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Dennis v. Southard

May 29, 2009

JEAN DENNIS, PLAINTIFF AND APPELLANT,
v.
SCOTT W. SOUTHARD ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of El Dorado County, Jerald M. Lasarow, Judge. Affirmed. (Super. Ct. No. SC20060003).

The opinion of the court was delivered by: Robie, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

In the published portion of this opinion involving a jury trial on medical battery, we hold that the two form instructions on medical battery found in CACI Nos. 530A and 530B correctly state the intent requirement for medical battery.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Jean Dennis sued defendant Scott W. Southard (and his corporation of the same name) for medical malpractice and medical battery after she suffered complications following knee replacement surgery Dr. Southard performed on her right knee. Following the trial court‟s granting of Dr. Southard‟s motion for summary adjudication of the medical malpractice cause of action, the case went to trial on medical battery.

At trial, Dennis testified that in June 2004, Dr. Southard performed a successful left knee replacement surgery that she had conditioned on using a prosthesis other than one manufactured by Johnson & Johnson. Dr. Southard used a Biomed prosthesis, and the surgery was successful.

In October 2004, the hospital where Dr. Southard operated switched from using Biomed prostheses to Johnson & Johnson prostheses. That same month, Dr. Southard performed a right knee replacement surgery on Dennis using a Johnson & Johnson prosthesis. During the surgery, Dr. Southard inadvertently transected Dennis‟s medial collateral ligament.

The jury found for Dr. Southard.

Dennis appeals, contending the trial court erred in:

(1) granting summary adjudication of her medical malpractice cause of action;

(2) failing to remove a juror for cause;

(3) misinstructing the jury on the elements of medical battery;

(4) excluding expert witness testimony on medical ethics;

(5) excluding testimony and argument that transecting the ligament was "an item of damages related to the medical battery";

(6) denying her motion to amend the complaint; and

(7) denying her motion for a directed verdict. Disagreeing with these contentions, we affirm the judgment.

DISCUSSION

I. The Court Did Not Err In Granting Summary Adjudication Of The Medical Malpractice Cause Of Action

Dennis contends the court erred in granting summary adjudication of the medical malpractice cause of action. She argues that the declaration of Dr. Southard‟s expert, which stated that transecting the ligament was not below the standard of care, was conclusory; she presented testimony "indicating" Dr. Southard‟s treatment fell below the standard of care; and, in any event, she did not need to present expert witness testimony because the medical condition "is readily ascertainable by a ...


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