Filed 4/29/16 All v. Stanford Hospital & Clinics CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


AMANI ABDEL ALL, M.D.,                                               H037604
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. 108CV111214)

         v.

STANFORD HOSPITAL & CLINICS,

         Defendant and Respondent.


         Plaintiff and appellant Amani Abdel All, M.D. (Plaintiff) sued defendant and
respondent Stanford Hospital and Clinics (Stanford Hospital or Stanford) for medical
malpractice based on treatment she received from two Stanford Hospital
ophthalmologists. Plaintiff alleged she suffered a retinal bleed around the time she was
seen by the ophthalmologists at Stanford Hospital. She contends the treatment she
received at Stanford fell below the standard of care because the ophthalmologists failed
to either conduct further testing of her retina or refer her to a retina specialist. The case
went to trial and the jury rendered a defense verdict.
         On appeal, Plaintiff contends the trial court erred (1) when it provided the parties
with the random list of juror names the night before jury voir dire started, and (2) when it
denied her challenge for cause to Juror No. 22. Plaintiff also claims the court erred when
it instructed the jury with Judicial Council of California Civil Jury Instructions (CACI)
Nos. 400 and 501, and by failing to give CACI No. 508.
       We conclude Plaintiff’s claim that the trial court erred when it provided copies of
the random juror list is barred by the doctrine of invited error. Even if we were to
consider that claim on its merits, we would reject it. We also conclude the court did not
commit prejudicial error when it denied Plaintiff’s challenge for cause to Juror No. 22
since Juror No. 22 did not serve on the jury. Regarding CACI Nos. 400 and 501, we
conclude any error relating to these instructions was invited. As for the alleged failure to
instruct with CACI No. 508, we conclude Plaintiff has forfeited any claim of error by
failing to request the instruction. We will therefore affirm the judgment.

                                           FACTS

       Plaintiff, an Egyptian-trained physician who has not been licensed to practice in
the United States, alleges medical malpractice by two physicians in the ophthalmology
department at Stanford Hospital.
       In 1998, Plaintiff consulted with an ophthalmologist at Stanford who diagnosed
keratoconus, a progressive, degenerative disorder of the eye in which the cornea thins and
elongates into a cone-like shape, which can cause significant problems with vision.
Plaintiff returned to Stanford four years later—in December 2002—to follow-up
regarding her keratoconus. At that time, she saw Dr. Edward Manche and asked about a
corneal transplant. She also asked about participating in a clinical trial involving a lens
implant. Dr. Manche concluded that Plaintiff did not meet the criteria for the clinical trial
because of her severe keratoconus. Dr. Manche recommended she consider a corneal
transplant.
       Four years later—in December 2006—Plaintiff returned to the ophthalmology
clinic at Stanford Hospital, where she was examined by Dr. Christopher Ta. She was also
examined by Dr. Manche. Her malpractice action is based on three visits she made in
December 2006.



                                              2
       On December 5, 2006, Plaintiff saw Dr. Ta and complained of: (1) decreased
visual acuity in both eyes; (2) wave-like vision; (3) severe pain; and (4) a pulling
sensation in her right eye. As part of his examination, Dr. Ta dilated Plaintiff’s eyes,
which allowed him to examine her retinas. Dr. Ta did not see any acute problems with
Plaintiff’s retinas, but Plaintiff did have abnormal corneas and myopic degeneration.
Dr. Ta diagnosed: (1) keratoconus bilaterally with intolerance for rigid gas permeable
contact lenses, (2) myopia in both eyes, and (3) dry eyes. Because Plaintiff asked about
corneal implants, Dr. Ta referred her to Dr. Manche for evaluation of the propriety of
treating her condition with implants.
       Plaintiff saw Dr. Manche on December 20, 2006. Her primary complaint was
intolerance of her contact lenses. She did not report any pain or changes to her vision.
Dr. Manche told Plaintiff she was not a candidate for corneal implants, advised her to
consider a corneal transplant, and referred her back to Dr. Ta.
       Plaintiff returned to Dr. Ta on December 28, 2006. She complained of poor vision
in her right eye for the past year with irritation and pain with contact lens use in that eye.
The diagnoses were severe keratoconus in both eyes, greater on the right than the left,
and dry eye in both eyes. After Dr. Ta discussed treatment options with Plaintiff, she
decided to proceed with a corneal transplant in the right eye.
       Plaintiff did not follow-up with either Dr. Ta or Dr. Manche. Instead, in early
2007, she sought treatment from three other ophthalmologists. In January 2007, she saw
Dr. David Vastine of Walnut Creek. In February 2007, she saw Dr. Abhar Kumar at the
Santa Clara Valley Medical Center. And in March 2007, she saw Dr. Stephen McLeod at
the University of California San Francisco Medical Center (UCSF). Drs. Vastine and
Kumar examined Plaintiff’s retinas and did not see any evidence of acute injury to the
retina in her right eye; neither referred her to a retinal specialist or ordered follow-up
testing of the retina. When Dr. McLeod examined her retina, he saw a Fuch’s spot in the



                                               3
right eye, which indicated that Plaintiff had previously suffered bleeding in the tissues
under her retina.
       Plaintiff returned to Dr. McLeod in June 2007. By then, she had seen an
optometrist at UCSF who fitted her with a new contact lens and was able to improve her
vision. The contact lens was not a long-term solution. Instead, its use indicated that
Plaintiff would benefit from a corneal transplant. In June 2007, Dr. McLeod referred
Plaintiff to a retina specialist. But Plaintiff did not follow-up with UCSF. Instead, she
sought treatment from Dr. Mark Mannis at UC Davis Medical Center, who performed a
corneal transplant on Plaintiff’s right eye in August 2007.
       Plaintiff alleged medical malpractice by Dr. Ta and Dr. Manche based on their
failure to diagnose a problem with her retina in December 2006. At trial, Plaintiff’s
ophthalmology experts, Drs. Paul Donzis and Adam Beck, testified that Plaintiff suffered
a choroid neovascular membrane (CNV)—bleeding in the tissue below the retina—
around the time of her first visit to Dr. Ta on December 5, 2006. Plaintiff’s experts
testified that Dr. Ta’s treatment fell below the standard of care on December 5, 2006,
because he did not perform a more detailed retinal examination, order a fluorescein
angiogram or an optical coherence tomography (OCT) test, or refer Plaintiff for an urgent
retinal consultation. Plaintiff’s experts testified that Dr. Manche’s treatment fell below
the standard of care on December 20, 2006, because he did not examine Plaintiff’s retinas
and did not refer her for an urgent retinal consultation. Finally, Plaintiff’s experts
testified that Dr. Ta’s treatment fell below the standard of care when Plaintiff returned to
him on December 28, 2006, because he did not reexamine her retinas, order testing of her
retinas, or refer her for a retinal consultation. Dr. Beck testified that if Plaintiff’s CNV
had been diagnosed on December 5, 2006, the standard of care required treatment with
medications that would have restored her vision. Plaintiff alleges that as a result of
damage to her retina, her vision is significantly impaired, she can no longer drive, and she
cannot realize her goal of practicing neonatal medicine in the United States.

                                              4
       Stanford Hospital presented expert witness testimony by Dr. Karen Oxford, an
ophthalmologist, who opined that neither Dr. Ta nor Dr. Manche breached the standard of
care when they examined Plaintiff in December 2006. Dr. Oxford opined that Plaintiff’s
symptoms were consistent with her keratoconus and high myopia, conditions that
affected her cornea and not the retina, and that the standard of care did not require
Drs. Ta and Manche to do further testing of Plaintiff’s retina or to refer her for a retinal
consultation.

                                  PROCEDURAL HISTORY

       In April 2008, Plaintiff filed a complaint against Stanford Hospital alleging a
single cause of action for “health care provider negligence.” Neither Dr. Ta nor
Dr. Manche was named as a defendant in the complaint. Stanford Hospital answered the
complaint in May 2009.
       The case went to trial in July 2011. After a 12-day trial, the jury rendered a
defense verdict, finding Stanford Hospital was not negligent. The jury deliberated for
37 minutes, and polling of the jurors confirmed that the verdict was unanimous. Plaintiff
was represented by counsel at trial. She is self-represented on appeal.

                                        DISCUSSION

   I. Random Juror List

       A. Background

       At trial, attorney Edward Nevin represented Plaintiff. Attorneys Daniela
Stoutenburg and Kirk Neiberger represented Stanford Hospital. As part of the jury
selection process, the parties used a juror questionnaire.1


       1
         The record contains a copy of a proposed juror questionnaire Plaintiff submitted
to the court prior to trial, which was 15 pages long. It is not clear from the record
whether the parties used Plaintiff’s proposed questionnaire or some other questionnaire.

                                              5
       Jury selection took four days. On the first day, 63 prospective jurors reported to
the courtroom. On the second day, 50 additional prospective jurors reported to the
courtroom. Both days, the court introduced the parties and their counsel, read the
prospective jurors a description of the case, asked them to fill out the questionnaire, and
took hardship requests. After the court ruled on the hardship requests, 79 potential jurors
were left.
       At the end of the second jury selection day, Plaintiff’s counsel—speaking on
behalf of all three attorneys—asked the court to authorize the clerk to give the attorneys
“the random list of the jurors.” The court responded, “You want the scrambled list?”
Plaintiff’s counsel said “yes,” and explained that given the number of prospective jurors
and the juror questionnaire, it would be helpful to all counsel if they knew what order the
jurors were going to be called. That way, he said, they would need to review only the
questionnaires completed by the prospective jurors most likely to be called into the jury
box. Plaintiff’s counsel said other jurisdictions allow this practice, and he stated that he
had tried only one case in which the court had denied such a request.
       The court explained that to prevent attorneys from doing research on prospective
jurors, the jury commissioner in Santa Clara County does not allow the release of juror
lists. Plaintiff’s counsel asked the court to exercise its discretion to overrule the jury
commissioner. He argued that by releasing the list the night before jury voir dire, there
would be insufficient time to investigate the prospective jurors, and he stated he was
“prepared to promise that we won’t do that.” The court said it was “very concerned
about this,” and asked defense counsel their experience regarding this practice. Defense
counsel said the question had never come up before and they had never gotten the list.
But Attorney Stoutenburg argued the “situation is a little different when we have all of
these juror questionnaires.” At 4:48 p.m., the court granted the parties’ request and
provided counsel with copies of the random juror list.



                                               6
       B. The error, if any, was invited

       Plaintiff argues the court erred by releasing the random list because the “Jury
Commissioner does not allow the release of the list to prevent research on potential jurors
and prevent any form of jury tampering.”
       Even assuming it was error for the trial court to release the random list, Plaintiff
may not complain of such error on appeal since she invited the error. “Under the doctrine
of invited error, when a party by its own conduct induces the commission of error, it may
not claim on appeal that the judgment should be reversed because of that error.” (Mary
M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212 (Mary M.) and cases cited.) “ ‘In
other words, one whose conduct induces or invites the commission [of] error by the trial
court is estopped from asserting it as a ground for reversal on appeal.’ ” (Transport Ins.
Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000 (Transport), original italics.) “At
bottom, the doctrine rests on the purpose of the principle, which is to prevent a party from
misleading the trial court and then profiting therefrom in the appellate court.
[Citations.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) Error is not “invited”
unless its inducement was a “deliberate tactical choice” by the appellant. (Pioneer
Construction, Inc. v. Global Investment Corp. (2011) 202 Cal.App.4th 161, 169.)
       Plaintiff’s counsel requested the list on behalf of all parties. The request was a
deliberate tactical choice by Plaintiff’s counsel to facilitate preparation for jury voir dire.
Plaintiff invited the error and is therefore barred from raising this claim of error on
appeal.

       C. Plaintiff’s claim also fails on the merits

       Even if we were to reach the merits of the claim, we would find no error. Plaintiff
does not cite any legal authority that prohibits a trial court from releasing the juror list to
aid both sides in their trial preparation. Although the record suggests the jury


                                               7
commissioner for Santa Clara County had a policy of not releasing the random list,
Plaintiff does not cite any legal authority that prohibited the court from deviating from
that policy under the circumstances of this case. Indeed, just a few months after the trial
in this case, the Legislature amended Code of Civil Procedure section 222.5, adding
language that directs trial courts to release the random juror list. The amendment to Code
of Civil Procedure section 222.5 provides in relevant part: “To help facilitate the jury
selection process, the judge in civil trials should provide the parties with both the
alphabetical list and the list of prospective jurors in the order in which they will be
called.” (Stats. 2011 ch. 409, § 1, effective January 1, 2012.) Plaintiff nonetheless
argues: “[w]ith the Jury list in hand, Defendants’ [sic] firm would have plenty of time to
conduct internet background searches on each juror to give them an advantage in
selecting a defense friendly jury.” But there is no merit to this claim, since both sides
received the juror list at the same time.
       Plaintiff also argues that release of the random list allowed the parties to contact
the jurors, which is “a clear violation of civil procedure and the right to a fair trial.” But
Plaintiff does not cite any evidence that supports the conclusion that any of the attorneys
had any inappropriate contact with any of the prospective jurors. Indeed, Plaintiff
acknowledges that there is “no evidence of jury tampering or misconduct.”
       For these reasons, we conclude Plaintiff’s contention that the trial court erred
when it released the random juror list lacks merit.

   II. Plaintiff’s Challenge for Cause to Juror No. 22

       Plaintiff contends the trial court erred by “allowing a biased juror to remain on the
jury” after Plaintiff challenged the juror for cause. Plaintiff argues the juror—Juror
No. 22 (Juror 22)—was impliedly biased because she worked in the accounting
department at Stanford University and she recognized the names of two doctors who
were identified as possible witnesses during jury voir dire. (Those doctors did not testify

                                               8
at trial.) Plaintiff asserts she had used all of her peremptory challenges by the time her
lawyer questioned Juror 22.
       We have carefully reviewed the record regarding jury selection and conclude that
Plaintiff’s recitation of the procedural facts relating to Juror 22 is incorrect. In fact, Juror
22 did not serve on the jury.
       As we have noted, jury selection took four days. The court clerk called Juror 22
toward the end of the third day, after Plaintiff used her second peremptory challenge to
excuse another prospective juror. The court and both counsel questioned Juror 22. After
both sides finished questioning for cause, the court asked whether the attorneys passed
Juror 22 for cause. Defense counsel Stoutenburg stated that she did, but there was no
response from Plaintiff’s counsel. Jury selection continued. Before the end of the third
day of jury selection, Plaintiff used her third and fourth peremptory challenges to excuse
other prospective jurors.
       At the beginning of the fourth day of jury selection, outside the presence of the
jury, Plaintiff’s counsel made a “request to assert a challenge for cause against” Juror 22
on the ground that “she [was] an employee of Stanford.” The court stated, “I will let you
bring your motion to excuse for cause,” then summarized Juror 22’s statements relating
to the alleged implied bias. The court’s summary suggested it was not convinced that the
earlier voir dire of Juror 22 had demonstrated implied bias. But the court also stated, “If
you want to ask her some more questions, I have no problem with that, but I think we
have covered that.” Plaintiff’s counsel responded that he had no further questions for
Juror 22. The court did not expressly rule on the challenge for cause. Later that morning,
Plaintiff’s counsel used Plaintiff’s sixth peremptory challenge to excuse Juror 22.
       Contrary to Plaintiff’s assertions, she had not used all of her peremptory
challenges when her lawyer questioned Juror 22 or when the court “denied” her challenge
for cause. More importantly, since Juror 22 was excused by Plaintiff, there is no merit to
the assertion that the trial court erred by allowing an allegedly biased juror to remain on

                                               9
the jury. Since Juror 22 did not serve on the jury, “ ‘there is no basis for us to conclude
that the jury empanelled was anything but impartial.’ ” (People v. Davis (2009)
46 Cal.4th 539, 582.) Thus, Plaintiff’s claim fails for lack of prejudice. (Ibid.)

   III.   Jury Instructions

       Plaintiff asserts the trial court erred in giving CACI Nos. 400 and 501, and in
failing to give CACI No. 508.

       A. General Principles and Standard of Review

       “A party is entitled upon request to correct, nonargumentative instructions on
every theory of the case advanced by [the party] which is supported by substantial
evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).)
“ ‘Instructions should state rules of law in general terms and should not be calculated to
amount to an argument to the jury in the guise of a statement of law. [Citations.]
Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize
issues, theories or defenses either by repetition or singling them out or making them
unduly prominent although the instruction may be a legal proposition. [Citations.]’
[Citation.]” (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143
Cal.App.4th 333, 359-360.)
       “We independently review claims of instructional error viewing the evidence in
the light most favorable to the appellant.” (Orichian v. BMW of North America, LLC
(2014) 226 Cal.App.4th 1322, 1333.)

       B. Background

       Prior to trial, both parties submitted written proposed jury instructions to the court.
Plaintiff’s proposed jury instructions included a modified version of CACI No. 501, but



                                             10
not CACI No. 400 or CACI No. 508. Stanford Hospital’s proposed jury instructions
included CACI Nos. 400 and 501, but not CACI No. 508.
       During trial, the court and the attorneys met in chambers three times to discuss
jury instructions. None of these conferences was reported. After the conferences, neither
party made any statements on the record or objections relating to the discussions that had
taken place in chambers.
       On August 12, 2011, in preparation for their final chambers conference on jury
instructions, the parties submitted a list of agreed upon instructions and a list of disputed
jury instructions. The typed list of agreed upon instructions included CACI No. 501.
The final list of agreed upon jury instructions has a hand-written note, initialed by the
trial judge, that the parties also agreed to give CACI No. 400. The list of disputed jury
instructions does not include any of the instructions at issue on appeal.

       C. CACI No. 400

       CACI No. 400 is the standard jury instruction for negligence, which sets forth the
essential factual elements Plaintiff was required to prove. (Uriell v. Regents of University
of California (2015) 234 Cal.App.4th 735, 743 (Uriell).) CACI No. 400 provides:
“[Name of plaintiff ] claims that [he/she] was harmed by [name of defendant ]’s
negligence. To establish this claim, [name of plaintiff ] must prove all of the following:
[¶] 1. That [name of defendant ] was negligent; [¶] 2. That [name of plaintiff ] was
harmed; and [¶] 3. That [name of defendant ]’s negligence was a substantial factor in
causing [name of plaintiff ]’s harm.”
       The court instructed the jury with a modified version of CACI No. 400, as follows:
“[Plaintiff] claims that she was harmed by Stanford Hospital & Clinics through the
negligence of its physicians, Dr. Ta and Dr. Manche. To establish this claim, she must
prove all of the following: [¶] 1. That Stanford Hospital & Clinics was negligent
through its physicians, Dr. Ta and Dr. Manche; [¶] 2. That [Plaintiff] was harmed; and

                                             11
[¶] 3. That Stanford Hospital & Clinics[’] negligence through it physicians, Dr. Ta and
Dr. Manche[,] was a substantial factor in causing [Plaintiff’s] harm.” We shall hereafter
refer to the version of CACI No. 400 the court gave in this case as “Modified CACI
No. 400.”

               1. Parties’ Contentions

       Plaintiff contends the trial court erred in instructing the jury with Modified CACI
No. 400 because the instruction “used the conjunctive form ‘and’ twice.” She argues:
“[b]y using the word ‘and,’ the Court instructed the Jury that it could only find Stanford
negligent if both Dr. Ta and Dr. Manche were ‘negligent’ and were ‘a substantial factor
in causing [Plaintiff’s] harm.’ In reality Stanford could have been found negligent if
either Dr. Ta or Dr. Manche was ‘negligent’ and was ‘a substantial factor in causing
[Plaintiff’s] harm.’ ” (Original italics.) Plaintiff also contends that by using the
conjunctive “and” instead of the disjunctive “or,” the court heightened her burden of
proof, requiring her to prove that both doctors were negligent, when all she had to do was
prove that one of the doctors was negligent to prevail against Stanford.
       Stanford argues that Plaintiff invited any error and is therefore barred from raising
this issue on appeal. On the merits, Stanford argues that since it was the only defendant,
CACI No. 400 was properly modified to state that if Stanford was negligent, it was
through its physician agents, Dr. Ta and Dr. Manche. Stanford asserts that Modified
CACI No. 400 did not instruct the jury that it had to find both physicians negligent for
Stanford to be liable. Finally, Stanford asserts Plaintiff cannot demonstrate the error was
prejudicial.

               2. Plaintiff’s claim is barred by the doctrine of invited error.

       Although Plaintiff was not required to object to preserve her claim of instructional
error for appeal (Code Civ. Proc., § 647; Lund v. San Joaquin Valley Railroad (2003)

                                              12
31 Cal.4th 1, 7), she is required to demonstrate that the error was not invited. “It has
been said that the invited error doctrine ‘applies “with particular force in the area of jury
instructions. . . .” ’ (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th
1645, 1653 . . . ), and numerous cases have held that a party who requests, or acquiesces
in, a particular jury instruction cannot appeal the giving of that instruction.” (Transport,
supra, 202 Cal.App.4th at p. 1000, citing Nevis v. Pacific Gas & Electric Co. (1954)
43 Cal.2d 626, 629-630, Gherman v. Colburn (1977) 72 Cal.App.3d 544, 567 [jointly-
proposed instruction], Electronic Equipment Express, Inc. v. Donald H. Seiler & Co.
(1981) 122 Cal.App.3d 834, 856-857 and cases cited therein.)
       As the appellant, Plaintiff has the burden of presenting a sufficient record to
establish that the claimed error was not invited by her. (Mayes v. Bryan (2006)
139 Cal.App.4th 1075, 1091, citing Phillips v. Noble (1958) 50 Cal.2d 163, 169.) “An
appellant arguing instructional error must ensure that the appellate record includes the
instructions given and refused and the court’s rulings on proposed instructions.
[Citations.] If the record does not show which party requested an erroneous instruction,
the reviewing court must presume that the appellant requested the instruction and
therefore cannot complain of error. [Citation.]” (Bullock v. Philip Morris USA, Inc.
(2008) 159 Cal.App.4th 655, 678-679 (Bullock).)
       Modified CACI No. 400 was originally proposed by Stanford Hospital, not by
Plaintiff. During the chambers conference on August 12, 2011, the court added
CACI No. 400 to the parties’ list of agreed upon jury instructions. Thus, the record
supports the conclusion that Plaintiff acquiesced to giving Modified CACI No. 400
during the chambers conference. Plaintiff cannot provide a transcript of the chambers
conferences regarding jury instructions since the conferences were not reported. In
addition, she does not point to any statements on the record that she objected to Modified
CACI No. 400 or that establish that the claimed error in instructing with Modified CACI



                                              13
No. 400 was not invited by her. Plaintiff is therefore barred from complaining on appeal
that the instruction was improperly worded.

              3. The trial court did not err in giving Modified CACI 400.

       Even if we were to reach the merits of this claim, we would conclude the trial
court did not err in giving Modified CACI No. 400. The use of CACI No. 400, the
standard jury instruction on the essential elements of negligence, is appropriate in a
medical malpractice case because medical negligence is fundamentally negligence.
(Uriell, supra, 234 Cal.App.4th at p. 744, citing Directions for Use for CACI No. 500
(2015 ed.) p. 367; Flowers v. Torrance Memorial Hospital Medical Center (1994)
8 Cal.4th 992, 999, [although Medical Injury Compensation Reform Act altered aspects
of medical malpractice claims as compared to ordinary negligence claims, “the
fundamental substance of such actions on the issues of duty, standard of care, breach, and
causation remains unaffected”].)
       Stanford Hospital was the only named defendant. Plaintiff did not name either
Dr. Ta or Dr. Manche as a defendant in her complaint, and she never amended her
complaint to add them as defendants. Plaintiff’s complaint alleged that agents of
Stanford Hospital negligently examined, diagnosed, treated, and advised her, and that
they failed to “exercise that degree of skill and care commonly required of medical
practitioners and their nurses, technicians and assistants.” At trial, Plaintiff expressly
limited her claims to the conduct of Drs. Ta and Manche. She did not include the
conduct of the technicians, residents, and other staff employed by Stanford Hospital who
also examined Plaintiff.
       Since Plaintiff alleged the negligent conduct was by the physicians that examined
her at Stanford Hospital, CACI No. 400 was properly modified to note that Stanford
Hospital’s negligence rested upon the negligence of it employee physicians, Dr. Ta and



                                              14
Dr. Manche. Modified CACI No. 400 did not state that the jury had to find both Dr. Ta
and Dr. Manche negligent for Plaintiff to prevail.

              4. Plaintiff has not demonstrated prejudice.

       Even if the trial court erred in the wording of Modified CACI No. 400, and
Plaintiff could meet her burden to show she did not invite that error, we would still
conclude that Plaintiff cannot demonstrate she was prejudiced by the instruction.
       A judgment may not be reversed for instructional error in a civil case “unless, after
an examination of the entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a miscarriage of justice.” (Cal.
Const., art. VI, § 13.) Giving an erroneous instruction in a civil case is not inherently
prejudicial. (Soule, supra, 8 Cal.4th at pp. 573-580.) Instructional error requires reversal
only “ ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ ” (Id.
at p. 580.) Ordinarily, instructional error is considered prejudicial only when it appears
reasonably probable the erroneous instruction actually misled the jury and affected the
verdict. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682; Lundquist v. Reusser
(1994) 7 Cal.4th 1193, 1213.)
       In determining whether instructional error was prejudicial, a “reviewing court
should consider not only the nature of the error, ‘including its natural and probable effect
on a party’s ability to place his [or her] full case before the jury,’ but the likelihood of
actual prejudice as reflected in the individual trial record, taking into account ‘(1) the
state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s
arguments, and (4) any indications by the jury itself that it was misled.’ ” (Rutherford v.
Owens-Illinois, Inc. (1997)16 Cal.4th 953, 983, quoting Soule, supra, 8 Cal.4th at pp.
580-581.) Regarding the fourth factor, we consider (1) whether the jury had questions
about the allegedly erroneous instruction, (2) whether the jury requested a rereading of
the instruction or related evidence, and (3) whether the verdict was close. (Krotin v.

                                              15
Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 305-306; Eisenberg, et al.,
California Practice Guide: Civil Appeal & Writs (The Rutter Group 2015) ¶ 8:300, p. 8-
189 to 8-190.) Applying this analysis, we conclude Plaintiff has failed to demonstrate
she was prejudiced by the allegedly erroneous instruction.
       Nothing in the record suggests the court’s instruction with Modified CACI
No. 400 prevented Plaintiff from putting her full case before the jury, and she does not
argue that it did. Furthermore, in addition to Modified CACI No. 400, the trial court
orally instructed the jury with CACI No. 3703 regarding the legal relationship between
Stanford Hospital and its treating physicians, as follows: “In this case, Dr. Christopher
Ta and Dr. Edward Manche, M.D. were the agents of Stanford Hospital and Clinics. [¶]
If you find that Dr. Ta or Dr. Manche were acting within the scope of their agency when
the incident occurred, then Stanford Hospital and Clinics is responsible for any harm
caused by Dr. Ta and/or Dr. Manche’s negligence.” (Italics added.) In the written
version of this instruction, the italicized word “or” was replaced by “and.” But the
written instruction, like the oral instruction, used the phrase “and/or” toward the end of
the second sentence. In addition, the court instructed the jury to consider all of the
instructions together. The other instructions advised the jury that both Dr. Ta and Dr.
Manche were agents of Stanford Hospital and that Plaintiff could prevail if only one of
the physicians at Stanford Hospital was negligent. Nothing in the record suggests the
jury relied on the written version of the instruction rather than the version the court read
to the jury. Since the jury deliberated for only 37 minutes, it is unlikely it reviewed the
written jury instructions.
       In closing argument, Stanford’s counsel told the jury that Plaintiff had the burden
of proof. But counsel did not argue that Plaintiff had to prove that both Dr. Ta and
Dr. Manche were negligent.
       Plaintiff presented evidence that Stanford’s physicians were negligent on three
separate occasions: that Dr. Ta’s treatment fell below the standard of care on both

                                             16
December 5, 2006 and December 28, 2006, and that Dr. Manche’s treatment fell below
the standard of care on December 20, 2006. Stanford countered with evidence that there
was no breach of the standard of care on any of those occasions. Neither side treated this
case as requiring a showing that both physicians were negligent. Furthermore, the jury
did not ask any questions related to Modified CACI No. 400. It did not ask the court to
reread the instruction or to reread any evidence. That the jury deliberated for only
37 minutes and the verdict was unanimous suggest the jury was not misled by the
instruction.
       For these reasons, we conclude that even if the court had erred in the wording of
Modified CACI No. 400, such error was not prejudicial.

       D. CACI No. 501

               1. Standard Jury Instructions on the Standard of Care in a Medical
                  Malpractice Case

       The Judicial Council’s civil jury instructions include two relevant instructions on
the standard of care for health care professionals: CACI Nos. 501 and 502. CACI No.
501, entitled “Standard of Care for Health Care Professionals” provides in relevant part:
“[A/An] [insert type of medical practitioner] is negligent if [he/she] fails to use the level
of skill, knowledge, and care in diagnosis and treatment that other reasonably careful
[insert type of medical practitioners] would use in the same or similar circumstances.
This level of skill, knowledge, and care is sometimes referred to as ‘the standard of care.’
[¶] [You must determine the level of skill, knowledge, and care that other reasonably
careful [insert type of medical practitioners] would use in the same or similar
circumstances, based only on the testimony of the expert witnesses . . . who have testified
in this case.]” (Original italics.)
       The directions for use of CACI No. 501 state: “This instruction is intended to
apply to nonspecialist physicians, surgeons, and dentists. The standards of care for


                                              17
nurses, specialists, and hospitals are addressed in separate instructions. (See CACI
No. 502, Standard of Care for Medical Specialists, CACI No. 504, Standard of Care for
Nurses, and CACI No. 514, Duty of Hospital.) [¶] The second paragraph should be used
if the court determines that expert testimony is necessary to establish the standard of care,
which is usually the case. (See Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542-
1543 . . . .)” (Original italics.)
       CACI No. 502, entitled “Standard of Care for Medical Specialists,” provides:
“[A/An] [insert type of medical specialist] is negligent if [he/she] fails to use the level of
skill, knowledge, and care in diagnosis and treatment that other reasonably careful [insert
type of medical specialists] would use in similar circumstances. This level of skill,
knowledge, and care is sometimes referred to as ‘the standard of care.’ [¶] [You must
determine the level of skill, knowledge, and care that other reasonably careful [insert type
of medical specialists] would use in similar circumstances based only on the testimony of
the expert witnesses . . . who have testified in this case.]” (Original italics.) The
directions for use of CACI No. 502 provide: “This instruction is intended to apply to
physicians, surgeons, and dentists who are specialists in a particular practice area. [¶]
The second paragraph should be used except in cases where the court determines that
expert testimony is not necessary to establish the standard of care.”
       The language of CACI No. 501 it almost identical to that of CACI No. 502, with
two exceptions. First, CACI No. 501 instructs the user to insert the “type of medical
practitioner,” (i.e., physician, surgeon, or dentist), whereas CACI No. 502 instructs the
user to insert the “type of medical specialist.” Second, the second paragraph of CACI
No. 501 instructs the jury to determine “the level of skill, knowledge, and care that other
reasonably careful” health care professionals “would use in the same or similar
circumstances,” whereas the second paragraph of CACI No. 502 instructs the jury to
determine “the level of skill, knowledge, and care that other reasonably careful” medical
specialists “would use in similar circumstances.” (Italics added.)

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              2. Parties’ Contentions

       Plaintiff contends the court erred in instructing with Modified CACI No. 501 since
this case involved two physicians who specialized in ophthalmology. She argues the
court should have instructed the jury with CACI No. 502 instead. She argues that
ophthalmology requires a heightened standard of care as compared to a “ ‘non-
specialized physician’ ” and that she was prejudiced because the instruction reduced the
standard of care to that required of ordinary physicians.
       Stanford Hospital argues the instruction was not erroneous, Plaintiff waived her
right to be instructed with CACI No. 502 by not requesting it, any error was invited, and
there was no prejudice.

              3. Plaintiff’s claim is barred by the doctrine of invited error.

       Before trial, Plaintiff proposed that the court instruct the jury with the following
modified version of “CACI 501”: “An ophthamologist [sic] is negligent if he fails to use
the level of skill, knowledge, and care in diagnosis and treatment that other reasonably
careful ophthamologist [sic] would use in the same or similar circumstances. This level
of skill, knowledge, and care is sometimes referred to as ‘the standard of care.’ ”
Although labeled “CACI 501,” the proposed instruction appears to be a modified version
of CACI No. 502, since it identifies the type of medical specialist involved in this case.
Plaintiff’s proposed instruction did not include the second paragraph of CACI No. 502
regarding the use of expert testimony.
       Before trial, Stanford Hospital proposed using a modified version of CACI No.
501, which used the term “physician” to describe the “type of medical practitioner.”
Unlike Plaintiff’s proposed instruction, Stanford Hospital’s proposed instruction included
the second paragraph of CACI No. 501.




                                             19
       The court instructed the jury with the version of CACI No. 501 proposed by
Stanford Hospital, as follows: “A physician is negligent if he or she fails to use the level
of skill, knowledge, and care in diagnosis and treatment that other reasonably careful
physicians would use in the same or similar circumstances. This level of skill,
knowledge, and care is sometimes referred to as ‘the standard of care.’ [¶] You must
determine the level of skill, knowledge, and care that other reasonably careful physicians
would use in the same or similar circumstances, based only on the testimony of the expert
witnesses who have testified in this case.” (We shall hereafter refer to this instruction as
Modified CACI No. 501.) Modified CACI No. 501 is on the list of agreed upon jury
instructions the parties submitted to the court and the record indicates that it was
requested by both parties.
       The record does not indicate whether Plaintiff withdrew or abandoned her
proposed version of the instruction on the standard of care. “[I]f the record does not
show whether an instruction was refused or ‘withdrawn, abandoned, or lost in the
shuffle,’ the reviewing court must presume that the appellant withdrew the instruction.
[Citation.] ‘[I]t is incumbent upon . . . appellant . . . to make certain that the trial court
has ruled [on a requested instruction] and that the record on appeal discloses that ruling
before the alleged ruling may be assigned as error. [Citations.]’ [Citation.]” (Bullock,
supra, 159 Cal.App.4th at pp. 678-679.) The record also supports the conclusion that
Plaintiff agreed to the use of Modified CACI No. 501. We therefore conclude that the
alleged error related to Modified CACI No. 501 was invited and Plaintiff may not
complain of such error on appeal. (Mary M., supra, 54 Cal.3d at p. 212.)

       E. CACI No. 508

       CACI No. 508 is entitled “Duty to Refer to a Specialist.” It provides: “If a
reasonably careful [insert type of medical practitioner] in the same situation would have
referred [name of patient] to a [insert type of medical specialist], then [name of

                                               20
defendant] was negligent if [he/she] did not do so. [¶] However, if [name of defendant]
treated [name of patient] with as much skill and care as a reasonable [insert type of
medical specialist] would have, then [name of defendant] was not negligent.” (Original
italics.) Under “Sources and Authority,” the notes for CACI No. 508 explain:
“Physicians who elect to treat a patient even though the patient should have been referred
to a specialist will be held to the standard of care of that specialist. If the physician meets
the higher standard of care, he or she is not negligent. (Simone v. Sabo (1951) 37 Cal.2d
253, 257 . . . .)”
       Plaintiff states that Drs. Ta and Manche are ophthalmologists who specialize in
treating the cornea, and argues that since her case “was based on Dr. Ta and
Dr. Manche’s failure to timely refer her to a specialist who specializes in the retina,” the
court should have instructed the jury with CACI No. 508 as follows: “If a reasonably
careful [Cornea Specialist] in the same situation would have referred [Amani All] to a
[Retina Specialist], then [Dr[.] Ta or Dr[.] Manche] was negligent if [he/she] did not do so.
[¶] However, if [Dr[.] Ta or Dr[.] Manche] treated [Amani All] with as much skill and
care as a reasonable [Retina Specialist] would have, then [Dr[.] Ta or Dr[.] Manche] was
not negligent.” Plaintiff argues this instruction should have been used in conjunction
with CACI No. 501, since the jury “was only expected to hold the doctors to a non-
specialist standard of care.” Stanford argues that Plaintiff waived this claim because she
did not request CACI No. 508. Plaintiff does not respond to Stanford Hospital’s waiver
argument.
       As we have noted, neither party asked the court to give CACI No. 508. An
appellant cannot claim error in the failure to give a particular jury instruction when he or
she did not request that instruction. (Weller v. American Broadcasting Companies, Inc.
(1991) 232 Cal.App.3d 991, 1010.) “Whereas in criminal cases a court has strong sua
sponte duties to instruct the jury on a wide variety of subjects, a court in a civil case has
no parallel responsibilities.” (Mesecher v. County of San Diego (1992) 9 Cal.App.4th

                                              21
1677, 1686.) By requesting CACI No. 501 and not requesting CACI No. 508, Plaintiff
forfeited the right to argue on appeal that the court misinstructed the jury. (Metcalf v.
County of San Joaquin (2008) 42 Cal.4th 1121, 1130 (Metcalf).) “In a civil case, each of
the parties must propose complete and comprehensive instructions in accordance with his
[or her] theory of the litigation; if the parties do not do so, the court has no duty to
instruct on its own motion. [Citations.] [Citation.] Neither a trial court nor a reviewing
court in a civil action is obligated to seek out theories [the] plaintiff might have advanced,
or to articulate for him [or her] that which [] has [been] left unspoken.” (Id. at pp. 1130-
1131; internal quotation marks and citations omitted.) Plaintiff’s failure to request CACI
No. 508 means she may not argue on appeal that the trial court should have instructed
differently. (Id. at p. 1131.)
       Plaintiff relies on the following language from Agarwal v. Johnson (1979)
25 Cal.3d 932, 951 (overruled on another ground as stated in White v. Ultramar, Inc.
(1999) 21 Cal.4th 563, 571-575): “there ordinarily is no duty to instruct in the absence of
a specific request by a party; the exception is a complete failure to instruct on material
issues and controlling legal principles which may amount to reversible error.” Plaintiff
does not argue why this case might fit within the exception noted in Agarwal. We
conclude it does not. As noted earlier, the jury was instructed on the elements of a
malpractice action, the standard of care, and the need to rely on expert testimony to
determine the standard of care. There was no failure to instruct on the material issues and
the controlling legal principles in this case.
       For all these reasons, we reject Plaintiff’s claims of instructional error.

                                        DISPOSITION

       The judgment is affirmed.




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                                 _______________________________
                                 Márquez, J.




WE CONCUR:




_____________________________________
 Rushing, P. J.




_____________________________________
 Premo, J.
