Plaintiffs appealed from a judgment following a jury verdict in favor of the defendant in a California elder abuse action arising from the medical care and death of an elderly woman. On appeal, they challenged the special verdict form, the jury instructions, the exclusion of evidence, and the conduct of the jury. The Third District California Court of Appeal affirmed.
The decedent had chronic obstructive pulmonary disease and pneumonia. Upon admission to the defendant’s facility, her life expectancy was at most a “few months,” her chance of leaving the hospital was “darned close to zero,” and she would never “continuously” be off a ventilator. According to one expert, her life expectancy at the time of her admission “would be a few months only if aggressive measures were taken that most physicians would not conscience in a patient because of the pain and suffering it caused the patient. It only lasted for a few months because they persisted in care that I know they didn’t want to give.”
Since the decedent was on a ventilator, her arterial blood gas had to be monitored. The defendant did this by using needles, rather than an arterial line (a fixed line inserted into an artery) from which blood could be tapped and then tested. Using needles was more difficult than in an ordinary patient because of the decedent’s extreme bodily swelling. But expert testimony showed that inserting an arterial line would have required cutting into the decedent and exposing her to infection—to which she was already woefully prone—and that the decision whether or not to use so-called “blind sticks” fell within a physician’s standard of care. Furthermore, the decision did not harm the decedent.
Because of her condition, the decedent’s body would weep fluid, requiring replacement fluid to be given to maintain blood pressure and circulation. One expert thought the decedent was overloaded with fluids, and dialysis should have been started promptly after her admission to combat this problem. He called this “anasarca” or “Michelin Man syndrome,” and he was of the opinion this made further care “almost futile.” But he faulted the physicians for this, rather than the defendant. Also, there was testimony the amount of fluids given to the decedent was the same she had received before, and any overload was due to the failure of her circulatory system and other problems.
The decedent’s weeping of fluid required frequent bedding changes and repositioning. However, defense evidence showed that although the decedent already had one severe bed sore upon admission, she did not develop further sores. Furthermore, her existing sore improved, showing she had been kept adequately dry.
She died on July 11, 2010, of septic shock due to pneumonia, with multiple organ failure.
The appeals court first explained that nowhere in the plaintiff’s briefing was there any coherent statement of the facts, or even a clear statement of the issues the jury decided. Accordingly, it held that the plaintiff forfeited any evidentiary claims he intended to make, and any legal claims were dependent on his skewed view of the evidence.
The first headed argument was “The Court Erred In Adopting the Wrong Special Verdict Form for Elder Abuse.” What followed was a discussion about (1) different jury instructions, (2) the relevance, if any, of declaratory relief, and (3) the award of costs to the prevailing party. The appeals court held that since none of these three points was fairly embraced by the heading, they were each forfeited.
As relevant to the verdict form, the subject of the headed claim, the plaintiff contended “the trial court erred in declining to give two separate and distinct verdict forms requested by” the plaintiff. But in support, he provided record citations about the need for two different instructions, and he did not show he requested different verdict forms. This omission was fatal. Nor did he provide the court with the purportedly requested verdict forms to review.
The plaintiff next contended that the trial court erred by failing to instruct the jury on a theory of commission of elder abuse by the use of blind sticks. His theory was that sticking the decedent with needles to test her arterial blood gas caused her pain that could have been avoided had an arterial blood line been applied. The court held it had no need to address the merits of this claim because the plaintiff did not present an appropriate prejudice argument.
It is well-settled, the appeals court explained, that it may not reverse a judgment for “misdirection of the jury,” absent a miscarriage of justice. The court must 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.
The plaintiff merely asserted that the failure to instruct on blind sticks was prejudicial because it led to the exclusion of evidence, and “the jury would have come to a different conclusion” had the trial court instructed differently. But (1) he did not explain the total body of evidence fairly; (2) he did not mention, far less analyze, other relevant instructions; (3) the closing arguments were not transcribed; and (4) he did not claim there was any indication the jury was misled or confused. Since he did not address the factors for assessing prejudice from a claimed instructional error, the appeals court held that he forfeited the claim.
The plaintiff also contended the trial court should have instructed the jury on elder abuse for the failure to install an arterial line. Accordingly, the jury was instructed not to consider the arterial line issue. Given the evidence that whether or not to use an arterial line was a matter falling within the medical standard of care, the appeals court agreed with the trial court that it had no relevance to the elder abuse claim.
The plaintiff next contended the trial court erroneously excluded the testimony of a respiratory nursing supervisor, whose testimony he asserted would have turned the tide. The appeals court rejected this claim due to the lack of any coherent explanation by the plaintiff of how anything the supervisor might have discussed would have made a difference, as well as his failure to explain and refute the trial court’s reasons for excluding the evidence.
The plaintiff further argued that the trial court should have instructed on fraud. As the trial court pointed out, fraud was not pleaded in the operative complaint. The operative fourth amended complaint captioned five theories of recovery: elder abuse, medical malpractice, assault, intentional infliction of emotional distress, and wrongful death.
But apart from the failure to explicitly caption a fraud claim, the appeals court explained, fraud must be pleaded with particularity. Accordingly, the trial court was right to conclude fraud had not been pleaded.
The plaintiff next argued that the alleged failure to change the decedent’s bedding more often was reckless and oppressive “as a matter of law.” The appeals court held that it could not assume the jury would have found the defendant did not adequately change the decedent’s bedding; it was the plaintiff’s burden, as the appellant, to show that the evidence demonstrated the defendant acted negligently as defined under the Act. Moreover, the plaintiff ignored the testimony to the effect that if the decedent’s bedding had not been properly changed, her bed sore would not have healed, as it did. His refusal to acknowledge this clear evidence undermining his claim on appeal, the court held, was inexcusable.
The plaintiff next argued the jury did not understand or follow the instructions because it did not initially answer a question about oppression. Specifically, he argued that since the foreperson answered some questions, he was deprived of a full jury verdict. The appeals court held it was incorrect for his counsel to contend “the foreman claimed he knew and could answer for everyone.” That flagrantly misstated what happened at trial and disregarded the record.
Finally, the plaintiff argued that the trial court should have allowed an amendment to the complaint to add claims of “medical battery and/or informed consent.” His brief, however, did not clearly explain the relevant procedural history. He did not state when he asked to amend the complaint, which reasons were given, what opposition Kindred presented, if any, or which reasons the trial court gave for not permitting an amendment to the complaint. These omissions therefore forfeited the claim of error.
For these reasons, the judgment was affirmed.
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