Standard of Care
The standard of care in the medical profession appears to be very low.
The standard of care in the medical profession appears to be very low.
Gee v. South. Cal. Permanente Med. Group
FearNotLaw.com
"In selecting the placement for the second
thoracentesis, Chan did not review the X-rays or CT
scans, nor did he use ultrasound or CT scan
equipment to assist him in locating the fluid in Gee’s
chest. Rather, Chan inserted a new catheter needle at
a location slightly higher and more lateral than
the first insertion, but was unable to draw any fluid
from Gee’s chest.
"In performing one or both of the thoracenteses, Chan
lacerated Gee’s spleen, which required Gee
to undergo emergency surgery to remove his spleen.
Surgeons performed three additional surgeries
to close Gee’s abdomen and later repair his
abdominal wall. All told, Gee spent a total of 45 days
in the hospital, including one week in intensive care."
Filed 11/3/11 Gee v. South. Cal. Permanente Med. Group CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRIAN T. GEE,
Plaintiff and Appellant,
v.
SOUTHERN CALIFORNIA PERMANENTE MEDICAL
GROUP et al.,
Defendants and Respondents.
G043985 (Super. Ct. No. 30-2008-00108173)
Appeal from a judgment of the Superior Court of Orange County,
Luis A. Rodriguez, Judge. Affirmed.
Sam Walker for Plaintiff and Appellant.
Arnold & Porter, Lawrence A. Cox, Brian K. Condon; Reback,
McAndrews, Kjar, Warford & Stockalper and Terrence J. Schafer for
Defendants and Respondents.
* * *
Plaintiff Brian T. Gee appeals from an order denying his petition to
vacate an arbitration award in favor of defendants Southern
California Permanente Medical Group, Kaiser Foundation Health
Plan, Inc., Kaiser Foundation Hospitals (collectively, Kaiser) and
Joseph Chan, M.D. (Chan).
Gee sought to vacate the award on his medical malpractice
claim on the ground the arbitrator erroneously excluded material
evidence. The arbitrator limited Gee to one expert on the standard of
care because Gee failed to show the testimony of his two
designated standard-of-care experts would not be duplicative. Gee
argued this ruling destroyed his evidentiary presentation because
he based his case on using both experts.
Gee’s appeal is premature because an appeal lies from the
judgment confirming the arbitration award, not from an
order denying a petition to vacate the arbitration award, and the trial
court did not confirm the arbitration award or enter judgment.
Nonetheless, we exercise our discretion to hear Gee’s appeal
because the trial court should have confirmed the award
and entered judgment when it denied Gee’s petition. Dismissing
the appeal would only unnecessarily delay resolution of this case
and needlessly consume both judicial and private resources.
On the merits, we affirm the trial court’s decision denying Gee’s
petition. Gee failed to show that the arbitrator’s ruling limiting him to
one expert substantially prejudiced his ability to fairly present his
case by excluding material evidence. (See Code Civ. Proc.,
§ 1286.2, subd. (a)(5); all statutory references are to the Code of
Civil Procedure unless otherwise noted.) Accordingly, we affirm
the judgment.
I
Facts and Procedural History
Kaiser admitted Gee to one of its hospitals and its doctors
diagnosed him with severe pancreatitis. X-rays and CT
scans revealed Gee also suffered from pleural effusion, or
fluid in the chest cavity surrounding the lungs. Gee’s
attending physician asked Chan to evaluate whether Gee
required a bedside thoracentesis to test for infection. To
perform a thoracentesis, a physician inserts a needle into
the patient’s back between two ribs and into the chest
cavity surrounding the lungs. The physician then draws a
small amount of fluid from the cavity that is tested for
infection. The procedure also may be used to drain fluid
from the chest cavity.
Chan reviewed Gee’s X-rays and CT scans to determine
the volume and location of the fluid in Gee’s chest, and
physically examined Gee to confirm the fluid’s
location. The examination included a percussion test in
which Chan repeatedly thumped on Gee’s back at different
locations and listened for changes in the sound. Based on
the X-rays, CT scans, and physical examination, Chan
selected the space between Gee’s 10th and 11th ribs to
perform the thoracentesis. Chan inserted a catheter
needle at that location, but could not draw any more than
two cubic centimeters of bloody fluid from Gee’s chest.
Chan decided not to send the fluid he initially drew for
testing. Instead, Chan performed a second
thoracentesis to try and draw more fluid from a different
location.
In selecting the placement for the second
thoracentesis, Chan did not review the X-rays or CT
scans, nor did he use ultrasound or CT scan
equipment to assist him in locating the fluid in Gee’s
chest. Rather, Chan inserted a new catheter needle
at a location slightly higher and more lateral than the
first insertion, but was unable to draw any fluid from
Gee’s chest.
In performing one or both of the thoracenteses,
Chan lacerated Gee’s spleen, which required Gee to
undergo emergency surgery to remove his spleen.
Surgeons performed three additional surgeries to
close Gee’s abdomen and later repair his abdominal
wall. All told, Gee spent a total of 45 days in the
hospital, including one week in intensive care.
Gee filed a medical malpractice action against Kaiser and
Chan and the parties stipulated to submit Gee’s claim to
binding arbitration. Gee designated Drs. Richard W. Light
and Nader Kamangar as his expert witnesses
regarding the standard of care for performing a
thoracentesis. Upon receiving Gee’s expert designation,
Kaiser and Chan requested that Gee withdraw one of
these experts because they covered the same subject
matter. Gee declined, explaining that Light and Kamangar’
s testimony would not be duplicative.
Light is a pulmonologist from Vanderbilt University School
of Medicine whom Gee touted as the preeminent authority
and author of the leading treatise on pleural diseases.
During his videotaped deposition, Light acknowledged he
last performed a thoracentesis approximately 25
years ago, but continued to instruct other physicians on
pleural diseases. Light testified Chan breached the
standard of care by (1) performing the first thoracentesis
at a location too low on Gee’s back and failing to use an
ultrasound or a CT scan to confirm the location of the fluid;
(2) failing to send the fluid sample from the first
thoracentesis for testing before performing a second
thoracentesis; and (3) performing the
second thoracentesis at a location lateral to the first
location, but not much higher on Gee’s back. Light also
testified the percussion method Chan used to determine
the fluid’s location during Gee’s physical examination may
fall within the standard of care, puncturing the spleen is a
common complication for the thoracentesis procedure, and
a small needle can puncture the spleen without causing
complications.
Kamangar is a pulmonologist from Olive View-UCLA
Medical Center who regularly performs thoracenteses and
instructs medical students and fellows on how to perform
the procedure. During his deposition, Kamangar testified
Chan breached the standard of care by (1)
performing both thoracenteses at locations too low on Gee’
s back; (2) using a large catheter needle rather than a
smaller needle when the purpose for the thoracenteses
was to draw a sample for testing rather than drain the fluid;
(3) performing the second thoracentesis without testing the
sample from the first thoracentesis; and (4) failing to use
ultrasound or CT scan equipment to determine the location
for the two thoracenteses. Finally, Kamangar opined that
Chan caused Gee’s injuries by lacerating his spleen during
one or both of the procedures.
After deposing Light and Kamangar, Kaiser and Chan
again requested that Gee withdraw one of his experts
because their deposition testimony regarding the standard
of care was duplicative. Gee refused and Kaiser and Chan
moved in limine to exclude either Light or Kamangar from
testifying at the arbitration hearing.
Gee opposed the motion, explaining Kamangar was his
“primary expert,” but “Dr. Light corroborates Dr. Kamangar’
s opinion about Dr. Chan’s breach of the standard of care.
Contrary to [Kaiser and Chan’s] declaration, however, his
testimony and Dr. Kamangar’s are not duplicative. [Gee]
offers [Light’s] videotaped deposition as additional
evidence that will be helpful to the fact finder.” Gee further
explained he intended to show Light’s 42-minute
videotaped deposition at the arbitration and then call
Kamangar to testify in-person. Gee’s written opposition
failed to identify any specific differences between Light and
Kamangar’s testimony. At the hearing on the in limine
motion, Gee argued the two physicians “would provide a
different perspective on the issues” and “Dr. Kamangar
would voice a strong opinion about the needle used by Dr.
Chan, a point Dr. Light had not addressed.”
The arbitrator granted the motion, explaining Gee failed to
show how Light’s and Kamangar’s testimony regarding the
standard of care would not be duplicative. The arbitrator’s
ruling allowed Gee to decide which expert he would call at
the arbitration hearing. Gee elected to show Light’s
videotaped deposition rather than call Kamangar to testify
in-person. Kaiser called its own expert to testify regarding
the standard of care and Chan also testified he did not
breach the standard of care.
After hearing all evidence, the arbitrator issued a decision
in Kaiser and Chan’s favor based on the findings that Gee
failed to show Chan breached the standard of care and
also failed to offer any evidence of causation. The
arbitrator explained that he accepted Light’s videotaped
testimony as an expert, but found it “to be vague,
contradictory and of little or no value in determining the
issues.” With respect to the standard of care, the arbitrator
explained that all expert testimony acknowledged
thoracentesis fell within the standard of care as an
appropriate procedure to use in addressing Gee’s pleural
effusion, and Light’s opinion that in retrospect another
method for performing the thoracentesis may have been
preferable did not establish Chan breached the
standard of care.
Gee petitioned the trial court to vacate the arbitrator’s
decision on the ground the arbitrator substantially
prejudiced Gee’s rights by refusing to hear material
evidence, namely, Kamangar’s testimony. After reviewing
the transcripts from Light’s and Kamangar’s depositions,
the trial court issued an order denying Gee’s petition. The
trial court, however, did not confirm the arbitrator’
s decision and therefore did not enter judgment for Kaiser
and Chan. Gee appealed from the “Order Denying Petition
to Vacate Arbitration Award — CCP section 1294.”
II
Discussion
A. This Court Exercises Its Discretion to Decide Gee’s
Premature Appeal
A threshold issue we must address is whether this court
has jurisdiction to consider Gee’s appeal from the trial
court’s order denying his petition to vacate the arbitration
award. “[T]he right of appeal is wholly statutory . . . .”
(Powers v. City of Richmond (1995) 10 Cal.4th 85, 109.)
Section 1294 authorizes an aggrieved party to appeal from
an order dismissing a petition to vacate an arbitration
award and also from a judgment confirming an arbitration
award. (§ 1294, subds. (b) & (d).) Section 1294, however,
does not authorize an appeal from an order denying a
petition to vacate an arbitration award. (Mid-Wilshire
Associates v. O’Leary (1992) 7 Cal.App.4th 1450, 1454
(Mid-Wilshire) [appeal dismissed because an
order denying a motion to vacate an arbitration award is
not an appealable order].)
Here, the trial court entered an order denying Gee’s
petition to vacate the arbitration award, but did not dismiss
the petition or enter a judgment confirming the arbitration
award. Accordingly, there is no appealable order or
judgment supporting this appeal.
Our analysis, however, does not end there because the
Code of Civil Procedure required the trial court to confirm
the arbitration award and enter judgment once the court
denied Gee’s petition to vacate the award. (Law Offices of
David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 8-9
(Segreto).) Section 1286 states, “If a petition or response
under this chapter is duly served and filed, the court shall
confirm the award as made, . . . unless in accordance with
this chapter it corrects the award and confirms it as
corrected, vacates the award or dismisses
the proceeding.” (§ 1286.)
Section 1286 therefore gave the trial court four options
once Gee filed his petition to vacate: It could “‘(1) confirm
the award, (2) correct the award and confirm it as
corrected, (3) vacate the award, or (4) dismiss the
proceedings.’ [Citation.]” (Segreto, supra, 176 Cal.App.4th
at p. 8.) In other words, “‘the court must confirm the award,
unless it either vacates or corrects it. [Citation.]’ [Citation.]”
(Ibid., original italics.) Moreover, once a trial court confirms
an arbitration award, section 1287.4 requires the court to
enter judgment in conformity with the award. (Segreto,
at p. 9; § 1287.4 [“If an award is confirmed, judgment shall
be entered in conformity therewith”].)
This statutory framework explains why section 1294 does
not authorize an appeal from an order denying a petition to
vacate an arbitration award. If the trial court denies a
petition to vacate, the court must confirm the award and
enter judgment in conformity therewith. (Segreto, supra,
176 Cal.App.4th at p. 9.) An appeal lies from that judgment
and the unsuccessful party on the petition to vacate may
challenge that ruling when appealing from the judgment.
(Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.)
These authorities render Gee’s appeal premature in the
same way as an appeal from an order sustaining a
demurrer without leave to amend or an order granting
summary judgment. In both instances the appeal lies from
the judgment entered after the order sustaining the
demurrer or granting summary judgment, not from the
underlying order. (Sisemore v. Master Financial,
Inc. (2007) 151 Cal.App.4th 1386, 1396 [“An order
sustaining a demurrer without leave to amend is not
appealable, and an appeal is proper only after entry of a
dismissal on such an order”]; Kasparian v. AvalonBay
Communities (2007) 156 Cal.App.4th 11, 14, fn. 1 [“An
appeal lies from the judgment, not from an order granting
a summary judgment motion”].)
Because Gee prematurely appealed from the order
denying his petition to vacate the arbitration award rather
than the judgment confirming the award, we could dismiss
the appeal for want of appellate jurisdiction. (Mid-Wilshire,
supra, 7 Cal.App.4th at p. 1454.) Doing so,
however, would result only in a remand to the trial court for
it to enter judgment followed by Gee filing a second appeal
raising the same challenges presented on this appeal.
California Rules of Court, rule 8.104(d)(2) grants appellate
courts the discretion to hear a premature appeal: “The
reviewing court may treat a notice of appeal filed after the
superior court has announced its intended ruling, but
before it has rendered judgment, as filed immediately after
entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2).)
In numerous cases, appellate courts have exercised the
discretion to hear premature appeals from orders
sustaining demurrers or granting summary judgment by
construing the orders as judgments. (Melton v. Boustred
(2010) 183 Cal.App.4th 521, 527-528, fn. 1 [treating order
sustaining demurrer as an appealable order]; Levy v.
Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7
[construing order granting summary judgment as
incorporating appealable judgment].)
To avoid further delay and to conserve both judicial and
private resources, we exercise our discretion under
California Rules of Court, rule 8.104(d)(2) and
construe the order denying Gee’s petition to vacate the
arbitrator’s award as a judgment confirming the award. We
proceed to decide Gee’s appeal on the merits.
B. Gee Failed to Establish a Basis for Vacating the
Arbitration Award
1. Limited Judicial Review of an Arbitration Award
“[T]he Legislature has expressed a ‘strong public policy in
favor of arbitration as a speedy and relatively inexpensive
means of dispute resolution.’ [Citations.]” (Moncharsh v.
Heily & Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) In
furtherance of that policy, courts “‘“indulge every
intendment to give effect to such proceedings.”’” (Ibid.)
“[I]t is the general rule that parties to a private arbitration
impliedly agree that the arbitrator’s decision will be both
binding and final.” (Moncharsh, supra, 3 Cal.4th at p. 9.)
To carry out the parties’ intent that arbitration provide a
quick and final resolution to their dispute, judicial
intervention in the arbitration process is kept to a minimum.
“The arbitrator’s decision should be the end, not the
beginning, of the dispute.” (Id. at p. 10.)
Consequently, the merits of the parties’ dispute generally
are not subject to judicial review. (Moncharsh, supra, 3 Cal.
4th at p. 11.) Indeed, courts will not review an arbitrator’s
decision for errors of fact or law, including any errors in the
arbitrator’s reasoning and the sufficiency of the evidence
supporting the arbitrator’s award. (Ibid.) Even “an error of
law apparent on the face of the award that causes
substantial injustice does not provide grounds for judicial
review.” (Id. at p. 33.) By voluntarily submitting
their dispute to arbitration, the parties assume the risk the
arbitrator may make a mistake. (Ibid.)
To ensure overall fairness in the arbitral process and to
guard against serious errors in the award itself, the
Legislature authorizes limited judicial review of arbitration
awards. (Moncharsh, supra, 3 Cal.4th at p. 12.)
Courts may vacate an arbitration award only on the
grounds identified in section 1286.2. (Haworth v. Superior
Court (2010) 50 Cal.4th 372, 387.) Those grounds are (1)
the prevailing party procured the award by corruption,
fraud, or other undue means; (2) corruption existed in the
arbitrator; (3) a neutral arbitrator’s
misconduct substantially prejudiced a party’s rights; (4) the
arbitrator exceeded his or her power and the award cannot
be corrected without affecting its merits; (5) the arbitrator
substantially prejudiced a party’s rights by refusing to
postpone the hearing despite good cause or by refusing to
hear evidence material to the controversy; and (6) the
arbitrator failed to make mandatory disclosures or failed to
disqualify himself when required. (§ 1286.2, subd. (a).)
We review a trial court’s decision to vacate or confirm an
arbitration award de novo, “but apply the substantial
evidence standard to the extent the trial court’s ruling rests
upon a determination of disputed factual issues.” (Burlage
v. Superior Court (2009) 178 Cal.App.4th 524, 529
(Burlage).)
2. Gee Failed to Establish the Arbitrator Substantially
Prejudiced His Rights by Limiting Him to One Expert
Gee seeks to vacate the arbitration award based solely on
the arbitrator’s ruling limiting Gee to one expert on the
standard of care for performing a thoracentesis. He cites
section 1286.2, subdivision (a)(5), which requires a
court to vacate an arbitration award when “[t]he rights of
[a] party were substantially prejudiced by . . . the refusal of
the arbitrators to hear evidence material to the controversy
. . . .” (§ 1286.2, subd. (a)(5).)
A challenge under section 1286.2, subdivision (a)(5),
“could be made in virtually every case where the arbitrator
has excluded some evidence . . . . Plainly, this type of
attack on the arbitrator’s decision, if not properly limited,
could swallow the rule that arbitration awards are generally
not reviewable on the merits.” (Schlessinger v. Rosenfeld,
Meyer & Susman (1995) 40 Cal.App.4th 1096, 1110
(Schlesseinger).) Accordingly, courts interpret section
1286.2, subdivision (a)(5), “as a safety valve in private
arbitration that permits a court to intercede when an
arbitrator has prevented a party from fairly presenting its
case.” (Hall v. Superior Court (1993) 18 Cal.App.4th 427,
439 (Hall).) It does not apply in every instance where an
arbitrator erroneously excludes evidence. (Id. at p. 438.)
To vacate an arbitration award on this ground, a
party must show the arbitrator’s evidentiary ruling
“substantially prejudiced [the] party’s ability to present
material evidence in support of its case.” (Schlessinger,
supra, 40 Cal.App.4th at p. 1110, original italics.) Unless
the party establishes both substantial prejudice and
materiality, the arbitration award must stand. (Hall, supra,
18 Cal.App.4th at p. 438.)
The reviewing court should analyze the prejudice caused
by excluding the evidence before considering the evidence’
s materiality. (Hall, supra, 18 Cal.App.4th at p. 439.)
Materiality often requires a court to review the arbitrator’s
reasoning for excluding the evidence and therefore would
allow courts to review an arbitrator’s reasoning in any case
in which the losing party contends the arbitrator excluded
material evidence. By first determining whether excluding
the evidence substantially prejudiced a party’s rights,
materiality is considered only in those cases in which
substantial prejudice is shown. (Id. at p. 438.)
Analyzing the challenge in that sequence prevents a party
from using section 1286.2, subdivision (a)(5), to avoid the
general rule prohibiting appellate courts from reviewing an
arbitrator’s decision for errors of fact or law. (Hall, at pp.
438‑439.)
In Hall, the plaintiffs sued two real estate agents who
helped sell the plaintiffs’ home. One agent acted as the
listing agent while the second referred the plaintiffs to the
first agent and provided assistance in marketing the
property. The plaintiffs sought to hold the second agent
vicariously liable for the first agent’s malfeasance on the
theory the agents formed a partnership when they agreed
to share the commission for selling the plaintiffs’ home.
(Hall, supra, 18 Cal.App.4th at pp. 430‑431.) At the
arbitration hearing, the second agent presented no
evidence addressing the plaintiffs’ partnership theory, but
later asked the arbitrator to reopen the hearing to
allow the agent to present evidence on that issue. The
arbitrator denied the request and made an award in the
plaintiffs’ favor, holding the second agent liable for the first
agent’s malfeasance based on the partnership theory. The
trial court vacated the arbitration award based on the
arbitrator’s refusal to reopen the hearing. (Id. at pp.
431‑432.)
The Court of Appeal reversed because the second agent
failed to show the arbitrator’s refusal to reopen the hearing
substantially prejudiced his rights. Before denying the
second agent’s request to reopen the hearing, the
arbitrator heard the agent’s offer of proof and
explained the additional evidence would not change his
ruling. As the Hall court explained, “The arbitrator did not
prevent [the second agent] from fairly presenting his
defense. Instead, the arbitrator concluded that [the agent’
s] defense, even with the proffered evidence, lacked
merit.” (Hall, supra, 18 Cal.App.4th at p. 439.) Because the
arbitrator’s refusal to reopen the hearing did not
substantially prejudice the second agent’s ability to fairly
present his case, the trial court erred in vacating the
award, even assuming the excluded evidence was
material. (Id. at pp. 438-439.)
In contrast, Burlage demonstrates that a party suffers
substantial prejudice when an arbitrator excludes all
relevant evidence on a material issue. In Burlage, the
plaintiffs purchased a home from the defendant and later
sued upon discovering their swimming pool and fence
encroached on an adjacent country club. During the
litigation, a title insurance company paid the country club
approximately $11,000 for a lot-line adjustment that gave
the plaintiffs clear title to the encroaching property.
Nonetheless, the plaintiffs continued to seek damages for
the encroachment based on the alleged diminution of their
property’s value and the cost of moving the pool
and fence. The arbitrator granted the plaintiffs’ in limine
motion to exclude all evidence regarding the lot-line
adjustment because the arbitrator concluded damages
must be measured from the date escrow closed. The
arbitrator ultimately awarded the plaintiffs approximately
$1.5 million in damages. The trial court vacated the
arbitrator’s award and the Court of Appeal affirmed.
(Burlage, supra, 178 Cal.App.4th at pp. 527-528.)
The Burlage court concluded the arbitrator substantially
prejudiced the defendant’s rights because the ruling
excluding all evidence regarding the lot-line adjustment
prevented the defendant from fairly presenting
his defense, specifically, the defendant’s ability to dispute
the amount of the plaintiffs’ damages. The ruling allowed
the plaintiffs to offer expert testimony regarding the
diminution in the value of their property and the cost to
move the pool and fence, but barred the defendant from
offering evidence showing the title company “fixed” the
encroachment and therefore the plaintiffs did not suffer the
damages they claimed. As the Burlage court explained, “it
is self‑evident [the arbitrator’s] ruling excluding evidence
that the title company solved the problem through
a modest payment to the country club was more than a
mere erroneous evidentiary ruling. . . . [¶] . . . [¶] Without
this crucial evidence, the arbitration assumed the nature of
a default hearing in which the [plaintiffs] were awarded
$1.5 million in compensatory and punitive damages they
may not have suffered.” (Burlage, supra, 178 Cal.App.4th
at p. 530.) The Burlage court also concluded the lot‑line
adjustment evidence was material: “What could be more
material than evidence the problem was ‘fixed’ and there
are no damages” (Ibid.)
Here, the Hall case applies because Gee failed to show the
arbitrator’s ruling regarding his experts prevented him from
fairly presenting his case. Gee contends the arbitrator
denied him the opportunity to present his case because he
planned to offer expert testimony by both Kamangar and
Light. In Gee’s view, “the arbitrator refused to hear half his
case.” Gee, however, does not properly frame the
prejudice issue and fails to support his conclusion both
experts were necessary to fairly present his case.
The issue is not whether the arbitrator prevented Gee from
fairly presenting his case by refusing to hear Kamangar’s
testimony because the arbitrator never ruled Gee
could not offer Kamangar’s testimony. Instead, the
arbitrator ruled Gee could not offer two pulmonology
experts on the standard of care because Gee failed to
show the two experts’ testimony would not be duplicative.
Accordingly, the issue is whether the arbitrator prevented
Gee from fairly presenting his case by limiting Gee to one
pulmonology expert on the standard of care for performing
a thoracentesis.
The arbitrator allowed Gee to decide which expert
he would use at the arbitration hearing and Gee chose to
offer Light’s videotaped deposition instead of calling
Kamangar to testify in-person. Because the arbitrator did
not exclude any particular expert, it is not enough for Gee
to show he desired testimony from the expert who did not
testify. Instead, Gee must show he needed Kamangar’
s and Light’s testimony to fairly present his case.
Gee points to deposition testimony showing
both Kamangar and Light opined that Chan breached the
standard of care by (1) performing the two thoracenteses
at locations too low on Gee’s back; (2) failing to use
ultrasound or CT scan equipment to locate the fluid in Gee’
s chest before performing the thoracenteses; and
(3) failing to test the fluid sample from the first
thoracentesis before performing the second. Gee also
points to deposition testimony showing Kamangar could
have provided the causation testimony the arbitrator found
lacking and identified an additional breach of the standard
of care that Light did not address.
Gee, however, provides no specific reason why he needed
Light’s testimony to fairly present his case. According to
Gee, he chose to offer Light’s testimony at the arbitration
hearing because Light is “the world’s preeminent authority
on pleural diseases.” Light’s preeminence, however, does
not establish Gee needed Light’s testimony. The briefs
Gee submitted to the arbitrator conceded Light’s testimony
merely “corroborate[d]” Kamangar’s testimony and
Kamangar was Gee’s “primary expert.” Light’s testimony
corroborating or adding weight to Kamangar’s testimony
may make Light’s testimony helpful to Gee’s case, but it
does not make it necessary for Gee to fairly present his
case.[1]
Without showing he needed Light’s testimony to fairly
present his case, Gee cannot establish the arbitrator’s
ruling limiting him to one expert substantially prejudiced his
rights. Gee’s decision to offer testimony from the expert
who did not express all the opinions he intended to rely on
does not show the arbitrator substantially prejudiced Gee’s
rights by limiting him to one expert. The record shows Gee
had an expert who could provide the necessary testimony,
but Gee chose to have a different expert testify. We
conclude the trial court properly denied Gee’s petition to
vacate the arbitration award.
Gee explains he offered two standard-of-care experts
because Kaiser and Chan “presented two expert
pulmonologists.” Gee, however, acknowledges that one of
these “expert pulmonologists” was Chan, that is, the party
Gee alleged committed malpractice. The record does not
reflect whether Chan offered any expert opinions
regarding the standard of care or causation during the
arbitration. The parties do not include their expert
designations in the record either, but Chan’s deposition
transcript reveals his counsel informed Gee’s counsel that
“[Chan is] not a designated expert. He won’t be who we
designate to testify.” Generally, a witness, including a
party, may not offer expert testimony unless properly
designated to do so. (§§ 2034.260, subd. (b)
(1), 2034.210, 2034.300.) Accordingly, the record does
not support Gee’s contention he needed two standard-of-
care experts because Kaiser and Chan had two standard-
of-care experts. Moreover, an arbitration does not turn on
the number of experts presented. Rather, when the facts
are undisputed, the outcome turns on whose expert is
more credible and persuasive.
Gee also argues this case is analogous to Burlage
because both cases involved an arbitrator’s ruling
excluding evidence on a dispositive fact. That argument,
however, misconstrues Burlage and the arbitrator’s
decision in this case. In Burlage, the court found the
arbitrator substantially prejudiced the defendant’s rights
because the arbitrator prevented the defendant from
offering any evidence to show the title company “fixed” the
encroachment and the plaintiffs therefore did not suffer the
damages they sought. (Burlage, supra, 178 Cal.App.4th at
pp. 529-530.) As the Burlage court explained, the
arbitrator’s ruling prevented the defendant from disputing
the plaintiffs’ damages. (Id. at p. 531.) Here, the arbitrator
did not prevent Gee from showing Chan breached the
standard of care. The arbitrator allowed Gee to present
expert testimony regarding the standard of care and
did not limit the opinions Gee’s expert could express.
Rather, the arbitrator merely limited the number of experts
Gee could present on the standard of care.[2]
Finally, Gee argues the arbitrator’s ruling constituted
substantial prejudice because the arbitrator found his
expert’s testimony unpersuasive. According to Gee, the
arbitrator may have reached a different result if he had
allowed Kamangar to testify. But the arbitrator did not bar
Kamangar from testifying. Rather, Gee chose to offer Light’
s testimony instead of his primary expert, Kamangar.
Whether the trier of fact finds a party’s expert
unpersuasive is a risk every party runs. It does not mean,
however, the party has a right to present an additional
expert to bolster the first expert’s testimony.
Our conclusion Gee failed to establish
substantial prejudice eliminates the need to address Gee’s
argument that no legal authority allowed the arbitrator to
limit Gee to one standard-of-care expert. As stated above,
Gee’s failure to show the arbitrator’s ruling substantially
prejudiced his rights renders moot our consideration of
whether the excluded evidence was material or
whether the arbitrator erred in excluding the evidence.
Finally, we note the arbitrator here could have, and
perhaps should have, heard both Gee’s experts because
the additional testimony would not have significantly
lengthened the proceedings or increased the costs. But
Gee’s argument fails to recognize arbitrators have “broad
discretion in conducting the hearing and ruling on
admission of evidence” and they are “not required to follow
the rules of evidence and procedure.” (Evans v.
Centerstone Development Co. (2005) 134 Cal.App.4th
151, 164; § 1282.2, subds. (c) & (d).)
III Disposition
The judgment is affirmed. Kaiser and Chan shall recover
their costs on appeal.
_
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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[1] Gee cites our decision in Burton v. Cruise (2010) 190
Cal.App.4th 939, for the proposition “a party can suffer
prejudice from an act that frustrates his counsel’s strategy
for presenting evidence.” In Burton we addressed whether
a party’s significant delay in seeking to compel arbitration
prejudiced the opposition’s case because the opposition
selected its experts based on the assumption the case
would be tried to a jury, not a panel of arbitrators. (Id.
at pp. 949-951.) Here, we address whether an arbitrator’s
ruling limiting a party to one expert prejudiced the party’s
ability to fairly present his case. The type of prejudice
caused to an opponent’s case by delaying a petition to
compel arbitration is not analogous to the
prejudice caused by an arbitrator excluding evidence.
Burton does not apply in this case.
[2] Gee cites three out-of-state cases for the proposition
that an arbitration award must be vacated when the
arbitrator excludes expert testimony the losing
party sought to offer. (See Smaligo v. Fireman’s Fund Ins.
Co. (1968) 432 Pa. 133, 138; Bordonaro v. Merrill Lynch,
Pierce, Fenner & Smith (2004) 156 Ohio App.3d 358, 367;
Wilde v. O’Leary (2005) 374 N.J. Super. 582, 587.) These
cases are readily distinguishable for the same reason as
Burlage — that is, they involve arbitrator rulings that
excluded all expert testimony a party sought to offer on an
issue as opposed to an arbitrator’s ruling merely
limiting the number of experts a party offered covering the
same issues. (Ibid.)
FearNotLaw.com
"In selecting the placement for the second
thoracentesis, Chan did not review the X-rays or CT
scans, nor did he use ultrasound or CT scan
equipment to assist him in locating the fluid in Gee’s
chest. Rather, Chan inserted a new catheter needle at
a location slightly higher and more lateral than
the first insertion, but was unable to draw any fluid
from Gee’s chest.
"In performing one or both of the thoracenteses, Chan
lacerated Gee’s spleen, which required Gee
to undergo emergency surgery to remove his spleen.
Surgeons performed three additional surgeries
to close Gee’s abdomen and later repair his
abdominal wall. All told, Gee spent a total of 45 days
in the hospital, including one week in intensive care."
Filed 11/3/11 Gee v. South. Cal. Permanente Med. Group CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRIAN T. GEE,
Plaintiff and Appellant,
v.
SOUTHERN CALIFORNIA PERMANENTE MEDICAL
GROUP et al.,
Defendants and Respondents.
G043985 (Super. Ct. No. 30-2008-00108173)
Appeal from a judgment of the Superior Court of Orange County,
Luis A. Rodriguez, Judge. Affirmed.
Sam Walker for Plaintiff and Appellant.
Arnold & Porter, Lawrence A. Cox, Brian K. Condon; Reback,
McAndrews, Kjar, Warford & Stockalper and Terrence J. Schafer for
Defendants and Respondents.
* * *
Plaintiff Brian T. Gee appeals from an order denying his petition to
vacate an arbitration award in favor of defendants Southern
California Permanente Medical Group, Kaiser Foundation Health
Plan, Inc., Kaiser Foundation Hospitals (collectively, Kaiser) and
Joseph Chan, M.D. (Chan).
Gee sought to vacate the award on his medical malpractice
claim on the ground the arbitrator erroneously excluded material
evidence. The arbitrator limited Gee to one expert on the standard of
care because Gee failed to show the testimony of his two
designated standard-of-care experts would not be duplicative. Gee
argued this ruling destroyed his evidentiary presentation because
he based his case on using both experts.
Gee’s appeal is premature because an appeal lies from the
judgment confirming the arbitration award, not from an
order denying a petition to vacate the arbitration award, and the trial
court did not confirm the arbitration award or enter judgment.
Nonetheless, we exercise our discretion to hear Gee’s appeal
because the trial court should have confirmed the award
and entered judgment when it denied Gee’s petition. Dismissing
the appeal would only unnecessarily delay resolution of this case
and needlessly consume both judicial and private resources.
On the merits, we affirm the trial court’s decision denying Gee’s
petition. Gee failed to show that the arbitrator’s ruling limiting him to
one expert substantially prejudiced his ability to fairly present his
case by excluding material evidence. (See Code Civ. Proc.,
§ 1286.2, subd. (a)(5); all statutory references are to the Code of
Civil Procedure unless otherwise noted.) Accordingly, we affirm
the judgment.
I
Facts and Procedural History
Kaiser admitted Gee to one of its hospitals and its doctors
diagnosed him with severe pancreatitis. X-rays and CT
scans revealed Gee also suffered from pleural effusion, or
fluid in the chest cavity surrounding the lungs. Gee’s
attending physician asked Chan to evaluate whether Gee
required a bedside thoracentesis to test for infection. To
perform a thoracentesis, a physician inserts a needle into
the patient’s back between two ribs and into the chest
cavity surrounding the lungs. The physician then draws a
small amount of fluid from the cavity that is tested for
infection. The procedure also may be used to drain fluid
from the chest cavity.
Chan reviewed Gee’s X-rays and CT scans to determine
the volume and location of the fluid in Gee’s chest, and
physically examined Gee to confirm the fluid’s
location. The examination included a percussion test in
which Chan repeatedly thumped on Gee’s back at different
locations and listened for changes in the sound. Based on
the X-rays, CT scans, and physical examination, Chan
selected the space between Gee’s 10th and 11th ribs to
perform the thoracentesis. Chan inserted a catheter
needle at that location, but could not draw any more than
two cubic centimeters of bloody fluid from Gee’s chest.
Chan decided not to send the fluid he initially drew for
testing. Instead, Chan performed a second
thoracentesis to try and draw more fluid from a different
location.
In selecting the placement for the second
thoracentesis, Chan did not review the X-rays or CT
scans, nor did he use ultrasound or CT scan
equipment to assist him in locating the fluid in Gee’s
chest. Rather, Chan inserted a new catheter needle
at a location slightly higher and more lateral than the
first insertion, but was unable to draw any fluid from
Gee’s chest.
In performing one or both of the thoracenteses,
Chan lacerated Gee’s spleen, which required Gee to
undergo emergency surgery to remove his spleen.
Surgeons performed three additional surgeries to
close Gee’s abdomen and later repair his abdominal
wall. All told, Gee spent a total of 45 days in the
hospital, including one week in intensive care.
Gee filed a medical malpractice action against Kaiser and
Chan and the parties stipulated to submit Gee’s claim to
binding arbitration. Gee designated Drs. Richard W. Light
and Nader Kamangar as his expert witnesses
regarding the standard of care for performing a
thoracentesis. Upon receiving Gee’s expert designation,
Kaiser and Chan requested that Gee withdraw one of
these experts because they covered the same subject
matter. Gee declined, explaining that Light and Kamangar’
s testimony would not be duplicative.
Light is a pulmonologist from Vanderbilt University School
of Medicine whom Gee touted as the preeminent authority
and author of the leading treatise on pleural diseases.
During his videotaped deposition, Light acknowledged he
last performed a thoracentesis approximately 25
years ago, but continued to instruct other physicians on
pleural diseases. Light testified Chan breached the
standard of care by (1) performing the first thoracentesis
at a location too low on Gee’s back and failing to use an
ultrasound or a CT scan to confirm the location of the fluid;
(2) failing to send the fluid sample from the first
thoracentesis for testing before performing a second
thoracentesis; and (3) performing the
second thoracentesis at a location lateral to the first
location, but not much higher on Gee’s back. Light also
testified the percussion method Chan used to determine
the fluid’s location during Gee’s physical examination may
fall within the standard of care, puncturing the spleen is a
common complication for the thoracentesis procedure, and
a small needle can puncture the spleen without causing
complications.
Kamangar is a pulmonologist from Olive View-UCLA
Medical Center who regularly performs thoracenteses and
instructs medical students and fellows on how to perform
the procedure. During his deposition, Kamangar testified
Chan breached the standard of care by (1)
performing both thoracenteses at locations too low on Gee’
s back; (2) using a large catheter needle rather than a
smaller needle when the purpose for the thoracenteses
was to draw a sample for testing rather than drain the fluid;
(3) performing the second thoracentesis without testing the
sample from the first thoracentesis; and (4) failing to use
ultrasound or CT scan equipment to determine the location
for the two thoracenteses. Finally, Kamangar opined that
Chan caused Gee’s injuries by lacerating his spleen during
one or both of the procedures.
After deposing Light and Kamangar, Kaiser and Chan
again requested that Gee withdraw one of his experts
because their deposition testimony regarding the standard
of care was duplicative. Gee refused and Kaiser and Chan
moved in limine to exclude either Light or Kamangar from
testifying at the arbitration hearing.
Gee opposed the motion, explaining Kamangar was his
“primary expert,” but “Dr. Light corroborates Dr. Kamangar’
s opinion about Dr. Chan’s breach of the standard of care.
Contrary to [Kaiser and Chan’s] declaration, however, his
testimony and Dr. Kamangar’s are not duplicative. [Gee]
offers [Light’s] videotaped deposition as additional
evidence that will be helpful to the fact finder.” Gee further
explained he intended to show Light’s 42-minute
videotaped deposition at the arbitration and then call
Kamangar to testify in-person. Gee’s written opposition
failed to identify any specific differences between Light and
Kamangar’s testimony. At the hearing on the in limine
motion, Gee argued the two physicians “would provide a
different perspective on the issues” and “Dr. Kamangar
would voice a strong opinion about the needle used by Dr.
Chan, a point Dr. Light had not addressed.”
The arbitrator granted the motion, explaining Gee failed to
show how Light’s and Kamangar’s testimony regarding the
standard of care would not be duplicative. The arbitrator’s
ruling allowed Gee to decide which expert he would call at
the arbitration hearing. Gee elected to show Light’s
videotaped deposition rather than call Kamangar to testify
in-person. Kaiser called its own expert to testify regarding
the standard of care and Chan also testified he did not
breach the standard of care.
After hearing all evidence, the arbitrator issued a decision
in Kaiser and Chan’s favor based on the findings that Gee
failed to show Chan breached the standard of care and
also failed to offer any evidence of causation. The
arbitrator explained that he accepted Light’s videotaped
testimony as an expert, but found it “to be vague,
contradictory and of little or no value in determining the
issues.” With respect to the standard of care, the arbitrator
explained that all expert testimony acknowledged
thoracentesis fell within the standard of care as an
appropriate procedure to use in addressing Gee’s pleural
effusion, and Light’s opinion that in retrospect another
method for performing the thoracentesis may have been
preferable did not establish Chan breached the
standard of care.
Gee petitioned the trial court to vacate the arbitrator’s
decision on the ground the arbitrator substantially
prejudiced Gee’s rights by refusing to hear material
evidence, namely, Kamangar’s testimony. After reviewing
the transcripts from Light’s and Kamangar’s depositions,
the trial court issued an order denying Gee’s petition. The
trial court, however, did not confirm the arbitrator’
s decision and therefore did not enter judgment for Kaiser
and Chan. Gee appealed from the “Order Denying Petition
to Vacate Arbitration Award — CCP section 1294.”
II
Discussion
A. This Court Exercises Its Discretion to Decide Gee’s
Premature Appeal
A threshold issue we must address is whether this court
has jurisdiction to consider Gee’s appeal from the trial
court’s order denying his petition to vacate the arbitration
award. “[T]he right of appeal is wholly statutory . . . .”
(Powers v. City of Richmond (1995) 10 Cal.4th 85, 109.)
Section 1294 authorizes an aggrieved party to appeal from
an order dismissing a petition to vacate an arbitration
award and also from a judgment confirming an arbitration
award. (§ 1294, subds. (b) & (d).) Section 1294, however,
does not authorize an appeal from an order denying a
petition to vacate an arbitration award. (Mid-Wilshire
Associates v. O’Leary (1992) 7 Cal.App.4th 1450, 1454
(Mid-Wilshire) [appeal dismissed because an
order denying a motion to vacate an arbitration award is
not an appealable order].)
Here, the trial court entered an order denying Gee’s
petition to vacate the arbitration award, but did not dismiss
the petition or enter a judgment confirming the arbitration
award. Accordingly, there is no appealable order or
judgment supporting this appeal.
Our analysis, however, does not end there because the
Code of Civil Procedure required the trial court to confirm
the arbitration award and enter judgment once the court
denied Gee’s petition to vacate the award. (Law Offices of
David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 8-9
(Segreto).) Section 1286 states, “If a petition or response
under this chapter is duly served and filed, the court shall
confirm the award as made, . . . unless in accordance with
this chapter it corrects the award and confirms it as
corrected, vacates the award or dismisses
the proceeding.” (§ 1286.)
Section 1286 therefore gave the trial court four options
once Gee filed his petition to vacate: It could “‘(1) confirm
the award, (2) correct the award and confirm it as
corrected, (3) vacate the award, or (4) dismiss the
proceedings.’ [Citation.]” (Segreto, supra, 176 Cal.App.4th
at p. 8.) In other words, “‘the court must confirm the award,
unless it either vacates or corrects it. [Citation.]’ [Citation.]”
(Ibid., original italics.) Moreover, once a trial court confirms
an arbitration award, section 1287.4 requires the court to
enter judgment in conformity with the award. (Segreto,
at p. 9; § 1287.4 [“If an award is confirmed, judgment shall
be entered in conformity therewith”].)
This statutory framework explains why section 1294 does
not authorize an appeal from an order denying a petition to
vacate an arbitration award. If the trial court denies a
petition to vacate, the court must confirm the award and
enter judgment in conformity therewith. (Segreto, supra,
176 Cal.App.4th at p. 9.) An appeal lies from that judgment
and the unsuccessful party on the petition to vacate may
challenge that ruling when appealing from the judgment.
(Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.)
These authorities render Gee’s appeal premature in the
same way as an appeal from an order sustaining a
demurrer without leave to amend or an order granting
summary judgment. In both instances the appeal lies from
the judgment entered after the order sustaining the
demurrer or granting summary judgment, not from the
underlying order. (Sisemore v. Master Financial,
Inc. (2007) 151 Cal.App.4th 1386, 1396 [“An order
sustaining a demurrer without leave to amend is not
appealable, and an appeal is proper only after entry of a
dismissal on such an order”]; Kasparian v. AvalonBay
Communities (2007) 156 Cal.App.4th 11, 14, fn. 1 [“An
appeal lies from the judgment, not from an order granting
a summary judgment motion”].)
Because Gee prematurely appealed from the order
denying his petition to vacate the arbitration award rather
than the judgment confirming the award, we could dismiss
the appeal for want of appellate jurisdiction. (Mid-Wilshire,
supra, 7 Cal.App.4th at p. 1454.) Doing so,
however, would result only in a remand to the trial court for
it to enter judgment followed by Gee filing a second appeal
raising the same challenges presented on this appeal.
California Rules of Court, rule 8.104(d)(2) grants appellate
courts the discretion to hear a premature appeal: “The
reviewing court may treat a notice of appeal filed after the
superior court has announced its intended ruling, but
before it has rendered judgment, as filed immediately after
entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2).)
In numerous cases, appellate courts have exercised the
discretion to hear premature appeals from orders
sustaining demurrers or granting summary judgment by
construing the orders as judgments. (Melton v. Boustred
(2010) 183 Cal.App.4th 521, 527-528, fn. 1 [treating order
sustaining demurrer as an appealable order]; Levy v.
Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7
[construing order granting summary judgment as
incorporating appealable judgment].)
To avoid further delay and to conserve both judicial and
private resources, we exercise our discretion under
California Rules of Court, rule 8.104(d)(2) and
construe the order denying Gee’s petition to vacate the
arbitrator’s award as a judgment confirming the award. We
proceed to decide Gee’s appeal on the merits.
B. Gee Failed to Establish a Basis for Vacating the
Arbitration Award
1. Limited Judicial Review of an Arbitration Award
“[T]he Legislature has expressed a ‘strong public policy in
favor of arbitration as a speedy and relatively inexpensive
means of dispute resolution.’ [Citations.]” (Moncharsh v.
Heily & Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) In
furtherance of that policy, courts “‘“indulge every
intendment to give effect to such proceedings.”’” (Ibid.)
“[I]t is the general rule that parties to a private arbitration
impliedly agree that the arbitrator’s decision will be both
binding and final.” (Moncharsh, supra, 3 Cal.4th at p. 9.)
To carry out the parties’ intent that arbitration provide a
quick and final resolution to their dispute, judicial
intervention in the arbitration process is kept to a minimum.
“The arbitrator’s decision should be the end, not the
beginning, of the dispute.” (Id. at p. 10.)
Consequently, the merits of the parties’ dispute generally
are not subject to judicial review. (Moncharsh, supra, 3 Cal.
4th at p. 11.) Indeed, courts will not review an arbitrator’s
decision for errors of fact or law, including any errors in the
arbitrator’s reasoning and the sufficiency of the evidence
supporting the arbitrator’s award. (Ibid.) Even “an error of
law apparent on the face of the award that causes
substantial injustice does not provide grounds for judicial
review.” (Id. at p. 33.) By voluntarily submitting
their dispute to arbitration, the parties assume the risk the
arbitrator may make a mistake. (Ibid.)
To ensure overall fairness in the arbitral process and to
guard against serious errors in the award itself, the
Legislature authorizes limited judicial review of arbitration
awards. (Moncharsh, supra, 3 Cal.4th at p. 12.)
Courts may vacate an arbitration award only on the
grounds identified in section 1286.2. (Haworth v. Superior
Court (2010) 50 Cal.4th 372, 387.) Those grounds are (1)
the prevailing party procured the award by corruption,
fraud, or other undue means; (2) corruption existed in the
arbitrator; (3) a neutral arbitrator’s
misconduct substantially prejudiced a party’s rights; (4) the
arbitrator exceeded his or her power and the award cannot
be corrected without affecting its merits; (5) the arbitrator
substantially prejudiced a party’s rights by refusing to
postpone the hearing despite good cause or by refusing to
hear evidence material to the controversy; and (6) the
arbitrator failed to make mandatory disclosures or failed to
disqualify himself when required. (§ 1286.2, subd. (a).)
We review a trial court’s decision to vacate or confirm an
arbitration award de novo, “but apply the substantial
evidence standard to the extent the trial court’s ruling rests
upon a determination of disputed factual issues.” (Burlage
v. Superior Court (2009) 178 Cal.App.4th 524, 529
(Burlage).)
2. Gee Failed to Establish the Arbitrator Substantially
Prejudiced His Rights by Limiting Him to One Expert
Gee seeks to vacate the arbitration award based solely on
the arbitrator’s ruling limiting Gee to one expert on the
standard of care for performing a thoracentesis. He cites
section 1286.2, subdivision (a)(5), which requires a
court to vacate an arbitration award when “[t]he rights of
[a] party were substantially prejudiced by . . . the refusal of
the arbitrators to hear evidence material to the controversy
. . . .” (§ 1286.2, subd. (a)(5).)
A challenge under section 1286.2, subdivision (a)(5),
“could be made in virtually every case where the arbitrator
has excluded some evidence . . . . Plainly, this type of
attack on the arbitrator’s decision, if not properly limited,
could swallow the rule that arbitration awards are generally
not reviewable on the merits.” (Schlessinger v. Rosenfeld,
Meyer & Susman (1995) 40 Cal.App.4th 1096, 1110
(Schlesseinger).) Accordingly, courts interpret section
1286.2, subdivision (a)(5), “as a safety valve in private
arbitration that permits a court to intercede when an
arbitrator has prevented a party from fairly presenting its
case.” (Hall v. Superior Court (1993) 18 Cal.App.4th 427,
439 (Hall).) It does not apply in every instance where an
arbitrator erroneously excludes evidence. (Id. at p. 438.)
To vacate an arbitration award on this ground, a
party must show the arbitrator’s evidentiary ruling
“substantially prejudiced [the] party’s ability to present
material evidence in support of its case.” (Schlessinger,
supra, 40 Cal.App.4th at p. 1110, original italics.) Unless
the party establishes both substantial prejudice and
materiality, the arbitration award must stand. (Hall, supra,
18 Cal.App.4th at p. 438.)
The reviewing court should analyze the prejudice caused
by excluding the evidence before considering the evidence’
s materiality. (Hall, supra, 18 Cal.App.4th at p. 439.)
Materiality often requires a court to review the arbitrator’s
reasoning for excluding the evidence and therefore would
allow courts to review an arbitrator’s reasoning in any case
in which the losing party contends the arbitrator excluded
material evidence. By first determining whether excluding
the evidence substantially prejudiced a party’s rights,
materiality is considered only in those cases in which
substantial prejudice is shown. (Id. at p. 438.)
Analyzing the challenge in that sequence prevents a party
from using section 1286.2, subdivision (a)(5), to avoid the
general rule prohibiting appellate courts from reviewing an
arbitrator’s decision for errors of fact or law. (Hall, at pp.
438‑439.)
In Hall, the plaintiffs sued two real estate agents who
helped sell the plaintiffs’ home. One agent acted as the
listing agent while the second referred the plaintiffs to the
first agent and provided assistance in marketing the
property. The plaintiffs sought to hold the second agent
vicariously liable for the first agent’s malfeasance on the
theory the agents formed a partnership when they agreed
to share the commission for selling the plaintiffs’ home.
(Hall, supra, 18 Cal.App.4th at pp. 430‑431.) At the
arbitration hearing, the second agent presented no
evidence addressing the plaintiffs’ partnership theory, but
later asked the arbitrator to reopen the hearing to
allow the agent to present evidence on that issue. The
arbitrator denied the request and made an award in the
plaintiffs’ favor, holding the second agent liable for the first
agent’s malfeasance based on the partnership theory. The
trial court vacated the arbitration award based on the
arbitrator’s refusal to reopen the hearing. (Id. at pp.
431‑432.)
The Court of Appeal reversed because the second agent
failed to show the arbitrator’s refusal to reopen the hearing
substantially prejudiced his rights. Before denying the
second agent’s request to reopen the hearing, the
arbitrator heard the agent’s offer of proof and
explained the additional evidence would not change his
ruling. As the Hall court explained, “The arbitrator did not
prevent [the second agent] from fairly presenting his
defense. Instead, the arbitrator concluded that [the agent’
s] defense, even with the proffered evidence, lacked
merit.” (Hall, supra, 18 Cal.App.4th at p. 439.) Because the
arbitrator’s refusal to reopen the hearing did not
substantially prejudice the second agent’s ability to fairly
present his case, the trial court erred in vacating the
award, even assuming the excluded evidence was
material. (Id. at pp. 438-439.)
In contrast, Burlage demonstrates that a party suffers
substantial prejudice when an arbitrator excludes all
relevant evidence on a material issue. In Burlage, the
plaintiffs purchased a home from the defendant and later
sued upon discovering their swimming pool and fence
encroached on an adjacent country club. During the
litigation, a title insurance company paid the country club
approximately $11,000 for a lot-line adjustment that gave
the plaintiffs clear title to the encroaching property.
Nonetheless, the plaintiffs continued to seek damages for
the encroachment based on the alleged diminution of their
property’s value and the cost of moving the pool
and fence. The arbitrator granted the plaintiffs’ in limine
motion to exclude all evidence regarding the lot-line
adjustment because the arbitrator concluded damages
must be measured from the date escrow closed. The
arbitrator ultimately awarded the plaintiffs approximately
$1.5 million in damages. The trial court vacated the
arbitrator’s award and the Court of Appeal affirmed.
(Burlage, supra, 178 Cal.App.4th at pp. 527-528.)
The Burlage court concluded the arbitrator substantially
prejudiced the defendant’s rights because the ruling
excluding all evidence regarding the lot-line adjustment
prevented the defendant from fairly presenting
his defense, specifically, the defendant’s ability to dispute
the amount of the plaintiffs’ damages. The ruling allowed
the plaintiffs to offer expert testimony regarding the
diminution in the value of their property and the cost to
move the pool and fence, but barred the defendant from
offering evidence showing the title company “fixed” the
encroachment and therefore the plaintiffs did not suffer the
damages they claimed. As the Burlage court explained, “it
is self‑evident [the arbitrator’s] ruling excluding evidence
that the title company solved the problem through
a modest payment to the country club was more than a
mere erroneous evidentiary ruling. . . . [¶] . . . [¶] Without
this crucial evidence, the arbitration assumed the nature of
a default hearing in which the [plaintiffs] were awarded
$1.5 million in compensatory and punitive damages they
may not have suffered.” (Burlage, supra, 178 Cal.App.4th
at p. 530.) The Burlage court also concluded the lot‑line
adjustment evidence was material: “What could be more
material than evidence the problem was ‘fixed’ and there
are no damages” (Ibid.)
Here, the Hall case applies because Gee failed to show the
arbitrator’s ruling regarding his experts prevented him from
fairly presenting his case. Gee contends the arbitrator
denied him the opportunity to present his case because he
planned to offer expert testimony by both Kamangar and
Light. In Gee’s view, “the arbitrator refused to hear half his
case.” Gee, however, does not properly frame the
prejudice issue and fails to support his conclusion both
experts were necessary to fairly present his case.
The issue is not whether the arbitrator prevented Gee from
fairly presenting his case by refusing to hear Kamangar’s
testimony because the arbitrator never ruled Gee
could not offer Kamangar’s testimony. Instead, the
arbitrator ruled Gee could not offer two pulmonology
experts on the standard of care because Gee failed to
show the two experts’ testimony would not be duplicative.
Accordingly, the issue is whether the arbitrator prevented
Gee from fairly presenting his case by limiting Gee to one
pulmonology expert on the standard of care for performing
a thoracentesis.
The arbitrator allowed Gee to decide which expert
he would use at the arbitration hearing and Gee chose to
offer Light’s videotaped deposition instead of calling
Kamangar to testify in-person. Because the arbitrator did
not exclude any particular expert, it is not enough for Gee
to show he desired testimony from the expert who did not
testify. Instead, Gee must show he needed Kamangar’
s and Light’s testimony to fairly present his case.
Gee points to deposition testimony showing
both Kamangar and Light opined that Chan breached the
standard of care by (1) performing the two thoracenteses
at locations too low on Gee’s back; (2) failing to use
ultrasound or CT scan equipment to locate the fluid in Gee’
s chest before performing the thoracenteses; and
(3) failing to test the fluid sample from the first
thoracentesis before performing the second. Gee also
points to deposition testimony showing Kamangar could
have provided the causation testimony the arbitrator found
lacking and identified an additional breach of the standard
of care that Light did not address.
Gee, however, provides no specific reason why he needed
Light’s testimony to fairly present his case. According to
Gee, he chose to offer Light’s testimony at the arbitration
hearing because Light is “the world’s preeminent authority
on pleural diseases.” Light’s preeminence, however, does
not establish Gee needed Light’s testimony. The briefs
Gee submitted to the arbitrator conceded Light’s testimony
merely “corroborate[d]” Kamangar’s testimony and
Kamangar was Gee’s “primary expert.” Light’s testimony
corroborating or adding weight to Kamangar’s testimony
may make Light’s testimony helpful to Gee’s case, but it
does not make it necessary for Gee to fairly present his
case.[1]
Without showing he needed Light’s testimony to fairly
present his case, Gee cannot establish the arbitrator’s
ruling limiting him to one expert substantially prejudiced his
rights. Gee’s decision to offer testimony from the expert
who did not express all the opinions he intended to rely on
does not show the arbitrator substantially prejudiced Gee’s
rights by limiting him to one expert. The record shows Gee
had an expert who could provide the necessary testimony,
but Gee chose to have a different expert testify. We
conclude the trial court properly denied Gee’s petition to
vacate the arbitration award.
Gee explains he offered two standard-of-care experts
because Kaiser and Chan “presented two expert
pulmonologists.” Gee, however, acknowledges that one of
these “expert pulmonologists” was Chan, that is, the party
Gee alleged committed malpractice. The record does not
reflect whether Chan offered any expert opinions
regarding the standard of care or causation during the
arbitration. The parties do not include their expert
designations in the record either, but Chan’s deposition
transcript reveals his counsel informed Gee’s counsel that
“[Chan is] not a designated expert. He won’t be who we
designate to testify.” Generally, a witness, including a
party, may not offer expert testimony unless properly
designated to do so. (§§ 2034.260, subd. (b)
(1), 2034.210, 2034.300.) Accordingly, the record does
not support Gee’s contention he needed two standard-of-
care experts because Kaiser and Chan had two standard-
of-care experts. Moreover, an arbitration does not turn on
the number of experts presented. Rather, when the facts
are undisputed, the outcome turns on whose expert is
more credible and persuasive.
Gee also argues this case is analogous to Burlage
because both cases involved an arbitrator’s ruling
excluding evidence on a dispositive fact. That argument,
however, misconstrues Burlage and the arbitrator’s
decision in this case. In Burlage, the court found the
arbitrator substantially prejudiced the defendant’s rights
because the arbitrator prevented the defendant from
offering any evidence to show the title company “fixed” the
encroachment and the plaintiffs therefore did not suffer the
damages they sought. (Burlage, supra, 178 Cal.App.4th at
pp. 529-530.) As the Burlage court explained, the
arbitrator’s ruling prevented the defendant from disputing
the plaintiffs’ damages. (Id. at p. 531.) Here, the arbitrator
did not prevent Gee from showing Chan breached the
standard of care. The arbitrator allowed Gee to present
expert testimony regarding the standard of care and
did not limit the opinions Gee’s expert could express.
Rather, the arbitrator merely limited the number of experts
Gee could present on the standard of care.[2]
Finally, Gee argues the arbitrator’s ruling constituted
substantial prejudice because the arbitrator found his
expert’s testimony unpersuasive. According to Gee, the
arbitrator may have reached a different result if he had
allowed Kamangar to testify. But the arbitrator did not bar
Kamangar from testifying. Rather, Gee chose to offer Light’
s testimony instead of his primary expert, Kamangar.
Whether the trier of fact finds a party’s expert
unpersuasive is a risk every party runs. It does not mean,
however, the party has a right to present an additional
expert to bolster the first expert’s testimony.
Our conclusion Gee failed to establish
substantial prejudice eliminates the need to address Gee’s
argument that no legal authority allowed the arbitrator to
limit Gee to one standard-of-care expert. As stated above,
Gee’s failure to show the arbitrator’s ruling substantially
prejudiced his rights renders moot our consideration of
whether the excluded evidence was material or
whether the arbitrator erred in excluding the evidence.
Finally, we note the arbitrator here could have, and
perhaps should have, heard both Gee’s experts because
the additional testimony would not have significantly
lengthened the proceedings or increased the costs. But
Gee’s argument fails to recognize arbitrators have “broad
discretion in conducting the hearing and ruling on
admission of evidence” and they are “not required to follow
the rules of evidence and procedure.” (Evans v.
Centerstone Development Co. (2005) 134 Cal.App.4th
151, 164; § 1282.2, subds. (c) & (d).)
III Disposition
The judgment is affirmed. Kaiser and Chan shall recover
their costs on appeal.
_
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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com
[1] Gee cites our decision in Burton v. Cruise (2010) 190
Cal.App.4th 939, for the proposition “a party can suffer
prejudice from an act that frustrates his counsel’s strategy
for presenting evidence.” In Burton we addressed whether
a party’s significant delay in seeking to compel arbitration
prejudiced the opposition’s case because the opposition
selected its experts based on the assumption the case
would be tried to a jury, not a panel of arbitrators. (Id.
at pp. 949-951.) Here, we address whether an arbitrator’s
ruling limiting a party to one expert prejudiced the party’s
ability to fairly present his case. The type of prejudice
caused to an opponent’s case by delaying a petition to
compel arbitration is not analogous to the
prejudice caused by an arbitrator excluding evidence.
Burton does not apply in this case.
[2] Gee cites three out-of-state cases for the proposition
that an arbitration award must be vacated when the
arbitrator excludes expert testimony the losing
party sought to offer. (See Smaligo v. Fireman’s Fund Ins.
Co. (1968) 432 Pa. 133, 138; Bordonaro v. Merrill Lynch,
Pierce, Fenner & Smith (2004) 156 Ohio App.3d 358, 367;
Wilde v. O’Leary (2005) 374 N.J. Super. 582, 587.) These
cases are readily distinguishable for the same reason as
Burlage — that is, they involve arbitrator rulings that
excluded all expert testimony a party sought to offer on an
issue as opposed to an arbitrator’s ruling merely
limiting the number of experts a party offered covering the
same issues. (Ibid.)
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Conahan v. Sebelius and Kaiser
Foundation Health Plan, Inc.
Foundation Health Plan, Inc.
Babies born at weekends 'have higher
death risk'
By Nick Triggle
BBC News
25 November 2015
Babies born in hospitals in England at the
weekends have a "significantly" greater chance of
dying than those born on weekdays, researchers
say.
A study of more than 1.3 million births found there
were around 7.1 deaths per 1,000 babies
delivered at weekends.
This was 7% higher than on weekdays.
The Imperial College London team said if all days
had the same death rate as Tuesday, which has
the lowest, there would be 770 fewer deaths per
year.
The researchers said that while the death rates
were low, the difference was significant and raised
fresh concerns about standards of care at the
weekend.
Strike action
In September, a separate study suggested that
patients admitted for care at weekends had a
higher risk of death within 30 days than those
admitted during the week.
That research has been used by ministers in their
drive to increase the availability of services at
weekends - a policy that has put them at
loggerheads with the medical profession and led
junior doctors to vote in favour of taking strike
action, starting from next week.
The latest study - published in the British Medical
Journal - looked at the numbers of stillbirths or
deaths within seven days in hospital from 2010 to
2012.
It took into account risk factors such as deprivation
and the age of the mother, along with the fact that
planned Caesarean sections, which carry low
risks, normally take place during the week.
Image copyright Thinkstock
In total, there are on average 4,500 deaths a year
from 675,000 births.
Infection rates for mothers and injuries to the
babies, including anything from cuts to brain
damage, were also higher at weekends.
Although the single day with the highest risk of
death was actually Thursday, but averaged out
weekends had higher rates than weekdays.
Researchers said they could not identify the cause
of the higher risks.
They looked at staffing levels in terms of which
hospitals were compliant with the guidelines for
consultant cover, and found little difference
between those that were and those that were not.
But they said much more data was needed on
staffing before it could be ruled out.
Growing birth rate
Lead researcher Dr William Palmer said the higher
rate of deaths and other problems was
"concerning" and needed further investigation.
A spokeswoman for NHS England said: "Most
mums say they get excellent NHS maternity care,
but for a small number of families that is not the
case and it's vital that we take every step to
continuously improve quality and safety.
"We have commissioned a wider independent
review of NHS maternity services, which will assess
how best we can respond to England's growing
birth rate and the need for well-staffed and safe
services that give mums more say over their care."
Dr David Richmond, president of the Royal
College of Obstetricians and Gynaecologists, said:
"Although no definitive conclusions can be drawn
from these results, they emphasise the need to
identify the possible causes in order to ensure that
women are receiving high-quality care at any
given day of the week."
death risk'
By Nick Triggle
BBC News
25 November 2015
Babies born in hospitals in England at the
weekends have a "significantly" greater chance of
dying than those born on weekdays, researchers
say.
A study of more than 1.3 million births found there
were around 7.1 deaths per 1,000 babies
delivered at weekends.
This was 7% higher than on weekdays.
The Imperial College London team said if all days
had the same death rate as Tuesday, which has
the lowest, there would be 770 fewer deaths per
year.
The researchers said that while the death rates
were low, the difference was significant and raised
fresh concerns about standards of care at the
weekend.
Strike action
In September, a separate study suggested that
patients admitted for care at weekends had a
higher risk of death within 30 days than those
admitted during the week.
That research has been used by ministers in their
drive to increase the availability of services at
weekends - a policy that has put them at
loggerheads with the medical profession and led
junior doctors to vote in favour of taking strike
action, starting from next week.
The latest study - published in the British Medical
Journal - looked at the numbers of stillbirths or
deaths within seven days in hospital from 2010 to
2012.
It took into account risk factors such as deprivation
and the age of the mother, along with the fact that
planned Caesarean sections, which carry low
risks, normally take place during the week.
Image copyright Thinkstock
In total, there are on average 4,500 deaths a year
from 675,000 births.
Infection rates for mothers and injuries to the
babies, including anything from cuts to brain
damage, were also higher at weekends.
Although the single day with the highest risk of
death was actually Thursday, but averaged out
weekends had higher rates than weekdays.
Researchers said they could not identify the cause
of the higher risks.
They looked at staffing levels in terms of which
hospitals were compliant with the guidelines for
consultant cover, and found little difference
between those that were and those that were not.
But they said much more data was needed on
staffing before it could be ruled out.
Growing birth rate
Lead researcher Dr William Palmer said the higher
rate of deaths and other problems was
"concerning" and needed further investigation.
A spokeswoman for NHS England said: "Most
mums say they get excellent NHS maternity care,
but for a small number of families that is not the
case and it's vital that we take every step to
continuously improve quality and safety.
"We have commissioned a wider independent
review of NHS maternity services, which will assess
how best we can respond to England's growing
birth rate and the need for well-staffed and safe
services that give mums more say over their care."
Dr David Richmond, president of the Royal
College of Obstetricians and Gynaecologists, said:
"Although no definitive conclusions can be drawn
from these results, they emphasise the need to
identify the possible causes in order to ensure that
women are receiving high-quality care at any
given day of the week."