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Maher v. Saad8/11/2000
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Butte County. Jerome E. Warren, Judge.
Affirmed.
Defendant Sylvia Saad, M.D., appeals from the trial court's granting of plaintiffs' motion for new trial following a jury verdict in favor of defendant in an action alleging medical malpractice. For the reasons which follow, we affirm.
PROCEDURAL BACKGROUND
By complaint filed April 16, 1997, plaintiffs Martie L. Maher and Sheldon Raymond Russell sought to recover damages from defendant and other parties for medical malpractice and loss of consortium arising from medical treatment rendered to Maher. All other defendants were dismissed or awarded summary judgment.
Trial proceeded against defendant on November 30, 1998. On December 17, 1998, the jury returned a verdict in favor of defendant, and judgment was entered accordingly.
Plaintiffs subsequently filed a motion for new trial, and on February 10, 1999, the trial court granted plaintiffs' motion. It concluded the following errors prevented plaintiffs from receiving a fair trial: (1) it had improperly instructed the jury on "alternative methods of diagnosis and treatment" (BAJI No. 6.03); (2) defense counsel had submitted to the jury an unredacted letter from a defense expert in violation of a stipulation and order directing that a portion of the letter referencing defendant's standard of care be redacted; and (3) by referring to plaintiffs' expert witness as a "hired gun," defense counsel had violated a stipulation suggested by the court by which the parties agreed not to inquire of expert witnesses regarding how much money they were paid for their time and expertise.
The trial court thereafter denied defendant's motion for reconsideration. Defendant timely filed this appeal from the trial court's grant of the motion for new trial.
On appeal, defendant argues the trial court erroneously granted the motion for new trial for the following reasons: (1) the trial court ruled on the motion without first examining the "entire cause" (Cal. Const., art. 16, ยง 13); (2) the trial court did not err by instructing the jury on "alternative methods of diagnosis and treatment" (BAJI No. 6.03); (3) defense counsel did not improperly submit into evidence the expert witness' unredacted letter; and (4) defense counsel's reference to plaintiffs' expert witness as a "hired gun" did not violate the court-requested stipulation.
We conclude (1) the record does not demonstrate the trial court failed to consider the "entire cause" when it ruled on the motion for new trial; and (2) the trial court did not abuse its discretion granting a new trial based on the erroneous reading of BAJI No. 6.03 to the jury. Because we affirm the trial court's order on these grounds, we need not address defendant's other assertions of error.
FACTS
Defendant began treating then 37-year-old Maher for duodenal ulcer disease in November 1995. According to defendant's counsel, " duodenal ulcer is caused by the erosion of the healthy mucosa or surface of the duodenum by digestive juices. [The duodenum is the beginning portion of the small intestine, extending from the lower end of the stomach to the jejunum. (Webster's II New Riverside University Dict. (1988) p. 410.)] The eroded area is painful, can bleed copiously, and in some cases will perforate through to the outside of the digestive tract."
Maher had a long history of peptic ulcer disease. This brought on numerous, and at times, daily episodes of gastrointestinal bleeding, pain, nausea and vomiting, including vomiting blood. Medication and a prior surgery to
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