Botach v. Cedars-Sinai Medical Center CA2/5

Filed 10/29/26 Botach v. Cedars-Sinai Medical Center CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE JONATHAN BOTACH, B347192 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. v. 23STCV01189) CEDARS-SINAI MEDICAL CENTER, Defendant and Respondent. APPEAL from a judgment and order of the Superior Court of Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed. Jonathan Botach, in pro. per., for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Gregory G. Lynch, Caroline E. Chan, and Kristi K. Hedrick for Defendant and Respondent.  Plaintiff and appellant Jonathan Botach (Botach), representing himself, filed a negligence action against defendant and respondent Cedars-Sinai Medical Center (Cedars) alleging he suffered an infection after a surgery, and then liver ailments following a second surgery and a course of antibiotics to treat the infection. When the parties ultimately announced they were ready for trial, Botach disclosed he did not plan to present any expert testimony and instead intended to rely on his medical records and the doctrine of res ipsa loquitur to prove professional negligence and causation. Cedars then moved for nonsuit, the trial court granted the motion, and we consider whether it was error to grant that motion and to deny Botach’s subsequent motion for a new trial. I. BACKGROUND A. The Complaint Botach alleges he was injured in a motorcycle accident involving an unknown driver in November 2021. Among other injuries, “both bones” in his left leg were broken and “fully exposed.” Botach underwent surgery at Cedars and was discharged to a rehabilitation center “[a]fter a few days.” Botach alleges he was not prescribed antibiotics when Cedars discharged him.1 1 Botach’s briefs imply the topical antibiotic he received upon his discharge to the rehabilitation facility was the only antibiotic he received at any time before his wounds became infected. Medical records attached as exhibits to Botach’s declaration in support of his new trial motion appear to indicate, however, that Botach “received Ancef for prophylactic antibiosis immediately prior to draping” during the initial operation. 2  About a week later, Botach’s leg “began swelling and oozing blood and pus” but “the rehab center was satisfied with daily external cleaning of the surgery sutures, ignoring the obvious signs of interior infection . . . .” Eventually, Botach was “rushed” back to Cedars, where he underwent another surgery to treat the infection. He remained in the hospital on “two kinds of antibiotics.” He alleges the antibiotics damaged his liver and he required “liver restoring pills” and multiple “blood cleaning routines” over the next several months. Although his liver has since “improved,” his diet is limited and he suffers nausea. Botach alleges that during a follow-up visit in June or July 2021, a doctor recommended another surgery because the metal rods inserted in his leg during the first surgery “were the wrong size.” Botach declined “out of sheer fear for his damaged liver . . . .” Botach alleges Cedars was negligent in using the wrong- sized rods in the initial surgery, discharging him without antibiotics, failing to notice the wrong-sized rods during the second surgery, and using the “wrong antibiotics” in treating the infection. B. Pre-Trial Proceedings Cedars answered Botach’s complaint and filed a motion for judgment on the pleadings, which the trial court denied. Cedars thereafter demanded an exchange of expert witness information pursuant to Code of Civil Procedure section 2034.210 and served 3 its own designation of its expert witnesses.2 Botach did not designate any expert witnesses.3 Cedars’s pre-trial motions in limine included a motion to preclude Botach from introducing expert testimony based on his failure to timely designate any expert witnesses. Botach opposed this motion based on Cedars’s purported failure to disclose its experts’ opinions and asked the court to “make it clear that [he] ha[s] the option for rebuttal testimony, or supplementary testimony, if it [is] deemed necessary for the jury to understand all the evidence.” At a hearing on Cedars’s motions in limine, the trial court asked Botach whether he designated any experts. Botach responded he had not “ha[d] a chance yet because of [a] family emergency . . . .” The trial court explained that because Botach had not designated any experts, “[u]nfortunately, . . . [he would be] precluded from advancing expert testimony in this case.” The trial court stated Cedars could “file whatever appropriate motion” in light of the absence of expert testimony. C. Nonsuit The case was called for trial on March 17, 2025, and both sides announced ready for trial. The trial court asked Botach whether he had brought or subpoenaed any witnesses. Botach 2 Undesignated statutory references that follow are to the Code of Civil Procedure. 3 In earlier deposition testimony, Botach stated he did not plan to have “a professional testifying on my behalf because all the proof[ ] that I need is in the Cedars medical file . . . .” 4 said he had not, and he confirmed he had no experts that would testify concerning his claim. Cedars’s attorney told the trial court Cedars intended to move for nonsuit after Botach gave his opening statement. The trial court explained this was “essentially what [it] was doing while [it] was asking [Botach] the questions,” explaining that “to the extent [Botach] hasn’t brought any witnesses to offer any opinions on causation and the medical standard of care, [the trial court] would entertain that motion for a nonsuit.” Botach then asserted he “ha[d] witnesses”: Cedars’s experts. Botach suggested Cedars’s experts would be “[his] witnesses” because “[t]he medical file speaks for itself, and they will have to acknowledge and admit what is in [his] 5,000 pages of medical file. . . . In cross-exam, they will look at the documents and tell [the court] that [he] was damaged in a major way, in a very negligent way. No other way of looking at the facts.” The trial court asked Botach whether he had subpoenaed Cedars’s experts, and he said he had not. Botach said he would “subpoena them today,” and the trial court asked, “what would the defense experts testify to?” Botach conceded he had not deposed the defense experts but he asserted they would testify “[t]hat there was a damage, there was a cause, and there was a direct link between what the hospital has done and the cause— effect of a damage, that the medical file speaks for itself. . . .” The trial court interjected, “Hold on. Do you believe that their experts will testify that the hospital failed to meet the standard of care regarding your medical procedures?” Botach answered, “Absolutely.” Asked for his offer of proof, Botach pointed to “[t]he medical file.” Unsurprisingly, Cedars’s attorney represented the experts would “testify that there was full 5 compliance with the standard of care, and that no negligent act caused injury, damage, loss, or harm to [Botach].” The trial court told Botach that, “[i]n order for [him] to proceed, [he would] have to offer expert testimony, evidence, that the conduct of the doctors at Cedars-Sinai fell below the professional standard of care.” Botach said he disagreed and asserted expert testimony is only necessary where “there [is] any doubt about the negligence and about what has happened . . . . The medical file speaks for itself.” When the trial court suggested the medical file did not, in fact, speak for itself, Botach argued Cedars’s trial brief admitted he was “a healthy person” when he entered the hospital and “half dead” when he came out. He argued it was “crazy” that Cedars did not prescribe an antibiotic when he was first discharged and “dirt” was left inside his wound. When the trial court again asked Botach whether he had “a doctor [or] an expert[ ] to indicate that [this] treatment fell below the standard of care,” Botach named one of the treating physicians designated by Cedars. When the trial court explained Botach did not know what Cedars’s witnesses would say because he had not deposed them, Botach responded “they cannot lie” and again argued negligence and causation were self-evident from his medical record. The trial court explained, “No one is saying that something did not happen to you as a result of your visit at Cedars. What you haven’t shown is to say that what happened to you was based on any negligence, which you have to establish through expert testimony. The fact that you had an incident . . . is not indicative that Cedars should be liable for malpractice.” 6  After a recess, Cedars moved for nonsuit. Botach argued he was unfairly surprised by that motion. The trial court pointed out Cedars previously argued Botach could not prove his case without expert testimony. Botach replied that the “big difference” was that “they said that [he did not] have [his] own experts.” The trial court responded, “That’s what you need to prove your case, sir.” Botach said, “I got experts, three of them.” The trial court again asked Botach whether he had “any deposition testimony that indicates that any expert has said that the conduct fell below the standard of care[.]” Botach acknowledged there were no depositions and again argued his medical record “speaks for itself.” The trial court asked Botach if he was willing to stipulate to a bench trial. Botach indicated he was. The trial court asked Cedars’s attorney for his position on proceeding with a bench trial, and the attorney reiterated “[w]e made a motion to the court.” The trial court asked Botach whether he was presently able to point to portions of his medical record showing “that the standard of care was negligent.” Botach said this was “going to take a little time.” He indicated he had “about a 20- page . . . document . . . and you can see it. You will see pictures of my leg. [¶] I mean, just look at it. Look how it looks now.” Botach emphasized different doctors’ shocked reactions to his infection. The trial court asked Botach to share the documents he wanted the court to look at. Botach emphasized his medical file was 5,000 pages; said he “[did not] have it printed, it is in the computer”; and offered to give the court “100 pages” “today,” which would show “they really damaged [him] . . . .” After that exchange, the trial court granted Cedars’s motion for nonsuit. 7  D. Proceedings Following Order Granting Nonsuit Cedars filed a proposed judgment of nonsuit. Botach opposed the proposed judgment and indicated he would be filing a motion for a new trial. In the new trial motion, Botach argued section 581c, subdivision (a) precludes nonsuit before a plaintiff has completed an opening statement. He further argued (both in the motion and in an attached declaration) that no expert testimony was needed to establish negligence because the doctrine of res ipsa loquitur (“the thing speaks for itself”) applied. He suggested Cedars’s negligence was self-evident because (1) Cedars prescribed only an antibiotic lotion when he was discharged following his initial surgery and (2) his healthy liver became inflamed after Cedars treated his infection with broad spectrum antibiotics. The trial court entered judgment of nonsuit for Cedars and held a hearing on Botach’s new trial motion a few weeks later. Botach presented his res ipsa loquitur argument and the trial court disagreed, explaining that “this type of case requires expert testimony.” With respect to Botach’s argument that he was entitled to make his opening statement before the trial court granted Cedars’s motion for nonsuit, the trial court reasoned “the questions that [it] asked and the answers [Botach] provided sufficed . . . .” The court accordingly denied the new trial motion. II. DISCUSSION Although a motion for nonsuit made before a plaintiff has completed an opening statement is premature under section 581c, subdivision (a), reversal is not warranted if the opportunity to 8 make an opening statement would not have made a difference. (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 114.) That is the case here. Botach had no expert testimony to present that his medical treatment fell below the applicable standard of care (i.e., was negligent), and his only response to the well-established principle that expert testimony is required is an assertion that the doctrine of res ipsa loquitur applies. It doesn’t, and we shall accordingly affirm the judgment of nonsuit and the order denying Botach’s motion for a new trial. A. Granting Cedars’s Motion for Nonsuit Prematurely Does Not Warrant Reversal Section 581c, subdivision (a) provides that “[o]nly after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.” “[T]he granting of a nonsuit before opening statement is not reversible error[, however,] if it is clear the plaintiff could not have prevailed even if he had presented his opening statement. [Citation.]” (Ritschel, supra, 137 Cal.App.4th at 114; see also Cal. Const., art. VI, § 13 [“No judgment shall be set aside, or new trial granted, . . . unless . . . the error complained of has resulted in a miscarriage of justice”].) Here, the trial court granted the motion for nonsuit only after an extended colloquy in which the trial court requested and received a preview—effectively an opening statement—of how Botach planned to establish his treatment fell below the applicable standard of care. From that preview, it was obvious Botach had no expert evidence that Cedars’s treatment fell below 9 the standard of care. And our Supreme Court has explained “on numerous occasions” that such evidence is ordinarily indispensable. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001 [“‘“The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.” [Citations]’”]; see also Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607.) An exception, of course, is where the doctrine of res ipsa loquitur applies. (Flowers, supra, at 1001.) Thus, the premature grant of Cedars’s motion for nonsuit cannot have been prejudicial unless Botach’s opening statement might have raised some realistic prospect that res ipsa loquitur applied in his case.4 There is no possibility of that. Res ipsa loquitur “applies when the nature of an accident compels the conclusion it probably resulted from the defendant’s negligence. [Citation.] Or, as our Supreme Court has explained it, ‘certain kinds of accidents are so likely to have been caused by the defendant’s negligence that one may fairly say “the thing speaks for itself.”’ (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825[ ].) The doctrine has three requirements: (1) the accident was of a kind that ordinarily does not occur absent someone’s negligence; (2) the instrumentality of harm was within the 4 Botach does not argue he would have asserted additional facts or theories if given the opportunity to make an opening statement. 10 defendant’s exclusive control; (3) the plaintiff did not voluntarily contribute to the harm. [Citation.]” (Howard v. Accor Management US, Inc. (2024) 101 Cal.App.5th 130, 137-138.) In this court, Botach argues no expert testimony was needed to establish Cedars did not meet the standard of care because two propositions are purportedly matters of common knowledge and observation: (1) his first surgery would not have resulted in an infection if due care had been exercised and (2) the administration of antibiotics following his second surgery would not have resulted in liver damage if due care had been exercised.5 In both instances, Botach asks us to speculate on trade-offs: in the first case, the risk of infection versus the risk of side-effects from an oral antibiotic; in the second case, the risk of his infection worsening or returning versus the risk of side-effects from the broad spectrum antibiotics. Indeed, Botach’s theories of negligence with respect to his infection and liver damage—too little antibiotics followed by too much antibiotics—underscore the fine balancing involved in this type of care and the risk of adverse outcomes even in the absence of negligence. These circumstances are not remotely analogous to “[t]he classic example . . . [of] the X-ray revealing a scalpel left in the patient’s body following surgery.”6 (Flowers, supra, 8 Cal.4th at 1001.) 5 Botach does not discuss or rely on Cedars’s alleged use of the wrong sized hardware in his opening brief. 6 Botach’s reply brief points to debris removed from his wounds during the second surgery to draw an analogy to “[t]he classic example” of items left behind in surgery. (Flowers, supra, 8 Cal.4th at 1001.) He quotes a portion of his medical record stating “free bony fragments as well as some bone graft” were removed during the second surgery. The analogy is inapt. It is 11  Because the specific antibiotics to be used following a major leg surgery and in treating a subsequent infection are beyond the common knowledge of a layperson, the premature grant of nonsuit is not reversible error. B. The Trial Court Did Not Err in Denying Botach’s Motion for a New Trial Botach contends his motion for a new trial should have been granted based on an irregularity in the proceedings, surprise, or an error in law. (§ 657, subds. (1), (3), (7).) The new trial contentions rehash Botach’s position that it was reversible error to grant Cedars’s motion for nonsuit prior to his making an opening statement and his contention that no expert testimony was needed to establish the applicable standard of care. The contentions fail for the same reasons we have already given. Insofar as Botach contends he was unfairly surprised by Cedars’s motion for nonsuit coming before he made his opening statement (assuming for the sake of argument he was in fact surprised by the motion for nonsuit in light of the previous motion in limine concerning expert testimony), there is no reason to believe this “materially affect[ed] [his] substantial rights.” (§ 657.) Botach had indicated he was ready for trial, and his opening statement would not have remedied the fatal lack of expert testimony. not within common knowledge and experience to say whether the presence of such fragments or graft is unusual following the type of surgery Botach underwent immediately after his accident. 12  DISPOSITION The judgment and the order denying Botach’s motion for a new trial are affirmed. Cedars is awarded costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS BAKER, J. We concur: MOOR, Acting P. J. KUMAR, J.* * Retired Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 13