Leal v. Mansour CA2/8

Filed 10/30/13 Leal v. Mansour CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

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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,