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Montoya v. Barragan

California Court of Appeals, Second District, First Division

October 29, 2013

DANIEL MONTOYA et al., Plaintiffs and Respondents,
ALFONSO BARRAGAN, Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, No. GC040751 C. Edward Simpson, Judge.

Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson; McCurdy & Liebl and John McCurdy for Defendant and Appellant.

The Cifarelli Law Firm, Philip C. Cifarelli, Krysta M. Sebastian; Thomas Beck Vanni Callahan & Powell and Daniel Powell for Plaintiffs and Respondents.


Dr. Alfonso Barragan appeals the trial court’s order granting plaintiffs’ new trial motion on the ground of insufficiency of the evidence of causation and irregularity in the proceedings. Plaintiffs Daniel Montoya, Moises Montoya, Saul Montoya and Antonio Montoya (plaintiffs) are the family of decedent Olivia Montoya (Montoya), who died while in Dr. Barragan’s care. After their complaint for wrongful death and survival went to trial before a jury, the court declared a mistrial when the jury was unable to return a verdict. The court polled the jury, and entered judgment for Dr. Barragan. Plaintiffs moved for a new trial based on (1) insufficiency of the evidence that Dr. Barragan did not cause Montoya’s death, and (2) the court’s error in entering judgment on the jury poll because the jury never returned a verdict. The trial court granted plaintiffs’ motion on the grounds of insufficiency of the evidence of causation.

Dr. Barragan contends on appeal that the trial court’s statement of reasons in its new trial order did not comply with Code of Civil Procedure section 657;[1] there is no evidence he caused Montoya’s death; and the trial court properly entered judgment in his favor although the jury never returned a written verdict. We affirm.


A. Summary of the Case

Montoya arrived at the Monterey Park Hospital emergency room with severe diarrhea on the morning of February 26, 2007. Montoya had recently undergone a hysterectomy while in the care of Dr. Mary Romo, after which Dr. Romo prescribed the antibiotic clindamycin, which can cause antibiotic-associated diarrhea. At the emergency room, Dr. Barragan assumed responsibility for Montoya’s care, and diagnosed pseudomembraneous entero colitis. Pseudomembraneous colitis is a condition that can be caused by a bacteria known as “Clostridium Difficile” (C.Diff.). C.Diff. exists in the colons of a small percentage of the population and can proliferate when antibiotics kill off the other resident bacteria in the colon. C.Diff. gives off toxins that attack the lining of the colon. The proper antibiotics, however, do not remove the toxins already present caused by the bacteria.

However, rather than promptly administer antibiotics to treat the condition, Dr. Barragan delayed doing so while he waited for lab results and stool cultures because he was concerned with worsening Montoya’s condition by using the wrong antibiotics. Montoya’s condition, which included severe dehydration and kidney failure, progressively worsened so that even after antibiotics were administered, it was too late to help her and she died on February 28, 2007.

Plaintiff’s decedents commenced this action for wrongful death and survival on April 30, 2008 against Dr. Romo, Dr. Barragan, and others. The case went to trial on April 12, 2011 against Dr. Romo and Dr. Barragan only.[2] Dr. Barragan asserts that at the time Montoya arrived in the emergency room, based upon Dr. Romo’s prescription of clindamycin and Montoya’s resultant diarrhea, she was already past the point where medical intervention would have saved her, and thus plaintiffs cannot establish causation. Plaintiffs refute this assertion, and argue that had Dr. Barragan immediately given Montoya the proper antibiotics, she would have made a full recovery.

B. Trial Evidence

1. Montoya’s Initial Gynecological Surgery

Montoya, who was 46, was referred to Dr. Romo, a gynecologist, in January 2007 for irregular vaginal bleeding. Dr. Romo performed a dilation and curettage (D&C). Although the D&C was uneventful, it did not stop Montoya’s bleeding. Dr. Romo determined a hysterectomy would address the problem, and peformed a hysterectomy on Montoya on February 9, 2007.

Dr. Romo tore a glove during the surgery, although this incident was not in her surgical report. Post-surgery, she prescribed clindamycin for Montoya to avoid infection. Montoya’s last dose of clindamycin was February 12, 2007, and she was discharged from the hospital on February 13, 2007. At the time, Montoya did not have diarrhea or any other symptoms of illness.

2. Montoya Presents with Diarrhea and Vomiting

On Saturday, February 24, 2007, Dr. Romo saw Montoya, who complained of diarrhea. Diarrhea can also be caused by C.Diff., which Dr. Romo knew can evidence the serious condition pseudomembraneous colitis. Treatment for a C.Diff. infection includes hydration and dosing with vancomycin or Flagyl. Dr. Romo told Montoya that if her condition did not improve, she should go to the emergency room.

3. Montoya’s Visit to La Libertad Clinic

On Sunday February 25, 2007, Montoya went to the La Libertad Clinic. Montoya said she was feeling better and received a liter and a half of fluid through an IV at the clinic, as well as Rocephin, an antibiotic. Rocephin can create an environment in which C.Diff. can overgrow.

4. Montoya’s Emergency Room Visit

On February 26, 2007 in the morning, Montoya called Dr. Romo. Montoya was breathing heavily and told Dr. Romo over the weekend she had gone to the clinic and gotten some more medication for her diarrhea. However, Montoya had nonstop diarrhea. Dr. Romo directed Montoya to go the emergency room, believing that Montoya was infected with C. Diff. and had pseudomembraneous colitis.

Montoya arrived at the emergency room at about 9:45 a.m. When Dr. Romo arrived, Montoya was very pale but alert and able to communicate. Montoya was breathing very fast and was very cold; she appeared to be septic and had low blood pressure. As Montoya was likely a candidate for the ICU, Dr. Romo was not ...

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