Filed 4/26/16 Mathews v. Benjamin CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SHARYN GAYLE MATHEWS,
Plaintiff and Appellant,

v.

MELODY BENJ AMIN et al

. ,
Defendant s and Respondent s

. 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 Vent ura County Me dical 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 medi cal malpractice action against Benjamin and
Ventura C ounty. She alleged , among other things, that Benjamin breached the2

standard of care by: 1) administe ring 5

- FU which is toxic to 16 percent of patients
, and 2) not screening her father for enzyme defici encies before using that drug.

D efendants 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 standar d of care, " 2)

" 5

- FU is part o f a very effective regimen to t reat 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

. I t ruled the

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

Mathews filed a first amended complaint alleging a w rongful death
cause of action. She alleged that : 1) the " [ d ] efend ants negligently administered 5

- FU
to Or ville 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. "

M athews requested a jury trial. She fil ed a motion in limine noting that
defendants intended to call Glaspy to testify. Mat hews claimed that no expert testimony about " the standard of care for disclosure " should be allowed at trial because

" this is an informed consent case. "

D efendants 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 test ify 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 a dvising Orville Mathews about: 1) the availability of alternative cancer treatments, 2) the success rate of the 5

- FU t reatment, and 3) a diagnostic screening test

. Defendants also claimed Mathews 's attempt to3

introduce a videotaped deposition of an exper t 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 t o Dismi ss This Appeal
D efendants 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

' cri ppled ' 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 Ass n. 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 wil l 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 Benja min 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.4 D efendants contend the trial co urt 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 car e 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.3 d 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.) " B ut 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 av ailable 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 " kno wn 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 r espect 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 negli gence standards. " '" ( Ibid. ) " That is, a physician must di sclose 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. )5 D efendants no te 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 ca re as it pertains to oncology. " Mathews claimed that " expert testimony about the standard of car e for disclosure " was not necessary because this " is
an informed consent case. "

T he 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 o f t he 5

- FU Treatment Mathews noted that Benjamin administered a " 5

- FU " treatment for her
father. She c laimed 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 tel l patients that
the 5

- FU treatment had a " 55 to 67 percent .

. . success rate for extending life " without calling an ex pert. Mathews claims " 5

- FU is only slightly more effective tha n the alternatives, 55% to 40%

- 4 5%

. "

Testimony from a qualified expert wa s 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.) E vidence on the specific success rates of various treatments is a s ubject " 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 da ta " 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

.6

( Schiff
, at p. 701.) Mathews made no offer of proof that s he 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 altern ative 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 dis closed. " He responded, " If we ' re not allowed to introduce evidence of the alternatives, then I
wouldn ' t think so. " A s 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, " I f the procedure is one that should have been proposed, then the failure to recommend it would be negligence under ordinary medical negligence principle s

. . . . "

W hether 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 (198 9) 211 Cal.App.3d 1446, 14 50 [ " [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)]

. )7 Mathews challenges the trial court ' s dis cretion 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 testi mony of medical experts qualified to offer an opinion rega rding 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 tha t they did not breach the standard of care. "
Th ese unchallenged finding s on appeal undermine Mathews ' s claim s o f reversible

error

. Exclusion of Deposition Testimony About a Study o n 5

- FU Toxicity

Mathews contends the trial court erred by "exclud[ ing ] th e 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. "

D efendants 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 in to Mathews ' s case in chief. We agree.8 In Whitfield v. Roth (1974) 10 Cal.3d 874
, our Suprem e 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 th e 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 doctor s ' opinion on the crucial issue in the case was offered solely for the improper hearsay purpose, namely as ' i ndependent proof of the facts. '" ( Ibid. )

" An expert witness may not, on direct examination, reveal the content of reports prepared or opinions e xpressed 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 the m

. ( Ibid. )

D efenda nts note that in her deposition McMill in 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 shou ld have specifically advised Orville
Mathews. McMillin was not a medical doctor specializing in oncology. She had a
Ph.D

. in " pharmacology and toxic ology. " 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 patient s

. McMillin said, " T he infor mation in the interpretative portion of this [ARUP] report is not intended for the specific patient because we don ' t know9

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

. )

M cMillin ' 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 introduc e inadmissible hearsay. ( Whitfield v. Roth
, supra , 10 Cal.3d at p. 895; People v. Campos , supra , 32 Cal.App.4th at p. 308.) In th eir 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 t hat was a significant omission.

D efendan ts 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 o r relevant
, and 3) admitting th e 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 show n 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. " (I talics 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.) E vidence on causation was an element
of Mathe ws ' 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, a s already mentioned, during the in limine hearings
, the court requested a specific offer of pr oof which Mathews was unable to present

. Mathews has not show n reversible error

. ( Cobbs
, at p. 245; Watson , at
p. 836 .)
We have revi e wed Mathews ' s remaining contentions and conclude she
has not shown error.

The judgment is affirmed. Cost s on appeal ar e awarded to respondents.
NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.11 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.