NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

BEDSWORTH, Acting P.J.

INTRODUCTION

Long-Dei Liu, M.D., appeals from a wrongful death jury verdict in favor of Yuanda Hong and his two minor sons. Hong's wife, Ling-Nie, died at Garden Grove Hospital shortly after the birth of their second child. Liu was her obstetrician. After a 20-day trial, the jury apportioned 25 percent of the liability for Ling-Nie's death to Liu and 75 percent to the hospital.

On appeal, Liu argues that the evidence does not support the jury's verdict against him with respect to liability or damages. He also contends the judgments eventually entered against him were improperly entered.

We affirm the judgment. The jury's verdict rests on substantial evidence, which, as a reviewing court, we have no power to override. The amended judgments from which he appeals were properly entered.

FACTS1

Ling-Nie came to Garden Grove from China about a month before her second child was due. She had two prenatal consultations with Liu. Because her first child had been born via Caesarean section, the second child's birth was scheduled as a C-section at Garden Grove Hospital.

The delivery of Ling-Nie's baby by C-section during the evening of March 9, 2014, was normal. Ling-Nie, however, began to hemorrhage after the birth, and she was given a blood transfusion in the operating room. Instead of being taken to the regular postsurgery recovery room, she was transferred to the intensive care unit, where her condition continued to deteriorate. Liu attended her for five minutes in the ICU then went home, just before 1:00 a.m. on March 10.2 By his own account, before he left, Liu wrote no notes for the ICU staff. He did not check Ling-Nie's vital signs or the results of the blood tests he had ordered. He ordered another blood test before he left, but he did not wait to see the results. He glanced at the monitor of her vital signs over her bed for one second before he left. He ordered another blood transfusion but did not linger to see it administered. After Liu left the hospital, he did not call the ICU to check on Ling-Nie's condition.

At about 3:00 o'clock in the morning of March 10, Ling-Nie "coded," i.e., her heart stopped. She was placed on life support, and she died several days later, on March 14. She was 26 years old.

Ling-Nie's husband, Yuanda Hong, and her two children sued Liu and Garden Grove Hospital for wrongful death and medical negligence.3 The hospital settled with Hong for $3.2 million and received a good-faith settlement order under Code of Civil Procedure section 877.6. The case against Liu and another doctor went to trial before a jury.4 The verdict exonerated the other doctor and allocated liability for Ling-Nie's death between Liu and the hospital at 25 percent for Liu and 75 percent for the hospital. The total award for past and future economic damages was $9.1 million. The jury awarded $600,000 in noneconomic damages. An incomplete judgment, one that included no monetary awards whatsoever, was entered on November 4, 2015.

On January 8, 2016, the court entered an amended judgment against Liu. Pursuant to Civil Code section 3333.2, the court reduced the noneconomic damages against him from $600,000 to $62,500, and it reduced the amount of economic damages by $3.2 million, the amount of the settlement with Garden Grove Hospital. The amended judgment did not specify a dollar amount of the award for economic damages.

On April 15, 2016, the court entered another amended judgment. By this time Hong had submitted a cost bill and the court had ruled on Liu's motion to tax costs. In this judgment, the court "did the math." The reduction of noneconomic damages remained unchanged. With respect to the economic damages, however, the court filled in the amounts. The court subtracted the amount of the hospital's settlement, $3.2 million, from the amount of the economic damages award, $9.1 million, to arrive at the total economic damages: $5.8 million. Adding both categories of damages, costs, and interest yielded a total judgment of $6.2 million against Liu.5

DISCUSSION

Liu has identified four appellate issues. Three of them deal with the sufficiency of the evidence for liability and damages. The fourth issue concerns the entry of the April 15 amended judgment.

I. Sufficiency of the Evidence

"Where findings of fact are challenged on a civil appeal, we are bound by the `elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court. [Citations.]" (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)

"In a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendant's negligence, there was a reasonable medical probability the plaintiff would have obtained a better result." (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.) Our task on appeal is not to reweigh the evidence or to decide whom to believe. We must, instead, "resolve all conflicts in favor of respondent and indulge in all legitimate and reasonable inferences supporting plaintiff's case." (Kalmus v. Cedars of Lebanon Hospital (1955) 132 Cal.App.2d 243, 247.)

Because Liu criticizes the opinion testimony of Hong's obstetrical expert, we summarize this testimony. The expert opined that Liu's treatment of Ling-Nie fell below the standard of care "in numerous ways." His most significant failing was allowing a patient bleed to death instead of taking steps to stop the bleeding. These steps could have included returning Ling-Nie to the operating room for a hysterectomy or calling in additional medical personnel with expertise in crisis management. In addition, Liu failed to make any notes in the medical record so that other caregivers could respond to an emergency. He failed to check blood test results or lab results that indicated the patient's condition. He did not replace the blood she was losing or, failing that, return her to the operating room to stop the bleeding.

According to the witness, he should not have left the ICU, because his patient's condition was both critical and unstable. Her blood pressure was falling, her heart rate was elevated, and she was actively bleeding when he left.6 Other symptoms of Ling-Nie's blood loss were a distended abdomen (indicating internal bleeding), low oxygen saturation, bluish black fingernails (indicating shutting off of circulation to extremities), and no urine output (indicating lack of circulation to the kidneys). Her speech was garbled, and she was lethargic from lack of oxygen to the brain.

The witness testified that Liu should have ordered serial blood tests after Ling-Nie was transferred to the ICU to determine whether she was actively bleeding. Liu ordered a blood test just before he left, but he did not wait for the results. He was supposed to write orders for her care in the ICU before he left the hospital, but he did not do so. Nothing in the medical record indicated that he had examined Ling-Nie in the ICU or checked her vital signs before leaving. Although he had ordered a blood transfusion in the ICU, he did not wait to see whether the blood was actually delivered and what effect it had on her condition. He did not call the hospital after he left to check on Ling-Nie's status.

For his part, Liu testified that Ling-Nie was stable in the ICU when he left her and that he expected the ICU nurses to call him at home if there was a problem.

Liu has identified two issues with respect to the expert's testimony regarding the standard of care. First, he contends the obstetrical expert based his opinion on a single blood pressure reading that was unreliable. The expert believed the reading was entered into the medical record automatically from an electronic monitor at the patient's bedside, when in reality it was entered hours later by an unreliable nurse. Therefore, he argues, the expert based his opinion on unreliable data.

The second issue must be quoted in full: "California law does not require a doctor to assume the nursing staff will not follow established protocols to call the doctor when vital signs changes or tests are negative. [The obstetrical expert's] testimony could be interpreted as requiring distrust of the nurses at the hospital. There is no evidence Dr. Liu should not have trusted the nursing staff in this case." Liu cited no authority to support this argument.

Neither criticism of the expert's testimony has any merit on appeal.

A. Reliance on Blood Pressure Reading

Claiming the obstetrical expert witness based his opinion on one blood pressure reading is a gross misrepresentation of the record. It should be obvious from the brief summary of the expert's opinion that he did not rely on a single data point. Even if it was true that one blood pressure reading was incorrect, the expert had many more criticisms of Liu's conduct, ones that had nothing to do with blood pressure.7

For example, the expert testified that Liu's failure to provide notes for the ICU staff was below the standard of care. Likewise, Liu's failure to check Ling-Nie's vital signs or the results of her blood tests — both of which failures he admitted — fell below the standard of care, in the expert's opinion, as did his failure to call the hospital after he left to check on Ling-Nie's condition. The expert had numerous criticisms of Liu's treatment of Ling-Nie other than his reaction to her blood pressure.

As a reviewing court, we do not reweigh evidence or make credibility findings. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) The jury heard Liu's testimony about his conduct and the expert's opinion of it. The jurors decided Liu was 25 percent responsible for Ling-Nie's death. Substantial evidence supports their decision.

B. Duty of ICU Nurses

We need not address the second issue at all, in that Liu provided no authority to support it. (See Estate of Cairns (2010) 188 Cal.App.4th 937, 949; In re Marriage of Laursen & Fogarty (1988) 197 Cal.App.3d 1082, 1084, fn. 1.) But we note that the expert's opinion did not rest on whether Liu could or could not rely on the nurses to call him at home. In the expert's opinion, Liu should not have left the hospital at all. And the expert also criticized Liu's conduct before he left the hospital. For example, Liu left no notes for the ICU staff, did not examine his patient, and did not check her vital signs or the results of her blood tests before leaving. None of these things had any relationship to trusting the nursing staff.

The jury apparently agreed that the fault for Ling-Nie's death lay largely with the nurses. The jurors were instructed that Garden Grove Hospital was responsible for the nurses' conduct, and they allotted 75 percent of the liability for wrongful death to the hospital. But the jurors did not completely absolve Liu.

Substantial evidence from Hong's obstetrical expert supports the jury's determination that Liu fell below the standard of care before he left the hospital, even if he should have been able to rely on the nurses afterward. It was therefore reasonable for the jury to conclude he was partially, though not mostly, responsible for the outcome.

C. Computation of Damage

Liu's third issue with respect to the adequacy of the evidence concerns the amount of future economic damages awarded by the jury. Liu contends the court used the wrong measure of damages when it instructed the jury and that the amount of the award lacked sufficient evidence. The jury awarded Hong $15 million in future economic damages, reduced to a present value of $8.3 million.

1. Measure of Damages

The CACI jury instruction for damages for wrongful death, CACI No. 3921, provides in pertinent part: "If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant] for the death of [name of decedent], you also must decide how much money will reasonably compensate [name of plaintiff] for the death of [name of decedent]. This compensation is called `damages.' [¶] [Name of plaintiff] does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages. [¶] The damages claimed by [name of plaintiff] fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form. [¶] [Name of plaintiff] claims the following economic damages: [¶] 1.The financial support, if any, that [name of decedent] would have contributed to the family during either the life expectancy of [name of decedent] had before [his/her] death or the life expectancy of [name of plaintiff], whichever is shorter; [¶] 2.The loss of gifts or benefits that [name of plaintiff] would have expected to receive from [name of decedent]; [¶] 3.Funeral and burial expenses; and [¶] 4.The reasonable value of household services that [name of decedent] would have provided." The court gave this instruction, filling in the names of the relevant parties.8

Code of Civil Procedure section 377.61 provides, "In an action under this article [i.e., regarding wrongful death], damages may be awarded that, under all the circumstances of the case, may be just, but may not include damages recoverable under Section 377.34.9 The court shall determine the respective rights in an award of the persons entitled to assert the cause of action."

On appeal, Liu asserts that Civil Code section 328310 sets forth the correct measure of damages for wrongful death and wonders why "the plaintiffs and the trial court believed that a different rule should apply to wrongful death cases." He contends that Hong may recover only damages that are "certain to result in the future."

The reason plaintiffs and the trial court believed Code of Civil Procedure section 377.61, not Civil Code section 3283, applied to wrongful death cases is that the former code section specifically addresses damages for wrongful death. The "Sources and Authorities" section of CACI No. 3921 refers to Code of Civil Procedure section 377.61 as a source of the jury instruction. This section includes no "certain to result in the future" language. As a code section relating specifically to damages for wrongful death, Code of Civil Procedure section 377.61 takes precedence over the more general Civil Code section. (See DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 546.)

The correct jury instruction told the jurors that their award of damages must "reasonably compensate" Hong for Ling-Nie's death and cautioned them not to "speculate or guess in awarding damages." Under the law, we assume the jury followed that instruction. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 172; Morgan v. Stubblefield (1972) 6 Cal.3d 606, 621), and we find no flaw in it.

2. Evidence of Ling-Nie's Career Plans

Liu also complains the jury based the amount of its award of future economic damages on the assumption that Ling-Nie would continue in her current job until retirement age, when her husband had testified she would quit after two years and move to Shanghai. Again, this contention grossly misstates the record. Ling-Nie was the chief financial officer of a real estate company whose offices were located in Qinghai, China. Her husband, however, had started his own architecture company in Shanghai in 2012. The two cities are 1,400 miles apart. For the three years of their marriage, the couple had seen each other mainly on weekends, even after their first child was born. Ling-Nie usually flew into Shanghai on Friday night or Saturday morning, and the family spent the weekend together. They also tried to take one long vacation each year.

Yuanda Hong wanted his wife to move to Shanghai to be with him. Ling-Nie, however, had an excellent job in Qinghai, especially considering her youth. As of the time of her death, she had not decided on a long-term plan — whether to stick it out in Qinghai or to move to Shanghai and look for a comparable job.

Accordingly, Hong presented evidence of both alternatives. The economics expert testified about Ling-Nie's potential earnings if she stayed in Qinghai for her entire career and if she moved to Shanghai and obtained a similar job. A recruiting expert from China testified about what Ling-Nie could have expected to earn in Shanghai.

Liu now asserts that the evidence of Ling-Nie's future earnings was based on her continuing to work in Qinghai until the end of her career, although Hong had testified that she was "70-80% sure" that she would not stay in Qinghai for more than two years. Liu contends that the damages for future earnings are therefore "not reasonably certain."

As discussed above, the proper measure of economic damages for wrongful death is not those that are "certain to occur in the future." They are those that "under all the circumstances of the case, may be just" (Code Civ. Proc., § 377.61) and that will "reasonably compensate" the plaintiffs. (CACI No. 3921.)

The jury heard evidence of both alternatives — staying in Qinghai and moving to Shanghai. Although not explicitly stated in the verdict, it appears the jury chose the move-to-Shanghai alternative, not the stay-in-Qinghai one, as Liu claims. The expert testified that if Ling-Nie moved to Shanghai and worked until age 55, the present value of what she would earn during her career going forward was $8.5 million. The present value of her earnings if she worked until age 60 was $9.5 million. If Ling-Nie stayed in Qinghai until the end of her career, the present value of her future earnings would be $3.3 million. The jury awarded Hong $8.3 million as the present value of future loss of financial support.

"We review the jury's award under the substantial evidence standard and defer to the trial court's denial of a new trial motion based on excessive damages because of the trial judge's greater familiarity with the case.11 The amount awarded is peculiarly within the jury's discretion. [Citation.] There is no fixed standard by which we can determine that an award is excessive. We usually defer to the jury's discretion unless the record shows inflammatory evidence, misleading instructions, or improper argument by counsel that would suggest the jury relied on improper considerations. [Citation.] We will interfere only when the award is so disproportionate to the injuries suffered that it shocks the conscience and virtually compels the conclusion the award was based on passion or prejudice. [Citation.]" (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 720-721.)

Liu has pointed to no inflammatory evidence, misleading instruction, or improper argument to undermine the jury's estimation of what a 26-year-old woman of Ling-Nie's qualifications and ambition could reasonably be expected to earn during a lengthy career.12 As appellant, Liu has the burden to establish error (see Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971), and he has not done so here. There was substantial evidence for that award, regardless of whether it is what we, or the trial judge, or appellant would have chosen.

II. The Amended Judgment of April 2016

Liu's final argument concerns the amended judgment of April 2016, which totaled up the amounts of the various awards. He asserts that the April judgment substantially changed the jury's verdict, and was therefore not the mere correction of a clerical error.

The original judgment was filed on November 4, 2015.13 It was, necessarily, incomplete. A court still had to approve the hospital's settlement with the two minor children.14 (See Code Civ. Proc., § 372, subd. (a)(1).) There had been no chance for anyone to file a cost bill, and the court did not have the information necessary to calculate monetary totals.

An amended judgment was filed on January 8, 2016. This judgment was still not complete. Hong had filed a memorandum of costs and an amended memorandum on November 17, 2015. Liu filed a motion to tax costs on December 1, but the hearing on this motion was scheduled for January 21, 2016. The court did not actually rule on the motion to tax costs until March 16, 2016.

The January judgment was more detailed than the original judgment, in that the court specified a dollar amount for an award of noneconomic damages against Liu. After applying the cap of Civil Code section 3333.2 and the percentage of liability specified by the jury, the court reduced the $600,000 total to $62,500 as Liu's share. (See Civ. Code, § 1431.2, subd. (a).) It also specified the amount from the Garden Grove settlement that would be offset against the present value of the award for economic damages. Still to come were a ruling on costs, motions modify the judgment or the offset, and a possible motion for periodic payments.

The complete judgment, tying up all loose ends, was entered on April 15, 2016. The court had already entered an amount for noneconomic damages; this amount was unchanged. The court awarded $5.9 million in economic damages (after deducting the Garden Grove Hospital settlement), $35,000 in costs (after ruling on Liu's motion to tax costs), and interest from November 3, 2015 (the day after the jury's verdict) to the present.

On April 18, the trial court explained how the judgments of January and April 2016 came about. Hong submitted a proposed amended judgment in December 2015 that specified a dollar amount for noneconomic damages and specified the amount of the offset from the Garden Grove Hospital settlement, but did not include a final dollar amount for economic damages. This was the judgment entered — without objection from Liu — on January 8, 2016. Then Liu, although fully aware that the total judgment would be about $6 million,15 posted a bond of $93,750 (one-and-a-half times the noneconomic damages award) and declared a stay of enforcement in effect. (See Code Civ. Proc., § 917.1, subd. (b).)

The court ruled on March 24, 2016, that there was no stay, because the amount of the bond was "woefully inadequate." Liu filed a writ petition for a stay in this court as well as a petition for review in the Supreme Court. Both were denied. (Hong v. Liu (Apr. 5, 2016, G053258); Hong v. Liu (May 18, 2016, No. S233702 [2016 Cal. LEXIS 3506].)

The trial court characterized as a "clerical oversight" the fact that the January 8 judgment did not go on to state "and $9.1 million minus $3.2 million is $5.9 million." The trial court observed that Liu could have brought this oversight to the trial court's attention before running off to the Court of Appeal and the Supreme Court, "attempting to gain an arguably unwarranted advantage."16 Accordingly, the court entered the April 15 amended judgment, which performed the subtraction operation, specifying the dollar amount of the economic damages award. It also included dollar amounts for costs and interest.

"`The term "clerical error" covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence.'" (Makovsky v. Makovsky (1958) 158 Cal.App.2d 738, 742-743, quoting George v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478, 480-481.) "It is also settled that `[in] determining whether an error is clerical or judicial, great weight should be placed on the declaration of the judge as to his intention in signing the [judgment].' [Citation.]" (Bowden v. Green (1982) 128 Cal.App.3d 65, 71.) A court may correct a clerical error even while an appeal to a higher court is pending. (In re Candelario (1970) 3 Cal.3d 702, 705; Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 506-507 [subtraction error corrected as clerical error].)

Liu argues the April 8 judgment changed the outcome because the trial court for the first time made him liable for the entire amount of the economic damages, after subtracting the settlement, when the jury allocated only 25 percent of the liability to him. He argues, "The failure to apply joint and several liability to alter the jury's verdict in the original judgment cannot be corrected as a clerical error by the trial court." Liu appears to assume that because the jury allocated 25 percent of the liability to him, he should have to pay only 25 percent of the economic damages.

Liu misunderstands the separate functions of the jury and the judge. The jury was tasked with determining the amount of damages — both economic and non-economic — and the defendants' proportion of liability for Ling-Nie's death. The jury was not tasked with deciding whether liability would be several or joint and several. That is a legal issue and is determined by statute and case law. (See Evangelatos v. Superior Court (1998) 44 Cal.3d 1188, 1196-1199.)

Under Civil Code section 1431.2, subdivision (a), liability for noneconomic damages for wrongful death is several. Accordingly, the judgment against Liu for noneconomic damages was for $62,500, that is, 25 percent of the maximum allowed for noneconomic damages by Civil Code section 3333.2. Tort liability for economic damages, however, is joint and several. (Delos v. Farmers Group, Inc. (1979) 93 Cal.App.3d 642, 660; 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 356, p. 415.) The court allocated the net amount of economic damages, after subtracting the hospital's settlement amount, to Liu.

The original judgment did not fail "to apply joint and several liability," as Liu maintains on appeal. The original judgment of November 2015 included no dollar amounts for awards at all. Liu's liability for Hong's economic damages was always joint and several, from the day the jury rendered a verdict against Liu and the hospital. The April judgment merely made the implicit explicit.

DISPOSITION

The judgment is affirmed. Respondents are to recover their costs on appeal.

FYBEL, J. and IKOLA, J., concurs.