Mayes v. Bryan

Filed 4/25/06;  pub. order 5/25/06 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Jan  A. Pluim, Judge.  Affirmed.

            Law Offices of Bruce G. Fagel and Associates, Bruce G. Fagel, Richard Akemon, and James E. Wright for Plaintiffs and Appellants.

            Thelen Reid & Priest, Curtis A. Cole, Kenneth R. Pedroza, and E. Todd Chayet; Schmid & Voiles, Susan Schmid, and Rebecca J. Hogue for Defendants and Appellants.

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INTRODUCTION

            Tracy Mayes, wife and mother respectively of plaintiffs Cornell Sterling Mayes, Alan James Mayes, and Christopher Scott Mayes, died at Huntington Memorial Hospital where she had undergone surgery to staple her stomach.  Plaintiffs brought this wrongful death action against several physicians and nurses and their institutions who had been involved in Mrs.  Mayes's treatment, including Dr. David C. Bryan, M.D. and Hill Medical Corporation.[1]  (Dr. Bryan and his corporation are hereinafter referred to as defendants.)  Plaintiffs' theory at trial was that Dr. Bryan's negligent post-operative interpretation of a lung scan led the other physicians involved to treat Mrs. Mayes for a pulmonary embolism even though she was suffering from a bowel obstruction, and to delay re-operation that could have prevented her death.  The jury found that Dr. Bryan was negligent and his negligence was a cause of Mrs. Mayes's death.  Judgment was entered against Dr. Bryan in the amount of $867,107, plus costs of $37,146.22.

            Defendants appeal asserting instructional error.  We hold that defendants invited any error in the substantial factor instruction and can not be heard to complain on appeal.  We further hold that the trial court did not err in omitting to instruct the jury on but-for causation because that instruction would have been redundant, with the result that the omission did not prejudice defendants.  Accordingly, we affirm the judgment of liability.

            Plaintiffs' cross-appeal challenging the method by which the court calculated the damages Dr. Bryan owes.  We affirm the damage calculation.  Accordingly, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

            1.  The testimony.

            Thirty-nine year old Mrs. Mayes was morbidly obese.  She underwent elective laparoscopic gastric bypass surgery (stomach stapling) at Huntington Memorial Hospital on the afternoon of December  11, 2000.  Mrs. Mayes was recovering normally the next morning and so she was cleared to be discharged.

            Around 12:00 noon on December 12, 2000, Mrs. Mayes began to experience pain, nausea, and vomiting, which were not controlled by medication.  She was given Tylenol with codeine.  Her condition deteriorated throughout the day, the post-operative nurses noted at 7:00  p.m. 

            Dr. Lourie, Mrs. Mayes's surgeon, visited the patient in the evening of December 12th.  She was crying from pain.  He concluded that she was feeling routine post-operative pain.  Around 9:00  p.m., he ordered medication for pain and nausea and postponed her discharge from the hospital.  He made no notes and ordered no tests or studies.  Despite being medicated, Mrs. Mayes was still suffering fairly severe pain at 11:00  p.m.

            Around 12:00 midnight on December  12th, Mrs. Mayes experienced an increase in blood pressure, and upon returning from the bathroom, she complained of difficulty in breathing and chest pain, became pale and weak, and her heart rate increased beyond normal limits.  The nurse paged Dr. Higley, a first‑ year surgical resident.  Dr. Higley called Dr. Diamond, a second‑ year resident, and told him it looked like Mrs. Mayes had a pulmonary embolism.  A pulmonary embolism is a small blood clot that travels along a vein into the lungs and blocks off the blood supply to the lungs.  It is a common cause of post-operative death in gastric bypass patients.  Dr. Diamond's first concern was pulmonary embolism.

            At about 1:00 a.m., on December  13th, Dr. Diamond evaluated Mrs.  Mayes and found her â€