University of Vermont AAHS

Petrosian v. Connor

California Court of Appeals

2004 WL 837997

April 20, 2004

 

Summary of Opinion

 

Plaintiff Petrosian brought his race horse to defendant Connor, a veterinarian, for treatment of a hoof problem.  After treatment, the horse contracted an infection that prevented him from racing.  The trial court dismissed the lawsuit on the ground that plaintiff had not presented expert testimony as to the standard of veterinary care in the community and the cause of the injury to the horse.  In this opinion, the Court of Appeals agrees with that decision and upholds the dismissal.

 

Text of Opinion

 

 Bagrad Petrosian brought a malpractice action against veterinarian Timothy Connor, alleging Dr. Connor negligently treated Petrosian's horse. After Petrosian presented his case-in-chief, the court granted Dr. Connor's nonsuit motion, determining Petrosian failed to present required expert testimony on the standard of care, breach and causation elements of his claim. Petrosian appeals, contending he presented sufficient expert testimony, and alternatively, he was improperly precluded from presenting the necessary testimony by the court's rulings. We reject these contentions and affirm.

 

FACTUAL AND PROCEDURAL BACKGROUND

 

 Because we are reviewing a judgment after a nonsuit, we summarize the facts in the light most favorable to Petrosian. (See Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 930.)

 

 In June 2000, Petrosian purchased a thoroughbred racehorse named Ally, who was then cared for by Petrosian's horse trainer, Sam Scolamieri. In late 2000, Scolamieri noticed that Ally was having problems with his front legs. In January 2001, Scolamieri consulted Dr. Connor regarding these problems. Dr. Connor determined Ally was suffering from "degenerative joint disease" in the coffin joints (located at the end of the horse's "foot") and decided to treat the joints with cortisone injections.

 

 In January 2001, Dr. Connor injected cortisone into each of Ally's coffin joints. Scolamieri thereafter noticed a substantial improvement in Ally's performance and that the horse's "whole demeanor changed. He just acted different, just seemed to be a real, real happy horse."

 

 At the end of February 2001, Scolamieri told Dr. Connor that Petrosian would soon be entering Ally in a race and would like Ally to have another cortisone injection in each front foot. Dr. Connor did not express any objections to this procedure. On February 28, Dr. Connor again injected cortisone into both of Ally's coffin joints. The only difference in the method of administering the injections was that when he inserted the needle into the right joint, Dr. Connor initially "missed where he wanted to go with" the needle, then immediately pulled that needle out and put it back in the correct place.

 

 Dr. Connor knew that shortly after the injections Scolamieri would be transporting Ally by horse trailer to the Santa Anita racetrack and that Ally was scheduled to run in a horse race three days later. But Dr. Connor did not give any instructions as to how to handle the horse after the injections or warn that the planned transportation was not appropriate. When Ally arrived at the Santa Anita race track later that day, the horse appeared to be walking fine and Scolamieri placed him in the barn after cleaning his feet. However, the next morning, Scolamieri received a call from a Santa Anita veterinarian stating that Ally had a very sore right front foot.

 

 The next day, Ally developed an infection in his right front foot. Petrosian withdrew Ally from the race and brought him back to the San Diego area. Dr. Connor examined Ally and gave the horse antibiotics for two days. But the infection continued to get worse. On the third day, Ally was taken to an equine hospital. Despite the treatment, Ally's injury prevented him from racing again.

 

 Petrosian sued Dr. Connor, alleging that Dr. Connor's services fell below the applicable standard of care because Dr. Connor failed to follow proper sterile procedures in giving the cortisone injections and failed to give proper after-care instructions to reduce the infection risk. Petrosian initially designated an expert witness to testify on standard of care issues, but then withdrew this designation. Petrosian later filed a supplemental expert witness designation, stating that Dr. Connor would testify as to the customary practice in the community.

 

 Dr. Connor moved for a nonsuit after Petrosian's counsel gave his opening statement. Defense counsel argued that Petrosian "does not have and will not present an expert veterinarian on the stand as to the standard of care, breach of the standard of care, and causation [issues]." Petrosian's counsel countered that the requisite expert testimony would be elicited during his examination of Dr. Connor and defense expert, Dr. Stephen Buttgenbach. The court agreed the expert evidence could be presented through the testimony of these witnesses, and denied the nonsuit motion.

 

 During his ensuing direct examination of Dr. Connor, Petrosian's counsel made numerous attempts to elicit testimony regarding the applicable standard of care and causation issues. However, Dr. Connor did not provide testimony that satisfied Petrosian's burden on these matters. Dr. Connor did not identify an applicable standard of care that was allegedly breached and did not acknowledge that his alleged negligence caused Ally's infection. The other proposed expert witness, Dr. Buttgenbach, did not appear at trial. The court denied Petrosian's request to read portions of Dr. Buttgenbach's deposition at trial, noting that Petrosian had not properly subpoenaed Dr. Buttgenbach and Petrosian failed to show that Dr. Buttgenbach was otherwise "unavailable."

 

 After Petrosian completed the presentation of his case, Dr. Connor moved for a nonsuit on the basis that Petrosian had not presented the required expert testimony on standard of care, breach, and causation elements. After permitting Petrosian to argue extensively on the issue, the court granted the motion, stating that, "I don't like granting these motions, but I don't feel that I have any choice. The law is clear. [¶][L]ike any other professional negligence case, the jury cannot speculate, cannot determine on its own. There must be evidence presented by the plaintiff, in order to get over a non‑suit, through an expert [on] standard of care, breach, and causation. [¶] The plaintiff does not have an expert here, for whatever reason—and I understand the valiant attempt made by counsel, I'm certainly not disparaging that—to try to get over that hurdle, but counsel certainly knew that he had a hurdle, and he made some valiant and imaginative efforts to get over it by trying to get that type of testimony out from the defendant himself, Doctor Connor, but it didn't come out. It's not in the record. [¶] The jury would have nothing but some potential speculation upon which to decide anything other than that there was no professional negligence in this case. [¶] ... [¶] So I have no alternative but to grant the motion." The court later denied Petrosian's new trial motion.

 

DISCUSSION

 

I. Governing Legal Principles

 

 To establish a veterinary malpractice claim, a plaintiff is required to present expert testimony establishing the appropriate standard of care in the relevant community and that the defendant's breach of this standard caused the animal's injury. (Williamson v.. Prida (1999) 75 Cal.App.4th 1417, 1424-1425; see Selden v. Dinner (1993) 17 Cal.App.4th 166, 174; Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1502.) "Standard of care ' "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 lay[person]." ' " (Williamson, supra, 75 Cal.App.4th at p. 1424, quoting Landeros v. Flood (1976) 17 Cal.3d 399, 410.) Likewise, " 'causation must be proven within a reasonable medical probability based [on] competent expert testimony....' [¶][T]he plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause‑in‑fact of the [claimed] injury." (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117-1118, italics omitted.) A plaintiff may call the defendant physician and designate the defendant as the plaintiff's expert witness to establish these required elements. (Lawless v. Calaway (1944) 24 Cal.2d 81, 89-91.)

 

 In evaluating the propriety of a nonsuit for failure to present the required elements with expert testimony, we accept as true the evidence most favorable to the plaintiff and disregard any conflicting evidence. "We will not sustain the judgment ' "unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law." ' [Citations.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)

 

 II. Dr. Connor's Testimony Did Not Establish Standard of Care and Causation Elements

 

 Petrosian contends he presented sufficient expert testimony on standard of care and causation elements through Dr. Connor's testimony. Specifically, he argues that Dr. Connor's testimony shows he breached the applicable standard of care in three ways: (1) Dr. Connor gave the injections too close in time to Ally's transportation and scheduled race; (2) Dr. Connor failed to sterilize the needle before reinserting it into the horse's right coffin joint; and (3) Dr. Connor failed to take X-rays before giving the cortisone injections. As explained below, the record does not support that these acts fell below the applicable standard of care and/or that these acts caused Ally's injuries. Additionally, we reject Petrosian's contention that Dr. Connor admitted his negligence and thus obviated the need for expert testimony on these issues.

 

A. Timing of the Injections

 

 Petrosian contends Dr. Connor's testimony shows he breached the standard of care by giving the cortisone injections only three days before Ally was scheduled to race. However, this alleged breach cannot establish the basis of a viable cause of action because it is undisputed that Ally did not race after the injection was given. Thus, even if a cortisone injection should not have been given so close to the scheduled race, this alleged breach could not have possibly been the cause of Ally's injuries.

 

 Petrosian also asserts that Dr. Connor breached a duty of care by giving the injection immediately before Ally was transported by horse trailer. However, Petrosian did not elicit Dr. Connor's testimony that this conduct fell below the standard of care. Although Dr. Connor stated at his deposition that he would not be "real happy" if he had known that Ally would be transported immediately after the cortisone injection because there is a lot of stress and "moving around" in a horse trailer, Dr. Connor never stated or suggested that the applicable standard of care in the community is to refrain from giving an injection before transportation. The fact that Dr. Connor believed it would have been better to treat the horse in a different manner does not mean that the method used constituted negligence. (See Williamson v. Prida, supra, 75 Cal.App.4th at p. 1426.)

 

 Additionally, Dr. Connor never testified, and was never asked, whether the cause of Ally's infection was the fact that the horse was transported so quickly after being given the cortisone injection. Dr. Connor acknowledged at trial that Ally's infection appears to have been related to the injection, but he never stated or suggested that the infection was caused by the timing of the transportation or some other alleged breach of the standard of care. To show causation by the necessary expert testimony, the expert's testimony must show "the negligent act was a cause‑in‑fact of the plaintiff's injury." (Jennings v. Palomar Pomerado Health Systems, Inc., supra, 114 Cal.App.4th at p. 1118, italics added.) Petrosian did not make this showing in this case.

 

B. Failure to Sterilize Before Reinserting the Needle

 

 With respect to the second alleged breach, the double insertion of the needle without sterilization between the two injections, there was no evidence this procedure violated the applicable standard of care. Viewing the evidence in the light most favorable to Petrosian, it appears that when Dr. Connor first inserted the needle, it was at an incorrect angle to access the coffin joint, so Dr. Connor removed the needle and then immediately reinserted it to direct it to the right spot. Dr. Connor testified that he had "no concern" with this procedure, and the only problem was if the horse had jumped or moved during the process. This does not establish the applicable standard of care was to resterilize the needle before redirecting the needle.

 

 Moreover, there was no evidence that this procedure caused the infection. Although Petrosian's counsel attempted to elicit Dr. Connor's testimony that the fact that "synovial fluid" did not come out when the needle was pulled out the first time means that there was foreign material in the syringe when it was reinserted and therefore this material was the likely cause of the infection, Dr. Connor responded that the blockage of the needle was merely a "possibility" and, even if this had occurred, an infection would not necessarily result.

 

 Petrosian alternatively contends that because the issue of sterilizing a syringe is a matter of "common knowledge," no expert testimony was needed on this point. (See Barham v. Widing (1930) 210 Cal. 206, 216; Anderson v. Stump (1941) 42 Cal.App.2d 761, 765.) We disagree. Although the need to sterilize a syringe may be widely understood, this common knowledge does not necessarily extend to the issue whether sterilization is required before the needle is merely redirected within seconds of the first injection, particularly when the injection involves an animal. Contrary to Petrosian's assertions, it is not the "common experience and education of anyone who has graduated from kindergarten," that the veterinary needle procedure employed by Dr. Connor was likely to have caused an infection.

 

C. Failure to Take X-Rays

 

 The next alleged breach, the failure to take X-rays, does not support Petrosian's professional negligence claim. Dr. Connor did not testify that the recognized practice in the community is to take X-rays before giving a cortisone injection. Dr. Connor stated only that X-rays are used to assist in diagnosing degenerative joint disease because the X-rays can rule out a fracture. Because there was no evidence in this case that Ally had a fracture, the failure to take X-rays before giving the cortisone injection did not constitute a breach of the standard of care and could not have been a cause of Ally's injuries.

 

D. Dr. Connor's Failure to Charge for Care

 

 Petrosian next argues that he was not required to proffer expert evidence because the jury could infer Dr. Connor's negligence based on Dr. Connor's failure to charge for his services for the two days that he treated Ally before the horse was admitted to the equine hospital. For support of this argument, Petrosian relies on Fraser v. Sprague (1969) 270 Cal.App.2d 736.

 

 In Fraser, the plaintiff sued his surgeon after the plaintiff suffered injury to his peroneal nerve during an operation. (Fraser v. Sprague, supra, 270 Cal.App.2d at p. 739.) Reversing a nonsuit, the reviewing court found the res ipsa loquitur doctrine was potentially applicable to support the existence of a breach, based on numerous factors, including that there was expert testimony on the rarity of the injury, expert testimony that the injury would have been unlikely if performed with due care, the defendant physician admitted that bruising of the peroneal nerve could have been avoided with proper care, and the defendant doctor provided the plaintiff with more than one year of post‑operative care without charge after the allegedly negligent acts. (Id. at pp. 739-743, 745.)

 

 Given the numerous factors relied upon by the Fraser court to reach its decision, Fraser cannot be fairly read as holding that a defendant's failure to charge for medical services for a brief period obviates the need for the plaintiff to produce standard of care and causation issues. In this case, Dr. Connor testified that the failure to charge for two days of services was an "oversight." Without additional supporting facts, there is no reasonable basis that a jury could find that this conduct instead reflected Dr. Connor's admission that he had acted below the standard of care.

 

 III. The Court Did Not Improperly Prevent Petrosian from Presenting Expert Testimony

 

 Petrosian alternatively contends that even if he did not present sufficient expert testimony, the nonsuit should be reversed because the trial court improperly prevented him from presenting the necessary evidence. In ruling on the propriety of a nonsuit, we consider the trial court's evidentiary rulings to determine if the court improperly excluded relevant evidence. If the court excluded relevant and material evidence that would have allowed the plaintiff to overcome a nonsuit, the judgment must be reversed.

 

A. Dr. Connor's Testimony

 

 Petrosian contends the court erred in ruling that Dr. Connor would not be permitted to testify to expert opinions in Petrosian's case-in-chief. However, the record does not support that the trial court in fact precluded Petrosian from fully questioning Dr. Connor. In denying Dr. Connor's first nonsuit motion, the court recognized the well settled principle that a plaintiff may call the defendant as the plaintiff's own expert in his case-in-chief.  [FN1] (Lawless v. Calaway, supra, 24 Cal.2d at pp. 89-91.) After providing Petrosian the opportunity to present Dr. Connor's testimony, the court granted the nonsuit based on its determination that Petrosian failed to elicit the necessary evidence during this testimony.

 

FN1. Petrosian designated Dr. Connor as an expert, and there was no issue raised as to the timeliness of this designation.

 

 Petrosian quotes from several portions of the reporter's transcript to support his argument that the court in fact refused to permit him to elicit expert testimony from Dr. Connor. However, when read in context, these portions of the transcript concern Petrosian's attempt to produce evidence contained in a journal published by a professional veterinary organization. The court repeatedly sustained objections to Petrosian's counsel reading the journal or otherwise relating the contents of the journal to the jury, and made clear to Petrosian that he could not introduce statements made in the journal unless Dr. Connor was familiar with the publication and relied on the relevant statements to reach his expert opinions. These ruling were proper (see Evid.Code, § 721, subd. (b)), and did not reflect that the court did not permit Petrosian to elicit proper expert testimony from Dr. Connor.

 

B. Dr. Buttgenbach

 

 Petrosian next contends he would have provided the necessary expert testimony if he had been permitted to question Dr. Buttgenbach, the retained veterinary expert designated by Dr. Connor. However, as Petrosian recognizes in his appellate briefs, he failed to properly subpoena Dr. Buttgenbach, and therefore Dr. Buttgenbach did not appear at trial during Petrosian's case‑in‑chief. Petrosian argues, however, that a subpoena was not required because Dr. Buttgenbach was previously designated and deposed as a retained defense expert.

 

 There is no authority for this assertion. It is well settled that a subpoena is necessary to compel a witness's attendance at trial. (Code Civ. Proc., § 1985.) Code of Civil Procedure section 1987, subdivision (b) provides an exception to this rule applicable to certain categories of witnesses, but an opposing party's retained expert does not fall within these categories. Moreover, this code section requires timely service of a written notice before trial. There was no showing that timely notice had been given to Dr. Buttgenbach. Petrosian's reliance on the statement in Schreiber v.. Estate of Kiser (1999) 22 Cal.4th 31, 38, that a treating physician who is not a retained expert must be subpoenaed, does not logically support that a defendant's retained expert need not be subpoenaed if the plaintiff wishes to call the expert in the plaintiff's case-in-chief.

 

 We likewise reject Petrosian's contention that the court erred by not allowing him to call a horse trainer (Goodin) to testify for the purpose of impeaching Dr. Connor's testimony. To avoid the nonsuit Petrosian needed to present expert testimony to establish the standard of care and causation elements. Goodin was not a veterinarian and by impeaching Dr. Connor's testimony, Petrosian would not have supplied the needed expert testimony. Therefore, any error with respect to Goodin's testimony was harmless.

 

DISPOSITION

 

 We affirm the judgment. Petrosian to bear Dr. Connor's costs on appeal.


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