Avila v. Aszterbaum CA4/3 ( 2021 )

Filed 7/30/21 Avila v. Aszterbaum CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CARMEN D. AVILA,
Plaintiff and Appellant, G057969
v. (Super. Ct. No. 30-2016-00862834)
MONICA L. ASZTERBAUM, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Walter P.
Schwarm, Judge. Affirmed. Request for judicial notice. Granted in part and denied in
part.
Carmen D. Avila, in pro. per., for Plaintiff and Appellant.
Schmid & Voiles, Denise H. Greer, Douglas A. Amo and Fredrick James
for Defendant and Respondent.
* * *
INTRODUCTION
Dr. Monica L. Aszterbaum, M.D., performed surgery on Carmen D. Avila
in August 2014. In the surgery, Avila, who was then 55 years old, underwent a total
1
hysterectomy and a bilateral salpingo-oophorectomy. Avila contends that her consent to
the BSO was conditional on Aszterbaum discovering evidence of cancer during the
surgery; Aszterbaum contends Avila’s consent was conditioned on Aszterbaum
discovering anything abnormal. During the surgery, Aszterbaum observed cysts on
Avila’s fallopian tubes; she determined the cysts were abnormal, and proceeded with the
BSO.
Avila sued Aszterbaum for professional negligence, failure to obtain
informed consent, and medical battery. After nonsuit was granted on the negligence
claim, the jury returned special verdicts in favor of Aszterbaum and against Avila on the
remaining claims. Avila appealed from the judgment. Substantial evidence supports the
judgment, and we affirm.
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STATEMENT OF FACTS
I.
AVILA’S FIRST VISIT TO ASZTERBAUM
Avila was first seen by Aszterbaum in April 2014 for a second opinion
regarding surgery. Avila was suffering from uterine prolapse, resulting in vaginal
pressure and incontinence. Aszterbaum and Avila discussed nonsurgical options, as well
as a total laparoscopic vaginal hysterectomy, with a possible BSO. Aszterbaum offered
1
A bilateral salpingo-oophorectomy (sometimes referred to in this opinion as a BSO) is
the removal of the ovaries and fallopian tubes in the same surgical procedure.
2
Because Avila does not challenge on appeal the trial court’s order granting nonsuit of
her professional negligence cause of action, we do not include in this opinion the facts
relating only to that claim.
2
an anterior colporrhaphy or anterior repair to address Avila’s prolapse issue. The
procedure recommended by Aszterbaum would use Avila’s “native tissue” rather than
mesh to support the bladder, rectum, and uterus or vagina.
II.
AVILA’S PREOPERATIVE APPOINTMENT AT ASZTERBAUM’S OFFICE
At a preoperative appointment on July 31, 2014, Avila signed a document
entitled “A Message to Patients About Medical/Surgical Risks” that identified the
surgical procedure to be performed as “Total laparoscopic hysterectomy, anterior repair,
cystoscopy, possible bilateral salpingo oophorectomy and poss. total abdominal
hysterectomy [tah].” (Italics added.) On the same day, Avila signed a hysterectomy
consent form that provided, in part: “I understand that unforeseen conditions may arise
and that it may be necessary to perform operations and procedures different from, or in
addition to, the hysterectomy described. I authorize and consent to the performance of
such additional or different operations and procedures as are considered necessary and
advisable.” (Italics added.)
Aszterbaum’s preoperative notes indicate that Avila’s appointment was to
prepare for “surgery 8/5/14—total laparoscopic hysterectomy, anterior repair, cysto,
possible bso and possible tah.” (Italics added.)
Avila testified: “I saw her again for the pre-op, July 31st. That day, my
daughter accompanied me. She was already on vacation, ready to take care of me after
the surgery. [¶] We went in to see the doctor. The only thing she told me, in front of my
daughter, she said, ‘Carmen, at your age, it is best that you remove your ovaries.’ [¶]
And I asked her, ‘Why?’ [¶] She told me because she has a lot of patients that, for not
having removed their ovaries at my age, now they have cancer. [¶] I told her, ‘You just
did the Pap smear on me and everything resulted normal. I’m healthy. There’s no cancer
history in my family, no type of cancer.’ [¶] And she told me, ‘Think about it. If, on the
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day of the surgery, I see something unwell.’ [¶] I told her, ‘Well, in that case, I authorize
you to do anything I need. You are the doctor.’”
Avila also testified: “In the pre-op that was in July of ’14, the doctor told
me that at my age, it was best to take out everything, without having done any evaluation.
[¶] . . . [¶] . . . I told her—because this was just two days before my surgery, and she
hadn’t done any previous evaluation—all my Pap smear and my mammograms have all
resulted well, or fine. Because she told me that she had a lot of patients that for not
having taken out the ovaries at my age, now came up with cancer. [¶] And I told her,
well, if she saw something that was not right, abnormal, or cancerous, I gave her my
authorization for everything necessary. But otherwise, no. I don’t have any cancer story
[sic] in my family.” (Italics added.)
Aszterbaum testified that at the preoperative appointment, she reviewed the
procedures to be performed and Avila’s consents, and told Avila that a BSO was a
possibility depending on what she saw during the surgery. Aszterbaum testified she had
Avila’s permission to remove her ovaries during surgery if she saw “something abnormal
or cancer.” (Italics added.)
Aszterbaum also testified that Avila did not say she would refuse the BSO
under any circumstances. “Q. And if this patient had said —after hearing your
discussion with you and recommendations, had she said, ‘You know, Doctor, I don’t care
what you find, I don’t want you to take out my ovaries,’ is that something you’d
document? [¶] A. Yes. [¶] Q. Why is that? [¶] A. For medical/legal purposes. [¶]
Q. Okay. And that’s not something she told you here? [¶] A. No. And I don’t think, in
29 years, I’ve ever had somebody—I’ve never been put in that situation.”
III.
AVILA’S SURGERY
On the day of the surgery, Avila signed another consent form reading, in
relevant part: “My physician(s) and surgeon(s) have recommended the following
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operation or procedure: Total Laparoscopic Hysterectomy, Anterior Repair, Cystoscopy,
Possible Bilateral Salpingo-oophorectomy and Possible Total Abdominal Hysterectomy,
Removal of skin tags. . . . [¶] • Upon my authorization and consent, this operation,
together with any different or further procedures which in the opinion of my physician(s)
or surgeon(s) may be indicated due to an emergency, will be performed on me.” This
consent form further provided: “My signature on this form indicates that: [¶] • I have
read and understand the information provided on this form [¶] • The operation or
procedure set forth above has been adequately explained to me by my physician and/or
surgeon including the nature of the procedure, the risks involved, the expected benefits of
the procedure, and the alternatives to the procedure [¶] • I have had a chance to ask
questions [¶] • I have received all of the information I desire concerning the operation or
procedure [¶] • I authorize and consent to the performance of the operation or
procedure.”
Before the surgery, Avila also signed a “Verification of Consent for
Planned Procedures Which Result in Sterility” stating in relevant part: “This is to certify
that I, Avila, Carmen, have been advised by my physician or his/her designee,
M. Aszterbaum, MD, that the planned procedure which will be performed on me, total
laparoscopic hysterectomy, anterior repair, cystoscopy, possible bilateral salpingo
oophorectomy and possible total abdominal hysterectomy is not elective sterilization but
for a medical condition that will render me permanently sterile [and] incapable of having
children. I understand that I have the right to obtain a consultation [from] a second
physician and withdraw this consent at anytime. My approximate length of hospital stay
and my recover[y] time has been discussed with me and I have had the opportunity to
have all my questions addressed.”
Regarding the consents signed on the day of surgery, Avila testified: “They
were handed to me, I signed them. They were not explained. They were not read. They
were not interpreted. They’re in English. I had told the doctor that whatever I needed
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was authorized.” (Italics added.) Contrary to Avila’s testimony that she did not read the
consent forms, however, Aszterbaum testified she met with Avila in the preoperative
holding area before the surgery, at which time Avila informed her that the consents did
not include the removal of a skin tag as they had previously discussed. Aszterbaum
agreed, and skin tag removal was added to the consent form and initialed by Avila that
morning.
The operating room nurse, who cosigned Avila’s consent forms in the
preoperative area on the morning of the surgery, testified that she had no difficulty
communicating in English with Avila and noted on Avila’s consent forms that no Spanish
language interpreter was needed. Avila would not have received any medication,
particularly anesthesia, before signing all the consent forms.
Aszterbaum’s notes from the day of surgery indicate that Avila understood
the risks and benefits of surgery and “is willing to proceed.” The plan that day read:
“Will proceed with definitive surgery in the form of a total laparoscopic hysterectomy
with bilateral salpingo-oophorectomy and anterior repair.”
During the surgery, Aszterbaum observed abnormalities consisting of
multiple paratubal cysts on both of Avila’s fallopian tubes. Aszterbaum testified the
cysts on Avila’s fallopian tubes would not disappear over time, but could become bigger,
causing extreme pain, and might eventually require emergency surgery. Additionally,
ovarian cancer can originate in the fallopian tubes as well as the ovaries. Aszterbaum
therefore made the decision to perform a BSO at that time, “knowing I had permission to
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do it if I noted pathology at the time of the surgery.” A pathology report found that the
3
cysts were benign.
Aszterbaum spoke to Avila after the surgery and advised her that her
ovaries had been removed. Aszterbaum prescribed an estrogen patch for Avila.
A medical expert called by the defense at trial testified that finding multiple
paratubal cysts on the fallopian tubes was abnormal and it would have been malpractice
not to remove them. It would not have been possible for Aszterbaum to have known
whether the cysts were benign or malignant at the time of surgery. The expert reiterated
Aszterbaum’s testimony that ovarian cancer can start in the fallopian tubes, meaning an
abnormal finding regarding the fallopian tubes should not be ignored. The expert also
testified that if a patient had signed the consent forms used in this case, a reasonable
physician would have no reason to believe the patient had not consented to all of the
surgeries identified on the consent forms.
PROCEDURAL HISTORY
In July 2016, Avila sued Aszterbaum for professional negligence, failure to
obtain informed consent, and medical battery. After Avila had presented her
case-in-chief, the trial court granted Aszterbaum’s nonsuit motion as to the claim for
professional negligence.
The jury returned two special verdict forms. The first read as follows:
“We, the jury in the above-entitled action, find the following special verdict
on the questions submitted to us:
3
A transcription of Aszterbaum’s surgical notes, which was admitted at trial, says “tubes
and ovaries within normal limits” and does not mention any cysts. Aszterbaum testified
this was either an inadvertent omission in dictation on her part or an error in the
transcription. The pathology report references “[m]ultiple fluid-filled paratubal cysts,”
with those on the right tube measuring up to .7 centimeters, and those on the left
measuring up to .8 centimeters.
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“1. Did Dr. Monica Aszterbaum perform a bilateral salpingo-
oophorectomy on Carmen Avila?
“If your answer to question number 1 was yes, then answer question
number 2. If you answered no, stop here, answer no further questions, and have the
presiding juror sign and date this form.
“ X Yes No
“2. Did Dr. Monica Aszterbaum fail to disclose to Carmen Avila the
important potential results and risks of, and alternatives to the possible bilateral
salpingo-oophorectomy?
“ Yes X No
“If you answered yes to question number 2, then answer question number 3.
If you answered no to question number 2, stop here, answer no further questions, and
have the presiding juror sign and date this form.”
The second special verdict form read:
“We, the jury in the above entitled action, find the following special verdict
on the questions submitted to us:
“1a. Did Carmen Avila consent to a bilateral salpingo-oophorectomy to
remove her ovaries on the condition her ovaries would be removed if Dr. Aszterbaum
saw they were cancerous as determined during the surgery?
“ Yes X No
“Go to question number 1b.
“1b. Did Carmen Avila consent to a bilateral salpingo-oophorectomy to
remove her ovaries on the condition that her ovaries would be removed if
Dr. Aszterbaum determined there were abnormalities as determined during the surgery?
“ X Yes No
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“If you answered yes to question number 1a or number 1b, then answer
question number 2. If you answered no to both question number 1a and question number
1b, then answer question number 3.
“2. Did Dr. Monica Aszterbaum proceed with the bilateral salpingo-
oophorectomy without the condition in question 1a and/or 1b having occurred?
“ Yes X No
“If you answered yes to question number 2, then answer question number 3.
If you answered no to question number 2, stop here, answer no further questions, and
have the presiding juror sign and date this form.”
Judgment was entered in favor of Aszterbaum, and Avila appealed.
DISCUSSION
I.
AVILA’S REQUEST FOR TRANSMISSION OF NONADMITTED EXHIBITS
AND REQUEST FOR JUDICIAL NOTICE
The exhibits admitted at trial were transmitted to this court. Avila has on
several occasions requested that other exhibits and/or portions of exhibits that were not
admitted at trial be transmitted to this court in connection with this appeal. In response to
her second motion for reconsideration of this court’s order regarding transmission of
exhibits, we received the documents submitted with the motion and advised the parties
that we would decide whether they were appropriate for inclusion in the appellate record
in connection with this appeal.
Only exhibits “admitted in evidence, refused, or lodged” may be included
in the record on appeal (Cal. Rules of Court, rules 8.122(b)(3)(B), 8.224(a)(1)), or
considered by the appellate court unless the court grants leave to produce additional
evidence on appeal (see Code Civ. Proc., § 909; Tsakos Shipping & Trading, S.A. v.
Juniper Garden Town Homes, Ltd. (1993) 12 Cal.App.4th 74, 87). None of the
documents transmitted to this court by Avila is appropriate for consideration by this
9
court. Having reviewed the clerk’s transcript to confirm which exhibits were admitted at
trial, and absent any specific argument by Avila that any exhibits or portions thereof were
erroneously excluded by the trial court, we conclude that none of the documents
submitted to this court by Avila is properly part of the appellate record.
Additionally, prior to oral argument, Avila filed a request for judicial notice
of various documents which she admits are not a part of the appellate record, but which
were mentioned in the parties’ briefs. A motion for judicial notice on appeal must state:
(1) why the matter is relevant to the appeal; (2) whether the trial court took judicial notice
of the matter; (3) whether the matter is subject to judicial notice under Evidence Code
sections 451, 452, or 453; and (4) whether the matter relates to proceedings after the
judgment. (Cal. Rules of Court, rule 8.252(a)(2).)
The materials attached to Avila’s request for judicial notice include updates
to her medical records, documents filed in connection with a separate malpractice lawsuit
against Aszterbaum, and a list of radiology billing codes. The documents filed in the
separate malpractice action are court records and therefore may be the proper subject of
judicial notice. (Evid. Code, § 452, subd. (d).) As they may have some relevance to the
court’s ruling on the motion in limine precluding evidence of other litigation involving
Aszterbaum, we shall take judicial notice of these documents and consider them as
appropriate. However, as we will discuss later in this opinion, these documents cannot be
considered to the extent they are inadmissible under Evidence Code section 1101,
subdivision (a).
None of the other documents attached to Avila’s request for judicial notice
is the proper subject of judicial notice and none is relevant to the issues on appeal.
Avila’s updated medical records relate to events after the judgment was entered. We
deny the request for judicial notice as to these documents.
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II.
SUBSTANTIAL EVIDENCE OF CONSENT
Avila argues that there was no substantial evidence to support the jury’s
finding that she gave informed consent to the BSO or that she otherwise consented to
removal of her ovaries if Aszterbaum determined during surgery that there were
abnormalities.
“‘When a [jury]’s factual determination is attacked on the ground that there
is no substantial evidence to sustain it, the power of an appellate court begins and ends
with the determination as to whether, on the entire record, there is substantial evidence,
contradicted or uncontradicted, which will support the determination, and when two or
more inferences can reasonably be deduced from the facts, a reviewing court is without
power to substitute its deductions for those of the trial court. If such substantial evidence
be found, it is of no consequence that the trial court believing other evidence, or drawing
other reasonable inferences, might have reached a contrary conclusion.’ [Citation.] The
substantial evidence standard of review is applicable to appeals from both jury and
nonjury trials.” (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138,
4
143.)
4
Avila argues in her reply brief that there is substantial evidence in the record from
which the jury could have ruled in her favor. Avila’s argument is contrary to the standard
by which we review a jury’s verdict. The question is not whether there is evidence to
support a finding in Avila’s favor, but whether there is substantial evidence to support the
findings actually made by the jury in favor of Aszterbaum. Reversal of the jury’s findings
is not permissible just because there is also evidence to support Avila’s position.
Reversal is only permissible under the substantial evidence standard if, after reviewing
the entire record, we conclude there is no substantial evidence supporting the verdict.
(Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582; see Gray v. Don Miller &
Associates, Inc. (1984) 35 Cal.3d 498, 503.) If there is substantial evidence supporting
the jury’s verdict, it does not matter that other evidence favoring Avila’s position exists,
or that we might have believed the evidence in Avila’s favor had we been the trier of fact.
(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
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As set forth in detail, ante, there was more than substantial evidence that
Avila gave her informed consent to the BSO, and that Aszterbaum did not commit a
medical battery on Avila. Avila signed three documents on two different days consenting
5
to a BSO if Aszterbaum discovered anything abnormal during the surgery. Aszterbaum
also discussed with Avila her recommendation regarding the possibility of a BSO.
During the surgery, Aszterbaum observed cysts on Avila’s fallopian tubes; the cysts were
abnormal. Although a postsurgical pathology report determined the cysts were benign,
Aszterbaum’s removal of Avila’s ovaries and fallopian tubes based on the discovery of
the cysts was neither a medical battery nor outside the scope of the consent Avila had
provided.
In her appellate briefs, Avila cites extensively to her daughter, Anavictoria
Avila’s, videotaped deposition testimony regarding the consent forms. Although Avila
lodged the transcript of her daughter’s deposition as Exhibit 37 before trial, that exhibit
was not admitted into evidence at trial, and Avila does not identify any place in the
appellate record showing that she had attempted to read any portion of the deposition
testimony into the record at trial.
In her reply brief, Avila argues that Aszterbaum did not obtain her
informed consent because Aszterbaum did not disclose “all information relevant to a
As an appellate court, we defer to the jury’s resolution of fact issues because the jury
had the benefit of observing the demeanor of witnesses and was therefore in a better
position than this court to assess the credibility of the witnesses. (In re Marriage of
Boswell (2014) 225 Cal.App.4th 1172, 1175-1176; Catherine D. v. Dennis B. (1990)
220 Cal.App.3d 922, 931.) As a matter of jurisprudence, we must leave to the trial court
the issue of deciding questions of fact, while we address questions of law. (Tupman v.
Haberkern (1929) 208 Cal. 256, 262-263.)
5
Avila contends that the interpreters at her deposition and at trial mistranslated her
testimony regarding the conditions under which she would consent to the BSO. The
translators at trial were certified by the court and the certifications were validated. When
excerpts from Avila’s deposition were read at trial, Avila did not object.
12
meaningful decisional process.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 242.) In its
special verdict, the jury found that Aszterbaum did not “fail to disclose to Carmen Avila
the important potential results and risks of, and alternative to the possible [BSO].” The
wording of the consent forms and Aszterbaum’s testimony constitute substantial evidence
supporting the jury’s findings.
Avila also argues that Aszterbaum committed medical battery by exceeding
the conditions of her consent. As explained ante, the consents addressed the possibility
of the removal of Avila’s ovaries and fallopian tubes. The testimony of Avila and
Aszterbaum disagreed as to whether that removal would occur if Aszterbaum discovered
something “abnormal” or something “cancerous.” The jury was entitled to believe
Aszterbaum, and it did; the jury therefore made findings that Avila’s consent to the BSO
was not conditioned on Aszterbaum finding that the ovaries were cancerous, but rather
that Avila’s consent to the BSO was conditioned on Aszterbaum “determin[ing] there
6
were abnormalities as determined during the surgery.”
Avila states in her reply brief that, after trial was trailed to allow the parties
to conduct settlement discussions, she “was not allowed to complete her testimony
regarding claimed financial damages.” The clerk’s transcript reflects that settlement
discussions occurred before the pretrial conference, and did not affect Avila’s trial
testimony in any way.
III.
EXCLUSION OF EVIDENCE OF OTHER LAWSUITS
Avila argues that the trial court erred by granting Aszterbaum’s motion in
limine to exclude evidence of other malpractice lawsuits against her. Aszterbaum
6
Avila frequently quotes the trial court’s statements regarding its decision to deny the
nonsuit motion as to the lack of informed consent and medical battery causes of action to
bolster her argument that she was entitled to judgment on those claims. Whether the
evidence was sufficient to withstand a nonsuit motion does not mean a cause of action
was proven.
13
correctly observes that Avila fails to support her argument with any authority or analysis.
Although Avila did not separately raise this issue and support it with argument in her
opening brief, we will consider the issue in this opinion because she did address the issue
specifically in her reply brief. (See Cal. Rules of Court, rule 8.204(a)(1)(B); Said v.
Jegan (2007) 146 Cal.App.4th 1375, 1384-1385.)
The trial court did not abuse its discretion in granting the motion in limine.
Evidence that a doctor is unskilled, whether proven by reputation or by specific prior
acts, is not admissible to prove he or she was negligent on a specific occasion.
(Evid. Code, §§ 1101, subd. (a), 1104; Bowen v. Ryan (2008) 163 Cal.App.4th 916, 924;
Hinson v. Clairemont Community Hospital (1990) 218 Cal.App.3d 1110, 1122,
disapproved on other grounds in Alexander v. Superior Court (1993) 5 Cal.4th 1218,
1228, fn. 10.) The proffered evidence of other malpractice suits was an attempt to prove
Aszterbaum was unskilled by showing her prior acts that lead other patients to sue for
medical malpractice, and thus was inadmissible.
Avila contends that the trial court erred by failing to allow her to finish her
oral argument at the hearing on the motion in limine. The court explained clearly to
Avila why it was granting the motion in limine, and Avila twice replied that she
7
understood. The court did not cut off Avila’s right to argue against the motion in limine,
and she does not indicate on appeal what more she could have said.
As noted previously, we granted Avila’s request for judicial notice as to the
complaint, a minute order continuing a case management conference, and a request for
dismissal of another lawsuit filed against Aszterbaum by a different plaintiff. While
Avila would like to draw from these documents the inference that Aszterbaum has
repeatedly performed surgery negligently, it would be impossible to reasonably do so.
First, the only information we can discern from these documents is that Aszterbaum was
7
Avila said: “I think you are correct in whatever you say would be okay,” and “Once
again I agree with you, but I’m concerned about the situation.”
14
a medical professional involved in the treatment of another patient who later sued
Aszterbaum for malpractice and that the lawsuit was eventually dismissed with prejudice.
We cannot even determine from these documents that Aszterbaum performed any
surgical procedure on this other patient, much less discern whether or how Aszterbaum
might have acted negligently. Second, Evidence Code section 1101 makes these
documents inadmissible because no trier of fact should make assumptions about a
medical professional’s performance in one matter based on the claims of another patient
in another matter.
DISPOSITION
The judgment is affirmed. In the interests of justice, neither party shall
recover costs on appeal.
FYBEL, ACTING P. J.
WE CONCUR:
GOETHALS, J.
MARKS, J.*
*Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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