Plaintiffs and appellants Juan Jose Leal and Juan Carlos Hernandez, the husband and son of decedent Felipa Hernandez, filed a wrongful
Plaintiffs have not raised a substantial evidence question. We summarize the material facts germane to our discussion.
On August 4, 2008, Mrs. Hernandez experienced a "gallbladder attack," having suffered for years from problems with her gallbladder. She went to the Hospital's emergency room and was admitted for treatment. Her doctor, Mansour, had previously discussed surgical options with Mrs. Hernandez, in light of her history, and he again recommended she undergo a laparoscopic cholecystectomy (the surgery). Mrs. Hernandez agreed and the surgery was performed by Dr. Mansour that same day. There were no apparent complications during surgery, and the following morning Mrs. Hernandez appeared to be doing well and was scheduled to be discharged.
However, around midday on August 5, 2008, Mrs. Hernandez's condition deteriorated. She exhibited multiple symptoms, including shortness of breath, low blood pressure and chest pain. Dr. Mansour ordered Mrs. Hernandez to be immediately taken to the intensive care unit (ICU). He requested several consults from other physicians, believing Mrs. Hernandez may have been suffering from a pulmonary embolism, a heart attack, or a bile leak.
After Dr. Steven Gitlin, the pulmonary specialist, essentially ruled out a pulmonary embolism, a CAT scan was performed and it was determined that fluid was accumulating in Mrs. Hernandez's abdomen. Dr. Mansour ordered the fluid drained, but a needle aspiration procedure was performed instead, removing only some of the fluid, which appeared to be bile. Dr. Mansour placed another order for "intra-abdominal fluid drainage under ultrasound"
On August 6, radiologist Edward Neymark placed a drain in accordance with Dr. Mansour's order and recovered 1.5 liters of greenish brown peritoneal fluid from Mrs. Hernandez's abdominal cavity. Dr. Arash Alborzi, specializing in internal medicine and infectious diseases, determined Mrs. Hernandez was suffering from sepsis and septic shock due to an infection in her abdomen and ordered broad-spectrum antibiotics.
Around 9:00 in the evening of August 6, 2008, the alarm on Mrs. Hernandez's ventilator sounded and ICU nurse, Robert Bustos, Jr., immediately responded to her room. He determined the ventilator was properly connected and she appeared to be receiving oxygen, but he called for the respiratory technician. The technician could not determine the reason for the alarm, and switched out the ventilator for a new one, while nurse Bustos manually provided oxygen to Mrs. Hernandez. During this time, Mrs. Hernandez's pulse dropped precipitously. A "Code Blue" was called at 9:04 p.m., resuscitation efforts were administered, and the medical records reflect the notation of a return pulse at 9:08 p.m.
Dr. Yoo, a neurologist, was called in to assess Mrs. Hernandez after the Code Blue. It was determined Mrs. Hernandez suffered injury resulting from a lack of oxygen to the brain and did not experience a return of any prognostic signs indicating recovery, such as corneal response to light or other normal neurologic indicators. Mrs. Hernandez remained in a coma and passed away on August 18, 2008. No autopsy was performed.
Plaintiffs filed suit against the Hospital and Dr. Mansour stating claims for medical negligence and wrongful death. Plaintiffs alleged the Hospital was negligent, among other things, in failing "to insure that the ventilator used in the care of Felipa Hernandez was properly functioning and that [she] at all times received adequate oxygen." Plaintiffs alleged Dr. Mansour failed to adhere to the standard of care in performing the surgery and Mrs. Hernandez's postoperative care.
The case proceeded to a jury trial in January 2012. Plaintiffs presented expert testimony primarily focused on the postoperative care provided by Dr. Mansour. In essence, plaintiffs' expert opined that Dr. Mansour breached the standard of care by failing to timely return Mrs. Hernandez to surgery to correct the bile leak, and possible bowel or intestinal perforation, which resulted in the accumulation of fluid, abdominal infection and septic shock. Dr. Jordan Goodstein opined the cause of death was peritonitis or infection in
Following the completion of plaintiffs' case-in-chief, the Hospital orally moved for a nonsuit. The grounds stated for the motion were that plaintiffs failed to present any expert testimony on the standard of care relative to the Hospital on the issue of the alleged ventilator malfunction. After allowing argument, the court granted the motion. The court entered a minute order stating "[Hospital's] motion for non-suit is argued and GRANTED. Plaintiff's [sic] action against [Hospital] is dismissed."
Dr. Mansour then presented his evidence, calling Dr. Andrew Woo, an expert neurologist, as his first witness. Before Dr. Woo provided any testimony, plaintiffs' counsel asked to approach, and a sidebar conference was held. Plaintiffs' counsel said: "I want to make sure we're not going to hear testimony about a ventilator malfunction that caused harm to this patient, because we already heard that there's no testimony on that and the hospital has already been dismissed."
Defense counsel responded: "Absolutely, Your Honor. It goes to causation. Where he's been designated. [¶] We won't ask questions about the standard of care, but we're absolutely entitled to ask about causation. I'm not bound by a failure of plaintiff to put on his case against the hospital." The court ruled the testimony would "be permitted."
Dr. Woo testified to his opinions about Mrs. Hernandez's cause of death. He stated that, in his opinion, Mrs. Hernandez "suffered a cardiopulmonary arrest" on August 6 "due to a ventilator malfunction that was documented in the [medical] records." He conceded she was septic and "very sick" but that the "timeline of her vital signs" showed that her numbers had actually begun to improve, and then there was a "very sudden event" resulting in a rapid drop of blood pressure. "[T]he fact that there was some type of documented mechanical or ventilator failure, the fact they literally had to change the ventilator, put in a new switch for a new machine after this whole arrest took place, makes me feel in my opinion that the ventilator had some significant role in causing the cardiopulmonary arrest." Dr. Woo went on to opine that Mrs. Hernandez passed away 12 days later and that the "cardiopulmonary arrest causing the anoxic brain injury was the primary reason for her death." On cross-examination, Dr. Woo conceded the septic shock was also a substantial factor in Mrs. Hernandez experiencing cardiopulmonary arrest on August 6.
During the testimony of ICU nurse Bustos, a sidebar conference was held and the court admonished plaintiffs' counsel that simply "throwing out a code section" (§ 581c) was not a precise objection to specific testimony on which a proper ruling could be made. Plaintiffs' counsel responded that he was objecting to preclude Dr. Mansour "from eliciting testimony that would attribute fault to the [H]ospital, which was granted [a] nonsuit, Your Honor."
The court then allowed further argument and explained to counsel the research the court had done on the issue. The court concluded that the Hospital had obtained an adjudication on the merits by virtue of the order granting the nonsuit and that section 581c, subdivision (d) is "pretty clear" and precluded Dr. Mansour from attempting to "lay blame" on the Hospital. The court asked defense counsel to clarify the purpose of the testimony being elicited about the ventilator malfunction.
Defense counsel stated he was not trying to lay blame on Hospital, and the evidence was offered on the separate issue of the cause of the death of plaintiffs' decedent. "There will be no evidence of any standard of care deviation. There will be no criticism, nor has there been, of any procedures, policies, or actions by [Hospital] staff or personnel. There will be testimony, which I'm eliciting now, and have elicited, regarding an alternative causation." Counsel said he was entitled to present evidence of the ventilator malfunction to establish the true cause of death. "That does not mean that [the Hospital was] negligent in maintaining the ventilator, it does not mean they were negligent in responding to it, all it means is that a piece of equipment failed."
The trial court ruled that Dr. Mansour would be allowed to present evidence of the ventilator malfunction as alternative causation evidence, but could not present evidence or argue any fault or culpability on the part of the Hospital.
Pursuant to a special verdict, the jury found Dr. Mansour had been negligent in the diagnosis and/or treatment of plaintiffs' decedent, but that his
At the heart of plaintiffs' appeal is the scope of section 581c, which provides, in relevant part, that "[i]n actions which arise out of an injury to the person or to property, when a motion for judgment of nonsuit was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiff's objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion." (§ 581c, subd. (d).)
Plaintiffs contend the trial court erred, in light of section 581c, subdivision (d), in allowing Dr. Mansour to present evidence of the ventilator malfunction on the issue of the cause of death of Mrs. Hernandez. "Trial court rulings on the admissibility of evidence, whether in limine or during trial, are generally reviewed for abuse of discretion." (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317 [120 Cal.Rptr.3d 605].) Trial court error as to the admissibility of evidence "`is grounds for reversing a judgment only if the party appealing demonstrates a "miscarriage of justice" — that is, that a different result would have been probable if the error had not occurred.' [Citations.]" (Ibid.) Plaintiffs have not persuaded us there was any such abuse.
The Hospital obtained nonsuit on the ground that plaintiffs failed to offer any evidence as to its standard of care regarding the alleged ventilator malfunction. As the trial court correctly observed, the dismissal constituted an adjudication on the merits in favor of the Hospital. (§ 581c, subd. (c) [when a motion is granted "unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits"].) The court did not specify in its order that the nonsuit was being granted on some basis not going to the merits of the claims against the Hospital.
Plaintiffs contend the nonsuit extinguished Dr. Mansour's right to continue to offer, as his defense, evidence that the ventilator malfunction was the cause
Dr. Mansour did not oppose the Hospital's motion for nonsuit. Dr. Mansour contends he had no reason to oppose the nonsuit because his defense was not based on proof that the Hospital acted negligently so that fault should be attributed to the Hospital. Dr. Mansour's defense was that the ventilator inexplicably malfunctioned, and that the loss of oxygen was the cause of Mrs. Hernandez's cardiopulmonary arrest, resulting brain injury and ultimate death several days later. Dr. Mansour did not try to prove the Hospital was liable for the ventilator malfunction, nor did he argue that any other party had been negligent and should be held liable for the ventilator malfunction.
Plaintiffs counter by urging that it would eviscerate the statute to allow a defendant to offer causation evidence that involves a codefendant that has obtained nonsuit so long as the "magic" word fault is not used, and would allow most codefendants to avoid application of section 581c, subdivision (d). Neither party cites any case law addressing the interpretation of subdivision (d) of section 581c or otherwise discussing whether the statute applies on facts similar to those presented here. Our research did not disclose any cases on point. We are not persuaded that Dr. Mansour's evidence that the ventilator malfunction was the cause of Mrs. Hernandez's death contravened the letter or spirit of section 581c, subdivision (d).
The judgment is affirmed. Defendant and respondent Antoine Y. Mansour, M.D., shall recover his costs on appeal.
Bigelow, P. J., and Flier, J., concurred.