Mathews v. Benjamin CA2/6

Filed 5/19/16 Mathews v. Benjamin CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SHARYN GAYLE MATHEWS, 2d Civil No. B264580
(Super. Ct. No. 56-2014-00447830-
Plaintiff and Appellant, CU-PT-VTA)
(Ventura County)
v.
ORDER MODIFYING OPINION
MELODY BENJAMIN et al., AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Defendants and Respondents.

THE COURT:
It is ordered that the opinion filed herein on April 26, 2016, be modified as follows:
1. On page 2, the second full paragraph, beginning "The trial court granted summary
judgment," is deleted, and the following paragraph is inserted in its place:
The trial court ruled the defendants established that there was no triable issue
of fact on the standard of care issue and found “they did not breach the
standard of care.” But it did not grant summary judgment because the
defendants did not show there was no triable issue of fact on the issue of “lack
of informed consent.”
2. On page 10, line 6, the following language is inserted before the sentence beginning
"Moreover, as already mentioned":
 Mathews cites to her counsel’s statements at the in limine hearings. But
counsel's general statements made during arguments without a specific
description of the actual testimony and evidence to be presented to prove the
factual claims did not meet the standard for valid offers of proof. (In re
Mark C. (1992) 7 Cal.App.4th 433, 444; McCleery v. City of Bakersfield
(1985) 170 Cal.App.3d 1059, 1074.)

There is no change in judgment.
Appellant's petition for rehearing is denied.

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Filed 4/26/16 Mathews v. Benjamin CA2/6 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SHARYN GAYLE MATHEWS, 2d Civil No. B264580
(Super. Ct. No. 56-2014-00447830-
Plaintiff and Appellant, CU-PT-VTA)
(Ventura County)
v.

MELODY BENJAMIN et al.,

Defendants and Respondents.

Plaintiff Sharyn Gayle Mathews appeals a judgment in favor of
defendants Melody Benjamin, M.D., and the County of Ventura in her medical
informed consent liability/wrongful death action. The trial court properly granted
defendants' motions in limine. We affirm.
FACTS
Mathews is the daughter of Orville Mathews who was a patient of Dr.
Melody Benjamin at the Ventura County Medical Center. Orville Mathews was
diagnosed with "stage IV rectosigmoid colon cancer with liver metastases." In
February 2013, Benjamin gave him a chemotherapy drug known as "5-FU." Orville
Mathews died a month later.
Mathews filed a medical malpractice action against Benjamin and
Ventura County. She alleged, among other things, that Benjamin breached the
standard of care by: 1) administering 5-FU which is toxic to 16 percent of patients,
and 2) not screening her father for enzyme deficiencies before using that drug.
Defendants moved for summary judgment and attached the declaration
of John Glaspy, M.D. He declared that: 1) "the care and treatment provided to Orville
Mathews after his symptoms were detected were all within the standard of care," 2)
"5-FU is part of a very effective regimen to treat the type of cancer Orville Mathews
suffered from," and 3) Orville Mathews's "condition was terminal without this
chemotherapy."
The trial court granted summary judgment against Mathews. It ruled the
"defendants adequately established that they did not breach the standard of care."
Mathews filed a first amended complaint alleging a wrongful death
cause of action. She alleged that: 1) the "[d]efendants negligently administered 5-FU
to Orville Mathews, without having him screened for the drug's toxicity and/or
receiving Orville Mathews's informed consent"; 2) "Five-FU was toxic to [him]"; and
3) Orville Mathews died from "5-FU enzyme deficiency."
Mathews requested a jury trial. She filed a motion in limine noting that
defendants intended to call Glaspy to testify. Mathews claimed that no expert
testimony about "the standard of care for disclosure" should be allowed at trial because
"this is an informed consent case."
Defendants filed several motions in limine. They noted that Mathews
was proceeding to trial without having designated "any retained experts" and that she
did not have an expert who was "qualified to opine on the standard of care as it
pertains to oncology." They claimed some of the evidence she intended to raise at trial
required the testimony of an expert who could testify on the standard of care. Because
Mathews did not retain such an expert, they said evidence was inadmissible on
whether Benjamin was liable for not advising Orville Mathews about: 1) the
availability of alternative cancer treatments, 2) the success rate of the 5-FU treatment,
and 3) a diagnostic screening test. Defendants also claimed Mathews's attempt to

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introduce a videotaped deposition of an expert who would discuss the results of a
study on 5-FU was inadmissible hearsay. The trial court granted defendants' motions
in limine.
At the beginning of the jury trial, Mathews moved to dismiss. The trial
court entered the following judgment: "Plaintiff, Sharyn Gayle Mathews, having
requested dismissal after an adverse trial court ruling, so that an appeal could be taken
promptly, judgment is hereby entered based on the court's evidentiary rulings of May
6, 2015."
DISCUSSION
Defendants' Request to Dismiss This Appeal
Defendants claim Mathews's appeal should be dismissed because she
requested a judgment in their favor. They argue she "voluntarily dismissed her first
amended complaint after receiving what she viewed as adverse in limine rulings that
'crippled' her case." Defendants claim this is a nonappealable consent judgment.
"[I]t is 'wasteful of trial court time' to require the plaintiff to undergo a
probably unsuccessful court trial merely to obtain an appealable judgment." (Building
Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 817.) "[T]here is an
exception to the rule that a party may not appeal a consent judgment. If consent was
merely given to facilitate an appeal following adverse determination of a critical issue,
the party will not lose his right to be heard on appeal." (Ibid.) We proceed to the
merits.
Informed Consent and Alternative Treatments
Mathews contends the trial court erred by granting a motion in limine
which prevented her from introducing evidence to show Benjamin was liable under the
informed consent doctrine. She claims she should have been allowed to show liability
based on Benjamin's failure to advise her father of the availability of alternative
chemotherapy drug treatment.

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 Defendants contend the trial court did not err because: 1) the duty to
disclose under the informed consent doctrine extends to the "recommended treatment,"
but not to the "disclosure of alternative treatments"; and 2) Mathews's failure to
present expert testimony on the standard of care prevented her from showing liability
based on the failure to disclose alternative treatments. We agree.
A medical doctor must obtain the informed consent of the patient for the
type of treatment the patient will receive. (Cobbs v. Grant (1972) 8 Cal.3d 229, 239.)
"A medical doctor, being the expert, appreciates the risks inherent in the procedure he
is prescribing, the risks of a decision not to undergo the treatment, and the probability
of a successful outcome of the treatment." (Id. at p. 243.) "But once this information
has been disclosed, that aspect of the doctor's expert function has been performed."
(Ibid.)
"'In Cobbs v. Grant, supra, 8 Cal.3d 229, the California Supreme Court
held that a physician has a duty to disclose to a patient :the available choices with
respect to proposed therapy and . . . the dangers inherently and potentially involved in
each."'" (Schiff v. Prados (2001) 92 Cal.App.4th 692, 701.) "'At minimum, a
physician must disclose "the potential of death or serious harm" known to be inherent
in a given procedure and an explanation in lay terms of the complications that might
occur.'" (Ibid.)
"'With respect to . . . alternative treatments, under the doctrine of
informed consent "there is no general duty of disclosure with respect to
nonrecommended procedures . . . ."'" (Schiff v. Prados, supra, 92 Cal.App.4th at p.
701.) "'Instead, "the failure to recommend a procedure must be addressed under
ordinary medical negligence standards."'" (Ibid.) "That is, a physician must disclose
alternative treatments only to the extent it is required "for competent practice within
the medical community."'" (Ibid.) "'The standard of care prevailing in the medical
community must be established by expert testimony.'" (Ibid.)

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 Defendants note in their motion in limine that Mathews "did not
designate any retained experts" and did not have an expert who was "qualified to opine
on the standard of care as it pertains to oncology." Mathews claimed that "expert
testimony about the standard of care for disclosure" was not necessary because this "is
an informed consent case."
The trial court could reasonably find that Mathews could not prove that
the nondisclosure of alternative treatments fell below the standard of care "'"for
competent practice within the medical community"'" without a qualified expert.
(Schiff v. Prados, supra, 92 Cal.App.4th at p. 701.)
Nondisclosure of the Success Rate of the 5-FU Treatment
Mathews noted that Benjamin administered a "5-FU" treatment for her
father. She claimed a physician must make certain specific success rate disclosures to
patients when administering this treatment.
The trial court granted defendants' motion in limine. It ruled that
Mathews could not introduce evidence that Benjamin had a duty to tell patients that
the 5-FU treatment had a "55 to 67 percent . . . success rate for extending life" without
calling an expert. Mathews claims "5-FU is only slightly more effective than the
alternatives, 55% to 40%-45%."
Testimony from a qualified expert was required to prove this particular
advice to patients was part of the required standard of care in the oncology "medical
community." (Schiff v. Prados, supra, 92 Cal.App.4th at p. 701.) Evidence on the
specific success rates of various treatments is a subject "beyond the general knowledge
of lay people." (Betterton v. Leichtling (2002) 101 Cal.App.4th 749, 756.) Absent
expert testimony, such evidence is inadmissible. (Ibid.) Evidence on whether a doctor
should disclose "statistical life expectancy data" falls within "the standard of practice
within the medical community." (Arato v. Avedon (1993) 5 Cal.4th 1172, 1191-1192.)
Consequently, introducing expert testimony was required to establish that standard.

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(Schiff, at p. 701.) Mathews made no offer of proof that she had a qualified expert
who could testify about the standard of care involving this disclosure.
Mathews apparently wanted to introduce this evidence about success
rates to support her claim that, had her father been advised of the alternative treatment
success rates, he would not have consented to the 5-FU treatment. At the hearing on
the motions in limine, the trial court asked Mathews's counsel, "[I]s there an offer of
proof that consent would not have been given had that rate been disclosed." He
responded, "If we're not allowed to introduce evidence of the alternatives, then I
wouldn't think so." As already shown, the alternative treatment evidence was properly
excluded. (Schiff v. Prados, supra, 92 Cal.App.4th at p. 701.)
Duty to Disclose the Existence of a Diagnostic Screening Test
Mathews claimed Benjamin had a duty to disclose to her father the
existence of a screening test procedure to determine "the drug's toxicity" before
administering the 5-FU treatment.
The trial court granted defendants' motion in limine. It said, "If the
procedure is one that should have been proposed, then the failure to recommend it
would be negligence under ordinary medical negligence principles . . . ."
Whether a doctor should advise a patient of various other procedures or
diagnostic screening tests necessarily requires expert testimony on the standard of
care. "[T]he failure to recommend a procedure must be addressed under ordinary
medical negligence standards." (Vandi v. Permanente Medical Group, Inc. (1992) 7
Cal.App.4th 1064, 1070.) That requires expert testimony on the standard of care
which Mathews was not prepared to present. (Schiff v. Prados, supra, 92 Cal.App.4th
at p. 701; see also Scalere v. Stenson (1989) 211 Cal.App.3d 1446, 1450 ["[T]his is a
case in which no diagnostic testing was recommended. Therefore, the predicate for
the duty to disclose being absent, there was no duty to provide 'material information'"
(some italics added)].)

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 Mathews challenges the trial court's discretion to require expert
testimony on the standard of care in an informed consent case. But the categories of
information that need to be disclosed to patients are not always free from ambiguity.
"[S]ituations will sometimes arise in which the trier of fact is unable to decide the
ultimate issue of the adequacy of a particular disclosure without an understanding of
the standard of practice within the relevant medical community." (Arato v. Avedon,
supra, 5 Cal.4th at p. 1191.) In those cases, "the testimony of medical experts
qualified to offer an opinion regarding what, if any, disclosures--in addition to those
relating to the risk of death or serious injury and significant potential complications
posed by consenting to or declining a proposed treatment--would be made to the
patient by a skilled practitioner in the relevant community under the circumstances, is
relevant and admissible." (Ibid.) Mathews has not shown the trial court abused its
discretion by requiring such evidence.
Moreover, on summary judgment, the trial court ruled Benjamin did not
breach the standard of care by not performing the screening test "before beginning the
treatment." With respect to the medical treatment provided, the court said that
"defendants adequately established that they did not breach the standard of care."
These unchallenged findings on appeal undermine Mathews's claims of reversible
error.
Exclusion of Deposition Testimony About a Study on 5-FU Toxicity
Mathews contends the trial court erred by "exclud[ing] the videotaped
testimony of Dr. Gwen McMillin that the conclusion of a study determining 5-FU is
toxic to 16% of the general population was an authoritative figure."
Defendants respond that the trial court properly granted their motion in
limine to exclude this videotaped deposition evidence. They claim that allowing
McMillin to testify about the contents of this "ARUP" study would introduce
inadmissible hearsay into Mathews's case in chief. We agree.

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 In Whitfield v. Roth (1974) 10 Cal.3d 874, our Supreme Court
disapproved the practice of allowing experts to testify in a plaintiff's case to quote the
hearsay reports of others who were not witnesses before the court. The court said, "It
is clear that doctors can testify as to the basis of their opinion [citation], but this is not
intended to be a channel by which testifying doctors can place the opinion of
innumerable out-of-court doctors before the jury." (Id. at p. 895.) "[T]he opinions of
the out-of-court doctors in this case were not used by either testifying doctor in the
course of treatment or diagnosis of plaintiff. They were consulted as experts and then
called as witnesses to offer expert opinion evidence." (Ibid.) "[I]t is eminently clear
that the testimony concerning the out-of-court doctors' opinion on the crucial issue in
the case was offered solely for the improper hearsay purpose, namely as 'independent
proof of the facts.'" (Ibid.)
"An expert witness may not, on direct examination, reveal the content of
reports prepared or opinions expressed by nontestifying experts." (People v. Campos
(1995) 32 Cal.App.4th 304, 308.) Permitting the introduction of such reports would be
improper because it would deny the adversary the right to cross-examine those who
prepared them. (Ibid.)
Defendants note that in her deposition McMillin said the "source" of the
16 percent toxicity level in the ARUP Laboratories report originated from an "article"
in a medical journal. McMillin's deposition testimony showed that she was not
qualified to testify in an informed consent case about what oncologists must generally
inform their patients or what Benjamin should have specifically advised Orville
Mathews. McMillin was not a medical doctor specializing in oncology. She had a
Ph.D. in "pharmacology and toxicology." The trial court could reasonably find
McMillin's deposition testimony about the ARUP report could not be used as a
substitute for qualified expert testimony on the standard of care for disclosing
information to patients. McMillin said, "The information in the interpretative portion
of this [ARUP] report is not intended for the specific patient because we don't know

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anything about that specific patient." (Italics added.) In discussing the ARUP report,
she said, "[T]here are a number of nongenetic and genetic variables . . . , so it is not
definitive. This is not an estimate for this patient. This is background information."
(Italics added.)
McMillin's deposition contains discussions about several exhibits which
are attached to her deposition. They include an ARUP report and other medical
articles. Admitting such testimony in Mathews's case in chief would introduce
inadmissible hearsay. (Whitfield v. Roth, supra, 10 Cal.3d at p. 895; People v.
Campos, supra, 32 Cal.App.4th at p. 308.) In their motion in limine, defendants
claimed Mathews made no showing to demonstrate "what the individual studies
discussed in the literature mean in regard to treating patients." The trial court could
reasonably find that was a significant omission.
Defendants raised additional objections to the deposition. They claimed
Mathews did not lay an adequate foundation to show that: 1) 5-FU would be toxic to
"16% of patients such as Orville Mathews," 2) the report McMillian discussed would
be "applicable" to him or relevant, and 3) admitting the 16 percent figure without
additional foundational proof would be confusing to jurors. (Evid. Code, § 352.)
Mathews has not shown why these objections lacked merit. She has not shown an
abuse of discretion.
But even had the trial court erred in ruling on the motions in limine,
Mathews has not shown a reasonable probability of a different result. (People v.
Watson (1956) 46 Cal.2d 818, 836.) Mathews requested a judgment in favor of
defendants at the beginning of trial. The rulings on the motions in limine did not
prevent her from presenting evidence or making offers of proof. At trial, the court told
Mathews the judgment would be "without prejudice as to the right to appeal" the in
limine rulings, but it would be "with prejudice in all other respects." (Italics added.)
But Mathews did not present evidence or make an offer of proof at trial on the
elements of her cause of action or on the issue of how the doctor's "failure to inform"

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caused "injury to the plaintiff." (Cobbs v. Grant, supra, 8 Cal.3d at p. 245.) A party
who claims reversible error on appeal must make adequate offers of proof. (Heiner v.
Kmart Corp. (2000) 84 Cal.App.4th 335, 344.) Evidence on causation was an element
of Mathews's cause of action. "[A] physician is liable only where the failure to
disclose causes the injury." (Spann v. Irwin Memorial Blood Centers (1995) 34
Cal.App.4th 644, 657.) Moreover, as already mentioned, during the in limine
hearings, the court requested a specific offer of proof which Mathews was unable to
present. Mathews has not shown reversible error. (Cobbs, at p. 245; Watson, at
p. 836.)
We have reviewed Mathews's remaining contentions and conclude she
has not shown error.
The judgment is affirmed. Costs on appeal are awarded to respondents.
NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

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 Rebecca S. Riley, Judge

Superior Court County of Ventura

______________________________

Law Offices of Malcolm R. Tator, Malcolm Tator for Plaintiff and
Appellant.
Cole Pedroza LLP, Kenneth R. Pedroza, Maureen M. Home;
Clinkenbeard, Ramsey, Spackman & Clark LLP, Hugh S. Spackman, Barbara A.
Carroll for Defendants and Respondents.

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