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Villano v. Waterman Convalescent Hospital

February 5, 2010

ROSE VILLANO, PLAINTIFF AND APPELLANT,
v.
WATERMAN CONVALESCENT HOSPITAL, INC. ET AL. DEFENDANTS AND RESPONDENTS.



APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger *fn2 and Robert Schnabel, *fn3 Judges. Affirmed. (Super.Ct.No. RIC416583).

The opinion of the court was delivered by: Richli J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

Plaintiff Rose Villano claims that she was admitted to Mt. Rubidoux Convalescent Hospital (Mt. Rubidoux) without her consent. While there, she was restrained in a wheelchair and in a bed; given dangerous medication, including psychotropic drugs, that she did not need; and denied treatment that she did need, again without her consent.

The trial court, faced with roughly 40 motions in limine, made a number of pretrial rulings that Villano now challenges. Among other things, it bifurcated certain issues to be tried by the jury in a second phase of trial; it further bifurcated a cause of action for statutory violations, to be tried by the court in a third phase of trial. It limited the testimony that would be admissible in the first phase of trial regarding any violations of statutes and regulations and regarding any violations of Mt. Rubidoux's internal policies and procedures. It also drafted a proposed special verdict form that did not provide for any findings on Villano's causes of action for battery, false imprisonment, intentional infliction of emotional distress, or fraud and that assertedly failed to provide for crucial findings on her cause of action for elder abuse.

In light of these rulings, Villano, on the advice of her counsel, refused to proceed with the trial. Instead, she stipulated to the entry of judgment against her on all of her causes of action. She now appeals from the stipulated judgment.

We will hold that, under this court's earlier decision in Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, the stipulated judgment is appealable. However, also under Tudor Ranches, Villano cannot show that the assertedly erroneous rulings were prejudicial, for two reasons. First, the trial court expressly stated that most of its rulings were merely tentative and subject to reconsideration in light of the evidence at trial. Second, without a trial record, Villano cannot show a reasonable probability that the asserted errors affected the outcome: She might have won, despite the asserted errors; and alternatively, even in the absence of the asserted errors, she might have lost.

Accordingly, we will affirm.

I. FACTUAL BACKGROUND

Because this case was not fully tried, we take the following facts from the parties' respective opening statements; thus, they must be viewed as what the parties hoped or expected the evidence would show and not as established facts.

A. Villano's Counsel's Opening Statement

According to Villano's counsel, in April 2003, when Villano was 77, her husband died. In May 2003, she fell and broke both her wrists. She was depressed and not eating well. On July 31, 2003, employees of a Rite-Aid noticed that Villano had been hanging around for a long time; they called the police, who determined that she was confused and disoriented. She was involuntarily hospitalized at the Riverside County Regional Medical Center (RCRMC) under Welfare and Institutions Code section 5150.

On August 11, 2003, she was transferred to Mt. Rubidoux. She did not consent to either her admission or her treatment there. Procedures for obtaining informed consent when a patient is incompetent were not followed. Her family and friends were not told that she was there.

Because Villano was refusing treatment, she was given psychotropic medication without her consent. She did not receive any treatment, and her anemia got worse. Dr. Sampat Saste was her attending physician as well as the hospital's medical director. He examined her only once, on September 6, even though he was required to examine her within 72 hours.

At all times, Villano was either confined to a bed, by bed rails, or tied into a wheelchair. When she asked to go to the bathroom, she was told to urinate into a towel instead. Eventually, her family and friends managed to locate her. On September 26, 2003, her estate planning attorney took her away, even though Mt. Rubidoux staff tried to stop her from leaving.

B. Defendants' Counsel's Opening Statements

According to defendants' counsel, when Villano was first involuntarily hospitalized at RCRMC, she was diagnosed with dementia and psychosis. She was transferred to Mt. Rubidoux at the direction of the public guardian's office and with the informed consent of her closest relative, a nephew. When asked to consent herself, she was non-responsive.

She was examined after a little more than 72 hours, albeit by a physician's assistant rather than by Dr. Saste. She was not capable of giving consent to treatment. She was given psychotropic medications because she showed signs of depression and paranoia. She did not refuse to take them and was not forced to take them. Her anemia was also appropriately treated. During her stay, her condition improved dramatically.

Villano was provided with a waist strap and bed rails because she was at risk of falling. However, she got up and walked for exercise every afternoon. She had access to a telephone. Her claim that she was not allowed to go to the bathroom was demonstrably untrue.

II. PROCEDURAL BACKGROUND

Villano filed this action in 2004. The operative complaint asserted 10 causes of action, for: (1) elder abuse, (2) false imprisonment, (3) battery, (4) intentional infliction of emotional distress, (5) "[w]illful [m]isconduct," (6) professional negligence, (7) negligence, (8) fraud, (9) unfair business practices, and (10) statutory violations.

By the time the case went to trial, the named defendants were Waterman Convalescent Hospital, Inc. (dba Mt. Rubidoux Convalescent Hospital), Plott Management Corporation, Elizabeth R. Plott Tyler, Elizabeth Plott, Dr. Sampat Saste, and Phuong Anh Thi La.*fn4

A. January 23, 2008: In Limine Rulings

On January 23, 2008, the case was called for trial. The trial court proceeded to rule on numerous motions in limine. In connection with six particular motions,*fn5 which it viewed as related, it made the following three rulings.

First, it ruled that an expert could testify on direct to what the standard of care required but not to what a statute or regulation required. If an expert's direct testimony on the standard of care was inconsistent with any applicable statute or regulation, however, the expert could then be cross-examined regarding the statute or regulation. If a statute or regulation became relevant in this manner, the trial court would instruct the jury on what it required.

Second, the trial court ruled that the breach of a "procedural" statute or regulation would not be relevant unless it "result[ed] in harm." To illustrate the meaning of "procedural," it described a hypothetical regulation that "no one should be given a shot of drug A unless . . . the following tests are done beforehand, the following forms are filled out, the following questionnaire is done, et cetera, et cetera . . . ." It characterized an expert's opinion that Villano should not have been given drug A because this regulation had not been complied with as procedural. On the other hand, an expert's opinion that Villano should not have been given drug A "because it was not medically indicated" would be substantive.

Third, it ruled that the failure to obtain informed consent from Villano personally would be substantive. However, if Villano was incompetent or incapacitated, the failure to obtain informed consent from a surrogate, in compliance with statutorily mandated procedures (see Health & Saf. Code, § 1418.8), would be procedural. Accordingly, pursuant to its previous ruling, a failure to follow those procedures would be irrelevant unless it resulted in harm. It explained: "If she gets the drug, she gets the drug. It doesn't damage her any more that a nephew in Palmdale approved it or [a] nephew in Palmdale didn't approve it. . . . If it was below the standard of care for her to receive the drug, then she's damaged by receiving the drug."

Finally, the trial court also granted a defense motion in limine to exclude evidence of violations of Mt. Rubidoux's internal policies and procedures. It ruled - much as it had already ruled with respect to statutes and regulations - that witnesses could not be asked on direct about internal policies and procedures; however, if a Mt. Rubidoux employee testified to a standard of care that conflicted with an internal policy of procedure, he or she could then be cross-examined regarding the policy or procedure.

B. January 29-February 1, 2008: Testimony and Off-the-Record Discussions

On January 29, 2008, a jury was sworn, and both sets of counsel gave their opening statements. Starting on January 29 and ending on January 30, Villano testified. Witness Isabel Garcia then started testifying.

Later on January 30, and continuing on January 31 and February 1, the court and counsel had what the court later described as "a wide ranging discussion on a number of issues," including "how to frame the special verdict . . . ." This entire discussion, however, was off the record.

C. February 1, 2008: Bifurcation and Special Verdict Form

On February 1, when the trial court went back on the record, it bifurcated "all issues regarding the relative liability among the various defendants, corporate and individual," and ordered them heard by the jury in a second phase of trial. It added, "Among the issues that will be postponed until phase two is what exactly is Dr. Saste's liability, if any, under the second hat that he has in this case, that of medical director."

Earlier, the trial court had suggested bifurcating the cause of action for statutory violations. Villano therefore filed a trial brief arguing that she was entitled to a jury trial on this cause of action. Nevertheless, the trial court not only bifurcated it but also ordered it tried by the court in a third phase of trial.*fn6 It added: "[I]f there is testimony that is relevant only to establishing [the cause of action for statutory violations], such testimony . . . is not relevant and would not come before this jury unless it has relevance toward something else."

The trial court made it clear that its bifurcation rulings were final: "This is not . . . an indicated. This is . . . a ruling." The bifurcation rulings were "not to be readdressed, been there, done that. We're not coming back to argue about it anymore."

The trial court also gave the parties a partial proposed special verdict form.*fn7 The first set of questions related to negligence and informed consent. The jury was to answer these questions separately as to five specified matters (the use of Coumadin, Risperdal, Remeron, waist restraints, and bed rails).

The trial court characterized its special verdict form as a whole as an "indicated." It did describe its decision to require separate findings on certain matters as "an extremely strong indicated . . . ." However, it also described its choice of these particular five matters (rather than others) as "not a strong indicated, this is just ...


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