Filed 10/30/13 Modified and certified for publication 11/20/13 (order attached)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                             DIVISION EIGHT


JUAN JOSE LEAL et al.,                                          B240056

                        Plaintiffs and Appellants,              (Los Angeles County
                                                                 Super. Ct. No. BC419013)
                 v.

ANTOINE Y. MANSOUR, M.D.,

                      Defendant and Respondent.



        APPEAL from the judgment of the Superior Court of Los Angeles County. Mary
Ann Murphy, Judge. Affirmed.

        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,


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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.



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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 post-operative 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 the abdominal cavity. Dr. Edward Phillips, an expert retained
by the Hospital but called by plaintiffs to testify in their case-in-chief, also opined that
Dr. Mansour breached the standard of care and that Mrs. Hernandez should have been
taken back to surgery on August 5 because she was suffering from an “abdominal
catastrophe.”
       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. Woo, the neurologist, as his
first witness. Before Dr. Woo provided any testimony, plaintiffs’ counsel asked to
approach, and a side bar 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


                                               4
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.
       The next morning, plaintiffs presented a two-page trial brief to the court arguing
that the evidence presented by Dr. Mansour regarding the ventilator malfunction was
improper under section 581c, subdivision (d), and that the court should strike the
testimony. Plaintiffs also proposed two jury instructions instructing the jury that because
the court granted a nonsuit in favor of the Hospital, the jury could not attribute any fault
to the Hospital in rendering a verdict. The court entertained argument, but deferred a
ruling, noting that counsel had presented a “skeletal” brief with little or no authorities.
Testimony from Dr. Mansour’s witnesses continued.


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       During the testimony of ICU nurse Bustos, a side bar conference was held and the
court admonished plaintiffs’ counsel that simply “throwing out a code section”
(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 negligence had not been a
substantial factor in causing her death. Judgment was entered in favor of Dr. Mansour
and the Hospital. Plaintiffs filed a motion for new trial, arguing in part that the court



                                              6
erred in allowing testimony in violation of section 581c, subdivision (d). The court
denied plaintiffs’ motion, and this appeal followed.
                                       DISCUSSION
       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.) 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.1
       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




1       We reject Dr. Mansour’s contention plaintiffs failed to preserve their objection to
the alternative causation evidence during trial. The background summary demonstrates
plaintiffs preserved their objections.


                                               7
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 of
Mrs. Hernandez’s death, because, they say, such evidence constituted improper
“comment” on the involvement of the Hospital, which is prohibited by section 581c,
subdivision (d). Plaintiffs contend it was improper comment because the ventilator was
the Hospital’s equipment, and its responsibility to maintain and operate properly, so
attributing the cause of death to the Hospital’s equipment was the same as attributing
fault or commenting on the involvement of the Hospital in the death of Mrs. Hernandez.
       Plaintiffs contend that if Dr. Mansour wanted to continue to argue the ventilator
malfunction was the cause of death, it was incumbent upon him to oppose the Hospital’s
motion for nonsuit. Plaintiffs are correct the statute requires a defendant to oppose a
codefendant’s motion for nonsuit where the opposing defendant seeks to have fault,
wholly or partially, attributed to the codefendant. “The statute forces a defendant to
oppose a codefendant’s nonsuit motion or face liability on his or her own.” (7 Witkin,
Cal. Procedure (5th ed. 2008) Trial, § 419, p. 493.)
       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


                                              8
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).
       Plaintiffs were on notice that Dr. Mansour was basing his defense not only on
evidence he acted within the standard of care but on expert testimony that the sole cause
of death was the cardiopulmonary arrest on August 6 caused by the ventilator
malfunction. Dr. Woo was designated as an expert on causation, was deposed and stated
his opinions that the equipment failed, apparently through no fault of any party, causing
the arrest resulting in brain injury, and ultimately death. Presumably, plaintiffs are not
suggesting the Hospital can be held to a standard of strict liability for every malfunction
in its equipment and nonsuit denied on that basis. Plaintiffs cross-examined Dr. Woo on
his opinions, challenging him on issues related to whether the record supported a
determination that the ventilator had simply malfunctioned or actually deprived
Mrs. Hernandez of oxygen. Given the percipient and expert testimony regarding the
respirator incident on August 6, the evidence was relevant to a resolution of the case
against Dr. Mansour.
       Section 581c, subdivision (d) was intended to prevent the bad faith practice of
relying on a dismissed defendant to confuse the jury and attempt to avoid liability for
one’s own wrongdoing, the so-called “empty chair” defense. Personal injury damages
may result from multiple concurrent or superseding causes, not all of which have been set
in motion by a culpable party. We do not believe the statute was intended to prevent a
defendant from presenting, in good faith, relevant evidence related to a causative factor
for which there is no culpable party.




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                                     DISPOSITION
       The judgment is affirmed. Defendant and respondent Antoine Y. Mansour, M.D.
shall recover his costs on appeal.


                                                   GRIMES, J.
We concur:


              BIGELOW, P. J.




              FLIER, J.




                                         10
Filed 11/20/13
                               CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                         DIVISION EIGHT

JUAN JOSE LEAL et al.,                               B240056

                        Plaintiffs and Appellants,   (Los Angeles County
                                                      Super. Ct. No. BC419013)
                 v.
                                                        ORDER MODIFYING AND
ANTOINE Y. MANSOUR, M.D.,                              CERTIFYING OPINION FOR
                                                            PUBLICATION
                      Defendant and Respondent.
                                                       [NO CHANGE IN JUDGMENT]




THE COURT:
        The opinion in the above-entitled matter filed on October 30, 2013, was not
certified for publication in the Official Reports. For good cause, it now appears that the
opinion should be published in the Official Reports and it is so ordered.
        It is further ordered, the opinion shall be modified as follows:
        On page 3, the first two sentences in the last paragraph beginning with
“Dr. Andrew Woo, a neurologist . . .” are deleted and replaced with:
                 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.
       On page 4, the first sentence in the last paragraph beginning with “Dr. Mansour
then presented his evidence . . .” is deleted and replaced with:
              Dr. Mansour then presented his evidence, calling Dr. Andrew Woo,
       an expert neurologist, as his first witness.


       These modifications do not change the judgment.




________________________________________________________________________
BIGELOW, P. J.                   FLIER, J.                   GRIMES, J.




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