Filed 11/22/13 Olar v. Miller CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

DAWN OLAR,
                                                                                           F064025
         Plaintiff and Appellant,
                                                                        (Super. Ct. No. S-1500-CV-268565)
                   v.

BOBBY RAY MILLER, JR., M.D.,                                                             OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
         Steven J. Weinberg for Plaintiff and Appellant.
         Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, and Ian M. Ellis;
LeBeau-Thelen, Dennis R. Thelen and Steven Shayer for Defendant and Appellant.
                                                        -ooOoo-
         Plaintiff and appellant Dawn Olar (Olar) brought an action for medical negligence
against defendant and appellant gynecologist Bobby Ray Miller, Jr., M.D. (Miller), after
she developed four vesico-vaginal fistulas following an abdominal hysterectomy he
performed. The case was tried to a jury, which returned a special verdict finding Miller
was not negligent. The trial court granted Olar’s motion for a new trial on the ground of
insufficiency of the evidence to justify the verdict, finding the weight of the evidence on
the issue of the breach of the standard of care was against the verdict. Miller appealed,
challenging the grant of the new trial motion, and Olar cross-appealed, challenging the
sufficiency of the evidence to support the judgment.
       We affirm in part and reverse in part. Because the trial court’s specification of
reasons for granting a new trial was untimely, we cannot affirm that order on the ground
of insufficiency of the evidence. Independently reviewing the other grounds upon which
the new trial motion was based, we cannot conclude the jury’s verdict was either against
the law or the result of an error in law. Neither can we conclude the judgment must be
reversed due to insufficiency of the evidence, as Olar has not shown that, as a matter of
law, she was entitled to a finding of negligence. Consequently, we must reverse the order
granting a new trial and direct the trial court to reinstate the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Miller is a board certified obstetrician/gynecologist practicing full-time in
Ridgecrest. On February 27, 2008, Olar consulted Miller, who she had seen two years
before for severe P.M.S., for treatment of excessive vaginal bleeding. Olar, who was 46
years old, had started bleeding the week before to such an extent that she went to the
emergency room; she was experiencing severe bleeding, pain and anxiety. Olar had been
passing baseball-sized clots and taking pain medication. The emergency room doctor
prescribed the hormone Provera and advised Olar to make an appointment with Miller.
Olar had been taking the hormone for six days when she saw Miller.
       Miller, who did not have an independent recollection at trial of any specific
conversation with Olar that day, took Olar’s history, which included having “severe
P.M.S. with associated anxiety.” Olar was passing a lot of clots, taking hormones and
wanted better treatment. When Miller meets with a patient who has irregular bleeding
but objects to being on hormones, he tries to give them enough information to make a
decision in a reasonable manner; he did not treat Olar any differently. He tells patients it

                                              2.
may take a long time to see if hormone therapy will work, and they may have to be on
hormones until menopause. Miller told Olar there were birth control pills she could take
were she not a smoker, but since she smoked and was over 35 years old, the “classical
drug” available to her was Provera. Miller discussed different treatments with Olar, but
he knew she wanted a hysterectomy. He advised Olar to try a dilation and curettage (D &
C) to see if that would stop the bleeding. Olar agreed to the procedure. Olar was anxious
about having the procedure, so Miller prescribed lorazepam to ease her anxiety.
       Miller performed a D & C, which was considered a treatment option, on Olar on
March 3, 2008. In a history and physical Miller dictated as part of Olar’s admission
process, he noted Olar declined hormonal therapy at that time. According to Miller’s
custom and practice, before dictating the note he would have had a conversation with
Olar about her decision to decline hormonal therapy. The procedure was followed by
“expectant management,” by which Olar would be observed over time without further
treatment to see whether the bleeding would resolve. Miller saw Olar for a follow-up on
March 18, 2008. At that time, she was doing fine and was not bleeding. Miller advised
Olar to return in three months.
       When Olar next saw Miller on June 5, 2008, her bleeding had returned. The two
began talking about “definitive treatment[,]” meaning a hysterectomy. Olar previously
had “a scare with a pre cervical cancer”; she had abnormal pap smear results, including a
class-five finding, which is a “pre cancer.” Olar reminded Miller of this and told him she
“wanted everything out,” including her cervix. Miller, who initially had considered
doing a hysterectomy that would leave her cervix in for pelvic support, agreed to remove
it.
       Miller discussed endometrial ablation with Olar before the hysterectomy, but he
did not believe she was a candidate because her uterus was too large. He admitted at trial
that a doctor in Lancaster had equipment that could perform an ablation on a patient with
her sized uterus, but he did not refer Olar there because she did not seem interested in

                                             3.
pursuing options that would not definitively fix her problem. He would have referred
Olar had she wanted and insisted on an ablation, but she was set on a hysterectomy. He
did not discuss with Olar the use of a Murena I.U.D. to control irregular bleeding because
it was not F.D.A. approved for such use.
       In his notes of the June 5 consultation, Miller wrote that Olar desired “definitive
TX,” meaning she wanted the “ultimate treatment,” namely a hysterectomy, which would
end her irregular bleeding. While Miller offered Olar hormonal therapy, she did not want
it; according to Miller, she understood that progesterone causes weight gain. After the
D & C, Olar made clear to Miller she was not interested in any form of treatment other
than a hysterectomy. In his experience as a practicing gynecologist, sometimes women
will immediately ask for a hysterectomy. In this case, the decision “evolved.”1
       Miller performed the hysterectomy on July 14, 2008. He wrote in his operative
note that there were no complications. Although Miller did not have an independent
recollection of the surgery, he did recall it “went without a hitch”; he encountered no
difficulties and it was a routine procedure. Olar had about “600 ML.’s” of blood loss
because her uterus was large, but the blood loss did not cause any problem for Miller that
he could not handle. The blood loss was within the range of normal blood loss of an
uncomplicated abdominal hysterectomy and did not obstruct his operative field. The
pathology report revealed the uterus was three times its normal size and had a fibroid in

       1  In contrast to Miller’s testimony, Olar testified that at the February 27, 2008
appointment, Miller told her she had three options – hormone therapy, which probably
would not work, would cause her to gain 25 to 30 pounds, and she would have to take for
the rest of her life; a D & C which might work; and a hysterectomy. She decided not to
take the hormones because she did not want to gain weight. When she saw Miller in June
2008 after her bleeding returned, she said Miller gave her the options of hormone therapy
or hysterectomy. Olar claimed she would have chosen hormone therapy over the
hysterectomy and D. & C. if Miller had suggested it. Olar also claimed Miller never
talked to her about an endometrial ablation and that his recommended treatment was a
hysterectomy. She claimed Miller pushed or pressured her into having the hysterectomy.



                                             4.
it. According to Miller, due to the size of the uterus, hormone therapy would not have
helped Olar.
       It took awhile for Olar's abdominal incision to fully heal. She came to Miller's
office numerous times to have the incision cleaned and secondarily closed. On
September 8, 2008, Olar complained to Miller of urinary leakage. Follow-up care
revealed air in her bladder, which is indicative of “communication” between the bladder
and the pelvis or vagina. Miller referred Olar to a urologist, Eugene Rajaratnam, M.D.,
who performed surgery on Olar on October 2, 2008. The surgery revealed four punctate
lesions or holes, which were fistulas, all clustered together. Dr. Rajaratnam repaired the
fistulas by cutting the four out, thereby creating one fistula, and then closing the holes in
the bladder and vagina.
       Toward the end of October, Olar began leaking urine again. A cystoscopy
performed in early November revealed a fistula; the prior repair did not heal and had
opened. Failure of a fistula repair is a potential risk or complication of that procedure.
Miller referred Olar to a uro-gynecologist. Olar eventually transferred her care from that
physician to uro-gynecologist Cynthia Hall, M.D. In March 2009, Hall operated on Olar
and repaired the fistula. Hall saw Olar post-operatively through April 2009. The
operation was successful and Olar made a full recovery.
       Trial
       Olar filed this lawsuit against Miller alleging a single cause of action for medical
negligence. At the jury trial, Miller, Olar, and Olar’s husband all testified. Expert
testimony was also received. Olar presented the testimony of obstetrician and
gynecologist Charles Dubin, M.D. Dubin opined it was below the standard of care for a
doctor to perform an unnecessary elective hysterectomy to treat anovulatory bleeding and
for Miller to perform the hysterectomy on Olar. According to Dubin, Olar’s
hysterectomy was unnecessary because her bleeding could have been controlled by the
use of progestins, including Provera. If progestins failed, other therapies could have been

                                              5.
tried, such as a Murena I.U.D. that delivers progestin, or an endometrial ablation, a
procedure used to destroy the uterine lining. Dubin believed Olar was a candidate for
endometrial ablation and estimated the success rate at 50 percent or greater. While a
hysterectomy would be indicated if a patient had a life threatening condition, Olar did not
have any such condition and her blood counts were normal.
       Dubin testified it is below the standard of care to (1) fail to discuss with a patient
alternatives to hysterectomy, (2) give a patient incorrect information, such as telling a
patient like Olar that Provera probably would not work or that she was not a candidate for
ablation, and (3) perform a hysterectomy on a patient with anovulatory bleeding merely
because she demanded one. In Dubin’s opinion, the only indication for hysterectomy in
patients with anovulatory bleeding is if they truly fail adequate trials of medical therapy.
Dubin did not believe a physician should perform a hysterectomy just because a patient
who did not want to try alternative therapies demanded one.
       Dubin confirmed that after the hysterectomy Olar developed four vesico-vaginal
fistulas, which he explained is an abnormal communication between the bladder, or
vesica, and the vagina. The fistulas were small, each about the size of a pin-hole. In
Dubin’s opinion, to a reasonable degree of medical probability, the fistulas were caused
by sutures being placed in the bladder when the vaginal cuff was sewn. Dubin explained
that after removing the uterus, the surgeon sutures the vaginal cuff closed and, in doing
so, must ensure the bladder is separated from the vagina by at least two or three
centimeters; otherwise, a suture could catch the bladder’s edge, thereby creating tension
on the bladder tissues that can lead to a breakdown or fistula. Dubin stated it is below the
standard of care to inadequately separate the bladder from the area of the vaginal cuff and
put sutures in the bladder, and Olar’s surgery was below that standard. Dubin testified
there are four mechanisms by which a fistula can develop: infection, cauterization,
thinning of the bladder, and sutures. He concluded suturing was the only way one could
possibly get four fistulas, and testified this conclusion was supported by Rajaratnam’s

                                              6.
operative report, in which he described the fistulas’ location as being on the bladder’s
posterior wall, and a picture he drew showed the fistulas at the apex of the vaginal cuff
where sutures would be placed.
       While Dubin recognized it is possible to get one fistula in a properly performed
surgery, such as where there is imperfect tissue that thins out, to get four would require a
totally different mechanism of injury. In this case, he believed that mechanism had to be
sutures and pinching the edge of the bladder. According to Dubin, a surgeon should
never suture something he or she cannot see or has not conclusively identified. Dubin
acknowledged it can be difficult to separate the bladder from the vagina when the patient
has a preexisting problem, such as previous radiation therapy, infection or surgery, but
Olar had none of these problems. Dubin did not think there was any reason Olar’s
bladder could not have been separated and properly operated on. In Dubin’s opinion, to a
reasonable degree of medical probability, four vesico-vaginal fistulas should not happen
unless Miller was negligent and the most likely negligence was failure to provide
adequate separation between the bladder and vagina.
       Dubin acknowledged that any patient who undergoes an abdominal hysterectomy
is at risk for complications, including fistula formation, and a fistula can occur in the
absence of negligence. A well-trained gynecologic surgeon could do everything he or
she had been trained to do in a conscientious fashion within the standard of care and
nevertheless have a patient develop a single fistula; if only one fistula developed, the
standard of care would be met unless the operative report showed faulty technique. Had
Olar developed only one fistula, Dubin would not have any standard of care criticism of
Miller’s surgical technique.
       During a normal hysterectomy, a tissue breakdown can occur when the bladder
thins as it is being dissected off the vagina; Dubin agreed the bladder could thin even if
the surgeon did everything correctly, but he believed that would lead to only one fistula.
In Dubin’s opinion, the bladder wall should not thin in a normal, uncomplicated

                                              7.
hysterectomy, and here Miller did not identify any complications that occurred during the
surgery. Dubin agreed that if a sufficient surface area of the bladder wall were thinned,
more than one fistula could develop, but “that would be so, so rare.” While Rajaratnam
documented in his operative report that the bladder’s posterior wall was thinned and the
fistulas were on the posterior wall, Dubin explained the fistulas were higher than the
thinned area.
       Dubin agreed some errors or mistakes are acceptable within the standard of care
and do not mean the doctor has done anything wrong, such as where a surgeon does all he
or she is trained to do yet the patient develops a single fistula. Dubin did not agree that a
careful surgeon could catch part of the bladder wall with a suture and be within the
standard of care, since the surgeon had to clear the area enough to identify what was
being sutured. Dubin explained that Olar was an uncompromised patient, so there was no
reason why Olar’s bladder could not be dissected enough to clearly identify the structures
visually and place the sutures safely away from the bladder. Dubin did agree that, as a
generic proposition, a surgeon could reasonably believe he or she is in the correct
surgical tissue plane yet be in a different place, or reasonably identify something that
turns out to be an incorrect identification, and still be within the standard of care.
       Dubin had performed somewhere between 500 and 1,000 hysterectomies, and
assisted in another 500 to 1,000 of them. None of Dubin’s patients had ever developed a
vesico-vaginal, or any other type, fistula. In healthier patients, the rate of developing a
fistula is low, about one in 500 to 1,000. Dubin had never heard of a patient developing
four vesico-vaginal fistulas after an abdominal hysterectomy until this case.
       Called by the defense, Cynthia D. Hall, M.D., the uro-gynecologist who repaired
Olar’s fistula, gave expert opinion concerning the cause of Olar’s fistulas. Hall testified
that hysterectomy is the most common surgery that causes vesico-vaginal fistulas; a
fistula is an inherent risk of a hysterectomy because the vagina and bladder are densely
adherent, with only a couple layers of tissue between them. While the risk increases the

                                              8.
more difficult the hysterectomy is, there is always a risk no matter what kind of
hysterectomy is being performed, i.e. whether the hysterectomy is abdominal or vaginal,
complicated or uncomplicated. A single fistula following an uncomplicated
hysterectomy can occur either in the absence of negligence or as a result of negligence.
In treating Olar, Hall did not form an opinion that a substandard surgery caused Olar’s
fistulas, since a fistula can develop with any hysterectomy. According to Hall, a surgeon
can damage the bladder while trying to peel it apart from the vagina and can easily get
into the bladder if “you are not exactly in the right plane.” It can appear to a careful,
skilled surgeon that he or she is in the right plane when it is determined later that the
surgeon must not have been.
        Hall further explained that placing a suture into the bladder wall is an inherent risk
of hysterectomy surgery. This is because the two structures are so densely adherent and
the more aggressive you get with dissecting the bladder from the vagina so the uterus can
be removed, the more likely one is to actually cut the bladder. Hall said there is a “fuzzy
area there, what is enough and what is too much,” and agreed it was a matter of surgical
judgment. Hall did not think it was sensible to conclude a surgeon must have been
negligent if a patient developed four fistulas after an abdominal hysterectomy. She might
conclude negligence was involved if the fistulas were all over the place, but if they were
in a line, the surgeon could easily have caught the bladder in a few places while stitching
the top of the vagina closed. In Hall’s experience and training, this is considered an
inherent risk of a hysterectomy. Hall’s “best guess” is that the four fistulas Olar
developed resulted from sutures being placed in the bladder while closing the vaginal
cuff.
        Hall agreed surgeons try to carefully and completely move the bladder off the
vaginal cuff when performing a hysterectomy to prevent putting sutures in the bladder
when sewing the vaginal cuff. She also agreed that a board certified “ob-gyn” is trained
to do his or her best to identify or differentiate between the vaginal cuff and bladder.

                                              9.
When asked by Olar’s counsel if, in the absence of a difficult surgery, cancer or
excessive bleeding causing complications, a doctor exercising reasonable care should not
put sutures in the bladder when sewing the vaginal cuff, Hall answered, “No.
Complications occur in surgery. If you are a surgeon, you can have complications.” Hall
further explained that “you do your best to avoid it[,]” “[y]ou try to get into that plane[,]”
you try not to injure the bladder in any way, and try to get your stitches away from the
bladder, “[b]ut, no, it’s a known complication, zero, .5 percent of simple hysterectomies
are going to result in fistula. It may not sound like a lot, but that’s still one in 500.” Hall
did not know how many of that percentage resulted from sutures in the bladder and
presumed that figure was from all causes.
       Hall had performed between 80 to 100 abdominal hysterectomies unrelated to uro-
gynecology; to her knowledge, none of those patients developed vesico-vaginal fistulas.
As a uro-gynecologist, she had repaired vesico-vaginal fistulas in about 10 patients; none
of these involved four fistulas. Hall had not read a case report of a patient developing
four vesico-vaginal fistulas as a result of an elective, uncomplicated hysterectomy, seen
that presented at a seminar, or read it in the literature, as “[i]t’s not publishable.” Hall
explained it did not matter whether there was one or more fistulas in terms of how it was
reported in “the literature,” “because it’s not interesting enough.” Hall agreed that she
would not be surprised if “the literature” did not talk about patients in terms of the
number of fistulas and instead talked about the concept of the complication occurring.
       Miller’s retained expert, retired obstetrician and gynecologist Martin Feldman,
M.D., opined that giving Olar the option of having a hysterectomy after her bleeding
returned in June 2008 was within the standard of care since she had declined hormonal
therapy. Feldman explained that a patient must be offered alternatives; if they decline
those alternatives and there is an indication for the procedure, as there was here, then a
doctor must respect the patient’s right to make that choice, as long as the patient has
given informed consent. Feldman also explained that hormone therapy and D & C do not

                                              10.
always work for all patients; the only thing that will definitively stop uterine bleeding is
to remove the uterus.
       In Feldman’s opinion, Olar’s irregular bleeding meant she was a reasonable
candidate for a hysterectomy, especially since she declined any other management,
specifically hormonal therapy. Feldman did not agree that Miller acted below the
standard of care by performing an abdominal hysterectomy because Olar had not failed a
trial of medical management or had an endometrial ablation. Feldman thought it was
Olar’s right, once she was informed of the options, to choose; Feldman said this was
well-established and supported by the American College of Obstetrics and Gynecology.
Feldman agreed it was more likely than not that Olar’s anovulatory bleeding would have
resolved with an oral progestin or endometrial ablation. He also agreed it was below the
standard of care for an “ob-gyn” to perform an unnecessary or elective hysterectomy that
was not indicated.
       Feldman testified the inherent risks of both abdominal and vaginal hysterectomies
include infection, bleeding and injury to adjacent structures, such as the bladder, bowel
and ureters. These risks are inherent because the surgeon is working very close to those
structures and, even in the best of hands and despite all efforts, the structures can be
injured during the procedure. These risks can occur in the absence of the surgeon’s
negligence. Feldman agreed that hypothetically it is statistically predictable that if you
perform 1,000 hysterectomies, a certain number of patients will experience one or more
of these complications. According to Feldman, the incidence of vesico-vaginal fistulas is
“commonly quoted at one percent.”
       Feldman identified four causes of vesico-vaginal fistulas: (1) an inadvertent
cystotome, or hole in the bladder, that is not recognized or repaired at the time of surgery,
which can be caused by an instrument or a tear; (2) one or more sutures placed in the
bladder; (3) the bladder wall thinning out while being taken down off the cervix, which
can lead to devascularization of the area; and (4) a thermal injury caused by heat from a

                                             11.
cautery used to coagulate bleeding vessels. While Feldman thought to a reasonable
degree of medical probability one of these four caused Olar’s fistulas, he could not say to
a reasonable degree of medical probability which one.
       According to Feldman, placement of sutures in the bladder wall is a recognized
risk of an abdominal hysterectomy. When asked how this could occur in an
uncomplicated hysterectomy without negligence, Feldman answered, “Because we all try
to be very careful in what we do and identify what we’re sewing, and we can believe at
the time that the bladder is completely clear of where we’re placing sutures, and for one
reason or another, that’s not correct, whether the tissue field is somewhat obscured with
blood, or whatever, that would be my answer to that question.” By “tissue field,”
Feldman meant “the operative field, tissue plane.”
       It did not make any real difference to Feldman if there was one fistula or four
because “the mechanism is the same, whether it’s a suture, whether it’s thinning of the
bladder taking it down, those things can result in one or more fistulas. And the notion
that a single fistula is okay and multiple fistulas are not is not correct.” As an example,
Feldman explained that if the cause were a thinning of the bladder while taking it down
and it is “okay” if one fistula developed, then “it would be okay if two or three or four of
these resulted, these pin-point openings occurred[,]” because the mechanism is still the
same. Feldman did not see how one could be okay but not four. He agreed with Dubin
that a fistula is an inherent risk of the surgery that can occur in the absence of negligence,
but “[w]hy we depart is that he feels that one is okay, but two or more is not, and that
doesn’t make any sense to me.”
       He believed Miller met the standard of care in terms of Olar’s care and treatment
because: when Olar presented in his office with bleeding at the end of February 2008, he
performed a D & C to determine the cause of the bleeding and rule out a malignancy;
Miller asked Olar to come back for follow-up, which she did three weeks later, and the
bleeding had stopped; it was apparent from the reports she had declined hormonal

                                             12.
therapy, which was discussed with her; and when she subsequently returned to his office
in June, the options were discussed, she declined hormonal therapy and desired
“definitive therapy,” i.e. a hysterectomy, which was her right. It appeared from his
review of the records in the case that, before the hysterectomy was carried out, Olar was
informed about other options, such as medical management or lesser invasive surgical
procedures, which satisfied the standard of care. Feldman opined the surgery also met
the standard of care as everything Miller described in his operative report was
appropriate, as was his post-operative management and care.
       Feldman had performed between 500 and 1,000 hysterectomies in his career; he
was not aware of any patient who developed a vesico-vaginal fistula. He had never
personally seen a patient who had four vesico-vaginal fistulas following a hysterectomy,
heard about such a patient at a seminar, or read about it in medical literature or a
textbook. Feldman agreed the standard of care requires a doctor performing an
abdominal hysterectomy to completely and carefully remove the bladder from the vaginal
cuff. When asked whether the failure to adequately and completely remove the bladder
off the vaginal cuff was below the standard of care, Feldman responded, “Well, you have
to do that. So, yes – I mean, the standard, in order to do the surgery, you have to get the
bladder off onto the vagina.” Feldman agreed failure to separate the bladder from the
vaginal cuff risks the placement of sutures in the bladder while sewing the vaginal cuff,
which in turn may cause a fistula, and inadequate mobilization of the bladder away from
the upper vagina, or inadequate exposure and retraction, can lead to placement of sutures
in the bladder. Feldman agreed it was a basic surgical principle that a doctor should not
suture or cut a structure unless he believes he has conclusively identified it; board
certified doctors "are trained to believe they can determine the difference" between the
vagina and bladder.
       Miller also testified he met the standard of care in Olar’s care and treatment. He
learned through his training and experience that there are risks associated with a

                                             13.
hysterectomy, including infection, medical conditions that cause poor healing, excessive
bleeding that requires a transfusion, and fistula formation. Patients undergoing a
hysterectomy are counseled that there is a risk of damage to adjacent organs, as well as
the organ being operated on, which can take multiple forms, such as puncturing a bowel
with a scalpel. In Miller’s training and experience, these risks can occur even when a
surgeon is doing his or her level best, and is being conscientious and skillful in
conducting the surgery. Miller agreed it was important to dissect the bladder completely
off the vaginal cuff so that sutures do not get into the bladder when the vaginal cuff is
sewn. Before Olar’s hysterectomy, none of Miller’s approximately 400 hysterectomy
patients had developed a vesico-vaginal fistula. Miller agreed that vesico-vaginal fistulas
are very rare when gynecologic surgery is done properly. The risks of developing a
complication were low, but for a high-volume doctor who does 400 cases, one percent
equals four people who will suffer a known complication.
       Argument and Jury Instructions
       In closing argument, Olar’s counsel explained to the jury that Olar was suing
Miller for two separate, distinct reasons: (1) performing an unnecessary, elective
hysterectomy and (2) negligently performing the surgery by putting sutures in the bladder
while sewing up the vaginal cuff, resulting in four vesico-vaginal fistulas. Olar’s counsel
argued both res ipsa loquitur and general negligence with respect to the performance of
the surgery and general negligence with respect to the unnecessary hysterectomy.
       The jury was given instructions on both general negligence and res ipsa loquitur.
The jury was instructed: “Dawn Olar, plaintiff, claims that she was harmed by defendant
Dr. Miller’s medical/professional negligence. To establish this claim, plaintiff must
prove all of the following: [¶] 1. That defendant was professionally negligent; [¶] 2.
That plaintiff was harmed; and [¶] 3. That defendant’s professional negligence was a
substantial factor in causing plaintiff’s harm.” The jury was further instructed: “An
obstetrician/gynecologist is negligent if he fails to use the level of skill, knowledge, and

                                             14.
care in diagnosis and treatment that other reasonably careful obstetrician/gynecologists
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 obstetrician/gynecologists would
use in similar circumstances based only on the testimony of the expert witnesses,
including Dr. Miller, who have testified in this case.”
       The jury was also instructed: “An obstetrician/gynecologist is not necessarily
negligent just because his efforts are unsuccessful or he makes an error that was
reasonable under the circumstances. Such a type of medical practitioner is negligent only
if he was not as skillful, knowledgeable, or careful as other reasonable
obstetricians/gynecologists would have been in similar circumstances.” ; and “An
obstetrician/gynecologist is not necessarily negligent just because he chooses one
medically accepted method of treatment or diagnosis and it turns out that another
medically accepted method would have been a better choice.”
       Finally, the jury was instructed on res ipsa loquitur: “In this case, plaintiff may
prove that defendant’s negligence caused her harm if she proves all of the following: [¶]
1. That plaintiff’s harm ordinarily would not have occurred unless someone was
negligent. In deciding this issue, you must consider only the testimony of the expert
witnesses; [¶] 2. That the harm occurred while plaintiff was under the care and control of
defendant; and [¶] 3. That plaintiff’s voluntary actions did not cause or contribute to the
events that harmed her. [¶] If you decide that plaintiff did not prove one or more of these
three things, then you must decide whether defendant was negligent in light of the other
instructions I have read. [¶] If you decide that plaintiff proved all of these three things,
you may, but are not required to, find that defendant was negligent or that defendant’s
negligence was a substantial factor in causing plaintiff’s harm, or both. [¶] You must
carefully consider the evidence presented by both plaintiff and defendant before you
make your decision. You should not decide in favor of plaintiff unless you believe, after

                                              15.
weighing all of the evidence, that it is more likely than not that defendant was negligent
and that his negligence was a substantial factor in causing plaintiff’s harm.”
       At the conclusion of the jury trial, the jury returned a special verdict in which it
answered a single question: “Was Bobby Ray Miller, M.D. negligent in the diagnosis
and treatment of Dawn Olar?” The jury answered no. The trial court entered judgment
on the jury’s verdict in favor of Miller on September 8, 2011.2 The clerk mailed a notice
of entry of judgment to the parties that same day.
       Motion for a New Trial
       Olar filed a notice of intention to move for new trial on September 21, which listed
11 separate grounds for the motion that encompassed six of the seven statutory grounds
for a new trial: (1) irregularity in the proceedings of the court, jury, defendant, any order
of the court, and abuse of the court’s discretion (Code of Civ. Proc.,3 § 657, subd. (1));
(2) jury misconduct (§ 657, subd. (2)); (3) accident or surprise (§ 657, subd. (3)); (4)
newly discovered evidence (§ 657, subd. (4)); (5) insufficiency of the evidence and the
verdict is against the law (§ 657, subd. (6)); and (6) error in law (§ 657, subd. (7)).
       Olar filed a memorandum of points and authorities on September 28, in which she
argued she was entitled to a new trial on the following grounds: (1) irregularities in the
proceedings relating to testimony and arguments offered by Miller’s trial counsel in
violation of Motion in Limine No. 4; (2) insufficiency of the evidence to justify the
verdict, as the evidence established Miller was negligent both in performing an
unnecessary hysterectomy and in performing the hysterectomy; and (3) the verdict was
against the law insofar as Miller failed to provide information on alternative treatments.
       At the November 4 hearing on the new trial motion, the trial court granted the
motion solely on the basis of insufficiency of the evidence to justify the verdict under

       2   Subsequent references to dates are to dates in 2011 unless otherwise noted.
       3   Undesignated statutory references are to the Code of Civil Procedure.



                                             16.
section 657, subdivision (6). The court explained it granted the motion because the
“weight of the evidence with regard to the breach of the standard of care in the
performance of the hysterectomy, specifically, in failing to complete a careful removal of
the bladder off of the vaginal cuff resulting in four sutures being placed in the bladder
closing the vaginal cuff causes four vesico-vaginal fistulas is against the verdict.” The
court stated the motion was “otherwise denied[,]” and asked Olar’s counsel to “submit a
formal order.” The minute order of the hearing states the ground for granting the new
trial, namely insufficiency of the evidence to justify the verdict, and that Olar’s counsel is
to prepare and submit a formal order, but does not include the court’s explanation.
       On November 9, Olar’s counsel circulated a proposed statement of reasons, to
which Miller objected. In a letter from Miller’s counsel to the court filed on November
14, Miller’s counsel explained he had objected to the proposed statement of reasons and
attached a copy of his letter to Olar’s counsel. On November 29, Miller filed a notice of
appeal from the November 4 order granting the new trial. On December 1, Olar’s counsel
filed a letter with the trial court requesting it not sign the proposed statement of reasons
“in light of the requirements of C.C.P. § 657 and the cases interpreting it.”
       At a case management conference held on December 2, the trial court explained:
(1) Olar’s counsel’s proposed order was stamped into the court’s mail processes on
November 21, and routed to it on November 30; (2) the November 14 letter from Miller’s
counsel was routed to it on December 1; and (3) it received Olar’s counsel’s December 1
letter. The court further explained that when it received the proposed order on November
30, it recognized both that the court was required to prepare the order and there was an
issue with respect to the order’s timeliness. The court noted the hearing on the new trial
motion had been continued from November 1 to November 4 based on the parties’
stipulation, and it was required to rule on the motion by November 7. The court stated
that, while it announced its ruling and the basis therefore at the November 4 hearing, it
erroneously directed Olar’s counsel to prepare the formal order. The court acknowledged

                                             17.
that while the November 4 minute order described the ruling granting the motion on the
basis of section 657, subdivision (6), it did not recite all of the court’s statements
concerning the basis for the ruling. The court recognized the 10-day time limit to file the
statement of reasons would have run on November 14, and stated that “based on the
judicial error,” and without the fault of Olar’s counsel, “the matter, essentially, got out of
sight, out of mind” until November 30, when the court was reviewing for the case
management conference.
       The trial court stated its intent to issue “an order directing I signed the formal
order prepared by the court on November 30[,]” and to further order it be entered nunc
pro tunc to November 14. The court stated it did not solicit a stipulation to an entry nunc
pro tunc given the various issues surrounding the 10-day limit that Miller’s counsel may
want to address on appeal, and had not entered the November 30 order yet because it
wanted to discuss the order with counsel at the December 2 conference. The court further
explained that the order, which the court prepared, would reflect the date on which it was
signed. The court believed it was within its inherent power to order the nunc pro tunc
entry, and again asserted it was due to judicial error.
       In a written order filed and signed on December 2, the trial court explained: it
issued the order on the motion for new trial as of November 30; the delay was not the
litigants’ fault, instead “[t]he Court, through inadvertence, failed to have in mind the
requirement for entry of the order” as set forth in section 657; on November 4, it had
stated the specific grounds and bases for granting the motion on the record in the
presence of counsel; the minute order reports the motion was granted on grounds of
insufficiency of the evidence to justify the verdict pursuant to section 657, subdivision
(6); the court mistakenly ordered counsel to prepare the formal order; the court prepared
its written order “issued” November 30; and the motion was determined on November 4,
within 60 days of the notice of entry of judgment on the jury verdict. The court therefore



                                              18.
ordered that the order granting the motion for new trial, dated November 30, be entered
effective November 14.
         A written order granting a new trial, signed by the court on November 30 but file
stamped with the date of November 14, states that Olar’s motion for a new trial is
granted, the verdict and judgment are set aside and vacated, and a new trial ordered on all
issues. The order further states: “The Court’s reasons for granting this New Trial Motion
on grounds of insufficiency of the evidence to justify the verdict pursuant to C.C.P. §
657(6) as stated on the record are as follows: The weight of the evidence with regard to a
breach of the standard of care in the performance of the hysterectomy, specifically in
failing to complete a careful removal of the bladder off o[f] the vaginal cuff, resulting in
four (4) sutures being placed in the bladder when closing the vaginal cuff, causing four
(4) vesicovaginal fistulas, is against the verdict.”
         On December 12, Olar filed a cross-appeal from the September 8 judgment after
jury trial. On February 2, 2012, Miller filed a notice of appeal from the December 2
order.
                                         DISCUSSION
   I. The Motion for New Trial
         In his appeal, Miller contends the order granting a new trial must be reversed
because it did not comply with section 657, thereby rendering it defective, and there is no
other valid basis for granting a new trial. We agree.
         We first set forth the applicable legal principles regarding a motion for new trial.
“The authority of a trial court in this state to grant a new trial is established and
circumscribed by statute.” (Oakland Raiders v. National Football League (2007) 41
Cal.4th 624, 633 (Oakland Raiders).) The governing statute, section 657, identifies
seven grounds for a new trial, including: “Irregularity in the proceedings”; “Insufficiency
of the evidence to justify the verdict . . . or the verdict . . . is against law”; and “Error in
law.” (§ 657, subds. (1), (6) & (7).)

                                               19.
       A party seeking to move for a new trial must file and serve a notice of intention to
move for a new trial “designating the grounds upon which the motion will be made. . . . ”
(§ 659.) This notice is “deemed to be a motion for a new trial on all the grounds stated in
the notice.” (Ibid.) In general, “the motion for new trial can only be granted on a ground
specified in the notice of intention to move for a new trial.” (Wagner v. Singleton (1982)
133 Cal.App.3d 69, 72 (Wagner).)
       Section 660 sets forth the timeframe by which the trial court must rule on the new
trial motion. This section provides, in relevant part: “. . . the power of the court to rule
on a motion for a new trial shall expire 60 days from and after the mailing of notice of
entry of judgment by the clerk of the court . . . If such motion is not determined within
said period of 60 days . . . the effect shall be a denial of the motion without further order
of the court. A motion for a new trial is not determined within the meaning of this
section until an order ruling on the motion (1) is entered in the permanent minutes of the
court or (2) is signed by the judge and filed with the clerk. The entry of a new trial order
in the permanent minutes of the court shall constitute a determination of the motion even
though such minute order as entered expressly directs that a written order be prepared,
signed and filed. The minute entry shall in all cases show the date on which the order
actually is entered in the permanent minutes, but failure to comply with this direction
shall not impair the validity or effectiveness of the order.” (§ 660, par. 3.)
       An order granting a new trial motion must state not only the ground upon which
the motion is granted but must also specify the reasons for granting the motion on that
ground. (Oakland Raiders, supra, 41 Cal.4th at p. 633.) In relevant part, section 657
provides: “When a new trial is granted, on all or part of the issues, the court shall specify
the ground or grounds upon which it is granted and the court’s reason or reasons for
granting the new trial upon each ground stated. [¶] ... [¶] The order passing upon and
determining the motion must be made and entered as provided in Section 660 and if the
motion is granted must state the ground or grounds relied upon by the court, and may

                                             20.
contain the specification of reasons. If an order granting such motion does not contain
such specification of reasons, the court must, within 10 days after filing such order,
prepare, sign and file such specification of reasons in writing with the clerk.”
       The terms “grounds” and “reasons” have different meanings. (Oakland Raiders,
supra, 41 Cal.4th at p. 634; Mercer v. Perez (1968) 68 Cal.2d 104, 112 (Mercer).) “The
word ‘ground’ refers to any of the seven grounds listed in section 657,” and “[a]
statement of grounds that reasonably approximates the statutory language is sufficient.”
(Oakland Raiders, supra, at p. 634.) In contrast, a statement of reasons “should be
specific enough to facilitate appellate review and avoid any need for the appellate court to
rely on inference or speculation.” (Ibid.; see also Meiner v. Ford Motor Co. (1971) 17
Cal.App.3d 127, 137 [specification of reasons adequate where it enabled the parties “to
discuss intelligently the question whether there was any substantial evidence to support
the judge’s reasons”].)
       “California courts have consistently required strict compliance with section 657.”
(Oakland Raiders, supra, 41 Cal.4th at p. 634.) The statutory requirement in section 657
“that the statement of reasons be filed no later than 10 days after the order granting a new
trial is jurisdictional, and a statement of reasons filed more than 10 days after the order is
ineffective.” (Oakland Raiders, supra, 41 Cal.4th at p. 634; accord, La Manna v. Stewart
(1975) 13 Cal.3d 413, 418 (La Manna); Hand Electronics, Inc. v. Snowline Joint Unified
School Dist. (1994) 21 Cal.App.4th 862, 867–868 (Hand Electronics).) “Substantial
compliance with the statute is not sufficient.” (Oakland Raiders, supra, at p. 634; see
Fergus v. Songer (2007) 150 Cal.App.4th 552, 566 (Fergus) [specification of reasons
filed 15 days after minute order granting a motion for new trial deemed a nullity because
it was filed more than 10 days after entry of the new trial order]; Swanson v. Western
Greyhound Lines, Inc. (1969) 268 Cal.App.2d 758, 760 [because trial court’s jurisdiction
to specify reasons expired 10 days after entry of a minute order granting a new trial,
specification of reasons filed 14 days later was ineffective]; La Manna, supra, 13 Cal.3d

                                             21.
at pp. 419-423 [oral statement of reasons set down in reporter’s transcript does not
comply with statute].)
       Here, while the trial court’s grant of the motion for new trial was timely, as it
granted the motion within 60 days of the clerk’s service of the judgment as reflected in
the November 4 minute order, there is no question the trial court filed its specification of
reasons beyond the 10-day period. The trial court did not order the filing of the
specification of reasons, which it signed on November 30, until December 2, which is
more than 10 days after November 4. Pointing to the trial court’s docket in this case,
which lists the written order granting the new trial and specification of reasons as having
been entered on November 14, Olar asserts the order and statement were in fact entered
that day. This assertion, however, is belied by the record, which shows the trial court
signed the order and specification of reasons on November 30 and did not authorize the
filing until December 2, when it ordered the filing nunc pro tunc to November 14. The
trial court itself acknowledged it was acting outside the statutory time limit in issuing the
specification of reasons and tried to rectify the problem by entering it nunc pro tunc.
       Olar contends the trial court had the authority to do so because it was correcting a
clerical error. Generally, a court has the inherent power to correct clerical errors in the
court’s records to make them reflect the true facts. (See In re Candelario (1970) 3 Cal.3d
702, 705.) But clerical error must be distinguished from judicial error, and any attempt to
revise deliberately exercised judicial discretion in the guise of correcting clerical error is
not permitted. (Ibid.) The record here does not permit a finding that the order signed
November 30 was an attempt by the trial court to correct clerical error. Rather, as the
trial court admitted, it was attempting to correct its own error in failing to comply with
the requirements of section 657.
       The trial court had no authority to issue the specification of reasons it signed on
November 30 because its jurisdiction to do so had expired pursuant to sections 657 and
660. As our Supreme Court has held, “‘the prescribed 10-day period is a statute of

                                              22.
limitations on the authority of the court to act, and that after the expiration of the period
the court has no power to add a specification of reasons by a nunc pro tunc order or
otherwise.’” (La Manna, supra, 13 Cal.3d at p. 418; see also Siegal v. Superior Court of
Los Angeles County (1968) 68 Cal.2d 97, 101-102 [since the time limits of section 660
are mandatory and jurisdictional, and an order made after the 60-day period is in excess
of the court’s jurisdiction and void, the trial court may not grant relief by means of a nunc
pro tunc order]; Fergus, supra, 150 Cal.App.4th at pp. 563, 565–566 [nunc pro tunc order
granting new trial not allowed to frustrate the time limits of section 657]; Sanchez–Corea
v. Bank of America (1985) 38 Cal.3d 892, 903 (Sanchez-Corea).)
       The trial court’s attempt to file a specification of reasons after expiration of the 10-
day period allowed by section 660 was ineffective and an act in excess of jurisdiction
which could not be cured by means of a nunc pro tunc order. Having concluded the order
was defective, we turn to the question of appellate review.
       “The failure to supply an adequate specification of reasons renders the new trial
order defective, but not void.” (Thompson v. Friendly Hills Regional Medical Center
(1999) 71 Cal.App.4th 544, 550.) Where the defective order results from the failure to
timely supply a specification of reasons for a new trial granted on the grounds of
insufficiency of evidence or excessive damages, the order may not be affirmed on those
grounds. (§ 657; Fergus, supra, 150 Cal.App.4th at p. 563 [an appellate court cannot
affirm a new trial order on grounds of excessive damages when that ground is not stated
in the order or when “the trial court has failed to file its specification of reasons within 10
days after the entry of the new trial order in the permanent minutes”].) As explained in
Sanchez–Corea, supra, 38 Cal.3d at p. 905: “If an order granting a new trial does not
effectively state the ground or the reasons, the order has been reversed on appeal where
there are no grounds stated in the motion other than insufficient evidence or excessive or
inadequate damages. [Citations.] If, however, the motion states any other ground for a
new trial, an order granting the motion will be affirmed if any such other ground legally

                                              23.
requires a new trial.” (Accord, Oakland Raiders, supra, 41 Cal.4th at p. 638; Mercer,
supra, 68 Cal.2d at p. 119; Fergus, supra, 150 Cal.App.4th at p. 563.)
       Here, Olar’s notice of intent to move for new trial listed five of the seven grounds
specified in section 657. In her points and authorities below, she expressly confined her
request for a new trial to the grounds of insufficiency of the evidence, irregularity in the
proceedings, and the verdict being against the law. The trial court granted the motion
only on the ground of insufficiency of the evidence. As stated above, in such a situation
we generally would be required to review the other grounds for the new trial motion
stated in the notice of intent. (Hand Electronics, supra, 21 Cal.App.4th at pp. 870-871
[listing statutory ground for error in notice of intention to move for new trial is sufficient
to place issue before the trial court; error need not be discussed in the memorandum of
points and authorities].)
       When an order granting a new trial is defective, such as the absence of a
specification of reasons, we independently review the order granting a motion for new
trial. (Oakland Raiders, supra, 41 Cal.4th at p. 640.) In doing so, we do not defer to the
trial court’s resolution of conflicts in the evidence or draw inferences favorable to the
trial court’s decision; we also do not independently resolve conflicts in the evidence. (Id.
at p. 640 & fn. 4.) Under such independent review, the party seeking to uphold the trial
court’s defective order has the burden of persuasion. (Oakland Raiders, supra, 41
Cal.4th at pp. 640-641.) As our Supreme Court explained, the burden is on the party who
moved for a new trial “‘to advance any grounds stated in the motion upon which the
order should be affirmed, and a record and argument to support it’ [citation] and to
persuade the reviewing court that the trial court should have granted the motion for a new
trial. Thus, the effect of the trial court’s failure to file a statement of reasons in support of
the order granting a new trial is to shift the burden of persuasion to the party seeking to
uphold the trial court’s order.” (Id. at pp. 640-641.) Thus, it is Olar’s appellate burden to
show the grounds upon which she is entitled to a new trial.

                                              24.
       On appeal, Olar presents arguments on two potential grounds for a new trial that
are open for our review: (1) irregularity in proceedings based on the purported
misconduct of Miller’s trial counsel in questioning the defense’s expert witnesses; and
(2) error in law based on the trial court’s denial of Olar’s request for an Evidence Code
section 402 hearing on the admissibility of the defense experts’ testimony. Miller
contends the trial court’s express denial of the new trial motion on these grounds
precludes us from affirming the order granting the new trial. Olar, however, has appealed
from the judgment, which allows her to challenge the denial of the new trial motion.
(Walker v. Los Angeles County Metropolitan Transp. Authority (2005) 35 Cal.4th 15, 18
[an order denying a motion for new trial may be reviewed on appeal from the underlying
judgment].) The standard of review of a denial of a new trial motion is de novo, which
requires the appellate court to review “‘the entire record, including the evidence, so as to
make an independent determination whether the error was prejudicial.’” (Hasson v. Ford
Motor Co. (1982) 32 Cal.3d 388, 417, fn. 10; Young v. Brunicardi (1986) 187 Cal.App.3d
1344, 1348.)4
       Since the standards of review are the same whether Olar is arguing the grant of a
new trial should be affirmed or challenging a denial of the new trial motion, i.e. they both
call for de novo review, we need not decide which applies here. Instead, we address
Olar’s contentions in turn.




       4 In such a review, we accept the trial court’s credibility determinations and
findings of historical fact if they are supported by substantial evidence. (People v. Nesler
(1997) 16 Cal.4th 561, 582 (Nesler).) Thus, while the trial court may grant a new trial
where the judge believes the evidence supporting the verdict is unreliable (see Moore v.
City & County of San Francisco (1970) 5 Cal.App.3d 728, 738), we do not independently
resolve issues of credibility



                                             25.
       Misconduct of Counsel
       Olar contends she is entitled to a new trial on the ground of irregularity in the
proceedings based on misconduct of Miller’s trial counsel. Olar asserts Miller’s counsel
committed misconduct when he asked the defense experts during direct examination
questions that referred to or elicited responses in violation of a motion in limine to which
Miller’s counsel had stipulated.
       Before trial, Olar brought a motion in limine to (1) preclude Miller, his expert
witnesses and his attorney “from making any mention of, or reference to the content,
either specifically or generally, of any medical text, journal article, or ‘literature’ on
direct examination”; (2) instruct defense witnesses they are precluded from offering or
volunteering any testimony relating to the same; and (3) preclude defense counsel “from
asking any questions, to the effect, ‘Are you familiar with the body of literature that
stands for the proposition or supports the proposition. . . .’” The motion was based on the
legal principle that an expert’s recital, on direct examination, of information contained in
scientific and medical publications and journals is hearsay and therefore inadmissible.
(See, e.g., People v. Campos (1995) 32 Cal.App.4th 304, 308 [on direct examination, an
expert witness may state the reasons for his or her opinion and testify that the opinion is
based on reports prepared by other experts, but may not reveal the content of the prepared
reports or the opinions expressed by nontestifying experts].) At the pretrial proceedings,
defense counsel stipulated to the motion and stated the motion was “mutual.”
       Olar asserts defense counsel violated this in limine motion in his questioning of
the defense’s expert witnesses and thereby committed misconduct. She first points to
testimony by gynecologist Martin Feldman, M.D., on direct examination by defense
counsel, in which the doctor was asked to explain the risks associated with a
hysterectomy, whether those risks were inherent risks, why they were considered inherent
risks, and whether those risks could occur in the absence of negligence by the surgeon.
Feldman responded that the risks of a hysterectomy were infection, bleeding and injury to

                                              26.
adjacent structures, including the bladder; these were inherent risks because the surgeon
is working very closely to the adjacent structures which can be injured during the
procedure despite “all efforts”; and the risks could occur in the absence of negligence.
Feldman further testified he did not know of any obstetricians who would not agree these
were inherent risks of an abdominal hysterectomy and confirmed the correctness of
defense counsel’s hypothetical that if a thousand hysterectomies were performed,
“statistically, it is predictable that a certain number of patients would experience one or
more” of these inherent risks. When asked if this topic had been studied over the decades
in medical schools and by physicians such as himself, Feldman responded that “we know
the inciden[ce] of different types of injuries[,]” meaning how often it happens, and the
incidence of vesico-vaginal fistulas was “commonly quoted at one percent.” When asked
if the “statistics that get reported vary from what applications you’re looking at” at a
given point in time, Feldman responded, “Absolutely.” Defense counsel also asked
Feldman what the known causes of fistulas are when a hysterectomy is performed.
       Olar also cites testimony from uro-gynecologist Cynthia Hall, M.D., on redirect
examination. There, defense counsel noted that plaintiff’s counsel had asked her on
cross-examination whether she had ever seen “in the literature” a patient who had a
hysterectomy and was later found to have four fistulas and then asked Hall whether it
mattered if there was one fistula or two “as far as the numbers are concerned, in terms of
how it’s reported in the literature.” Hall responded that was what she was saying; “It’s
not reportable because it’s not interesting enough. Sorry.” When asked if “the literature
talks about a patient with a fistula, it doesn’t go on to define patients that have had one or
have had two or more than one or two; is that fair?,” Hall agreed it was fair. Hall also
agreed with defense counsel that if “one looks at the literature, it wouldn’t be a surprise
to you if it didn’t talk about patients in terms of the number of numbers of fistulas, it
simply talks about the concept of the complication occurring; is that fair?”



                                             27.
       While attorney misconduct is a ground for a new trial (§ 657, subd. (1)), it can
justify a new trial only if it is reasonably probable the party moving for a new trial would
have obtained a more favorable result absent the misconduct. (City of Los Angeles v.
Decker (1977) 18 Cal.3d 860, 870, 872; see also Cassim v. Allstate Ins. Co. (2004) 33
Cal.4th 780, 801–802 (Cassim).) Although we do not share the view that defense counsel
engaged in misconduct, we will not resolve that issue because Olar did not object during
trial when the alleged misconduct purportedly occurred. It is well settled that generally a
party cannot complain on appeal of attorney misconduct at trial unless the party timely
objected to the misconduct and requested that the jury be admonished. (Whitfield v. Roth
(1974) 10 Cal.3d 874, 891–892 (Whitfield).) This gives the trial court an opportunity to
remedy the misconduct and avoid the necessity of a retrial. (Cassim, supra, 33 Cal.4th at
pp. 794–795; Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 610 (Horn).)
       As recently summarized in Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1412
(Rayii): “The failure to timely object and request an admonition waives a claim of error
unless the misconduct was so prejudicial that it could not be cured by an admonition
(People v. Cunningham (2001) 25 Cal.4th 926, 1000–1001; Whitfield, supra, 10 Cal.3d at
p. 892), an objection or request for admonition would have been futile (People v. Hill
(1998) 17 Cal.4th 800, 820) or the court promptly overruled an objection and the
objecting party had no opportunity to request an admonition (Cassim, supra, at pp. 794–
795). Attorney misconduct is incurable only in extreme cases. (Horn, supra, 61 Cal.2d
at p. 610; see, e.g., Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d
341, 351–355 (Simmons).)”
       Olar did not timely object to the questions Miller’s counsel asked or the testimony
she now claims violated the in limine motion; neither did she request an admonition to
the jury. Olar has not shown the purported misconduct was so persistent or egregious as
to justify the conclusion it was incurable. We conclude Olar’s failure to timely object
and request an admonition to the jury precludes our consideration of the point on appeal.

                                            28.
(See Rayii, supra, 218 Cal.App.4th at p. 1412; Menasco v. Snyder (1984) 157 Cal.App.3d
729, 734 [on review of denial of motion for new trial, claim of attorney misconduct is
waived if no objection and request for admonition is made at trial].)5
       Failure to Hold Evidence Code Section 402 Hearing
       Although not entirely clear, it appears Olar asserts a new trial should have been
granted on the ground of error in law (§ 657, subd. (7)) because the trial court
erroneously refused to hold an Evidence Code section 402 hearing to determine the
admissibility of the opinion testimony of defense experts Feldman and Hall.
       During trial, Olar filed a request for the trial court to hold an Evidence Code
section 402 hearing to determine the admissibility of the doctors’ opinions before they
testified. Olar asserted the hearing was necessary to establish the factual basis for their
opinions that four vesico-vaginal fistulas can occur in the absence of negligence or are an
inherent risk of a hysterectomy, and whether Feldman could opine Miller complied with
the applicable standard of care even though he did not have an opinion as to the cause of
the four vesico-vaginal fistulas. Olar argued that, based on excerpts of the doctors’
deposition testimonies, their opinions lacked sufficient foundation because neither doctor
had ever had a patient develop vesico-vaginal fistulas after an abdominal hysterectomy or
read about four such fistulas developing in a patient.
       In his written opposition, Miller argued the request should be denied as
unnecessary, since objections based on lack of foundation could be made during the
witnesses’ testimony and ruled on accordingly, and the deposition testimony Olar cited

       5 Olar asserts her pretrial motion in limine to preclude testimony or questions
concerning the content of publications on direct examination preserves her claim of
attorney misconduct for appeal. We disagree, as the motion in limine could not
substitute for a timely objection on the ground of misconduct. (See, e.g., Neumann v.
Bishop (1976) 59 Cal.App.3d 451, 468 [“when confronted by misconduct of counsel an
adversary generally must, first, object or otherwise direct the court’s attention to the
misconduct and, second, move for a mistrial to seek a curative admonition.”]



                                             29.
was incomplete and additional testimony showed the basis for the doctors’ opinions. The
trial court denied Olar’s requested hearing after finding Olar’s objections went to the
weight to be given the doctors’ opinions, not their admissibility, and noted that Olar’s
counsel could cross-examine the witnesses.
       Olar contends the trial court’s ruling is a prejudicial error of law. We disagree.
Olar’s request was made under Evidence Code section 402, subdivision (b), which
provides, in pertinent part: “The court may hear and determine the question of the
admissibility of evidence out of the presence or hearing of the jury; . . . ” Evidence Code
section 402 is a procedure for the trial court to determine, outside the jury’s presence,
whether evidence is admissible. It is within the trial court’s discretion whether to decide
admissibility questions under Evidence Code section 402, subdivision (b) within the
jury’s presence. (People v. Williams (1997) 16 Cal.4th 153, 196.)6
       The trial court here did not abuse its discretion in refusing to hold a hearing. It
reasonably could conclude that Olar’s objections, namely that the doctors could not opine
four vesico-vaginal fistulas were an inherent risk of a hysterectomy and could occur
without negligence because they had never experienced or read of such a complication,
went to the weight, not the admissibility, of their opinions. An expert witness may offer
an opinion that is “related to a subject that is sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact” (Evid. Code, § 801, subd. (a)), and
may base that opinion on matters outside his or her personal knowledge that are “of a
type that reasonably may be relied upon by an expert in forming an opinion” on the
subject at hand (Evid. Code, § 801 subd. (b)). (See, e.g., People v. Catlin (2001) 26

       6 Olar contends we should review the trial court’s decision not to hold a hearing de
novo, citing In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563-564 and
Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 1370. These cases, however,
do not support the proposition that our review is de novo, as neither case addresses a
decision to deny an Evidence Code section 402 hearing.



                                             30.
Cal.4th 81, 132-133 (Catlin) [a pathologist who performed an autopsy on the victim
could opine the cause of death was paraquat poisoning based on a laboratory report
prepared by other professionals despite never having performed an autopsy where that
was the cause of death]; Brown v. Colm (1974) 11 Cal.3d 639, 643 [medical expert not
required to have experience in the particular field of his or her testimony as long as expert
demonstrates special knowledge of the subject matter]; Conservatorship of Chambers
(1977) 71 Cal.App.3d 277, 285, fn. 13 [“Evidence Code section 801, subdivision (b),
provides that an expert may base his testimony upon any matter which is a type upon
which the expert may reasonably rely in forming an opinion. There is no requirement of
direct knowledge of given facts.”].)
       Moreover, Olar has not demonstrated the denial of an Evidence Code section 402
hearing was prejudicial, since she had the opportunity to object to the doctors’ testimony
during trial on the grounds of which she now complains and move to strike it, but failed
to do so.
       In sum, Olar has not met her burden of showing there is a basis for granting her a
new trial. Since the trial court had no jurisdiction to enter its statement of reasons for
granting the motion on evidentiary grounds, we must reverse the order granting Olar a
new trial.
   II. Sufficiency of the Evidence
       In her cross-appeal from the judgment, Olar asserts there is insufficient evidence
to support the jury’s verdict in favor of Miller, as Miller was negligent as a matter of law
in both the manner he performed the hysterectomy and in performing an unnecessary
hysterectomy.
       Legal Principles
       Medical malpractice is a cause of action for professional negligence. It is shown
by demonstrating (1) the standard of care in the professional community, (2) the medical
provider’s failure to meet that standard, and (3) the patient’s harm due to the medical

                                             31.
provider’s deficient care. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077.)
With respect to the standard of care, “‘[t]he law demands only that a physician or surgeon
have the degree of learning and skill ordinarily possessed by practitioners of the medical
profession in the same locality and that he exercise ordinary care in applying such
learning and skill to the treatment of his patient. [Citations.] The same degree of
responsibility is imposed in the making of a diagnosis as in the prescribing and
administering of treatment. [Citations.]’ [Citation.] ‘The standard of care against which
the acts of a physician are to be measured is a matter peculiarly within the knowledge of
experts; it presents the basic issue in a malpractice action and can only be proved by their
testimony [citations], unless the conduct required by the particular circumstances is
within the common knowledge of the layman.’” (Keen v. Prisinzano (1972) 23
Cal.App.3d 275, 279.)
       Olar asserts there is not substantial evidence to support the jury’s finding that
Miller was not negligent in her diagnosis and treatment. In making this assertion, Olar
“is in fact claiming that [s]he proved negligence as a matter of law, and such is not
established unless the only reasonable hypothesis is that negligence existed.” (Horn v.
Oh (1983) 147 Cal.App.3d 1094, 1099.) In order for us to reverse the judgment on this
ground, we would have to hold that “it would have been impossible from all the evidence
for the jury to find” that Miller was not negligent or Olar had not met her burden to prove
Miller was negligent. (Byrum v. Brand (1990) 219 Cal.App.3d 926, 947.) The issue of a
defendant’s negligence may be determined as a matter of law only if reasonable persons
can draw but one conclusion from the evidence. (Horn v. Oh, supra, 147 Cal.App.3d at
p. 1099.) “‘Only where no fact is left in doubt and no deduction or inference other than
negligence can be drawn by the [trier of fact] from the evidence can the court say, as a
matter of law, that negligence is established. . . .’” (Ibid.)
       Olar contends that she met this standard with respect to both acts upon which her
negligence claim was based, namely the manner in which Miller performed the

                                              32.
hysterectomy and the decision to perform an unnecessary hysterectomy. We address
each of these in turn.
       The Hysterectomy
       Olar contends she established Miller was negligent as a matter of law in the
manner he performed the hysterectomy under the theory of res ipsa loquitur. She claims
she satisfied her burden of proving the three elements of res ipsa loquitur, thereby
establishing a presumption of negligence and shifting to Miller the burden of producing
evidence to rebut the presumption, who failed to meet that burden. She concludes that
therefore she was entitled to prevail.
       In a medical malpractice action, a medical provider’s negligence is not presumed
but must be proved, except in cases where the doctrine of res ipsa loquitur applies.
(Lashley v. Koerber (1945) 26 Cal.2d 83, 88-89.) When an accident or disagreeable
consequence is so likely to have been caused by the defendant’s negligence, it may fairly
be said that “‘the thing speaks for itself’” or, in Latin, res ipsa loquitur. (Brown v. Poway
Unified School Dist. (1993) 4 Cal.4th 820, 825 (Brown).)
       The doctrine of res ipsa loquitur has been codified as “a presumption affecting the
burden of producing evidence.” (Evid. Code, § 646, subd. (b).) “The presumption arises
when the evidence satisfies three conditions: ‘“(1) the [injury] must be of a kind which
ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused
by an agency or instrumentality within the exclusive control of the defendant; (3) it must
not have been due to any voluntary action or contribution on the part of the plaintiff.”’”
(Brown, supra, 4 Cal.4th at pp. 825-826.)
       “‘[T]he applicability of the doctrine of res ipsa loquitur depends on whether it can
be said, in the light of common experience, that the [injury] was more likely than not the
result of [defendant’s] negligence. [Citations.] “Where no such balance of probabilities
in favor of negligence can be found, res ipsa loquitur does not apply.”’” (Zentz v. Coca
Cola Bottling Co. (1952) 39 Cal.2d 436, 442 (Zentz).) “[I]t must appear . . . that the

                                             33.
[injury] is of a type which probably would not happen unless someone was negligent. In
the absence of such a probability there would be no basis for an inference of negligence
which would serve to take the place of evidence of some specific negligent act or
omission.” (Zentz, at pp. 442-443.)
       “The fact that a particular injury rarely occurs does not in itself justify an inference
of negligence. (Siverson v. Weber [(1962)] 57 Cal.2d 834, 839.) To allow an inference
of negligence to be made solely based on this fact would place a disproportionate burden
on the medical profession and would discourage the use of new procedures which may
involve inherent risks even when due care is used. (Siverson v. Weber, supra, p. 839.)
But evidence of rarity, together with some other evidence indicating negligence, may
warrant a conditional res ipsa instruction, particularly where the injury resulted from a
commonplace procedure rather than from a complex or unusual operation. (Clark v.
Gibbons [(1967)] 66 Cal.2d 399, 412-413; Quintal v. Laurel Grove Hospital [(1964)]
62 Cal.2d 154, 165-166 .)” (Hale v. Venuto (1982) 137 Cal.App.3d 910, 918-919.) A
plaintiff is not absolutely required to explain how the injury happened. “‘“Res ipsa
loquitur may apply where the cause of the injury is a mystery, if there is a reasonable and
logical inference that defendant was negligent, and that such negligence caused the
injury.”’” (Id. at pp. 919-920.)
       When the doctrine applies, it creates an inference that the defendant’s negligent
conduct caused the accident or injury, imposing upon the defendant the obligation of
going forward to rebut the inference. (Roberts v. Trans World Airlines (1964) 225
Cal.App.2d 344, 352.) The defendant’s evidence need only offset or balance the
inference of negligence; he need not prove himself free from negligence by a
preponderance of proof. (Ibid; see also Williams v. City of Long Beach (1954) 42 Cal.2d
716, 717-718; Landerman v. Hamilton (1964) 230 Cal.App.2d 782, 785.) The defendant
can rebut the inference either by (1) offering a satisfactory explanation for the injury, i.e.
a definite, non-negligent cause, or (2) showing “such care in all possible respects as

                                             34.
necessary to lead to the conclusion that the [injury] could not have happened from want
of care, but must have been due to some unpreventable cause, although the exact cause is
unknown.” (Ibid.) A defendant also may attempt to rebut the inference through evidence
the physician utilized medical procedures which involve an inherent risk of injury when
due care is used. (Bardessono v. Michels (1970) 3 Cal.3d 780, 790, fn. 8.)
        The question before us is whether Olar established the res ipsa conditions as a
matter of law, thereby requiring a finding in her favor absent substantial evidence from
Miller to meet or dispel the inference of negligence. The only disputed res ipsa condition
was whether the development of four vesico-vaginal fistulas is the type of injury that
probably would not occur as a result of an uncomplicated hysterectomy in the absence of
negligence. Olar contends she established this as a matter of law because it was
undisputed that: (1) Miller performed an uncomplicated hysterectomy on Olar that did
not involve excessive bleeding; (2) as a result of the surgery, she suffered four vesico-
vaginal fistulas; (3) the fistulas were caused by Miller putting sutures in Olar’s bladder
when he sewed the vaginal cuff closed; (4) the incidence of a patient developing four
vesico-vaginal fistulas following a hysterectomy “has never happened before in the
history of recorded medicine,” as none of the expert witnesses had ever seen, heard of, or
read about a patient developing four such fistulas after a hysterectomy, and none of their
patients had ever developed even one vesico-vaginal fistula; (5) the standard of care
requires a surgeon to completely and adequately remove the bladder off the vaginal cuff
when performing a hysterectomy to prevent placing sutures in the bladder; and (6) the
failure to completely remove the bladder off the vaginal cuff is below the standard of
care.
        In asserting these facts are undisputed, Olar ignores the contrary evidence from
which the jury reasonably could have found Olar failed to prove her harm, i.e. the
development of four fistulas following an uncomplicated hysterectomy, ordinarily would
not have occurred unless someone was negligent. All of the experts, including Dubin,

                                             35.
testified a vesico-vaginal fistula could develop following an uncomplicated hysterectomy
with or without negligence. While Dubin opined that four vesico-vaginal fistulas should
not happen without negligence, both Feldman and Hall opined that four such fistulas
could develop without negligence. In Feldman’s opinion, the number of fistulas is not
determinative of whether they resulted from the surgeon’s negligence, as a non-negligent
mechanism, such as thinning of the bladder when taking it down or placing a suture in the
bladder, could cause more than one fistula. Hall agreed with this opinion, explaining that
she might conclude negligence was involved if the fistulas were all over the bladder, but
not if they were all in the same area. Feldman criticized Dubin’s opinion, explaining it
made no sense to him that Dubin would not have a standard of care criticism of Miller if
only one fistula developed but would believe he acted below the standard of care due to
the presence of four fistulas.
       Thus, the jury could have concluded that the mere presence of four fistulas did not
indicate negligence. Olar contends the res ipsa inference is required because she showed
as a matter of law that the injury she suffered has never happened before and presented
evidence of a negligent cause, i.e. sutures in the bladder when sewing the vaginal cuff.
(See, e.g., Clark v. Gibbons (1967) 66 Cal.2d 399, 412 [an inference of negligence may
arise under the doctrine of res ipsa loquitur where there is evidence of a low incidence of
injury when due care is used combined with proof of specific acts of negligence of a type
which could have caused the injury at issue].)
       Olar, however, did not prove that sutures were the cause of her fistulas as a matter
of law. Although Dubin opined suturing was the only way one could possibly get four
fistulas, which occurred by failing to provide adequate separation between the bladder
and vaginal cuff, not all of the experts agreed. Feldman testified he could not say to a
reasonable medical probability which of the four causes of vesico-vaginal fistulas led to
Olar’s fistulas. While Olar asserts Hall definitively testified sutures caused the fistulas,
Hall actually testified that was her “best guess” as to the cause. From Feldman’s

                                             36.
testimony, the jury could have rejected Dubin’s testimony that sutures were in fact the
cause, found the cause was unknown and, on that basis, attribute the injury to the non-
negligent causes Hall and Feldman testified could occur during a hysterectomy. (In re
Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204 (Ackerman) [“‘resolution of
conflicts in the evidence, assessment of the credibility of witnesses and the weight to be
given the opinions of experts were all matters within the exclusive province of the trier of
fact.’”].) Given that there was evidence that the bladder had thinned, the jury could find
that thinning was a reasonable, non-negligent explanation for the fistulas.
       Moreover, even if the jury accepted that suturing caused the fistulas, the defense
experts both opined that placing sutures in the bladder was not necessarily below the
standard of care. As Hall testified, a surgeon exercising reasonable care during a simple
hysterectomy can put sutures into the bladder while sewing the vaginal cuff because
“[c]omplications occur in surgery[,]” and while a surgeon does his or her best to avoid
injuring the bladder and tries to get the stitches away from the bladder, 0.5 percent of
simple hysterectomies will result in a fistula. Feldman testified placement of sutures in
the bladder wall is a recognized risk of an abdominal hysterectomy and could occur in an
uncomplicated hysterectomy without negligence because, while surgeons try to be “very
careful” and identify what is being sewn, a surgeon could believe the bladder is
completely clear and “for one reason or another” be wrong.
       Olar contends the jury was required to reject the testimony of Hall and Feldman
because their opinions were conclusory and not supported by the evidence. Olar asserts
the defense experts never adequately explained why a single vesico-vaginal fistula or
multiple vesico-vaginal fistulas due to sutures in the bladder were inherent risks of an
uncomplicated hysterectomy.
       Expert opinions are purely conclusory if they are not accompanied by a reasoned
explanation that connects the factual predicates to the ultimate conclusion, thus having no
evidentiary value. (See Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114

                                            37.
Cal.App.4th 1108, 1117.) Hall’s and Feldman’s opinions regarding the inherent risks of
a hysterectomy were grounded in their training as physicians and their knowledge of the
medical literature concerning the risks inherent in hysterectomies, which provided a
reasonable basis for their opinions. Feldman explained the risks were inherent because
the structures a surgeon is dealing with are very close together and can be injured during
the surgery without negligence, and a suture can be placed in the bladder without
negligence because a surgeon can believe the bladder is cleared when in fact it is not.
Hall explained that fistulas can occur in the absence of negligence during mobilization of
the bladder while separating it from the vagina, and a suture can be placed in the bladder
without negligence because a surgeon could believe he or she was in the right plane,
when in fact the surgeon was not. Thus, each doctor provided an explanation for their
opinions. It was up to the jury to decide whether to accept or reject those opinions. (See
Ackerman, supra, 146 Cal.App.4th at p. 204.)
       While Olar asserts these opinions must be disregarded because the doctors had
never seen or read about a patient developing four vesico-vaginal fistulas, as we have
previously explained, the lack of personal experience did not invalidate their opinions;
the defense experts could testify from their education and training as to the potential
causes of vesico-vaginal fistulas and the possibility of one or more of them developing
during an uncomplicated hysterectomy. (See Catlin, supra, 26 Cal.4th at pp. 132-133;
Brown v. Colm, supra, 11 Cal.3d at p. 643.) Because the defense experts’ opinions are
not based on unsupported factual assumptions or sheer speculation and conjecture, we
reject Olar’s argument that their opinions must be rejected.
       Olar asserts an inherent risk cannot be a hypothetical injury; it must be an actual
result that is known to have occurred in the absence of negligence. But the authority she
cites, Gerhardt v. Fresno Medical Group (1963) 217 Cal.App.2d 353, 359 (Gerhardt),
does not support her assertion. Gerhardt merely states that where there is no medical
testimony that the injury at issue is a calculated risk inherent in the surgery, evidence that

                                             38.
the injury is extremely rare is determinative of the application of res ipsa loquitur. (Ibid.)
Here, there was medical testimony that, even though the development of one or more
fistulas was an extremely rare occurrence, it was an inherent risk of a hysterectomy.
       At best, Olar’s appellate argument explains how a jury could have found in her
favor on the issue of Miller’s negligence, namely by accepting Dubin’s testimony that the
fistulas were caused by the placement of sutures in the bladder, which was below the
standard of care. But given the defense experts’ testimony as to non-negligent causes of
vesico-vaginal fistulas and that placing sutures in the bladder is not always below the
standard of care, she did not establish this as a matter of law. A rational fact finder could
have chosen to discount Dubin’s testimony and instead accept the testimony of Hall and
Feldman. While Olar would like us to reject the defense experts’ testimony, on appeal
we cannot reweigh the evidence and we do not consider their testimony so inherently
lacking in credibility as to be unworthy of consideration. “The testimony of witnesses
who were apparently believed by the trier of fact may be rejected on appeal only if that
testimony was physically impossible of belief or inherently improbable without resort to
inferences or deductions.” (DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 195.)
At most the record before us reveals the presentation of contrary evidence by Olar, which
does not subject Hall’s or Feldman’s testimony to repudiation or doubt. (Ibid.) Olar
simply has not proven res ipsa applies as a matter of law.
       Because the jury rationally could have concluded that Olar failed to establish the
first res ipsa condition, it was not obligated to apply the res ipsa presumption. Olar
asserts the jury could not disregard the inference of negligence she established, citing
Druzanich v. Criley (1942) 19 Cal.2d 439 (Druzanich), and Gerhardt, supra, 217
Cal.App.2d 353. In these cases, the evidence on the existence of the res ipsa elements
was not conflicting, thereby necessitating a finding for the plaintiff as a matter of law.
(See Druzanich, supra, 19 Cal.2d at pp. 444-445 [judgment for defendant reversed in
negligence action arising from automobile accident where, under the res ipsa loquitur

                                             39.
doctrine, an inference of negligence arose from evidence that the accident would not have
happened if the defendant had used proper care, and the defendant’s testimony indicated
a lack of due care on her part, thereby necessitating a finding of negligence in accordance
with the inference]; Gerhardt, supra, 217 Cal.App.2d at p. 361 [where the facts giving
rise to the res ipsa loquitur doctrine are undisputed, the inference of negligence arises as a
matter of law].) These cases are not controlling here, where there was conflicting
evidence on the existence of the first res ipsa element.
       Olar contends she was entitled to prevail because Miller did not produce evidence
that dispelled the inference of negligence, such as identifying the precise cause of her
injury or establishing he was not negligent in any respect. All presumptions must be
drawn in favor of the jury’s verdict. (Denham v. Superior Court (1970) 2 Cal.3d 557,
564 (Denham).) We must presume the jury rejected Olar’s res ipsa argument on the
ground she failed to establish the first res ipsa condition. Consequently, it is irrelevant
whether Miller produced evidence sufficient to rebut presumption.
       Finally, Olar contends the trial court erred in instructing the jury with the second
and third elements of res ipsa loquitur because those elements were established as a
matter of law, citing Rimmele v. Northridge Hosp. Foundation (1975) 46 Cal.App.3d
123, 130. The jury here was instructed on res ipsa loquitur pursuant to CACI No. 518, an
instruction that Olar herself requested and which included all three res ipsa elements.
During the jury instruction conference, Olar did not withdraw the instruction or object to
it.
       Under the doctrine of invited error, a party in a civil case may not complain of
error in instructions that she has requested. (Metcalf v. County of San Joaquin (2008)
42 Cal.4th 1121, 1130-1131; Stevens v. Owens-Corning Fiberglass Corp. (1996)
49 Cal.App.4th 1645, 1653.) “The invited error doctrine is based on estoppel. ‘“Where a
party by his conduct induces the commission of error, he is estopped from asserting it as
a ground for reversal” on appeal.’” (Huffman v. Interstate Brands Corp. (2004)

                                             40.
121 Cal.App.4th 679, 706, italics omitted.) The jury was instructed properly on the
elements of res ipsa loquitur. Because Olar requested the res ipsa instruction and failed
to request modification in the manner she now complains of, she is estopped from
asserting or has forfeited the issue.
       Unnecessary Hysterectomy
       Olar also contends she established Miller was negligent as a matter of law for
performing an unnecessary surgery. She asserts she is entitled to prevail because the
testimony of Dubin and Feldman established that (1) “[t]he only indication for
hysterectomy is failure of medical management[,]” (2) Olar did not have a failure of
medical management, and (3) more likely than not, her bleeding would have been
resolved successfully with medical management.
       Feldman, however, testified that giving Olar the option of a hysterectomy when
her bleeding returned in June 2008 was within the standard of care since she declined
hormonal therapy. In contrast to Dubin’s opinion that the hysterectomy was not indicated
because Olar had not failed medical management, Feldman opined the hysterectomy was
indicated as her irregular bleeding meant she was a candidate for the operation, especially
since she declined any other management. As Feldman explained, it was Olar’s right,
once she was informed of the options, to choose whether to have the hysterectomy.
       While Olar recognizes Feldman’s testimony on this point, she asserts the evidence
shows, as a matter of law, that Miller did not provide Olar with truthful and accurate
information to allow her to make an informed decision. In support, she cites her own
testimony that Miller told her she would have to take Provera for the rest of her life,
Provera probably would not work, and she would have a rapid 20 to 30 pound weight
gain on Provera, and points out that Miller never directly denied making any of these
statements to her. She also asserts that if Miller discussed an endometrial ablation with
her, he erroneously told her she was not a candidate for it.



                                             41.
       Miller, however, testified he discussed hormonal therapy with Olar before both the
D & C and the hysterectomy, and Olar declined the therapy. He further testified that
during such discussions, he would have told her she might be on hormones until
menopause and that Olar understood the hormone causes weight gain. Miller, however,
did not know the source of Olar’s belief that she would gain 25 pounds. Although Miller
did not think Olar was a candidate for endometrial ablation, it was unclear from his
testimony whether he told her that. For example, he testified at his deposition that he
believed she was not a candidate, but when asked what he said to Olar about ablation, he
responded, “I don’t recall that she wasn’t a candidate for it.” According to Miller, while
he discussed Olar’s options with her at the June 2008 consultation, including hormonal
treatment and an ablation, Olar wanted a hysterectomy.
       Based on Miller’s testimony, which the jury could have accepted over Olar’s, the
jury reasonably could have found Miller truthfully and accurately disclosed the risks and
benefits of hormonal therapy and ablation. The jury could then have concluded that,
based on Feldman’s opinion on the standard of care, Miller was not negligent, i.e. did not
act below the standard of care, in offering Olar the option of having a hysterectomy and
performing the operation. Since the trier of fact determines the credibility of witnesses
(McAllister v. George (1977) 73 Cal.App.3d 258, 265), and all presumptions must be
drawn in favor of the jury’s verdict (Denham, supra, 2 Cal.3d at p. 564), we must
presume the jury rejected Olar’s testimony and Dubin’s opinion regarding the standard of
care, and instead accepted Miller’s testimony and Feldman’s opinion on this issue.
Accordingly, Olar has failed to show that she was entitled to a negligence finding as a
matter of law.




                                            42.
                                      DISPOSITION
       The order granting Olar’s motion for a new trial is reversed. The judgment is
affirmed. The trial court is directed to reinstate the judgment. Miller is entitled to his
costs on appeal.

                                                                  _____________________
                                                                        Gomes, Acting P.J.
WE CONCUR:


 _____________________
Poochigian, J.


 _____________________
Detjen, J.




                                             43.
