The opinion of the court was delivered by: Raye , Acting P.J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This appeal arises from a medical malpractice action in which plaintiff Susan Kay Lawson alleges that defendant Dr. Kevin Alan Waits negligently performed a hysterectomy, which resulted in complications due to a perforated bowel. On appeal from a stipulated judgment, Lawson contends the trial court erred in precluding her trial attorney from testifying about a statement made to him by a physician who examined a key tissue sample.
We shall dismiss the appeal because the judgment entered pursuant to a stipulation is non-appealable.
FACTUAL AND PROCEDURAL HISTORY
Lawson's medical malpractice action was based on the contention that Dr. Waits breached the standard of care by suturing her bowel when closing the hysterectomy surgery wound, thereby causing a perforation of her bowel. Lawson intended to prove that her perforated bowel was discovered five weeks after the hysterectomy surgery when Dr. William Gentry performed a colonoscopy. During subsequent exploratory surgery, Dr. Gentry discovered that the transverse colon had been pulled down into the pelvis and attached to the abdominal wall. The perforation of her bowel was observed where the transverse colon was attached to the abdominal wall. In repairing the colon, Dr. Gentry removed part of it and sent the tissue to a lab for analysis. Dr. Don V. Stanton examined the removed section of the colon and discovered a medical suture in the area of the perforation.
Prior to the scheduled start of trial, Dr. Waits filed an in limine motion to exclude testimony by Lawson's trial attorney, Robert L. Davis, regarding a conversation he had with Dr. Stanton. Davis declared that he spoke with Dr. Stanton about "the length of time the suture that he had found had been in the transverse colon." Davis claimed Dr. Stanton said, "that while he couldn't be precise, 'it had been there for some time.'"
A "new" suture would have been part of the repair of the bowel by Dr. Gentry, but an "old" suture would have indicated that Dr. Waits caused the bowel perforation during the hysterectomy. During Dr. Gentry's deposition, he indicated that his operating procedure rendered him likely to have been the person to have placed the suture.
In opposing the in limine motion, Davis explained that he based the medical malpractice action on the opinion of Dr. Victor Chan before speaking with Dr. Stanton. Davis declared:
"Contrary to the implication in the defendant's motion that Dr. Chan based his opinion that Dr. Waits had sutured the bowel to the abdominal wall only after I had told him that Dr. Stanton had told me that the suture was old, Dr. Chan testified during his deposition:
"Q. When did you first form your opinions about how Dr. Waits breached the standard of care in this case?
"A. I think it was the first time I actually read the records.
"Q. And that included reading the pathologist's report ...