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Pizano v. All Care Medical Group12/22/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiffs and appellants, Maria Pizano and her husband, Gregorio Pizano, (collectively plaintiffs) alleged that defendants and appellants, All Care Medical Group ("All Care") and Pierre A. Espenan, M.D. ("Dr. Espenan") (collectively defendants) committed medical malpractice by failing to timely refer Maria to an ophthalmologist for a left eye condition and by failing to conduct certain tests to determine the cause of Maria's eye problems. A jury found defendants liable for negligence and awarded damages.
The trial court granted defendants' motion for a judgment notwithstanding the verdict, concluding the jury verdict was not supported by substantial evidence. The trial court determined that substantial evidence indicated that Maria had been timely referred to an ophthalmologist and the tests at issue were either performed or unnecessary.
Plaintiffs appeal the judgment notwithstanding the verdict, asserting the trial court erred because the jury verdict is supported by substantial evidence. Defendants cross-appeal, asserting the trial court erred by not denying their motion for new trial on the bases of lack of substantial evidence and alleged jury misconduct.
We reverse the judgment notwithstanding the verdict. There is substantial evidence in the record that defendants violated the appropriate standard of care by failing to conduct certain tests regarding Maria's eye condition and that timely performance of these tests would have prevented Maria's blindness to a reasonable degree of medical probability.
As for the alleged juror misconduct, the record indicates that the jurors based their verdict solely upon the evidence presented at trial. We affirm the trial court's denial of defendant's motion for new trial because the trial court did not comply with Code of Civil Procedure section 657. Thus, as required by relevant authorities cited below in part C of the Discussion, we reinstate the judgment based upon the jury verdict.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
In 1999, plaintiffs sued defendants for professional negligence, negligent infliction of emotional distress and loss of consortium. Plaintiffs alleged that defendants negligently failed to diagnose Maria's left eye condition, failed to timely refer her to an expert physician to care for her left eye problems, and failed to treat the eye problem. In 1998, Maria suffered an almost complete loss of vision in her left eye.
B. Trial and Jury Verdict
At the outset, we introduce Maria's health care providers, the jury verdict, and an explanation of Maria's eye condition. The complicated medical evidence is more easily presented with this brief introduction.
1. Health Care Providers
Starting in 1986, Maria used All Care as her primary health care provider. From March 1993 through 1998, Dr. Espenan, an All Care physician, a board-certified internist, served as Maria's primary health care physician. In 1997, Paul First, M.D., an ophthalmologist, began treating Maria for her left eye condition.
2. The Jury Verdict
After an 11-day jury trial, involving 13 witnesses, including 9 expert medical and accounting witnesses, the jury found defendants All Care and Dr. Espenan had been negligent in
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