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Recent decision on sufficiency of special verdict form to support
a battery claim in a medical malpractice action
Saxena v. Goffney (January 24, 2008) |
In the recent decision of Saxena v. Goffney (January 24,
2008) 07 C.D.O.S. 1180, Division Three of the Fourth Appellate
District held that a special verdict form proffered by plaintiffs
and accepted by the court in support of a battery cause of action
against the defendant physician did not support a finding of
battery. Rather, it reflected a “confluence” of battery and
negligence that, in the end, only supported a finding of no informed
consent, rather than a finding of no consent at all which is
required to find medical battery in California.
The underlying action was one for wrongful death, medical negligence
and battery against Dr. Goffney by the widow and two children of
Rajesh Saxena. Dr. Goffney had undertaken to treat an open wound on
Mr. Saxena’s leg with a series of surgical debridements and the use
of Apligraf, a synthetic skin-like material used to promote healing.
At the outset of treatment, Mr. Saxena signed a consent form
authorizing the procedures by Dr. Goffney. After the first several
treatments, Mr. Saxena developed a fever and had difficulty
breathing. When he was to see Dr. Goffney about a month after
beginning treatment, he was not feeling well and his wife tried to
change the appointment. At the request of a nurse in Dr. Goffney’s
office, Mrs. Saxena brought her husband to Dr. Goffney’s office;
once there Mrs. Saxena “begged and begged” to put off the procedure
until her husband gained some strength. In response, Goffney said he
would have to throw away and waste the $1,200 Apligraf if he did not
use it that day. He went on to debride the wound and apply the
Apligraf; Mr. Saxena died the next day of congestive heart failure.
The trial of the matter proceeded against Goffney only. Goffney made
a motion for nonsuit on the battery claim at the close of evidence,
which was denied. The court then gave two instructions to the jury
on the battery claim. The first was CACI No. 530 (medical battery),
the second a special instruction that made reference to a lack of
“informed consent” proffered by plaintiffs and accepted by the court
over Goffney’s objection. The plaintiffs also proffered a special
verdict form which the court accepted and gave to the jury. The jury
found Dr. Goffney liable for negligent treatment or diagnosis of the
patient, but also found that he performed a procedure on the patient
without his “informed consent.” They awarded plaintiffs $12.1
million in noneconomic damages and over $600,000 in economic damages
100% against Goffney.
Goffney moved for JNOV on plaintiffs’ battery claim, and for a new
trial and to conform the judgment to MICRA. The nub of the problem
in this case—which the trial court acknowledged—was that the
instruction and the special verdict form proffered by plaintiffs on
the battery cause of action both said “without informed consent”
rather than “without consent” and thus did not require the jury to
find that Goffney committed a battery. Despite this, the trial court
denied Goffney’s JNOV, but granted a new trial on the battery and
lack of informed consent negligence cause of actions, and on
damages. The trial court said the damages award could not stand
because of “instructional error, the deficiencies in the special
verdict form, and the jury’s failure to apportion damages between
the battery and negligence claims.” It denied Goffney’s motion for a
new trial on the negligence claims and his motion to have the
verdict conform to MICRA.
Goffney appealed the denial of his JNOV motion and also sought a
writ to compel the trial court to grant his motion for new trial on
plaintiff’s negligence claim; plaintiffs cross-appealed the order
partially granting a new trial. The appellate court considered the
appeals and writ petition together and concluded the court should
have granted Goffney’s motion. It went on to reverse the JNOV and
new trial orders and remanded with instructions to grant the JNOV on
the battery claim, to consider Goffney’s MICRA motion and to enter
judgment for Goffney on the battery claim and for plaintiffs on the
negligence claims. Goffney’s writ petition was denied.
The appellate court began its analysis by stating that it was not
going to consider two of Goffney’s contentions on appeal: that the
denial of the JNOV was erroneous because there was insufficient
evidence that he committed battery or that he intended to harm the
patient. Rather, the court focused on and agreed with Goffney’s
third contention, that reversal was warranted because the special
verdict form prepared by plaintiffs did not contain any findings on
the battery cause of action.
The court went into a detailed discussion about the fact that a
battery and a lack of informed consent are two distinct and separate
acts and causes of action. “A lack of informed consent which sounds
in negligence arises when a doctor performs a procedure without
first adequately disclosing the risks and alternatives” to the
patient with respect to that that treatment or procedure. A battery
is an intentional tort committed by a physician who performs a
procedure with no consent from the patient to the treatment at
all—“an offensive touching of a person who has not consented to the
touching.” The court also rejected as unmeritorious plaintiffs’
contention that there is no functional difference between lack of
informed consent and lack of any consent.
The Saxena court observed the battery cause of action alleged in the
wrongful death complaint and the plaintiffs’ instructions and
verdict form referred to the fact the defendant acted without the
patient’s “informed consent,” not without “any” consent. While the
trial court found the allegation as phrased in the complaint was
sufficient to overrule a demurrer to the battery cause of action, in
the context of the jury instruction and verdict form the appellate
court found the language legally insufficient to support a battery
claim:
At plaintiff’s request, the court instructed the jury it could find
Goffney liable for battery if he performed the procedure without
Saxena’s informed consent. (Emphasis in original) This instruction
conflated the theories of negligence and battery: It allowed the
jury to find Goffney liable for battery by concluding he performed
the procedure without Saxena’s consent, or by concluding Saxena
consented without sufficient information. Performing a medical
procedure without informed consent is not the same as performing a
procedure without any consent. But the verdict form read as a whole
unmistakably relates to the lack of informed consent. Because it is
impossible to determine how the jury would have resolved the battery
issue had it been instructed properly and had it been asked to
answer the question of whether Goffney performed a procedure without
Saxena’s consent, we will not ‘”speculate on the basis of the
verdict.”’
Instead, the court read the verdict form to mean what it says—that
Goffney did not have the patient’s informed consent. The court found
the special verdict form “fatally defective” because it did not
require the jury to “resolve every controverted issue,” specifically
the battery claim. Unfortunately for plaintiffs, they requested the
instructions and proffered the verdict form used. They tried to
argue that Goffney waived his right to challenge the special verdict
form and that defense counsel lay in the weeds knowing the
instructions and form were fatally defective. The court rejected
both arguments of plaintiffs because there was no evidence that
defense counsel was trying to “reap a technical advantage or engage
in a litigious strategy.” “It was plaintiffs’ responsibility to
tender their case to the jury. If plaintiffs chose to submit a
verdict form tendering less than their full case to the jury,
Goffney had no further incentive to object.” The court found
plaintiffs, not Goffney, had “invited the error” and are therefore
bound by the defective verdict form.
As a procedural matter, the court of appeal found that while the
trial court analyzed the problem with the verdict form correctly
(that there was no basis for liability for battery based on the
findings in the special verdict form), its solution to the problem
at the conclusion of trial was incorrect. The trial court should
have granted Goffney’s JNOV on the battery claim rather than order a
new trial because there was no statutory basis upon which the court
could grant a new trial under these circumstances and “there is no
inherent power in the trial court to grant a new trial.”
The court went on to address several ancillary issues on appeal that
might have some interest to those who attempt to call witnesses who
were not timely disclosed. Apparently, Goffney was precluded from
calling witnesses he did not properly identify during discovery—he
referred to the people listed in the medical records (but not by
name) and then disclosed their names approximately 10 days before
trial but without listing addresses or other identifying
information. He was prevented from calling them at trial. The court
of appeal found the error harmless, but its discussion on the duties
of both the propounding and responding parties to compel or prepare
adequate answers to discovery requests is fascinating and is a good
primer on the benefits of diligently pursuing and updating
discovery.
This is a very good result for Goffney, who went from a massive jury
verdict against him on negligence and battery (it seems reasonable
to infer the jury believed there was battery given the $12.1 million
noneconomic verdict award) to a likely total verdict of less than $1
million after the application of MICRA and reduction of damages for
negligent failure to obtain informed consent. It is also a good
result for all physician defendants; the language of the court is
clear that any muddling of the difference between an absence of
informed consent and an absence of any consent will be resolved in
the favor of a defendant, against whom a finding of “no consent”
must be made to support a claim of battery.
It is worth reading Footnote 4, in which the court makes some
curious comments about CACI instructions No. 530 (one of two
instructions on battery the court gave the jury) and revised 530A.
The court notes former CACI No. 530 made no mention of “informed”
consent, but required the jury to find Goffney performed a medical
procedure without any consent by the patient in order to support a
claim for battery. As noted above, over Goffney’s objection, the
court also gave the jury an instruction on plaintiffs’ battery claim
that only required a finding of no “informed consent” which was
consistent with the flawed special verdict form. In Footnote 4 the
court observes that after the parties filed their opening briefs in
this appeal for some unknown reason the Judicial Council of
California issued a revised instruction pertaining to medical
battery, CACI No. 530A, which now makes reference to the necessity
to find a lack of “informed consent” in order to make a finding of
medical battery. The court points out that the former CACI No. 530
is consistent with the law of medical battery in California while
the revised instruction No. 530A “blurs the distinction between
negligence and battery as described by our high court” as did the
instruction and special verdict form proffered by plaintiffs in this
case.
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