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FOX v. KRAMER (1999)

Court of Appeal, Sixth District, California.

Wendy FOX et al., Plaintiffs and Appellants, v. Richard KRAMER et al., Defendants and Respondents.

No. H017054.

Decided: February 23, 1999

Cooper, White & Cooper and John M. Ross, David J. Demordaunt, San Francisco, Attorneys for Plaintiffs and Appellants. Richard J. Kramer, M.D. and Michael J. Kushlan, M.D.:  Hinshaw, Winkler, Draa, Marsh & Still and Tyler G. Draa, Gerhard O. Winkler, San Jose, Good Samaritan Hospital:  Ropers, Majeski, Kohn & Bentley and Susan H. Handelman, Terry Anastassiou, Redwood City, Attorneys for Defendants and Respondents.

In a medical malpractice action predicated upon withdrawal of consent to an elective operation, plaintiffs Wendy Fox and Richard B. Fox, M.D., appeal from a judgment in favor of defendants Richard J. Kramer, M.D., Michael J. Kushlan, M.D., and Good Samaritan Hospital following a jury's defense verdict.   They principally contend that the trial court abused its discretion by excluding evidence stemming from the records of a hospital peer review committee under the authority of Evidence Code section 1151 (evidence of remedial or precautionary measures taken after the occurrence of an event is inadmissible to prove negligence or culpable conduct in connection with the event).1  We disagree and affirm the judgment.


Plaintiffs are married.2  Dr. Fox specializes in pediatrics and has privileges at Good Samaritan Hospital.   Mrs. Fox works in Dr. Fox's office.

Mrs. Fox has a family history of colon cancer and was suffering from persistent diarrhea.   Her physician recommended that she consult a gastroenterologist.   Dr. Fox's associate referred her to Dr. Kramer.

Dr. Kramer tested Mrs. Fox and recommended a colonoscopy, a procedure whereby a flexible, lighted instrument connected to a video screen is inserted into the rectum and moved around so as to examine the large intestine.   He explained to Mrs. Fox that during the procedure she would be under conscious sedation, a state whereby certain drugs calmed her but left her able to alert the doctor if she experienced major discomfort.   He informed Mrs. Fox of certain risks associated with the procedure.   He added that Dr. Kushlan would assist him.   Mrs. Fox agreed to undergo the procedure and signed a consent form.

Mrs. Fox arrived at Good Samaritan Hospital for the colonoscopy on September 25, 1992.   She was anxious.   Nurse Baibee Yeh added to Mrs. Fox's anxiety by offering that she had screamed when she had undergone a colonoscopy in Canada but there was no need for anxiety because Dr. Kramer was gentle.3  Mrs. Fox began calming down after being injected with the drugs Versed and Demerol.   Versed can cause patients to have a distorted memory of what occurs during conscious sedation.

Mrs. Fox was comfortable and alert at the beginning of the colonoscopy.   She then expressed discomfort and words to the effect of “hold on a second” or “wait a minute.”   Dr. Kramer stopped, asked if it was all right to continue, and resumed the procedure upon Mrs. Fox's affirmation and after giving Mrs. Fox additional medication.   Mrs. Fox became comfortable and remained so throughout the procedure.

Mrs. Fox does not remember anything about the procedure except two or three periods of consciousness of two or three seconds each.   During one period she remembers feeling pain;  during another she remembers saying “wait a minute”;  she generally remembers that she may have moaned one time.   She had a dream about the colonoscopy in the recovery area.   In the dream, she was screaming, begging the doctors to stop, and fighting them off.4

Mrs. Fox experienced severe pain for at least a week after the colonoscopy.   She also began to believe that during the procedure something horrible had been done to her against her will causing her to beg for mercy.   She couldn't concentrate, had trouble working, and was plagued by nightmares.

Plaintiffs complained to Good Samaritan Hospital about the treatment Mrs. Fox received during the colonoscopy.   The hospital in turn initiated a peer review proceeding to investigate and invited Dr. Fox to attend peer review committee meetings.   Meetings were held on October 20 and November 13, 1992.   According to Dr. Fox, at one of the meetings Nurse Yeh said that Mrs. Fox had screamed during the procedure.

Plaintiffs filed this action on September 24, 1993.   The complaint basically alleges that defendants should have terminated the colonoscopy and that Mrs. Fox suffered post-traumatic stress syndrome from the pain and trauma.   Trial was set for February 3, 1997.

In November 1996, plaintiffs filed a complaint about the colonoscopy with the California Department of Health Services.   The department assigned Dr. Michael Schnitzer to investigate.   Dr. Schnitzer made an unannounced visit to Good Samaritan Hospital on November 19, 1996.   He reviewed the peer review minutes and medical records;  he also interviewed Dr. Fox (by telephone) and two hospital administrators.   He filed a preliminary report on November 22.5  The report summarized allegations that Mrs. Fox had suffered extreme pain, had asked the physicians to stop the colonoscopy, but instead had received increased medication for conscious sedation.   It then recited facts from Dr. Kramer's report that:  “ ‘The patient was extremely anxious at the beginning of the procedure, crying, panting and hyperventilating․ Even with moving the tip of the instrument, she was extremely sensitive.’ ”   It concluded:  “Pain or discomfort is subjective and the amount the patient can tolerate can only be determined by the patient.   Patients with the same weight and condition can have greatly varying levels of response to medications given during conscious sedation for pain (discomfort), anxiety and sedation.   In the hospital's conscious sedation policy and procedure policy dated 05-05-95 (after the event occurred) it clearly states ‘Conscious Sedation is not medication for pain management’.   During Mrs. Fox's procedure, even though her mind was clouded by the medication given, I believe she did ask her physicians to stop the procedure and her wishes were not respected.   She did not receive appropriate considerate and respectful care.   It is reported that she has been diagnosed as having a Post Traumatic Stress Disorder with the main stressor being the endoscopic procedure done on 09-25-92.”

At trial, plaintiffs moved to augment their expert witness list to include Dr. Schnitzer.   They asserted that they had become aware of Dr. Schnitzer's preliminary report on January 21, 1997, and had obtained a redacted copy of it.   They added that Dr. Schnitzer had independently arrived at opinions upon the existing facts and was essential to the case.   They also served a subpoena upon Dr. Schnitzer to appear and testify at trial.

Defendants opposed plaintiffs' motion, and the Attorney General specially appeared via a motion to quash the subpoena.   Defendants also filed motions in limine to preclude plaintiffs from referring to Dr. Schnitzer's investigation and the peer review evidence.   Concerning the peer review evidence, defendants singled out for attention Dr. Fox's anticipated testimony that Nurse Yeh had told the peer review committee that Mrs. Fox had screamed during the colonoscopy.

Dr. Schnitzer filed a declaration stating that he had “relied substantially upon the peer review materials” in formulating his understanding of the facts and his opinion.   He added that although he reviewed other materials in the course of the investigation it would not have been possible to have reached the opinions stated in his preliminary report without access to the peer review materials.   He concluded that he could not offer any opinion testimony without reference to and reliance upon the peer review materials.

The Attorney General essentially argued that Dr. Schnitzer's testimony was precluded by section 1040 (privilege to refuse disclosure of official information where disclosure is against the public interest).   He reasoned that Dr. Schnitzer's testimony was inextricably bound to the peer review materials and the section 1157 privilege against discovery of peer review evidence shows a public interest in the confidentiality of peer review evidence.6

Defendants also relied on section 1157.   They added that the peer review evidence was further precluded by section 1151.

The trial court relied on section 1151 and granted the motion to quash and motions in limine.   The rulings necessarily rendered moot plaintiffs' motion to augment.


Plaintiffs argue that the trial court abused its discretion by precluding Dr. Schnitzer's testimony and Dr. Fox's testimony about Nurse Yeh's peer review statement.   Since the trial boiled down to a conflict between witnesses Dr. Kramer, Dr. Kushlan, Nurse Yeh, and Nurse Simpson on the one hand (nothing unusual happened during the colonoscopy) and Mrs. Fox on the other hand (she screamed in pain and withdrew consent), plaintiffs assert that the rulings were prejudicial because the rulings prevented them from corroborating Mrs. Fox's version of the events.   Plaintiffs alternatively contend that the trial court abused its discretion by not permitting them to introduce the peer review evidence for impeachment.

 Section 1151 advances the public policy of encouraging individuals to make improvements or repairs after an accident has occurred.  (Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 119, 117 Cal.Rptr. 812, 528 P.2d 1148.)

 Plaintiffs claim that peer review proceedings are not subsequent remedial measures within the meaning of section 1151.   Defendants just as emphatically argue that they are.   The parties pose a classic statutory construction issue.

“[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.   In determining that intent, we consider the statute read as a whole, harmonizing the various elements by considering each clause and section in the context of the overall statutory framework.”  (People v. Jenkins (1995) 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)  “Where the statute is clear, courts will not interpret away clear language in favor of an ambiguity that does not exist.   If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.   We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.”  (People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232, quotation marks and citations omitted.)

At issue here are the words “remedial or precautionary measures.”

Plaintiffs argue that section 1151 addresses protective or corrective measures rather than information gathering.   They concede that an investigation may prompt remedial or precautionary measures.   But they assert that only the measures taken as a result of the investigation are inadmissible.   They rest on the language “remedial or precautionary measures ․ which, if taken previously, would have tended to make the event less likely to occur․”   They reason that investigative measures cannot be taken before an event and, in any case, cannot be said to make a subsequent event less likely to occur.

Plaintiffs cite no California authority.   They rely on out-of-state and federal cases construing statutes similar to section 1151.

For example, plaintiffs cite Rocky Mountain Helicopters v. Bell Helicopters (10th Cir.1986) 805 F.2d 907, a case directly addressing the admissibility of post-event tests or reports under Federal Rules of Evidence, rule 407 (excluding evidence of measures taken after an event when such measures, “if taken previously, would have made the injury or harm less likely to occur”).   The court stated:  “We hold that the district court did not err in admitting evidence from the [post-event tests].   It would strain the spirit of the remedial measure prohibition in Rule 407 to extend its shield to evidence contained in post-event tests or reports.   It might be possible in rare situations to characterize such reports as ‘measures' which, if conducted previously, would reduce the likelihood of the occurrence.   Yet it is usually sounder to recognize that such tests are conducted for the purpose of investigating the occurrence to discover what might have gone wrong or right.   Remedial measures are those actions taken to remedy any flaws or failures indicated by the test.   In this case, the remedial measure was not the [test] but rather the subsequent redesign of the [helicopter part that connected the mast with the rotor blades].   As noted above, references to redesign were excluded at trial.  [¶] We believe that the policy considerations that underlie Rule 407, such as encouraging remedial measures, are not as vigorously implicated where investigative tests and reports are concerned.   To the extent that such policy concerns are implicated, they are outweighed by ․ the danger of depriving ‘injured claimants of one of the best and most accurate sources of evidence and information.’  [Citation.]”  (805 F.2d at pp. 918-919.)

Another example is Ensign v. Marion County (Or.App.1996) 140 Or.App. 114, 914 P.2d 5.   There the court upheld the admission of findings and conclusions of an investigation into an accident by the county sheriff's review board in the face of a statute identical to Federal Rules of Evidence, rule 407.   The court reasoned:  “To be excluded under the rule, the measure at issue must be one that could have been taken before the event that gave rise to the claim.   [Citation.]   One cannot investigate an accident before it occurs, so an investigation and report of the cause of an accident, such as the board letter at issue here, cannot be a measure that is excluded from evidence under the rule.”  (914 P.2d at p. 7, fn. omitted.) 7

Plaintiffs urge that (1) attempts in other jurisdictions to shelter investigatory activities under the umbrella of remedial measures have been rejected;  (2) federal courts have repeatedly held that investigations are not remedial measures;  and (3) the authority in accord is abundant.8

Defendants reply that peer review committees are remedial by definition.   They reason as follows.

“Hospitals have a dual structure.   First, an administrative governing body (often comprised of persons other than health care professionals) takes ultimate responsibility for the quality and performance of the hospital.   Second, an ‘organized medical staff’ entity (composed of health care professionals) has responsibility for providing medical services, and is ‘responsible to the governing body for the adequacy and quality of the medical care rendered to patients in the hospital.’  [Citations.]”  (Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1224, 23 Cal.Rptr.2d 397, 859 P.2d 96.)   Peer review committees are an essential component of staff operations at a hospital (Cal.Code Regs., tit. 22, §§ 70703, subd. (d), 70703, subd. (b), 70701, subd. (a)(7));  that such committees are charged with evaluating applicants for staff privileges, recommending appointment to, curtailment of, or exclusion from privileges, establishing standards and procedures for patient care, and reviewing surgical and medical practices within the facility (Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 628, 115 Cal.Rptr. 317);  and that an important facet of a peer review committee's responsibility is to “compile records and evaluations and engage in frank discussions about the performance and competence of their peers.   Should the committee find a peer to be incompetent, a report and recommendation is made to administrators, who may then take action to revoke, limit, or deny medical staff privileges.”   (Comment (1984) 24 Santa Clara L.Rev. 661, 670, fn. omitted).

Defendants cite no on-point authority.   We have, however, found several state and federal cases supporting defendants' position.  (See Martel v. Mass. Bay Transp. Authority (Mass.1988) 403 Mass. 1, 525 N.E.2d 662, 664.)

For example, in Maddox v. City of Los Angeles, supra, 792 F.2d at page 1417, the court upheld exclusion of a city's internal affairs investigation on the basis that the proceeding constituted a remedial measure within the meaning of Rule 407.

In Martel v. Mass. Bay Transp. Authority, supra, 403 Mass. 1, 525 N.E.2d 662, a transit company's employee investigated the cause of a bus accident and concluded that the bus driver was negligent.   The court upheld exclusion of the employee's opinion from evidence on the basis that it constituted a postaccident safety improvement.   It reasoned:  “Our cases to date have involved evidence of actions more on the order of traditional ‘repairs,’ [citations].   However, we think that good public policy also requires the exclusion of the results of the defendant's investigation into the causes of an accident involving the bus.   Although not itself a ‘repair’ of a dangerous condition, the investigation is the prerequisite to any remedial safety measure.   Without discovering the cause of the accident, the defendant can scarcely hope to prevent its recurrence.   The investigation is inextricably bound up with the subsequent remedial measures to which it may lead, and questions of admissibility of evidence as to each should be analyzed in conjunction and answered consistently.   If, as a result of the investigation, the defendant had discharged the bus driver, or required him to undergo additional safety training, evidence of these steps would fall squarely within the rule excluding evidence of subsequent remedial measures.   The investigation cannot sensibly be treated differently.   To do so would discourage potential defendants from conducting such investigations, and so preclude safety improvements, and frustrate the salutary public policy underlying the rule.”  (Id. at p. 664.)

Thus, the words “remedial or precautionary measures” in the context of statutes similar to section 1151 do not have as clear-cut a meaning as plaintiffs or defendants contend.

Plaintiffs urge that the Legislature has singled out peer review evidence as a category of evidence distinct from remedial measures.   They note that peer review evidence is specifically treated in section 1157 and made immune from discovery.   They add that the Legislature is well aware of the distinctions relating to discovery, privileges, and admissibility of evidence.  (West Covina Hospital v. Superior Court, supra, 41 Cal.3d at pp. 850-851, 226 Cal.Rptr. 132, 718 P.2d 119.)   Plaintiffs assert that if section 1151 encompassed peer review evidence then the Legislature would not have enacted section 1157.   They implicitly advance that had the Legislature meant to make peer review evidence inadmissible it would have so specified in section 1157.

 We disagree.   The rule of statutory construction that a specific statute controls over a general statute applies only when the two statutes conflict.  (Code Civ. Proc., § 1859;  Bank of America v. Lallana (1998) 19 Cal.4th 203, 210, 77 Cal.Rptr.2d 910, 960 P.2d 1133.)   There is no conflict between sections 1151 and 1157.

 The scope of pretrial discovery in California is statutorily based and far-reaching.  (Code Civ. Proc., § 2017, subd. (a) [generally allowing discovery of any nonprivileged matter reasonably likely to lead to revelation of admissible evidence].)   Since evidence may be inadmissible but nevertheless subject to discovery (West Covina Hospital v. Superior Court, supra, 41 Cal.3d at pp. 850-851, 226 Cal.Rptr. 132, 718 P.2d 119), the Legislature must necessarily single out a particular type of evidence for discovery immunity.   Thus, a statute giving discovery immunity for a specific category of evidence is not inconsistent with a statute making inadmissible a general category of evidence that includes the specific evidence.

Plaintiffs' point therefore does not assist in ascertaining the Legislative intent embodied in section 1151.

 Insofar as hospital peer review evidence in the medical malpractice context is concerned, we are convinced that such evidence constitutes subsequent remedial or precautionary measures within the meaning of section 1151.

First, long-standing Supreme Court authority supports the proposition that remedial measures encompass employer disciplinary measures.  (Turner v. Hearst (1896) 115 Cal. 394, 401, 47 P. 129 [evidence that a reporter who wrote a libelous publication was fired after the publication was inadmissible as proof the employer negligently hired the reporter because the evidence was similar to proof of taking precaution after an accident];  Webster v. Orr (1917) 174 Cal. 426, 427-428, 163 P. 361 [evidence that a truck driver involved in an accident was fired after the accident was inadmissible as proof of the driver's negligence because it was “indisputably incompetent”];  see also City of Los Angeles v. Superior Court (1973) 33 Cal.App.3d 778, 783, 109 Cal.Rptr. 365 [any suspension of police officer resulting from an alleged battery would not be discoverable in the battery action in view of the settled rule prohibiting the use of remedial measures undertaken after an event to prove negligence or culpability in connection with the event itself].) 9

Since the discharge or discipline of an employee in California is within the rule excluding evidence of subsequent remedial measures, the investigation cannot sensibly be treated differently.  (Martel v. Mass. Bay Transp. Authority, supra, 525 N.E.2d at p. 664.)  “To do so would discourage potential defendants from conducting such investigations, and so preclude safety improvements, and frustrate the salutary public policy underlying the rule.”  (Ibid.)

Second, the Legislature has demonstrated a strong public policy favoring the confidentiality of peer review evidence in the medical malpractice context by giving such evidence discovery immunity via section 1157.

“Section 1157 was enacted upon the theory that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity.   It evinces a legislative judgment that the quality of in-hospital medical practice will be elevated by armoring staff inquiries with a measure of confidentiality.  [¶] This confidentiality exacts a social cost because it impairs malpractice plaintiffs' access to evidence.   In a damage suit for in-hospital malpractice against doctor or hospital or both, unavailability of recorded evidence of incompetence might seriously jeopardize or even prevent the plaintiff's recovery.   Section 1157 represents a legislative choice between competing public concerns.   It embraces the goal of medical staff candor at the cost of impairing plaintiff's access to evidence.   [¶] The statute, then, is aimed directly at malpractice actions in which a present or former hospital staff doctor is a defendant.”  (Matchett v. Superior Court, supra, 40 Cal.App.3d at p. 629, 115 Cal.Rptr. 317, fns. omitted.)

This interpretation has been widely accepted as an accurate representation of the Legislature's objective in enacting section 1157.   In West Covina Hospital v. Superior Court, supra, 41 Cal.3d at pages 851-852, 226 Cal.Rptr. 132, 718 P.2d 119, the Supreme Court endorsed the Matchett view:  “The obvious general purpose of section 1157 is to improve the quality of medical care in the hospitals by the use of peer review committees.   Accomplishment of the purpose requires that doctors be recruited to serve on the committees.   If doctors who serve on such committees were subject in malpractice cases to the burdens of discovery and involuntary testimony on the basis of their committee work, the evidentiary burdens could consume large portions of the doctors' time to the prejudice of their medical practices or personal endeavors and could cause many doctors to refuse to serve on the committees.”

The Fifth District has expressed a similar view of section 1157 in considering a damage action brought by a doctor whose staff privileges were restricted.   In holding that the “inhibiting effect” on peer review committees is at least as strong in such cases as in malpractice actions, the court commented, “Candid and frank participation in peer review proceedings is encouraged by assuring peer review activities will not be put to adverse use in a damage action.   Participation in peer review would be inhibited if a committee member's comments could be discovered in a damage action against a committee member or others.   In Brown v. Superior Court [ (1985) 168 Cal.App.3d 489, 501, 214 Cal.Rptr. 266], the court stated:  ‘The Legislature must have sought to impose confidentiality on committee proceedings in order to allow committee members to be able to admit and thereafter deal with the faults of staff members without risking an adverse impact from the admission.’ ”  (California Eye Institute v. Superior Court (1989) 215 Cal.App.3d 1477, 1484, 264 Cal.Rptr. 83.)

“Although composed of volunteer professionals, these committees are affected with a strong element of public interest.”  (Matchett v. Superior Court, supra, 40 Cal.App.3d at p. 628, 115 Cal.Rptr. 317.)  “Thus, peer review committees serve two critical functions:  first, they provide the health care community with a method of self-policing.   In this way they assure that methods and procedures which have been proven to be most effective may become standardized with the health care facility, thereby improving efficiency.   Second, the peer review process serves the important social interest in public health and safety by continually scrutinizing medical and health care operations in order to correct any potential problems with procedure or staff which might threaten the individual patient with [a] disproportionate risk of danger.”  (People v. Superior Court (Memorial Medical Center) (1991) 234 Cal.App.3d 363, 373, 286 Cal.Rptr. 478.)

There is therefore no question that peer review committees play an important role in serving public welfare.   Maintaining the confidentiality of committee members' contributions certainly promotes candor and objectivity in assessing the performance or qualifications of their peers, which in turn necessarily promotes the protection of patient health.   Given this overwhelming public policy favoring the confidentiality of peer review evidence in the medical malpractice context, reason, practicality, and common sense lead us to conclude that the Legislature intended to give such evidence greater protection via section 1157 than the evidence already had via section 1151 rather than, as plaintiffs contend, protection limited to section 1157.

We recognize that section 1157 also prohibits (with exceptions not applicable to medical malpractice actions) compelled testimony about peer review meetings and that this prohibition has been interpreted in West Covina Hospital v. Superior Court, supra, 41 Cal.3d at pp. 850-851, 855, 226 Cal.Rptr. 132, 718 P.2d 119, as not precluding voluntary testimony.  (Ante, fn. 6.) One might therefore infer that the Legislature intended to comprehensively address peer review evidence in section 1157.   We do not.

The West Covina Hospital court was interpreting section 1157.   It was not interpreting section 1151, nor was it interpreting section 1157 in conjunction with section 1151.   Moreover, section 1157 is not necessarily comprehensive.   For example, the prohibition on compelled testimony applies only to peer review meeting attendees.   It therefore would not cover the situation where a plaintiff attempts to introduce peer review evidence via nonattendees.10  Also, the prohibition on compelled testimony operates, like section 1157 as a whole, to give peer review evidence greater protection than section 1151 given that section 1151 does not prohibit peer review evidence for impeachment purposes.   Taking into account (1) these considerations, (2) the case law affirming that section 1151 encompasses workplace discipline, (3) the logical application of this authority to postaccident investigations, and (4) the independent, strong public policy supporting confidentiality of peer review evidence in the medical malpractice context, the inference that the Legislature intended to comprehensively address peer review evidence in section 1157 is reduced to speculation.

 We hold that post-event hospital peer review evidence is inadmissible in a medical malpractice action to prove negligence or culpable conduct in connection with the event.  (§ 1151.)

 Plaintiffs raise for the first time in their reply brief a complaint the trial court erred by refusing their request to review Dr. Schnitzer's testimony in camera so as to ascertain whether or what evidence was entitled to the protection of section 1157.   The short answer to this is that we do not consider new issues raised for the first time in a reply brief without some showing of good reason for failure to present them before.  (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765, 60 Cal.Rptr.2d 770.)   Plaintiffs make no showing of good reason.   In any event, our holding is that the evidence is inadmissible under section 1151, not section 1157.

Plaintiffs argue that Dr. Schnitzer's testimony would have had the effect of impeaching the defense witnesses and Dr. Fox's testimony about Nurse Yeh's peer review statement would have impeached Nurse Yeh's trial testimony.

Defendants concede that section 1151 does not prohibit peer review evidence for purposes of impeachment.

As to Dr. Schnitzer's testimony, however, plaintiffs never advanced impeachment as a ground for admission.   They cite us to no part of the record to suggest that they did.   They have therefore waived this argument for appeal.  (§ 353, subd. (a).)

As to Dr. Fox's testimony, we detail this area.

 In ruling Dr. Fox's testimony inadmissible during the in limine proceedings, the trial court noted that impeachment was a different issue and it “would cross that bridge when we get to it, though.”

During plaintiffs' direct examination of Nurse Yeh, plaintiffs' counsel asked Nurse Yeh whether Mrs. Fox screamed during the colonoscopy.   Defendants objected on the ground that the question was vague and ambiguous.   After a bench conference, plaintiffs' counsel repeated the question but Nurse Yeh asked to have the word “scream” defined.   Plaintiffs' counsel then asked whether Mrs. Fox yelled out in a loud voice.   Nurse Yeh then replied, “How loud you talking about?   I mean it's small room there, and enough for four people to hear it.   You talk, you call that scream or you don't.”   Plaintiffs' counsel then asked several times whether Nurse Yeh had ever said that Mrs. Fox screamed.   To this line of inquiry, defendants made objections that the trial court sustained and motions to strike answers that the trial court granted.   Plaintiffs later proffered Dr. Fox's testimony to impeach Nurse Yeh's testimony, but the trial court refused to allow it.   We glean from the record that the trial court reviewed the reporter's transcript and concluded that Nurse Yeh never gave an answer to the direct question whether Mrs. Fox screamed and there was therefore no testimony to impeach.

There exists in the record, however, the following colloquy from plaintiffs' direct examination of Nurse Yeh:  “Q. And-and you-you wouldn't describe her as being in pain would you?  [¶] A. No. [¶] Q. And it's your recollection that she didn't scream during the procedure?  [¶] A. As far as I can remember.”

 Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness's prior statement.  (People v. Johnson (1992) 3 Cal.4th 1183, 1219, 14 Cal.Rptr.2d 702, 842 P.2d 1.)

Here, Nurse Yeh effectively testified that Mrs. Fox did not scream (so far as she could remember).   Evidence that Nurse Yeh had previously stated that Mrs. Fox screamed would be inconsistent with this testimony.   We therefore conclude that the trial court erred by precluding plaintiffs from impeaching Nurse Yeh via Dr. Fox's testimony.

 “Whether the trial court's error [in excluding impeachment evidence] constitutes grounds for reversal depends on whether the error resulted in a miscarriage of justice.  [Citations.]   In People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243, we stated that ‘a “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’  [Citation.]”  (Clifton v. Ulis (1976) 17 Cal.3d 99, 105-106, 130 Cal.Rptr. 155, 549 P.2d 1251.)

Application of the Watson standard compels the conclusion that no miscarriage of justice resulted in this case.

First, the question whether Mrs. Fox screamed is not determinative of whether she withdrew her consent to the colonoscopy.   And affirmative evidence on the question does not necessarily support her version of the incident (fighting off the doctors, begging them to stop).   The testimony indicated that Dr. Kramer had stopped the procedure at least once because Mrs. Fox had expressed discomfort by moaning or saying “wait a minute.”   But Dr. Kramer then asked Mrs. Fox whether he should continue and received an affirmative answer.   This evidence is not necessarily discredited by believing that Mrs. Fox screamed instead of moaned.

Second, the credibility of Dr. Fox's proposed testimony was problematic.   The proffer was obviously self-serving.   And the substance of it was contradicted by four witnesses.

And third, plaintiffs' case was extremely weak.   Mrs. Fox's version of the events emanated from a dream rather than recall.   At the time of the colonoscopy, Mrs. Fox was under the influence of a hallucinogenic drug.   The jury heard testimony suggesting that Mrs. Fox was psychologically imbalanced from past hardships.   It also heard testimony opining that Mrs. Fox's symptoms were consistent with malingering rather than post-traumatic stress disorder.   Mrs. Fox's own therapist thought it possible that Mrs. Fox's therapy goal was to build a case for trial rather than regain mental health.   Mrs. Fox's trial testimony (suggesting that she could no longer go to medical offices without panicking) was contradicted by her own medical records and testimony on cross-examination.   The trial took 15 days over a one-month period yet the jury returned its verdict in two and one-half hours.

Under these circumstances we are convinced that it is not reasonably probable that admission of Dr. Fox's impeachment testimony would have affected the verdict.


The judgment is affirmed.


1.   Further statutory references are to the Evidence Code unless otherwise noted.Section 1151 states:  “When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.”

2.   For clarity, we will refer to the plaintiffs as Dr. Fox and Mrs. Fox.

3.   Hospital staff nurses Yeh and Mary Lou Simpson were assigned to assist the doctors.

4.   Mrs. Fox testified on direct examination that she screamed, begged the doctors to stop, and fought;  but on cross-examination she admitted to the limited recollection recounted above.

5.   Plaintiffs served a subpoena upon the Department of Health to obtain Dr. Schnitzer's preliminary report and learned that the report was a matter of public record subject to subpoena in a form redacted of matters privileged under Evidence Code section 1157 (records of hospital peer review committees are privileged from discovery).

6.   Section 1157, subdivision (a), provides, in part:  “Neither the proceedings nor the records of ․ a peer review body, as defined in Section 805 of the Business and Professions Code, having the responsibility of evaluation and improvement of the quality of care rendered in the hospital ․ shall be subject to discovery.”   Under Business and Professions Code section 805 a “peer review body” includes a medical or professional staff of any licensed health care facility, a nonprofit medical professional society, or a committee whose function is to review the quality of professional care provided by the members or employees of the entity to which the committee belongs.   Section 1157, subdivision (b), provides that “․ no person in attendance at a meeting of [a peer review body] shall be required to testify as to what transpired at that meeting.”Section 1157 precludes “discovery” in the sense of the well-established legal meaning of a formal exchange of evidentiary information between parties to a pending action.  (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 24, 56 Cal.Rptr.2d 706, 923 P.2d 1 [no discovery immunity from administrative investigative subpoenas].)   And though the statute precludes involuntary testimony, it does not preclude voluntary testimony.  (West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 850-851, 226 Cal.Rptr. 132, 718 P.2d 119.)

7.   In a concurring opinion, Judge Haselton observed that the court's holding subverts the public policy behind the statute but opined that the text of the statute “admits of no other construction.”  (Ensign v. Marion County, supra, 914 P.2d at p. 8 (conc. opn. of Haselton, J.).)

8.   Though plaintiffs' summarization of their authorities may be no more than hyperbolic, it is misleading given that there is a split of state and federal authority on the issue at hand and plaintiffs omit mentioning authorities contrary to their position.   Plaintiffs make no mere oversight.   One of their primary cases, Ensign v. Marion County, supra, 140 Or.App. 114, 914 P.2d 5, cites contrary federal authority (Maddox v. City of Los Angeles (9th Cir.1986) 792 F.2d 1408, 1417) at page 6.

9.   Though we question the holding in City of Los Angeles v. Superior Court, supra, 33 Cal.App.3d 778, 109 Cal.Rptr. 365, that a suspension has discovery immunity, the court's implicit point is that the suspension is inadmissible under section 1151.

10.   Defendants accuse plaintiffs of trying to introduce the peer review evidence via such a back door.   They assert that plaintiffs made the complaint to the Department of Health, knowing the peer review evidence would be relied on for a report, and intending to subpoena the investigator if the report was favorable to them.


COTTLE, P.J., and ELIA, J., concur.

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FOX v. KRAMER (1999)

Docket No: No. H017054.

Decided: February 23, 1999

Court: Court of Appeal, Sixth District, California.

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