Jean Dennis v. Scott W. Southard, Et. Al.
Filed 5/29/09
Third Appellate District (El Dorado)
Cite as C058948

Appeal for Medical Battery Dismissed by CA

In June 2004, Jean Dennis underwent a successful left knee replacement surgery which was performed by Dr. Scott W. Southard. The surgery was conditioned on using prosthesis other than one manufactured by Johnson & Johnson and Dr. Southard used a Biomed prosthesis.

However, in October 2004, the hospital where Dr. Southard operated in, switched to Johnson & Johnson prosthetics.

Dennis then went in for right knee replacement surgery on the same month and this time, Dr. Southard used Johnson & Johnson prosthetics. During the surgery, Dr. Southard inadvertently transected Dennis’ medial collateral ligament.

Dennis filed for medical malpractice and medical battery suit against the doctor. The medical battery complaint went in trial but the jury decided in favor of Dr. Southard. Hence this appeal.

Plaintiff argued that the trial court erred on the following issues:

1. Granting summary adjudication of her medical malpractice cause of action.
2. Failing to remove a juror for cause.
3. Misinstructing the jury on the elements of medical battery.
4. Excluding expert witness testimony on medical ethics.
5. Excluding testimony and argument that transecting the ligament was “an item of damages related to the medical battery”.
6. Denying her motion to amend the complaint.
7. Denying her motion for a directed verdict

The CA however, found Dennis’ contentions unmeritorious and affirmed the trial court’s decision and ruled the following:

• On account of the summary adjudication of Dennis’ medical malpractice as a cause of action, the CA said that because Dr. Southard was able to support his motion for summary adjudication with expert testimony that his conduct fell within the appropriate professional standard of care, he was entitled to summary adjudication unless Dennis came forth with conflicting expert testimony. Thus, only the case for medical battery came to trial. Further, this was not a case where the “common knowledge" exception to the expert testimony requirement can be applied. This narrow exception applies only in cases of obvious negligence, such as when a foreign object is left in the body of a patient after surgery (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001) or when injury occurs to a part of the body not scheduled for treatment.


• Dennis’ counsel also challenged J. W., one of the jurors “for cause.” J.W.’s wife apparently was also operated on by Dr. Southard. The CA found that there was no abuse of discretion in the court’s failure to remove Juror J. W. for cause as the juror consistently stated that Dr. Southard’s role as his wife’s doctor would not have any impact on his decision-making in this case.


• The CA also found that there was no error in the court’s instructions on medical battery. The intent requirement in CACI No. 530B is correct. It requires “intent to perform the procedure with knowledge that the condition had not occurred.” (CACI No. 530B.) Inclusion of intent and knowledge as elements of medical battery is consistent with well-established principles of civil battery.


• Also, the exclusion of expert witness was deemed correct by the CA as expert opinion testimony on medical ethics 13 would not add anything to proving these elements of medical battery and that it was irrelevant. The court emphasized that Dennis needed to prove that her consent to the knee surgery was conditioned on Dr. Southard not using a Johnson & Johnson prosthesis; Dr. Southard intentionally violated the condition while replacing Dennis’ right knee; and Dennis was harmed as a result of Dr. Southard’s violating the condition.


• The CA likewise found that the trial court was correct when it excluded testimony and Dennis’ argument that transection of her ligament was an item of damages recoverable. The CA said that there was no evidence the ligament injury was caused by Dr. Southard’s use of the Johnson & Johnson prosthesis as opposed to any other brand of prosthesis. Without cause, there can be no basis for recovery.


• The court’s denial to amend Dennis’ complaint for the reason that “the prejudice [was] too great at this time to amend” and “at this point it’s a little late . . . .” was found by the CA to be sufficient to withstand it’s review for abuse of discretion.


• Lastly, the CA found that the court did not err when it denied Dennis’ motion for a directed verdict. The verdict in favor of Dr. Southard was supported by substantial evidence.