Filed 1/3/14 Nguyen v. Guerrero CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


BRANDON NGUYEN et al.,

     Plaintiffs and Appellants,                                        G047892

         v.                                                            (Super. Ct. No. 30-2011-00474126)

RICHARD A. GUERRERO,                                                   OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Geoffrey
T. Glass, Judge. Affirmed.
                   Thon Beck Vanni Callahan & Powell and Daniel P. Powell for Plaintiffs
and Appellants.
                   Schmid & Voiles, Denise H. Greer and Sidney J. Martin for Defendant and
Respondent.
                                          *                  *                  *
              Plaintiff Brandon Nguyen filed a complaint against Dr. Richard A.
Guerrero and others on behalf of himself and, as guardian ad litem, his daughter Sandra
(the Nguyens). The complaint alleged Vivian Vo, Nguyen’s wife and Sandra’s mother,
died as a result of medical malpractice. The jury found Dr. Guerrero was not negligent in
his treatment of Vo.1 The Nguyens contend the evidence does not support the verdict and
judgment, claiming Dr. Guerrero’s expert incorrectly defined the standard of care for the
jury. We affirm.
                                               I
                                             FACTS
              We set forth the facts in accordance with the standard of review. (See
Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) This case involves the
unfortunate death of a 29-year-old woman taken by ambulance to the Garden Grove
Medical Center on April 25, 2010, due to “a massive upper gastrointestinal bleed”
apparently caused by an almost daily use of of nonsteroidal anti-inflammatory drugs
(NSAIDS) and the presence of H. pylori bacteria. At the time she was transported to the
hospital, she had been vomiting blood. In the hospital, it was noted she was also passing
blood through her rectum. Vo was critically ill and had a chronic underlying disease:
inflammatory polyarthtitis involving a number of joints. She also had Behcet’s disease
with difficult to heal ulcers in her mouth. Additionally, she was diagnosed with
vasculitis, “a harbinger of poor healing.”
              Dr. Guerrero was on-call and responded to the emergency room between
10:30 and 11:00 p.m. Dr. Chung,2 the gastrointestinal physician, was in the process of
performing an endoscopy in an effort to determine the cause of the bleeding when Dr.
Guerrero arrived. There was too much blood in the stomach for the camera to see into

              1   Dr. Guerrero is the only defendant appearing in this appeal.

              2   Dr. Chung’s first name does not appear in the record on appeal.

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the duodenum, the section of the small intestine connected to the stomach. Dr. Chung
was of the impression that the bleeding was coming from the duodenum. When Dr.
Chung said he could not stop the bleeding through endoscopic intervention, Dr. Guerrero
decided to operate. Vo was bleeding to death. At that point she had received a number
of blood transfusions. Additionally, there was a presumptive diagnosis of disseminated
intravascular coagulation (DIC), a reduction of the blood’s ability to clot. DIC was most
likely caused by her massive loss of blood, but NSAIDS also affect clotting ability.
              Vo was in shock when she was taken into surgery. Dr. Guerrero first
performed a gastrotomy, cutting into Vo’s stomach and removing half a liter of clotted
blood. Dr. Guerrero performed the gastrotomy because there was so much clotted blood
in Vo’s stomach it could not be evacuated by suction. He then repaired the bleeding
duodenal arterial vessel in the second portion of the duodenum. In an effort to help the
duodenum heal, Dr. Guerrero sealed off the pylorus, the opening at the base of the
stomach, to prevent stomach fluids from entering the surgically repaired duodenum. Had
he not sealed off the pylorus from the stomach and gastric acid from the stomach entered
the pylorus and eaten through the sutures within 24 to 48 hours, gastric and intestinal
content could have leaked into the abdominal cavity, resulting in a potentially life-
threatening situation.
              The ulcer, just shy of an inch in diameter, had apparently been there for a
significant period of time. Dr. Guerrero biopsied the ulcer because it had an “extremely
abnormal” appearance.” Whereas most of a gastrointestinal tract is red or pink, the
biopsied area was yellowish, and had a translucent, rice paper-like appearance. Upon
removing the biopsied piece, Dr. Guerrero saw that the sample was not part of the
duodenum wall at all, but was a replacement wall. He said it appeared the duodenum had
perforated at some earlier time and a portion of the mesocolon and the omentum then
filled the area. Because he sealed off the duodenum from the stomach, Dr. Guerrero
performed a gastrojejunostomy, sewing another portion of the small intestine to the

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stomach so the stomach’s contents could enter the small intestine.
              Later on the morning of April 26, Dr. Guerrero was contacted by the
admitting physician who said there appeared to be a fair amount of blood in the JP drain.
To Dr. Guerrero that meant bleeding must have developed after the surgery and further
surgery was required to determine the source of the bleeding. Dr. Guerrero patched the
areas believed to be the sources—the head of the pancreas, where he had observed
seeping during the first surgery and an area in the mesocolon reflected away from the
duodenum during the first surgery. Dr. Guerrero checked the sutures to the duodenum
and those used in the gastrojejunostomy. Neither was bleeding.
              Vo was on kidney dialysis the next day when Dr. Guerrero made his
rounds. The JP drain was putting out a small amount of drainage, a good sign. The lab
test on Vo’s blood showed her blood’s clotting ability was improving.
              While still in the hospital, Vo developed a marginal ulcer and the site of the
gastrotomy “seemed to be bubbling air,” which meant the wound had not completely
healed or had broken down. In a third surgery performed on May 14 by Drs. Coa3 and
Guerrero, Dr. Guerrero found bleeding at a site along the anastomosis. Dr. Guerrero said
the gastrojejunostomy was intact, as was the previous duodenum repair, but “‘there was a
significant amount of clot[ted blood] in the right upper quandrant.’”
              Nguyen asked to have his wife transferred to UCLA Medical Center and
she was transferred on May 24. Physicians at UCLA Medical Center operated on her
twice (May 25 and June 7) and she died at the medical center on June 9.
              The defense expert, Dr. Samuel Wilson, was chief of surgery at the Harbor-
UCLA Medical Center in Torrance for 10 years and at the time of trial was the chairman
of surgery at the University of California Irvine and chief of surgery at the Veterans
Administration in Long Beach. He is board certified in general surgery and vascular


              3   Dr. Coa’s first name does not appear in the record on appeal.

                                              4
surgery. He has worked as a reviewer for the California Medical Board, and currently
sits on four editorial boards of peer review journals. He has published over 400 articles
in peer review journals, including articles on the treatment of ulcer disease. Dr. Wilson
has performed probably more than 150 ulcer repair surgeries.
              Dr. Wilson reviewed Vo’s medical records from Garden Grove Community
Hospital and UCLA Medical Center, as well as depositions of various physicians,
including Guererro and the Nguyens’ medical expert, Dr. Leo Gordon. Dr. Wilson
testified Dr. Guerrero’s actions were not negligent.4 On cross-examination, the Nguyens’
counsel asked Dr. Wilson about the standard of care he used in reaching his conclusion:
              “Q And the standard of care that you were measuring him is what a
majority of practitioners would do in the community, but ultimately a standard of care is
defined by a jury. That was your thought as to how you were measuring Dr. Guerrero’s
conduct at the time of your deposition.
              “A The jury will determine whether or not he met the standard of care, yes.
              “Q Do you still believe that the standard of care that you were using, the
yardstick that you are using to judge Dr. Guerrero’s conduct, is what a majority of
practitioners would do in the community?
              “A Yes.”
              Dr. Gordon also reviewed the records from the Garden Grove Community
Hospital and UCLA Medical Center and read the depositions of the physicians involved
in the case, including the deposition of Dr. Wilson. Dr. Gordon concluded Dr. Guerrero
did not comply with the applicable standard of care—“what a reasonable doctor would do
in a similar circumstance”—and that failure was a substantial factor in Vo’s death.
              The court instructed the jury on the applicable standard of care: “A surgeon
is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and

              4 Additional details of Dr. Wilson’s testimony are set forth below in the
discussion section.

                                              5
treatment that other reasonably careful surgeons would use in the same or similar
circumstances.” (See CACI No. 502.) The jury was provided a special verdict form that
divided the issue of Dr. Guerrero’s liability into two questions: whether Dr. Guerrero was
negligent in his diagnosis and treatment of VO; and, if so, whether his negligence was a
substantial factor in causing her death. The jury found Dr. Guerrero did not act
negligently. The court entered judgment in favor of defendants and subsequently denied
the Nguyens’ motion for a new trial.
                                               II
                                        DISCUSSION
              The Nguyens argue defendant’s expert, Dr. Wilson, stated an incorrect
standard of care in a medical malpractice action and, as a result, the jury was required to
accept the testimony of their medical expert, Dr. Gordon, who testified Dr. Guerrero’s
action was negligent. From this premise the Nguyens conclude the evidence was
insufficient to support the defense verdict. Not so.
              In deciding a sufficiency of the evidence claim, we must view the evidence
in favor of the prevailing party below and in support of the judgment. Generally, we
review the evidence supporting the prevailing party and disregard contrary evidence.
(Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60.) We uphold the judgment if
it is supported by substantial evidence, “no matter how slight it may appear in
comparison with the contradictory evidence.” (Howard v. Owens Corning (1999) 72
Cal.App.4th 621, 631.) But substantial evidence does not mean any evidence. (Kuhn v.
Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) Evidence is
substantial if it is “‘reasonable in nature, credible, and of solid value; it must actually be
“substantial” proof of the essentials which the law requires in a particular case.’
[Citations.]” (United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d
377, 393.) If the judgment is supported by substantial evidence, we must affirm absent
the commission of prejudicial error at trial. (See Pannu v. Land Rover North America,

                                               6
Inc. (2011) 191 Cal.App.4th 1298, 1321-1322 [must affirm award of damages supported
by substantial evidence, absent error in admission of testimony on issue].) The Nguyens
do not allege prejudicial error.
              The Nguyens are correct in claiming their expert testified to the appropriate
standard of care and Dr. Guerrero’s expert did not. Dr. Gordon stated the applicable
standard of care as “what a reasonable doctor would do in a similar circumstance.” “[A]
physician is required to possess and exercise, in both diagnosis and treatment, that
reasonable degree of knowledge and skill which is ordinarily possessed and exercised by
other members of his profession in similar circumstances. [Citations.]” (Landeros v.
Flood (1976) 17 Cal.3d 399, 408.) Dr. Wilson, on the other hand, stated the standard of
care as “what a majority of practitioners would do in the community.” We do not use
the standard referred to by Dr. Wilson because “‘we are not permitted to aggregate into a
common class the quacks, the young [physicians] who have no practice, the old ones who
have dropped out of the practice, the good, and the very best, and then strike an average
between them. This method would evidently place the standard too low.’ [Citation.]”
(Scarano v. Schnoor (1958) 158 Cal.App.2d 612, 618.)
              The jury was instructed as to the proper standard of care. (CACI No. 502.)
Understandably, the Nguyens do not contend the jury used the wrong standard in
reaching its verdict.5 (People v. Harris (2013) 57 Cal.4th 804, 842 [court presumes jury
followed the court’s instruction].)
              What they do argue is that as Dr. Wilson misstated the appropriate standard
of care and their expert, Dr. Gordon, testified to the correct standard, Dr. Gordon’s


              5   We note the standard to which Dr. Wilson testified was asked by the
Nguyens’ counsel in a leading question on cross-examination and counsel did not move
to strike the answer or the expert’s testimony based on his answer to the question.
Arguably the issue has not been preserved. (In re Marriage of Falcone & Fyke (2012)
203 Cal.App.4th 964, 984 [failure to object forfeits issue that could have been corrected
in trial court].)

                                             7
testimony was binding on the jury. In so far as the standard of care is concerned, we
agree. However, from that premise the Nguyens extrapolate that as Dr. Gordon was the
only expert to testify to the proper standard of care and he then testified Dr. Guerrero’s
actions—the gastrotomy, biopsy, pyloric exclusion, and the gastrojejunpstomy—were not
appropriate, the evidence demonstrated Dr. Guerrero’s actions were negligent. In Dr.
Gordon’s opinion, Dr. Guerrero should have located the bleeding ulcer, stopped the
bleeding, and closed.
              However, the fact that Dr. Guerrero’s expert may have misstated the
standard of care does not mean the jury was required to accept Dr. Gordon’s conclusion
that Dr. Guerrero breached his duty of care. The court properly instructed the jury on the
standard of care. The Nguyens concede Dr. Wilson qualified as an expert and was
competent to testify to what a reasonably prudent physician would have done in treating
Vo. The jury was entitled to accept Dr. Wilson’s testimony concerning the
appropriateness of Dr. Guerrero’s actions. Specifically, Dr. Wilson testified the
gastrotomy was “absolutely essential” and “a perfectly appropriate first step.” Indeed, he
said the procedure followed by Dr. Guerrero was “surgery 101.” Dr. Wilson said that by
opening the stomach and removing the clotted blood, Dr. Guerrero could not only check
the stomach to make sure there were no ulcers within, he could also look into the first
part of the duodenum, where one would expect to find a bleeding ulcer in a location other
than the stomach. The physician who performed the endoscope procedure told Dr.
Guerrero he could not see into the duodenum because there was too much blood in the
stomach. The jury could reasonably conclude the reason Dr. Guerrero was able to make
an incision into the secondary part of the duodenum where the ulcer was located—a place
one would not normally expect to find a bleeding ulcer—rather than making an incision
in the first part of the duodenum where one would normally expect to find an ulcer in the
duodenum, was because Dr. Guerrero did the gastrotomy.



                                             8
              Dr. Wilson said he understood Dr. Gordon’s opinion that having stopped
the bleed, Dr. Guerrero should have done nothing else—i.e., Dr. Guerrero should not
have performed the pyloric exclusion and the gastrojejunostomy. But Dr. Wilson
disagreed with that conclusion. He said the risk of stomach acid entering the duodenum
and damaging the repair performed by Dr. Guerrero—an event that if it occurred could
have resulted in the release of stomach acid into the abdomen and “could be literally the
patient’s life”—made the pyloric exclusion medically appropriate. Without the bypass
procedure, there would have been an increased risk of a leak to the sutures in the
duodenum. The duodenum does not have the same protection the stomach has from acid.
The gastrojejunostomy was but the second component of closing off the duodenum from
the stomach. By performing that procedure, Dr. Guerrero diverted to the jejunum the
path the stomach’s contents travel and permitted continued digestion and elimination of
waste from Vo’s body. In Dr. Wilson’s opinion, the pyloric bypass was in Vo’s best
interest and the risk of a leak to the repair to the duodenum would have been higher had
the bypass not been performed. In addition, he stated the risk of bleeding from the
gastrojejunostomy was low.
              Furthermore, Dr. Wilson opined the biopsy was “a worthy goal.” The
biopsy could possibly determine whether the ulcer was secondary to Vo’s chronic
inflammatory disease. If it was, it would have called for a change in Vo’s medication
program.
              Dr. Wilson testified the second surgery was necessary and waiting would
have meant more blood loss, more transfusions, and further deterioration of Vo’s
condition. The second surgery was not the result of any failure on Dr. Guerrero’s part in
performing the initial surgery. Dr. Guerrero checked the sutures to the duodenum and
those used in the gastrojejunostomy. There was no bleeding from either site.
              In the third surgery, Dr. Guerrero found some oozing at the site of the
gastrojejunostomy and a leak at the site of the pyloric closure. Wilson opined the latter

                                             9
leak was “a consequence of poor healing more than anything else” and Vo’s “underlying
illness [was] responsible for this deterioration.” In his opinion, had the pyloric exclusion
not been performed, the leak would have been even more serious.
              Dr. Wilson’s testimony was reasonable, credible, of solid value, and
supports the jury’s verdict (United Professional Planning, Inc. v. Superior Court, supra,
9 Cal.App.3d at p. 393), Dr. Gordon’s contrary testimony notwithstanding. (Crawford v.
Southern Pacific Co., supra, 3 Cal.2d at p. 429 [“When two or more inferences can be
reasonably deduced from the facts, the reviewing court is without power to substitute its
deductions for those of the trial court.”].) Accordingly, we affirm the judgment.
                                             III
                                      DISPOSITION
              The judgment is affirmed. Dr. Guerrero is entitled to his costs on appeal.




                                                   MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.




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