

Vu argues it was error for the trial court to decline her request to instruct the jury with CACI No. 508, but her argument lacks any specificity or development. Below, she argued that the duty to transfer was "analogous and consistent with a duty to refer to a specialist," and she repeated this statement in the introduction to her brief. But in her actual argument, she does not develop or even articulate this point. Instead, she merely states she was entitled to instructions on every theory supported by the evidence, cites several cases in support of this inarguable proposition, and then spends three paragraphs reiterating the trial court's reasoning in denying her motion for a new trial without explaining why the trial court was incorrect.

She does not argue why the trial court was wrong before moving on to argue the error was prejudicial, and as such, has waived any error. To the extent her entire argument is that the situations are "analogous," she offers no argument and no authority on this point. The appellant must "present argument and authority on each point made" (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B)), and cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error (Cal. Rules of Court, rule 8.204(a)(1)(C)); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115).

Moreover, even if she had established the instruction should have been given, Vu has failed to demonstrate prejudice. In a civil case, erroneous jury instructions are not inherently prejudicial. "A judgment may not be reversed for instructional error in a civil case `unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule).) Instructional error may rise to that level "`[w]here it seems probable'" that the error prejudicially affected the verdict. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875.) The determination of prejudice depends heavily on "the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury. [¶] . . . Actual prejudice must be assessed in the context of the individual trial record. For this purpose, the multifactor test set forth in such cases as LeMons [v. Regents of University of California, supra, 21 Cal.3d at pp. 875-876 and Pool [v. City of Oakland (1986) 42 Cal.3d 1051, 1069] is as pertinent in cases of instructional omission as in cases where instructions were erroneously given. Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule, supra, 8 Cal.4th at pp. 580-581.)

Vu's argument on this point is entirely unpersuasive. She suggests Soule was improperly decided, a contention she is welcome to take up with the California Supreme Court, but one we shall not entertain here for obvious reasons. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The sum of her remaining argument is that she was entitled to an instruction on "every theory of the case advanced . . . which is supported by substantial evidence." But she has not, and cannot on this record, establish the instruction she requested was supported by such evidence. She confuses what CACI No. 508 actually addressed (referral to a specialist) with what she wished it addressed (transfer to a different facility).

Even based on this inadequate record, it is clear that the transfer issue was front and center in Vu's case. But it is not at all apparent that referral to a specialist was, as she argues, "fundamental to Plaintiff's theory of liability." In one of her rare citations to the record, she points to two places where McNamara's expert testimony briefly mentions the desirability of supervision by a neurologist when administering TPA. She also claims McNamara's testimony stated the standard of care "required transfer (referral) to a stroke specialist," but Vu again confuses the separate issues of transfer and referral. McNamara discusses transfer at length and only vaguely refers to a neurologist. He did not include referral to another doctor in his statement about how McMahan allegedly violated the standard of care.3 Nor is there testimony (at least, none has been cited to us) addressing whether referral to a neurologist in McMahan's hospital, rather than another facility, would have satisfied this duty. Thus, the evidence is not sufficient to establish that referral to another doctor was an important factor in this case, at least on this limited record. Any fault for that lies entirely with Vu.

Fault also lies with Vu for our inability to address two of the four factors discussed in Soule: "(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule, supra, 8 Cal.4th at pp. 580-581.) We cannot evaluate either the state of the evidence or the effect of counsel's arguments because all of the evidence is not in the record before us, nor are any of counsel's arguments. There is also no evidence in the record on appeal to suggest that the jury was misled or confused. As to the impact of other instructions (which we have in the record only because McMahan provided them), we agree with the trial court that the administration of CACI No. 502 was more than sufficient to address any contention that failure to transfer fell below the relevant standard of care. Thus, even if we had decided the failure to give the instruction was error, Vu has failed to establish the prejudice necessary to justify reversal and a new trial.

III

DISPOSITION

The judgment is affirmed. McMahan is entitled to her costs on appeal.

FYBEL, J. and THOMPSON, J., concurs.