Filed 4/26/16 Mathews v. Benjamin CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SHARYN GAYLE MATHEWS,

 Plaintiff and Appellant,

v.

MELODY BENJAMIN et al.,

 Defendants and Respondents.

2d Civil No. B264580

(Super. Ct. No. 56-2014-00447830-

CU-PT-VTA)

(Ventura County)

Plaintiff Sharyn Gayle Mathews appeals a judgment in favor of 

defendants Melody Benjamin, M.D., and the County of Ventura in her medical 

informed consent liability/wrongful death action. The trial court properly granted 

defendants' motions in limine. We affirm.

FACTS

Mathews is the daughter of Orville Mathews who was a patient of Dr. 

Melody Benjamin at the Ventura County Medical Center. Orville Mathews was 

diagnosed with "stage IV rectosigmoid colon cancer with liver metastases." In 

February 2013, Benjamin gave him a chemotherapy drug known as "5-FU." Orville 

Mathews died a month later. 

Mathews filed a medical malpractice action against Benjamin and 

Ventura County. She alleged, among other things, that Benjamin breached the 
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standard of care by: 1) administering 5-FU which is toxic to 16 percent of patients,

and 2) not screening her father for enzyme deficiencies before using that drug. 

Defendants moved for summary judgment and attached the declaration 

of John Glaspy, M.D. He declared that: 1) "the care and treatment provided to Orville 

Mathews after his symptoms were detected were all within the standard of care," 2)

"5-FU is part of a very effective regimen to treat the type of cancer Orville Mathews 

suffered from," and 3) Orville Mathews's "condition was terminal without this 

chemotherapy."

The trial court granted summary judgment against Mathews. It ruled the 

"defendants adequately established that they did not breach the standard of care."

Mathews filed a first amended complaint alleging a wrongful death 

cause of action. She alleged that: 1) the "[d]efendants negligently administered 5-FU 

to Orville Mathews, without having him screened for the drug's toxicity and/or 

receiving Orville Mathews's informed consent"; 2) "Five-FU was toxic to [him]"; and 

3) Orville Mathews died from "5-FU enzyme deficiency."

Mathews requested a jury trial. She filed a motion in limine noting that 

defendants intended to call Glaspy to testify. Mathews claimed that no expert 

testimony about "the standard of care for disclosure" should be allowed at trial because 

"this is an informed consent case."

Defendants filed several motions in limine. They noted that Mathews 

was proceeding to trial without having designated "any retained experts" and that she 

did not have an expert who was "qualified to opine on the standard of care as it 

pertains to oncology." They claimed some of the evidence she intended to raise at trial 

required the testimony of an expert who could testify on the standard of care. Because 

Mathews did not retain such an expert, they said evidence was inadmissible on 

whether Benjamin was liable for not advising Orville Mathews about: 1) the 

availability of alternative cancer treatments, 2) the success rate of the 5-FU treatment, 

and 3) a diagnostic screening test. Defendants also claimed Mathews's attempt to 
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introduce a videotaped deposition of an expert who would discuss the results of a 

study on 5-FU was inadmissible hearsay. The trial court granted defendants' motions 

in limine.

At the beginning of the jury trial, Mathews moved to dismiss. The trial 

court entered the following judgment: "Plaintiff, Sharyn Gayle Mathews, having 

requested dismissal after an adverse trial court ruling, so that an appeal could be taken 

promptly, judgment is hereby entered based on the court's evidentiary rulings of May 

6, 2015."

DISCUSSION

Defendants' Request to Dismiss This Appeal

Defendants claim Mathews's appeal should be dismissed because she 

requested a judgment in their favor. They argue she "voluntarily dismissed her first 

amended complaint after receiving what she viewed as adverse in limine rulings that 

'crippled' her case." Defendants claim this is a nonappealable consent judgment.

"[I]t is 'wasteful of trial court time' to require the plaintiff to undergo a 

probably unsuccessful court trial merely to obtain an appealable judgment." (Building 

Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 817.) "[T]here is an 

exception to the rule that a party may not appeal a consent judgment. If consent was 

merely given to facilitate an appeal following adverse determination of a critical issue, 

the party will not lose his right to be heard on appeal." (Ibid.) We proceed to the 

merits.

Informed Consent and Alternative Treatments

Mathews contends the trial court erred by granting a motion in limine 

which prevented her from introducing evidence to show Benjamin was liable under the 

informed consent doctrine. She claims she should have been allowed to show liability 

based on Benjamin's failure to advise her father of the availability of alternative 

chemotherapy drug treatment.
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Defendants contend the trial court did not err because: 1) the duty to 

disclose under the informed consent doctrine extends to the "recommended treatment,"

but not to the "disclosure of alternative treatments"; and 2) Mathews's failure to 

present expert testimony on the standard of care prevented her from showing liability 

based on the failure to disclose alternative treatments. We agree.

A medical doctor must obtain the informed consent of the patient for the 

type of treatment the patient will receive. (Cobbs v. Grant (1972) 8 Cal.3d 229, 239.)

"A medical doctor, being the expert, appreciates the risks inherent in the procedure he 

is prescribing, the risks of a decision not to undergo the treatment, and the probability 

of a successful outcome of the treatment." (Id. at p. 243.) "But once this information 

has been disclosed, that aspect of the doctor's expert function has been performed."

(Ibid.)

"'In Cobbs v. Grant, supra, 8 Cal.3d 229, the California Supreme Court 

held that a physician has a duty to disclose to a patient :the available choices with 

respect to proposed therapy and . . . the dangers inherently and potentially involved in 

each."'" (Schiff v. Prados (2001) 92 Cal.App.4th 692, 701.) "'At minimum, a 

physician must disclose "the potential of death or serious harm" known to be inherent 

in a given procedure and an explanation in lay terms of the complications that might 

occur.'" (Ibid.) 

"'With respect to . . . alternative treatments, under the doctrine of 

informed consent "there is no general duty of disclosure with respect to 

nonrecommended procedures . . . ."'" (Schiff v. Prados, supra, 92 Cal.App.4th at p. 

701.) "'Instead, "the failure to recommend a procedure must be addressed under 

ordinary medical negligence standards."'" (Ibid.) "That is, a physician must disclose 

alternative treatments only to the extent it is required "for competent practice within 

the medical community."'" (Ibid.) "'The standard of care prevailing in the medical 

community must be established by expert testimony.'" (Ibid.)
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Defendants note in their motion in limine that Mathews "did not 

designate any retained experts" and did not have an expert who was "qualified to opine 

on the standard of care as it pertains to oncology." Mathews claimed that "expert 

testimony about the standard of care for disclosure" was not necessary because this "is 

an informed consent case."

The trial court could reasonably find that Mathews could not prove that 

the nondisclosure of alternative treatments fell below the standard of care "'"for 

competent practice within the medical community"'" without a qualified expert.

(Schiff v. Prados, supra, 92 Cal.App.4th at p. 701.) 

Nondisclosure of the Success Rate of the 5-FU Treatment

Mathews noted that Benjamin administered a "5-FU" treatment for her 

father. She claimed a physician must make certain specific success rate disclosures to 

patients when administering this treatment.

The trial court granted defendants' motion in limine. It ruled that 

Mathews could not introduce evidence that Benjamin had a duty to tell patients that 

the 5-FU treatment had a "55 to 67 percent . . . success rate for extending life" without 

calling an expert. Mathews claims "5-FU is only slightly more effective than the 

alternatives, 55% to 40%-45%."

Testimony from a qualified expert was required to prove this particular 

advice to patients was part of the required standard of care in the oncology "medical 

community." (Schiff v. Prados, supra, 92 Cal.App.4th at p. 701.) Evidence on the 

specific success rates of various treatments is a subject "beyond the general knowledge 

of lay people." (Betterton v. Leichtling (2002) 101 Cal.App.4th 749, 756.) Absent 

expert testimony, such evidence is inadmissible. (Ibid.) Evidence on whether a doctor 

should disclose "statistical life expectancy data" falls within "the standard of practice 

within the medical community." (Arato v. Avedon (1993) 5 Cal.4th 1172, 1191-1192.) 

Consequently, introducing expert testimony was required to establish that standard. 
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(Schiff, at p. 701.) Mathews made no offer of proof that she had a qualified expert 

who could testify about the standard of care involving this disclosure.

Mathews apparently wanted to introduce this evidence about success 

rates to support her claim that, had her father been advised of the alternative treatment 

success rates, he would not have consented to the 5-FU treatment. At the hearing on 

the motions in limine, the trial court asked Mathews's counsel, "[I]s there an offer of 

proof that consent would not have been given had that rate been disclosed." He 

responded, "If we're not allowed to introduce evidence of the alternatives, then I 

wouldn't think so." As already shown, the alternative treatment evidence was properly 

excluded. (Schiff v. Prados, supra, 92 Cal.App.4th at p. 701.) 

Duty to Disclose the Existence of a Diagnostic Screening Test

Mathews claimed Benjamin had a duty to disclose to her father the 

existence of a screening test procedure to determine "the drug's toxicity" before 

administering the 5-FU treatment.

The trial court granted defendants' motion in limine. It said, "If the 

procedure is one that should have been proposed, then the failure to recommend it 

would be negligence under ordinary medical negligence principles . . . ."

Whether a doctor should advise a patient of various other procedures or 

diagnostic screening tests necessarily requires expert testimony on the standard of 

care. "[T]he failure to recommend a procedure must be addressed under ordinary 

medical negligence standards." (Vandi v. Permanente Medical Group, Inc. (1992) 7 

Cal.App.4th 1064, 1070.) That requires expert testimony on the standard of care 

which Mathews was not prepared to present. (Schiff v. Prados, supra, 92 Cal.App.4th 

at p. 701; see also Scalere v. Stenson (1989) 211 Cal.App.3d 1446, 1450 ["[T]his is a 

case in which no diagnostic testing was recommended. Therefore, the predicate for 

the duty to disclose being absent, there was no duty to provide 'material information'" 

(some italics added)].)
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Mathews challenges the trial court's discretion to require expert

testimony on the standard of care in an informed consent case. But the categories of 

information that need to be disclosed to patients are not always free from ambiguity.

"[S]ituations will sometimes arise in which the trier of fact is unable to decide the 

ultimate issue of the adequacy of a particular disclosure without an understanding of 

the standard of practice within the relevant medical community." (Arato v. Avedon,

supra, 5 Cal.4th at p. 1191.) In those cases, "the testimony of medical experts 

qualified to offer an opinion regarding what, if any, disclosures--in addition to those 

relating to the risk of death or serious injury and significant potential complications 

posed by consenting to or declining a proposed treatment--would be made to the 

patient by a skilled practitioner in the relevant community under the circumstances, is 

relevant and admissible." (Ibid.) Mathews has not shown the trial court abused its 

discretion by requiring such evidence.

Moreover, on summary judgment, the trial court ruled Benjamin did not 

breach the standard of care by not performing the screening test "before beginning the 

treatment." With respect to the medical treatment provided, the court said that 

"defendants adequately established that they did not breach the standard of care."

These unchallenged findings on appeal undermine Mathews's claims of reversible 

error.

Exclusion of Deposition Testimony About a Study on 5-FU Toxicity

Mathews contends the trial court erred by "exclud[ing] the videotaped 

testimony of Dr. Gwen McMillin that the conclusion of a study determining 5-FU is 

toxic to 16% of the general population was an authoritative figure."

Defendants respond that the trial court properly granted their motion in 

limine to exclude this videotaped deposition evidence. They claim that allowing 

McMillin to testify about the contents of this "ARUP" study would introduce 

inadmissible hearsay into Mathews's case in chief. We agree.
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In Whitfield v. Roth (1974) 10 Cal.3d 874, our Supreme Court 

disapproved the practice of allowing experts to testify in a plaintiff's case to quote the 

hearsay reports of others who were not witnesses before the court. The court said, "It 

is clear that doctors can testify as to the basis of their opinion [citation], but this is not 

intended to be a channel by which testifying doctors can place the opinion of 

innumerable out-of-court doctors before the jury." (Id. at p. 895.) "[T]he opinions of 

the out-of-court doctors in this case were not used by either testifying doctor in the 

course of treatment or diagnosis of plaintiff. They were consulted as experts and then 

called as witnesses to offer expert opinion evidence." (Ibid.) "[I]t is eminently clear 

that the testimony concerning the out-of-court doctors' opinion on the crucial issue in 

the case was offered solely for the improper hearsay purpose, namely as 'independent 

proof of the facts.'" (Ibid.) 

"An expert witness may not, on direct examination, reveal the content of 

reports prepared or opinions expressed by nontestifying experts." (People v. Campos

(1995) 32 Cal.App.4th 304, 308.) Permitting the introduction of such reports would be 

improper because it would deny the adversary the right to cross-examine those who 

prepared them. (Ibid.)

Defendants note that in her deposition McMillin said the "source" of the 

16 percent toxicity level in the ARUP Laboratories report originated from an "article"

in a medical journal. McMillin's deposition testimony showed that she was not 

qualified to testify in an informed consent case about what oncologists must generally 

inform their patients or what Benjamin should have specifically advised Orville

Mathews. McMillin was not a medical doctor specializing in oncology. She had a 

Ph.D. in "pharmacology and toxicology." The trial court could reasonably find 

McMillin's deposition testimony about the ARUP report could not be used as a 

substitute for qualified expert testimony on the standard of care for disclosing 

information to patients. McMillin said, "The information in the interpretative portion 

of this [ARUP] report is not intended for the specific patient because we don't know 
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anything about that specific patient." (Italics added.) In discussing the ARUP report,

she said, "[T]here are a number of nongenetic and genetic variables . . . , so it is not 

definitive. This is not an estimate for this patient. This is background information."

(Italics added.) 

McMillin's deposition contains discussions about several exhibits which 

are attached to her deposition. They include an ARUP report and other medical

articles. Admitting such testimony in Mathews's case in chief would introduce 

inadmissible hearsay. (Whitfield v. Roth, supra, 10 Cal.3d at p. 895; People v. 

Campos, supra, 32 Cal.App.4th at p. 308.) In their motion in limine, defendants 

claimed Mathews made no showing to demonstrate "what the individual studies 

discussed in the literature mean in regard to treating patients." The trial court could 

reasonably find that was a significant omission.

Defendants raised additional objections to the deposition. They claimed 

Mathews did not lay an adequate foundation to show that: 1) 5-FU would be toxic to 

"16% of patients such as Orville Mathews," 2) the report McMillian discussed would 

be "applicable" to him or relevant, and 3) admitting the 16 percent figure without 

additional foundational proof would be confusing to jurors. (Evid. Code, § 352.)

Mathews has not shown why these objections lacked merit. She has not shown an 

abuse of discretion.

But even had the trial court erred in ruling on the motions in limine, 

Mathews has not shown a reasonable probability of a different result. (People v. 

Watson (1956) 46 Cal.2d 818, 836.) Mathews requested a judgment in favor of 

defendants at the beginning of trial. The rulings on the motions in limine did not 

prevent her from presenting evidence or making offers of proof. At trial, the court told 

Mathews the judgment would be "without prejudice as to the right to appeal" the in 

limine rulings, but it would be "with prejudice in all other respects." (Italics added.)

But Mathews did not present evidence or make an offer of proof at trial on the 

elements of her cause of action or on the issue of how the doctor's "failure to inform"
10

caused "injury to the plaintiff." (Cobbs v. Grant, supra, 8 Cal.3d at p. 245.) A party 

who claims reversible error on appeal must make adequate offers of proof. (Heiner v. 

Kmart Corp. (2000) 84 Cal.App.4th 335, 344.) Evidence on causation was an element 

of Mathews's cause of action. "[A] physician is liable only where the failure to 

disclose causes the injury." (Spann v. Irwin Memorial Blood Centers (1995) 34 

Cal.App.4th 644, 657.) Moreover, as already mentioned, during the in limine 

hearings, the court requested a specific offer of proof which Mathews was unable to 

present. Mathews has not shown reversible error. (Cobbs, at p. 245; Watson, at 

p. 836.)

We have reviewed Mathews's remaining contentions and conclude she

has not shown error.

The judgment is affirmed. Costs on appeal are awarded to respondents.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.
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Rebecca S. Riley, Judge

Superior Court County of Ventura

______________________________

Law Offices of Malcolm R. Tator, Malcolm Tator for Plaintiff and 

Appellant.

Cole Pedroza LLP, Kenneth R. Pedroza, Maureen M. Home; 

Clinkenbeard, Ramsey, Spackman & Clark LLP, Hugh S. Spackman, Barbara A. 

Carroll for Defendants and Respondents.