Plаintiffs are the widow and two children of the decedent, Rajesh Saxena. Saxena died in February 2003 after seeking treatment from Dr. Willie H. Goffney for an open wound on his right leg. Plaintiffs brought a wrongful death action against Goffney (and others involved in Saxena’s medical care) for wrongful death, negligence, and battery. The jury concluded Goffney was negligent in the diagnosis or treatment of Saxena and that he performed a procedure on Saxena without his “informed consent.” The jury awarded plaintiffs $12.1 million in noneconomic damages, over $600,000 in economic damages, and allocated 100 percent of the fault to Goffney.
Goffney moved for judgment notwithstanding the verdict (JNOV) on plaintiffs’ battery claim. He also moved for a new trial and to conform the judgment to the Medical Injury Compensation Reform Act (MICRA). Despite concluding the special verdict form—prepared by plaintiffs and given at their request—did not require the jury to determine whether Goffney committed a battery, the court denied the JNOV motion. Instead, it granted a new trial on plaintiffs’ battery and informed consent negligence claims, and on damages.
The court denied Goffney’s motion
Goffney appeals the denial of his JNOV motion. Plaintiffs cross-appeal the order partially granting a new trial. In a separate petition, Goffney seeks a writ of mandate and/or prohibition compelling the court to grant his motion for new trial on plaintiffs’ negligence claim. We consolidate the writ petition with the appeals to promote judicial efficiency and avoid piecemeal adjudication of the issues. 1
We conclude the court should have granted Goffnеy’s JNOV motion. Accordingly, we reverse the JNOV and new trial orders. We remand with directions to grant Goffney’s JNOV motion on the battery claim, to consider Goffney’s MICRA motion, and to enter the resulting judgment for plaintiffs on the negligence claims and for Goffney on the battery claim. We deny Goffney’s writ petition.
FACTS
In January 2003, Saxena sought treatment from Goffney at the La Palma Wound Center (Wound Center) for an open wound in his right leg. The plan was for Goffney, a general surgeon, to perform a series of debridements—a surgical procedure used to remove dead or infected tissue from an open wound—on Saxena’s leg. Goffney would then cover the wound with Apligraf, a synthetic skin-like substitute, to promote healing. During his initial appointment with Goffney, Saxena signed a consent form authorizing Goffney to evaluate, assess, and treat his wound.
Goffney performed debridements on January 13, 23, and 27. By early February, howеver, Saxena’s heath declined: The wound on his leg was bleeding constantly; he was using crutches; he had a fever; and he was having difficulty breathing. During an appointment on February 3, Saxena complained to Goffney that he had chills and a fever. Goffney concluded Saxena had the flu and performed another debridement. Saxena’s wife, Neelofer Saxena, took Saxena to the emergency room on February 5 because he continued to have a fever.
Saxena was scheduled to return to the Wound Center on February 10 for the final debridement and Apligraf application. That morning, Neelofer felt Saxena’s health was getting “worse and worse” so she tried, unsuccessfully, to reschedule the appointment. At the request of a nurse in Goffney’s office, Neelofer brought Saxena to the Wound Center that evening. According to Neelofer, she listened as Sаxena told Goffney he wanted to postpone the debridement and Apligraf procedure. Neelofer also testified she “begged and pleaded” for Goffney to postpone the procedure until her husband regained his strength. In response, Goffney explained he would have to throw out the Apligraf—which cost $1,200—if he did not use it that day. He debrided the wound, applied the Apligraf, and sent Saxena and Neelofer home. Saxena died the following day of congestive heart failure.
Plaintiffs alleged wrongful death and negligence claims against Goffney and others. The first amended complaint added a battery claim against Goffney. The battery cause of action alleged Goffney “performed medical procedures on [Saxena] without his informed consent. These medical procedures included intentional, unlawful
Trial proceeded against Goffney only. After the close of evidence, Goffney moved for a nonsuit on plaintiffs’ battery claim. The court denied the motion. The court then gave the jury two instructions on the battery claim. The first instruction, based on former Judicial Council of California Civil Jury Instructions (2006) CACI No. 530, recited the elements of battery as follows; “Plaintiffs claim that [Goffney] committed a battery. To establish this claim, Plaintiffs must prove all of the following: [][] 1. That [Goffney] performed a medical procedure without [Saxena’s] consent; [][] 2. That [Saxena] was harmed; and [][] 3. That [Goffney’s] conduct was a substantial factor in causing [Saxena’s] hаrm, [f] A patient can consent to a medical procedure by words or conduct.” Over Goffney’s objection, the court also gave the jury a special instruction on plaintiffs’ battery claim which provided: “If you find that [Goffney] performed a surgical procedure on [Saxena] or provided other medical treatment to [Saxena] without his informed consent, you may find [Goffney] liable for battery, even if you find that the surgery was skillfully performed and he was not negligent.”
The court presented plaintiffs’ version of the special verdict form to the jury. The special verdict form asked the jury to answer the following questions: (1) “Was [Goffney] negligent in the diagnosis or treatment of [Saxena]?”; (2) “Was [Goffney’s] negligence a substantial factor in causing the death of [Saxena]?”; (3) “Did [Goffney] perform a debridement and Apligraf procedure on [Saxena] on February 10, 2003?”; (4) “Did [Saxena] give his informed consent for the debridement and Apligraf procedure on February 10, 2003?”; (5) “Would a reasonable person in [Saxena’s] position have refused the debridement and Apligraf procedure if he or she had been fully informed of the possible results and risks of the procedure, and alternatives to the procedure?”; (6) “Would [Saxena] have consented to the . . . procedure performed on him on February 10, 2003 even if he had been given enough information about the risks of the procedure?”; and (7) “Was [Saxena] harmed as a consequence of a result or risk that [Goffney] should have explained before the debridement and Apligraf procedure was performed?” 2 Questions eight through 14 of the special verdict form asked the jury to calculate plaintiffs’ damages.
The jury returned a verdict for plaintiffs. It concluded Goffney was negligent in the diagnosis or treatment of Saxena and that Goffney performed the debridement and Apligraf procedure on February 10 without Saxena’s informed consent. The jury also determined Saxena would have refused the debridement and Apligraf procedure on February 10 had he been fully informed of the possible risks of, and the alternatives to, the procedure.
After the verdict was rendered but before judgment was entered, Goffney moved for JNOV on plaintiffs’ battery claim and
DISCUSSION
The Court’s Denial of Goffney’s JNOV Motion Was Erroneous
We turn first to the court’s denial of Goffney’s JNOV motion. As an initial matter, we reject plaintiffs’ contention that the court’s denial of the motion is not appealable because the issue of damages “remain[s] before the trial court for determination.” An appeal may be taken from an order denying a motion for JNOV even where the trial court has granted, or denied, a new trial motion. (Code Civ. Proc., §§ 629, 904.1, subd. (a)(4); see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) | 2:146, p. 2-72.4.)
Goffney сontends the court’s denial of his JNOV motion was erroneous because there was insufficient evidence he committed battery or intended to harm Saxena. We need not reach these issues because we agree with Goffney’s third basis for reversal: The jury’s special verdict did not include any findings on plaintiffs’ battery cause of action. 3
The Informed Consent Doctrine
To place the issues in context, we briefly discuss the distinction between negligence and battery as set out by the California Supreme Court in
Cobbs v. Grant
(1972)
Our high court has made it clear that battery аnd lack of informed consent are separate causes of action. A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent. (See, e.g.,
The Special Verdict Form Was Fatally Defective Because It Did Not Require the Jury to Make a Finding on Plaintiffs’ Battery Claim
We analyze the special verdict form de novo.
(City of San Diego v. D.R. Horton San Diego Holding Co., Inc.
(2005)
A special verdict is “fatally defective” if it does not allow the jury to resolve every controverted issue.
(Fuller-Austin Insulation Co. v. Highlands Ins. Co.
(2006)
Fuller-Austin, supra, 135 Cal.App.4th at pages 1005-1006, reached a similar result. That case concerned the reasonableness of an insured’s bankruptcy settlement and the effect of its reorganization plan on its excess insurers. The trial court entered judgment in favor of the insured, and a jury calculated the amount of the insurers’ liability. (Id. at p. 966.) The appellate court reversed the jury’s liability findings. (Id. at p. 1006.) It concluded the special verdict form was “fatally defective” because it “did not require the jury to make any finding on the issue of [the] reasonableness” of the reorganization plan. (Id. at p. 1005.) As the Fuller-Austin court explained, “[T]he jury’s finding that [the insured] was not guilty of inequitable misconduct did not answer the distinctly different question of whether the Plan was unreasonable.” (Id. at p. 1006.)
The same is true here. The jury concludеd Goffney performed the debridement and Apligraf procedure on February 10 without Saxena’s “informed consent” by answering “no” to the following question: “Did [Saxena] give his
informed consent
for the debridement and Apligraf procedure performed on February 10, 2003?” (Italics added.) The special verdict form did not require the jury to answer the separate and distinct question of whether Goffney performed the procedure with “no consent” at all. Because the special verdict form did not require the jury to make a finding on battery, it “is like a puzzle with pieces missing; the picture is not complete.”
(Falls, supra,
Plaintiffs offer several arguments urging us to overlook the deficiencies in the special verdict form, all of which fail. First, plaintiffs contend the use of the phrase “informed consent” in question four of the verdict form “made no functional difference” because lack of informed consent and lack of any consent are the same. This argument has no merit for the reasons discussed above. Moreover, the related questions on the verdict form dealt with lack of informed consent, not the lack of any consent. Thus, the jury found a reasonable person in Saxena’s position would have refused the procedure if he or she had been fully informed of the risks, and Saxena would not have consented to the procedure had he been given enough information about the
risks. Further, the cases plaintiffs cite to support their contention are inapposite because they either concern conditional consent, a theory plaintiffs did not pursue here, or address situations where a doctor’s fraudulent misrepresentations about a proposed procedure vitiated the patient’s consent. (See
Ashcraft
v.
King
(1991)
Plaintiffs also contend the “only interpretation [of the verdict] consistent with the evidence” is the jury concluded Saxena did not consent to the procedure. We disagree. At plaintiffs’ request, the court instructed the jury it could find Goffney liable for battery if he performed the procedure without Saxena’s
informed
consent.
We also reject plaintiffs’ argument that Goffney waived his right to challenge the special verdict form. Goffney is not challenging the special verdict form as such. He merely argues the verdict form submitted by plaintiffs, and the verdict returned by the jury, does not support entry of judgment on a battery theory. Moreover, courts have declined to apply the waiver rule “where the record indicates that the failure tо object was not the
result of a desire to reap a ‘technical advantage’ or engage in a ‘litigious strategy.’ ”
(Woodcock v. Fontana Scaffolding & Equip. Co.
(1968)
Plaintiffs cite
Jensen v. BMW of North America, Inc.
(1995)
Jensen is inapposite. There, the jury was allowed to award damages without first being asked if BMW was liable for violating the Act. BMW wanted the jury to find it was liable before awarding damages, but it did not ensure the question was in the verdict form. Here, and unlike BMW, Goffney did not want the jury to conclude he committed a battery, so he had no obligation to ensure that questions on the verdict form addressed plaintiffs’ battery claim.
Plaintiffs’ next contention—that the invited error doctrine precludes Goffney from challenging the special verdict form—is also unavailing. The
“ ‘doctrine of invited error’ is an ‘application of the estoppel principle’: ‘Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal’ on appeal.”
(Norgart
v.
Upjohn Co.
(1999)
We note Goffney submitted a similar verdict form. But Goffney had already lost his argument on plaintiffs’ erroneous special battery instruction and his motion for a nonsuit had already been denied. Plaintiffs were responsible for pursuing an erroneous battery theory both in the special instruction and in the verdict form. Plaintiffs received what they asked for: A verdict establishing liability for medical negligence and nothing more. Even if we assume, for the sake of argument, that Goffney caused the defective verdict form, the invited error doctrine does not apply. The doctrine does not extend to situations where a party induces the commission of the error, but does “not in fact mislead the trial court in any way—as where a party ‘ “ ‘endeavor[s] to make the best of a bad situation for which [it] was not responsible.’ ” ’ ”
(Norgart, supra,
The court below was troubled by the failure of the special verdict form to address plaintiffs’ battery claim. In its order denying the JNOV motion, the court noted the distinction between negligence and battery and “the absence, in the special verdict, of any findings that defendant committed a battery, even though the jury was presented with evidence of that intentional tort.” The court’s analysis of the problem was correct. Its solution, however, was not. The prоper way to remedy the defective verdict was to grant Goffney’s motion for JNOV on plaintiffs’ battery claim, not to order a new trial. (See
Myers, supra,
The Court’s Denial of Goffney’s Motion for New Trial Was Not an Abuse of Discretion; The Court’s Exclusion of Two Defense Witnesses Was Harmless Error
The court declined to grant a new trial on plaintiffs’ negligence claim because it concluded the errors in the verdict form and special jury instruction “did not infect the jury’s finding that [Goffney] breached the standard of care; nor was there any irregularity in that finding.” The court also determined it proрerly excluded the testimony of Dr. Gary Flashner and nurse James Palmer, two defense witnesses. In his writ petition, Goffney contends a new trial on the negligence claim will “cure the evidentiary error of excluding [Flashner and Palmer].” Goffney contends Flashner and Palmer “would have rebutted plaintiffs’ testimony . . . that . . . Saxena was not a candidate for surgery.” Specifically, Goffney argues Flashner (who treated Saxena during his February 5 emergency room visit) would have testified Saxena did not display any symptoms of congestive heart failure. Palmer, who apparently was present during the February 10 debridement and Apligraf procedure, would have testified Saxena was breathing normally and that neither Saxena nor Neelofer asked Goffney to postpone the procedure. 8
Ten days before trial, apparently as part of the pretrial “issue conference” required by local court rule, plaintiffs served a motion in limine for an order excluding the testimony of “witnesses not identified in discovery.” 9 The motion was nonspecific; neither Flashner, nor Palmer, nor any other potential witness was identified. Also, apparently as part of the same issue conference pursuant to local rule, Goffney listed Flashner and Palmer on his trial witness list. On the first day of trial, Goffney served a supplemental response to Interrogatory 12.1 listing 16 names, including Flashner and Palmer, but failing to provide their contact information. The record on appeal does not contain any information regarding the court’s ruling, if any, on the motion in limine, but Goffney’s counsel referred to the anticipated testimony of Flashner and Palmer during his opening statement without objection by plaintiffs. Near the conclusion of plaintiffs’ case, however, when Goffney announced that Flashner and Palmer would be his witnesses for the next day, plaintiffs objected. After hearing argument, the court excluded the testimony of both witnesses.
In his motion for new trial, Goffney argued excluding Flashner and Palmer was “highly prejudicial” because they would have “rebutted [plaintiffs’ claim that Mr. Saxena’s health was so impaired that the debridement and Apligraf procedure should not have been performed.” Goffney also claimed his failure to list Flashner and Palmer in his interrogatory responses was not a “[m]is-use[] of the discovery process” under section 2023.010. Presumably relying оn
Thoren
v.
Johnston & Washer
(1972)
“ ‘Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.’ ”
(People ex rel. Lockyer v. Sun Pacific Farming Co.
(2000)
Precluding a witness from testifying at trial is proper where a party
willfully and falsely
withholds or conceals a witness’s name in response to an interrogatory.
(Thoren, supra,
We note
Thoren
“does not stand for the proposition that evidence may be excluded based on the mere failure to supplement or amend an interrogatory answer that was truthful when originally served.”
(Biles
v.
Exxon Mobil Corp.
(2004)
Section 2030.300, subdivision (a)(1), provides that the party propounding an interrogatory may file a motion to compel a further response where the answer received is “evasive or incomplete.” And the failure timely to file a motion to compel a further response to an evasive or incomplete answer constitutes a waiver of any right to a further response. (§ 2030.300, subd. (c).) The prevailing party on a motion
The Civil Discovery Act also warns, however, that the failure to respond to discovery, or the making of evasive responses to discovery, is not condoned. The “[f]ail[ure] to respond ... to an authorized method of discovery” (§ 2023.010, subd. (d)), and “[m]aking an evasive response to discovery” (§ 2023.010, subd. (f)) are defined as “[mjisuses of the discovery process.” (§ 2023.010.) But the sanctions for misuse of the discovery process are limited “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of [the Civil Discovery Act].” (§ 2023.030.) Thus, the sanctions available to remedy evasive or incomplete responses to interrogatories are limited to those contained in chapter 13 of the Civil Discovery Act (§ 2030.010 et seq.).
The
Thoren
case involved сonduct not specifically covered by the Civil Discovery Act—serving a willfully false answer to an interrogatory. Giving a willfully false answer is not even included in the Civil Discovery Act’s definitions of a “misuse of discovery,” unless the prohibition against causing “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense” (§ 2030.090, subd. (b)) is broadly construed. (See § 2023.010, subd. (c).) The
Thoren
court, relying on a
former
provision of the Civil Discovery Act, approved the exclusion of a witness’s testimony as a sanction for giving a willfully false answer, likening the false answer to no answer at all.
(Thoren, supra,
Although the statutory basis for the imposition of an evidence sanction has changed, Thoren has never been overruled. Its application, however, is narrow, covering a circumstance not specifically dealt with in the Civil Discovery Act. Thus, in the absence of a violation of an order compelling an answer or further answer, the evidence sanction may only be imposed where the answer given is willfully false. The simple failure to answer, or the giving of аn evasive answer, requires the propounding party to pursue an order compelling an answer or further answer—otherwise the right to an answer or further answer is waived and an evidence sanction is not available. “[T]he burden is on the propounding party to enforce discovery. Otherwise, no penalty attaches either for the responding party’s failure to respond or responding inadequately!” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ][ 8:1136, p. 8F-59.)
The party moving to exclude evidence as a sanction for discovery abuse has the initial burden of establishing grounds supporting the request. (Evid.
The error, however, was harmless. “[W]here evidence is improperly excluded, the error is not reversible unless ‘ “it is reasonably probable a result
more favorable to the appellant would have been reached absent the error.” ’ ”
(Tudor Ranches, supra,
Goffney offered Palmer’s testimony as evidence that Saxena was breathing normally at the time of the February 10 procedure, and that neither Saxena nor Neelofer asked Goffney to postpone the procеdure. The latter point has little, if any, relevance in light of plaintiffs’ failure to tender the battery issue to the jury. As to the proffered testimony concerning Saxena’s respiration, the jury was made aware of the measured respiration rate of 36 noted on Saxena’s February 10 medical chart. Plaintiffs’ medical experts described a respiration rate of 36 as abnormally elevated; Goffney described the rate as normal if Saxena had been engaging in strenuous activity near the time the respiration was measured. Goffney also testified Saxena did not exhibit shortness of breath on February 10, and Goffney’s expert testified the elevated rate as recorded was inconsistent with Saxena’s other vital
Accordingly, it is not reasonably probable Goffney would have received a more favorable result had Flashner and Palmer testified. The exclusion of their testimony does not constitute reversible error.
DISPOSITION
The order denying the JNOV motion and partially granting a new trial is reversed and remanded with directions to the court to: (1) grant Goffney’s JNOV motion on the battery claim; (2) hear and decide Goffney’s MICRA motion; and (3) enter the resulting judgment for plaintiffs on the negligence claims and for Goffney on the battery claim. Goffney’s writ petition is denied. In the interests of justice, each party shall bear its own costs of appeal.
Sills, R J., and Rylaarsdam, J., concurred.
The petition of plaintiffs and appellants for review by the Supreme Court was denied April 30, 2008, S161452.
Notes
We grant Goffney’s unopposed motion for judicial notice of the record submitted in case No. G037363.
(,Stephenson
v.
Drever
(1997)
All of the questions on plaintiffs’ special verdict form are taken from the CACI verdict forms for medical negligence. For example, questions one and two are almost identical to the questions on verdict form 500 for “Medical Negligence.” (See CACI VF-500.) Questions three through seven are taken from verdict form 501, entitled, “Medical Negligence—Informed Consent—Affirmative Defense That Plaintiff Would Have Consented Even If Informed.” (See CACI VF-501.)
With the benefit of hindsight, Goffney did not need to file a JNOV because, as we will conclude, the jury made no findings supporting a battery claim, and thus a judgment could not have been entered for battery. Because the court granted a partial new trial before judgment was entered, Goffney never had the opportunity to object to any form of judgment which would have potentially reflected a judgment for battery. And Goffney was legitimately concerned the court would view the findings on lack of informed consent as supporting a battery judgment because the court had earlier overruled his objections that plaintiffs were improperly conflating negligence and battery.
After the parties filed their respective opening briefs, the Judicial Council of California issued a revised jury instruction pertaining to medical battery. The revised instruction, CACI No. 530A, requires a plaintiff pursuing a medical battery claim to prove, among other things, that defendant “performed a medical procedure without [plaintiff’s] informed consent.” (CACI No. 530A, italics added.) In contrast, CACI No. 530, the former jury instruction for medical battery, required the plaintiff to prove the defendant “performed a medical procedure without [plaintiff’s] consent.” (Former CACI No. 530.) The Use Note to CACI No. 530A does not indicate a reason for requiring plaintiff to prove a lack of informed consent rather than lack of any consent. We believe the use of the phrase “informed consent” in the current jury instruction blurs the distinction between negligence and battery as described by our high court in Cobbs, supra, 8 Cal.3d at pages 241-242.
Unless noted, all further statutory references are to the Code of Civil Procedure.
In the trial court, plaintiffs conceded the jury’s conclusion regarding the “lack of informed consent” could mean Saxena did not consent to the procedure, or that he consented, but without enough information about the risks of, and alternatives to, the procedure. Indеed, plaintiffs’ counsel admitted that—“if [he] had it to do over”—he would take out the word “informed” from question four on the special verdict form.
We reject plaintiffs’ argument that the defects in the verdict form are immaterial because substantial evidence supports a finding of battery. In
Myers, supra,
Goffney also contends the court’s denial of a new trial on the negligence claim was an abuse of discretion because (1) the verdict on plaintiffs’ negligence claim was “tainted” by the defective special verdict and the erroneous special jury instruction; and (2) there is confusion regarding the “theory and facts [on which] the jury’s ‘negligencе’ finding was based.” We disagree. Goffney acknowledges “[plaintiffs’ evidence offered the jury three different bases for finding Dr. Goffney was negligent.” Goffney has failed to cite any persuasive authority entitling him to clarify his “confusion.” The jury unambiguously found both negligence and lack of informed consent negligence based on substantial evidence. One of plaintiffs’ expert witnesses testified that the “medical probability is that failing to diagnose Mr. Saxena’s problems, and complicating that with proceeding with an elective procedure in the face of Mr. Saxena’s underlying illness, contributed significantly to his death within the next 12 to 24 hours.” Another expert testified Saxena “was at high risk. And this is because he had a respiratory rate of 36, which is highly predictive of ventilatory problems later. Having an elevated respiratory rate is an extremely serious issue. Having a diagnosis of heart failure puts onе at a very high risk.” The jury could reasonably find from this testimony both ordinary medical negligence in Goffney’s failure to diagnose and his failure adequately to explain the risks to Saxena. No greater “clarity” is required.
Orange County Superior Court Rules, rule 450, requires the parties to exchange witness lists, motions in limine, and other pretrial documents 10 days before trial, and to file the documents and motions with oppositions to the motions no later than noon of the Friday before trial.
The discovery provision at issue in Thoren, former section 2034, subdivision (d), provided that “if ... a party willfully fails to serve and file answers to interrogatories ... the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof... or impose such other penalties of a lesser nature as the court may deem just. . . .” (Stats. 1968, ch. 188, § 3, pp. 477-479, as amended; repealed by Stats. 1986, ch. 1334, § 1, p. 4700, italics added.)