(Super. Ct. No. CVCS081264)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Javier Bedolla-Reyes appeals from a judgment entered in favor of defendant Garry T. Vallier, M.D., in a medical malpractice action. Bedolla-Reyes asserts that the trial court prejudicially erred by declining his request to instruct the jury with Judicial Council of California Civil Jury Instruction (CACI) No. 405 on comparative fault. We disagree and affirm the judgment.
As we explain, the trial court appropriately declined to give the requested instruction because Dr. Vallier did not claim any negligence on the part of Bedolla-Reyes contributed to his harm. We also conclude that any error was harmless because the jury found in favor of Dr. Vallier on the basis of causation. Thus, we can reverse only if there is a reasonable probability that, had the jury been instructed that it could reduce Bedolla-Reyes's damages by the percentage of fault attributable to him, this would have changed its finding as to whether Dr. Vallier's negligence was a substantial factor in causing the harm in the first place. The jury was properly instructed on causation. We must presume it followed these instructions and find no reasonable probability of a different result absent the asserted error.
On May 27, 2007, Bedolla-Reyes lived and worked at Micheli Farms in Live Oak, a small agricultural community north of Yuba City. He was allowed to keep his two horses on the property. While loading one of the horses onto a trailer, Bedolla-Reyes stepped into a hole and broke his lower leg. Both the tibia and fibula were fractured. Two friends took him to Rideout Memorial Hospital in Marysville, where he was seen by Dr. Vallier, a board certified orthopedic surgeon. Bedolla-Reyes had diabetes, a condition that often leads to problems with wound healing following surgery.
Dr. Vallier performed surgery on Bedolla-Reyes shortly after his admission to the hospital. As Dr. Vallier explained the procedure, the tibia fracture required the placement of an "intramedullary nail" into the center of the bone with "upper and lower interlocking screws." The fibula fracture did not require surgical repair. Surgery on the tibia took 52 minutes. Dr. Vallier used a tourniquet during the surgery to keep the "incision area free of blood which would obscure [his] view" of the procedure. Prior to inserting the intramedullary nail into the center of the tibia, Dr. Vallier used a "reamer" to clear a path for the nail. The nail used was 12 millimeters in diameter. Dr. Vallier then placed two interlocking screws at the top and bottom of the tibia to support the nail. These screws went through one side of the bone, the nail, and the other side of the bone. Dr. Vallier noted that the upper screw "had really good bicortical purchase," meaning that it was firmly planted in both sides of the bone, while the lower screw had "moderate purchase." Dr. Vallier was "satisfied with all aspects of [the] surgery."
The following day, Bedolla-Reyes was discharged from the hospital with a splint on the back of the calf. He was instructed to stay off his feet as much as possible, to use crutches for walking, and to place no more weight on the injured leg than touching the toe to the ground. As Bedolla-Reyes did not speak English, someone at the hospital gave him the instructions in Spanish.
On June 4, 2007, Bedolla-Reyes returned for a postoperative appointment. He was driven to this appointment by Aaron Bermudez, an acquaintance who also acted as interpreter during the visit. Dr. Vallier noted that the leg was "not very swollen" and the wound appeared to be "healing well." Dr. Vallier believed that Bedolla-Reyes was following his postoperative instructions and decided to remove the splint and allow him to "progress with the weigh-bearing process." Dr. Vallier noted in Bedolla-Reyes's treatment plan: "'He may begin advancing his weight-bearing as tolerated, and when he gets comfortable enough he can switch to a single crutch, then a cane. I expect that [he] probably will not get to that point before the next visit which will be four weeks from now at which point we will obtain an x-ray, AP and lateral of the right tibia.'" According to Dr. Vallier, he instructed Bedolla-Reyes during the appointment that "these fractures take months to heal," the first step in the weight-bearing process was "toe-touch weight-bearing," and subsequent steps would be dictated by his body's feedback, "specifically pain, if it hurts, back off." Dr. Vallier testified that he expected Bedolla-Reyes would still be using two crutches the next time he came in for an appointment, but that he would be comfortably putting some weight on his injured leg by then.
According to Bedolla-Reyes and Bermudez, Dr. Vallier gave very different instructions. Bedolla-Reyes testified that Dr. Vallier told him to "just start walking" and to "leave the crutches and go swimming." Bermudez testified that Dr. Vallier told Bedolla-Reyes: "[Y]ou don't need the crutches anymore, you supposed to, you know, I expected you would be walking by now, and [Bedolla-Reyes], you know, [Bedolla-Reyes] told me to tell him like, you know, his feet still hurt, and the doctor said you don't need the crutches no more, you know, you need to start, you know, exercise your feet to put some weight, to put some weight on your feet, and even the doctor he mentioned, hey, you ready, you know, you're okay, you want to go swimming, you can go swimming, you got swimming pool in your house, he said no, you know, I expected you to be already, you know, walking already." According to Bedolla-Reyes, he "started laughing" because he thought it was a joke. Dr. Vallier responded: "I'm serious, leave the crutches and start walking."
Bedolla-Reyes's testimony conflicted regarding whether he followed Dr. Vallier's purported advice to start walking on his injured leg. On direct examination, he testified that he used the crutches when he left the appointment because he was "scared" and "just didn't feel secure for [his] foot yet." Bermudez then took him to a store, where he used a shopping cart for support. Bedolla-Reyes then testified that he no longer used the crutches when he got home, but was "cautious" about putting weight on his injured leg. During the next few days, most of his time was spent resting his leg. But he did walk a short distance on occasion, "from [his] room to the car [to] go eat and come back home." One night, his foot began to hurt. When he got out of bed the following morning, he saw that "it was crooked." On cross-examination, Bedolla-Reyes changed his testimony concerning whether he used the crutches, stating that he "was holding onto one because [he] didn't feel too secure." He then said that he "had to use them, and even both of them." Bedolla-Reyes also testified that he "was really careful" not to put any weight on his injured leg when he went out to get food because he "didn't feel secure."
On June 12, 2007, the day Bedolla-Reyes noticed that his foot was crooked, he called Dr. Vallier's office and was told to come in immediately. Dr. Vallier did not see Bedolla-Reyes that day, but his assistant took x-rays of the leg after Bedolla-Reyes reported increased pain and a "crunching in his ankle" over "the last three or four days." The x-rays revealed that the intramedullary nail was "still centered nicely within the bone," but the lower part of the tibia had "moved upwards a bit which then allowed the tip of the [nail] to poke through . . . the lower end of the tibia" and into the ankle joint. There was also a new fracture of the fibula. Dr. Vallier scheduled surgery for the following week. His plan was to attempt to repair the existing fixation, but he realized that he might need to replace the nail with a plate, which had to be ordered. The hospital also required prior authorization from Medi-Cal before Bedolla-Reyes could be admitted for surgery. The preoperative report written by Dr. Vallier noted the cause of the fixation failure as "walking on it against directions."
On June 18, 2007, Dr. Vallier replaced the intramedullary nail and interlocking screws with a plate and screws. He also used a plate and screws to fix the fibula fracture. This surgery took 137 minutes. Dr. Vallier used a tourniquet during the surgery because this procedure usually involved "much more blood loss than the previous surgery." Indeed, according to Dr. Vallier, he had problems controlling the bleeding despite use of the tourniquet. Because of this, the tourniquet had to be removed and reapplied during the procedure. Bedolla-Reyes also became hypotensive during the surgery, which Dr. Vallier attributed to blood loss. He was given two units of blood during the surgery and an additional two units during recovery.
Bedolla-Reyes remained in the hospital for four or five days. Following his discharge, he returned for a postoperative appointment on June 25, 2007. At that point, the wounds were clean and dry, except the longer incision Dr. Vallier made to insert the plating was still moist in the center. He did not remove the nylon sutures because this incision "had been closed under some tension" due to the fact that there was not much tissue between the skin and plate used to cover the tibia fracture. On July 5, 2007, Bedolla-Reyes returned to have the sutures removed. When Dr. Vallier did so, "the wound opened up at the center," revealing the plate underneath. Bedolla-Reyes was again admitted to the hospital and evaluated by wound care nurses. Because the "skin edges were still pink" and did not appear to be dead, Dr. Vallier and the nurses decided that putting on a wound vacuum (wound vac) would be appropriate. He was also given intravenous antibiotics. After the second change of the wound vac, the nurses contacted Dr. Vallier and informed him that the wound edges were "turning black," indicating that the tissue was dead. Either that day or the following day, on July 11, 2007, Dr. Vallier took Bedolla-Reyes back to surgery and removed the dead tissue. Bedolla-Reyes remained at the hospital receiving wound care until July 20, 2007.
At the time Bedolla-Reyes was discharged, Dr. Vallier noted that he would require a "muscle flap for coverage" of the wound, a procedure that involves taking vascular tissue from another area of the body, using this tissue to cover the wound, and then performing a skin graft over the tissue. Dr. Vallier was not capable of performing such a surgery and began making arrangements for Bedolla-Reyes to see a plastic surgeon at a University of California at Davis facility (UC Davis). A tentative appointment was scheduled for August 4, 2007. Bedolla-Reyes was not evaluated by the plastic surgeon at UC Davis until November 13, 2007. Apparently, UC Davis was not able to admit Bedolla-Reyes until his Medi-Cal application was approved, which was delayed because of a problem verifying his immigration status. In the meantime, home health nurses visited Bedolla-Reyes at his home three days a week to care for his wound. Bedolla-Reyes also continued to be seen by Dr. Vallier. According to Dr. Vallier, getting Bedolla-Reyes into UC Davis was not an emergency because the "fracture was stable" and the wound "had ...