California Court of Appeals, Second District, Eighth Division
Modified and certified for publication 11/20/13
APPEAL from the judgment of the Superior Court of Los Angeles County No. BC419013, Mary Ann Murphy, Judge.
Alan S. Yockelson and Neil M. Howard for Plaintiffs and Appellants.
Cole Pedroza, Curtis A. Cole, Cassidy C. Davenport; Herzfeld & Rubin, Michael A. Zuk and Napoleon G. Tercero for Defendant and Respondent.
Plaintiffs and appellants Juan Jose Leal and Juan Carlos Hernandez, the husband and son of decedent Felipa Hernandez, filed a wrongful death action against defendant CHA Hollywood Presbyterian Medical Center (Hospital) and defendant and respondent Antoine Y. Mansour, M.D. At the close of plaintiffs’ evidence, the Hospital’s motion for nonsuit was granted, and trial by jury proceeded as against Dr. Mansour. Plaintiffs appeal from the judgment entered in favor of Dr. Mansour, the jury having found any negligence by Dr. Mansour was not a substantial factor in the death of Mrs. Hernandez. Plaintiffs’ sole contention on appeal is the trial court erred in allowing Dr. Mansour to present evidence and argument to the jury that a ventilator malfunction was the cause of death, not the negligence of Dr. Mansour. Plaintiffs argue that Code of Civil Procedure section 581c (section 581c) precluded Dr. Mansour from presenting such evidence and arguments, and the trial court therefore erred in allowing that evidence to be presented to the jury and in denying plaintiffs’ motion for new trial. We conclude the court did not err and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
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” (requiring the placement of a drain). Sometime in the evening of August 5, 2008, Mrs. Hernandez was placed on a ventilator because of her deteriorating condition.
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. Andrew Woo, a neurologist, was called in to assess Mrs. Hernandez after the Code Blue. He determined she suffered anoxic brain 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. ...