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Stoll v. Bush11/25/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this medical malpractice case, plaintiff Jeffrey Stoll, an incompetent person, by and through his guardian ad litem, Lauren Blouin, appeals from the judgment rendered against him and in favor of defendants Walter R. Bush, Jr., M.D., and Daniel Freeman Memorial Hospital. Appellant contends the trial court erred by permitting the following: (1) Dr. Bush's "standard of care expert" to offer an opinion on causation, (2) Dr. Bush's counsel to cross-examine appellant's expert witness with treatises that were not properly established as authoritative, (3) Dr. Bush to offer the opinion that he complied with the standard of care, and (4) BAJI No. 6.03 to be given to the jury. Appellant contends that the cumulative effect of the trial court's improper evidentiary rulings constituted prejudicial error. We disagree and affirm.
BACKGROUND
Factual Background
In the early morning hours of November 19, 1999, appellant suffered a severe allergic reaction after eating cookies containing walnuts. Appellant's vomiting woke his wife, who helped him take some Benadryl and called 911. Paramedics arrived shortly at approximately 2:00 a.m. They administered additional Benadryl and Epinephrine and transported appellant to Daniel Freeman Memorial Hospital.
Dr. Bush was present in the emergency department and evaluated appellant, who was in severe respiratory distress. Dr. Bush twice attempted to establish an airway for appellant by intubating him (inserting a plastic endotracheal tube into the mouth and down into the trachea). Both attempts were unsuccessful. Appellant does not dispute that the procedure was made more difficult by the swelling associated with his allergic reaction. Dr. Bush testified that during his first intubation attempt, he requested his staff to summon an anesthesiologist, who had access to and training in fiberoptic intubation. During the second intubation attempt, appellant went into cardiac arrest and chest compressions were administered. Dr. Bush then prepared to perform a cricothyrotomy.
The evidence established that a cricothyrotomy is a rare and delicate surgical procedure that requires a physician to accurately pinpoint the patient's cricoid membrane by locating certain "landmarks" surrounding it. Dr. Bush testified that he was unable to locate these landmarks on appellant due to soft tissue swelling. Dr. Bush also testified that he believed a surgical procedure on appellant's neck was risky given that appellant was thrashing about, and that the resultant bleeding from such a procedure would make a fiberoptic intubation impossible. While Dr. Bush had in fact performed cricothyrotomies on two occasions prior to November 19, 1999, none of the other physicians who testified at trial, including the parties' expert witnesses, had ever performed the procedure on a live human being.
Ultimately, Dr. Bush did not have to attempt the cricothyrotomy because the anesthesiologist arrived, who was able to nasotracheally intubate appellant with the aid of fiberoptic equipment. Because the anesthesiologist's call room was located some distance from the emergency department and he had to retrieve the fiberoptic equipment from a locked operating room, it took him at least five minutes to reach appellant. By this time, appellant's brain had been deprived of oxygen and he suffered permanent bra
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