In Ayala v. Arroyo
Vista Family Health Center (March 14, 2008) 08 C.D.O.S. 2945,
Division Three of the Second Appellate District addressed the
circumstances under which CACI 506, “Alternative Methods of Care”
may be given. Plaintiffs appealed the judgment for defendant health
care providers on the ground that CACI 506 was improperly given and
constituted prejudicial error. The court agreed that CACI 506 should
not have been given in this case because there was no expert
testimony “to the effect that a medical practitioner chose a
medically accepted method of diagnosis (or treatment) from among
alternative medically accepted methods of diagnosis (or treatment).”
While the defendants offered expert opinion testimony that standard
of care had been met, the defense did not proffer any expert
testimony that the method used to diagnose plaintiff’s condition was
“one of a number of approved or recognized methods of diagnosing a
patient with Ayala’s history and symptoms.” In light of that, CACI
506 should not have been given. The court did find, however, that
the error was not prejudicial and affirmed the judgment.
Briefly, plaintiffs and appellants Yahaira Ayala, a minor, by and
through her mother and guardian ad litem, Rita Rios, and Rios
individually, sued Arroyo Vista Family Health Center for medical
malpractice on the grounds that the health care providers at Arroyo
did not perform an adequate work-up of Ayala and failed to diagnosis
and treat Ayala for hyperglycemia. As a result of their alleged
negligence, Ayala became severely hyperglycemic and went into a
diabetic coma which left her a type 1 diabetic with severe,
permanent brain injury.
There was some conflicting testimony about the nature of the girl’s
symptoms and whether the standard of care required the physicians
who examined her to test for hyperglycemia. Plaintiff’s expert
contended that the standard of care required the child to be tested
for hyperglycemia given her presenting symptoms and family history.
Testimony by the expert for the defense was that the standard of
care did not require such testing, and further, that the fact Ayala
was hyperglycemic in and of itself was “not determinative of
negligence. A physician can miss a diagnosis such as this without
acting below the standard of care.”
The defense requested the jury be given CACI 506 on the basis that
testimony by both standard of care experts showed that there were
“various methods and means by which a diagnosis could be pursued and
by which treatment could be provided.” Plaintiffs opposed the
instruction as “improper because there was no effort made by
defendants to diagnose or treat Ayala’s hyperglycemia.” Basically,
plaintiffs argued that where, as here, a diagnosis is not pursued or
made at all, the “alternative methods of care” instruction should
not be given.
After the trial on the matter, the jury found that “Arroyo was not
‘negligent in the diagnosis or treatment of [Ayala].’” The
plaintiffs moved for new trial on the grounds that CACI 506 was
improperly given, but the trial court denied the motion. Thereafter,
plaintiffs timely appealed the judgment for Arroyo.
On appeal, the court reviewed the evidence in the light most
favorable to Arroyo, the party that proffered the instruction, since
parties have the “right to have the jury instructed as to the law
applicable to all their theories of the case which were supported by
the pleadings and the evidence, whether or not that evidence was
considered persuasive by the trial court.”
The court observed that there is a “dearth of authority on when it
is appropriate to instruct the jury on medically accepted
alternative methods of diagnosis.” However, it noted that in order
to be entitled to an instruction on “alternative methods of care,”
there must be evidence that a particular treatment was rendered and
that it was among accepted alternative methods of care available to
the practitioner under the circumstances. The court pointed out that
while there was ample testimony that the standard of care was met by
defendants in their care of Ayala, “there was no expert testimony to
the effect that a medical history and physical examination is a
medically accepted alternative method of diagnosing a patient with
Ayala’s history and symptoms, so as to support the giving of CACI
506.”
The evidence supported the giving of CACI 501, the standard of care
instruction, but in the collective mind of the court, the fact that
instruction was applicable did not mean that CACI 506 was also
applicable. Without expert testimony that what defendants did was “a
medically accepted alternative method of diagnosing a patient with
Ayala’s history and symptoms, CACI 506 was inapplicable and should
not have been given.” The appellate court held that the
instructional error was harmless, though, since it was “not
reasonably probable that plaintiffs would have obtained a more
favorable result in its absence.”
This is an interesting case and is helpful to trial attorneys when
trying to decide whether to give CACI 506, or not. According to the
Ayala court, unless there is expert testimony that 1) care was
rendered; 2) the care rendered was one of several appropriate and
accepted methods of care; and 3) the care rendered was an
appropriate and acceptable choice and method of care in the case at
issue, one should probably not give CACI 506. Ayala presented a
situation in which the defendants didn’t do anything to diagnose (or
rule out the presence of) of hyperglycemia, they just attributed the
girl’s symptoms to other conditions, so it was not a situation of
making a choice of one appropriate method of diagnosis or treatment
for hyperglycemia over another. The ultimate fact that the jury felt
what was done met the standard of care trumped the erroneous
instruction, though, and rendered it harmless error. |
