Filed 3/27/14 Moering v. Santa Barbara Cottage Hospital 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

NANCY MOERING et al.,

 Plaintiffs and Appellants,

v.

SANTA BARBARA COTTAGE 

HOSPITAL, INC. et al.,

 Defendants and Respondents.

2d Civil No. B244410

(Super. Ct. No. 1372813)

(Santa Barbara County)

Nancy Moering and Dean Moering appeal from judgment after jury trial in 

this action for negligence and medical malpractice against Santa Barbara Cottage 

Hospital, Inc. and Cottage Health System (collectively "Cottage"). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Our factual and procedural summary is based upon Cottage's brief and our 

own partial review of the record because the Moerings' opening brief does not support its 

factual references with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) 

In 2009, Nancy Moering had a total hip replacement surgery at Cottage.1

About two days later, her hip became dislocated. Nancy testified that this happened 

when a nurse's assistant pulled a pad out from under her and caused her body to shift 

 

1 We hereafter refer to Nancy Moering by her first name, not from disrespect, but to ease 

the reader's task.
2.

suddenly. After the dislocation, Michael F. Maguire, M.D., attempted a closed reduction 

but it was not successful.2 A second surgery was performed to reset the dislocated hip. 

A third surgery was necessary to replace the prosthesis. 

Before trial, the trial court declined to admit a bulk exhibit that contained 

all of Nancy's medical records, but indicated it would rule on any part of the record that 

witnesses referred to during the course of the trial. Also before trial, the court sustained 

Cottage's hearsay objection to several exhibits that summarized statutes, regulations and 

standards for nursing care and medical record documentation. The court indicated that it 

would take judicial notice of any relevant provisions and incorporate them into the jury 

exhibits. It allowed the experts to describe these provisions when they testified about the 

standard of care and allowed them to refresh their memories by referring to them. 

The Moerings presented two expert witnesses. Sharon McFerran, a 

registered nurse, testified about the standard of care applicable to nurses based on the 

California Code of Regulations, titles 16 and 22 and the Joint Commission on 

accreditation of hospitals (Joint Commission) standards. McFerran offered her opinion 

that Nancy's medical records were inadequate and contained errors, omissions, and 

inconsistencies. Based on her review of Nancy's medical records, she testified that 

Nancy had skin breakdown while at Cottage and that Cottage staff did not timely comply 

with physician's orders concerning her care. McFerran testified that the records lacked 

documentation of bathing and turning. She did not testify that any failure to comply with 

the applicable standard of care was a proximate cause of harm to Nancy. 

Denise Welvang, a pharmacist, offered her opinion that Nancy did not 

receive adequate anesthesia during the hip revision surgery, that her pain was not 

properly controlled with medication, that she did not consistently receive nicotine 

patches, that her skin breakdown was not properly treated, that her medication was not 

properly ordered or administered, and that her chart contained omissions and errors. The 

 

2

The trial court entered judgment in Maguire's favor after granting his motion for 

summary judgment. 
3.

Moerings did not elicit any opinions about violation of statutes, regulations or standards

from her.

The Moerings also offered the testimony of Nancy's orthopedic surgeon, 

John Gainor, M.D. Gainor described his care and treatment of Nancy. The trial court 

admitted the records to which he referred. He testified that dislocation occurs 

approximately 3 percent of the time after a hip replacement in the absence of any 

negligence, but that dislocation in the hospital is rare. He said he believed Nancy was 

responsible for her dislocation. On cross-examination, he testified that he warned Nancy 

that dislocation is a risk of hip replacement surgery and advised her to stop smoking 

because smoking inhibits bone healing. 

Cottage offered the testimony of several treating healthcare providers. A 

nurse's assistant testified that, after she helped Nancy walk from a chair to the bed, 

transferred her into bed, and placed a pillow between her legs, Nancy told her she heard 

something pop. The assistant contacted a nurse. Carissa Hampton, R.N., testified that 

Nancy told her she heard a pop and thought she dislocated her hip. The treating charge 

nurse, Emily Wissink, R.N., described the steps taken immediately after the dislocation. 

A treating physical therapist, Mariann Thomas, described the precautions Cottage 

personnel took to reduce Nancy's risk of dislocation. She testified that Nancy was not 

compliant and needed to be reeducated on the precautions. The trial court admitted 

nursing notes and physical therapy notes offered by Cottage during this testimony.

Cottage also presented the expert opinion of Michelle Jones, R.N., that the 

Cottage nursing staff complied with the applicable standard of care; that Nancy received 

appropriate care and treatment at Cottage; and that Cottage personnel properly managed 

her pain, followed physician's orders, and evaluated and treated her skin breakdown. 

Jones testified that Nancy was not compliant with physical therapy despite appropriate 

instruction. She testified that the Joint Commission standards are optional guidelines. 

A board certified orthopedic surgeon, Stuart Gold, M.D., testified that 

Nancy's hip dislocated because there was insufficient bone ingrowth following her hip 
4.

replacement surgery, not due to any fault of a physician or nursing staff. He testified that 

dislocation occurs 3 to 6 percent of the time in the absence of any negligence. 

Before the last witness was to testify, the trial court heard Cottage's motion 

for nonsuit. Cottage argued that there was no expert testimony on breach of the standard 

of care or causation. The trial court denied the motion because, it reasoned, a jury could 

find the nursing assistant dislocated the hip when she moved the pad on a theory of res 

ipsa loquitor without expert testimony. The court cautioned the Moerings' counsel that 

this was the only viable theory on the evidence presented; that there was no expert 

evidence of a breach of the standard of care or causation; and that it would not be 

instructing on any statutes, regulations or standards concerning documentation or nursing 

care in the absence of such evidence. 

During argument on the nonsuit motion, the Moerings' counsel said she 

wished to rebut Jones' testimony that the Joint Commission standards are optional. She 

said, "I would like to bring Miss Welvang to say they are not optional." The trial court 

said, "First of all, you're not going to call Miss Welvang in for rebuttal . . . . Secondly, 

that has nothing to do with the nonsuit motion."

When the defense rested, the Moerings' counsel said she wished to present 

"two points of rebuttal" through Nancy's testimony. After recess, the trial court stated on 

the record, "We have reached the end of the evidence. There will be no further 

testimony." The Moerings' counsel did not put any offer of proof or further argument 

concerning rebuttal on the record. 

The trial court instructed the jury on the standard of care for nurses and 

hospitals and instructed the jury on res ipsa loquitor. The Moerings did not object to the 

instructions and did not propose any special instructions.

While the jury was deliberating, the Moerings' counsel told the trial court 

she wished to make a record. She offered additional arguments why she should have 

been allowed to call Welvang in rebuttal. The court commented that it would have been 
5.

rebuttal on a collateral issue because "that has nothing to do with the negligence and 

malpractice causes of action that you brought to court."

The jury deliberated for two hours and found Cottage was not negligent 

with respect to Nancy's diagnosis or treatment. 

DISCUSSION

Compliance with the Rules of Court

The Moerings' opening brief does not comply with the rules of appellate 

procedure. It does not include a summary of the significant facts with supporting 

citations to the record. A judgment or order of the lower court is presumed correct. 

(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) All intendments and 

presumptions are indulged to support it on matters as to which the record is silent, and 

error must be affirmatively shown. (Ibid.) An appellate brief must "[s]upport any 

reference to a matter in the record by a citation to the volume and page number of the 

record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) 

Very few of the Moerings' factual and procedural references are supported 

by citation to the record, and this court is left to guess in most instances where the rulings 

they complain of appear. "We are not required to search the record to ascertain whether 

it contains support for [appellant's] contentions." (Mansell v. Board of Administration

(1994) 30 Cal.App.4th 539, 545; see also In re Marriage of Falcone & Fyke (2008) 164 

Cal.App.4th 814, 830 ["We are not bound to develop appellants' arguments for them"]; 

Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 ["One cannot simply say the [trial] 

court erred, and leave it up to the appellate court to figure out why"].) The Moerings did 

not file a reply brief after these omissions were brought to their attention by Cottage's 

brief. 

Statutes, Regulations and Standards

The Moerings forfeited their claims that the trial court erred by excluding 

the text of statutes, regulations and standards and by omitting an instruction about them. 
6.

The Moerings contend that the trial court erred because it did not admit the 

text of California statutes and regulations or the Joint Commission standards. The 

Moerings also contend the trial court did not fulfill a promise to take judicial notice of 

these materials and to "'fix it' in jury instructions.'" The Moerings have not supported 

these contentions with references to the record, but we understand them to refer to the 

pretrial ruling on Cottage's hearsay objection to their exhibits that summarized or set 

forth statutes, regulations and standards for nursing care and charting. The trial court 

indicated that the exhibits would not be admitted into evidence, but it would take judicial 

notice of them if any were "on point" and include them in the jury instructions. We find 

no special instructions proposed by the Moerings in the record and no objections to the 

instructions that were given.

Moreover, the trial court allowed the Moerings' experts to present their 

opinions about the applicable standard of care and to explain the statutory and regulatory 

basis of those opinions. McFerran testified about the California Code of Regulations, 

titles 16 and 22 and the Joint Commission standards. The trial court sustained an 

objection when McFerran tried to read these materials aloud, because they were not in 

evidence, but the court encouraged her to use them to refresh her memory if necessary. 

Moreover, the statutes, regulations and standards were irrelevant in the absence of any 

expert testimony that Cottage's breach of the standard of care caused Nancy harm. The 

Moerings' counsel conceded that the "codes and regulations . . . were not used." The trial 

court did not abuse its discretion when it did not admit the materials or instruct the jury

on their contents. 

Exclusion of Exhibit Containing Nancy Moering's Entire Medical Record

The trial court did not abuse its discretion when it refused to admit Nancy's

entire medical record as a bulk exhibit before trial. 

The Moerings contend the trial court erroneously sustained a hearsay 

objection to Nancy's medical records but did not identify the ruling by citation to the 

record. We assume they refer to the pretrial discussion about Cottage's hearsay objection 
7.

to exhibit 11, Nancy's entire medical record. Exhibit 11 consisted of about 300 pages and 

was produced by Cottage's custodian of records. The Moerings' counsel agreed on the 

record that specific pages of the medical records would be authenticated and admitted 

during trial when referenced by a witness. 

Following this procedure, the trial court admitted many portions of the 

medical records as they were referred to by witnesses. The court also allowed the 

Moerings' expert to describe the medical records in detail. The Moerings' counsel did not 

always move to admit the records to which their witnesses referred. At the close of the 

Moerings' case in chief, the court reviewed those parts of exhibit 11 that had been 

authenticated and admitted, and counsel expressed no objection to the list. That the 

Moerings did not offer additional portions of the records into evidence was not the trial 

court's error. 

Recall of the Moerings' Expert

The Moerings do not demonstrate that the trial court abused its discretion 

by limiting rebuttal. 

The Moerings contend, without reference to the record, that the trial court 

precluded them from presenting Welvang to testify in rebuttal. We construe this as a 

reference to counsel's request during the nonsuit argument to rebut the testimony of Jones 

that the Joint Commission standards are optional guidelines. The trial court did not abuse 

its discretion by disallowing the rebuttal. The Moerings had a full and fair opportunity to 

present testimony about the Joint Commission standards in their case in chief and did so 

through the testimony of McFerran. They made a tactical decision not to have Welvang 

testify about the standards, possibly because she was a pharmacist and not a nurse. The 

question of whether the standards were optional or mandatory was not new and was 

collateral in the absence of any expert opinion that deviation from those standards fell 

below the applicable standard of nursing care and was a proximate cause of harm to 

Nancy. 
8.

Jury Instructions

The Moerings contend that the trial court erred by giving a res ipsa loquitor 

instruction without clarifying that the jury could find negligence on that theory without 

relying on expert opinion. The Moerings do not cite to any request for such an 

instruction in the record. They forfeit the claim. 

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
9.

Denise de Bellefeuille, Judge

Superior Court County of Santa Barbara

______________________________

Law Office of Lorraine Anderson, Lorraine Anderson for Plaintiffs and 

Appellants.

Reback, McAndrews, Kjar, Warford, Stockalper & Moore, LLP, Thomas F. 

McAndrews, Beth Ann Younggren, Cindy A. Shapiro for Defendants and Respondents.