Trial Court Did Not Err in Declining to Instruct Jury with CACI 509 in Medical Malpractice Case Involving Doctor’s Early Departure from Hospital - Zannini et al. v. Mark A. Liker, M.D., No. B302404 (Cal. Ct. App. Jan 31, 2022)
March 29, 2022
In 2015, Los Angeles neurosurgeon Mark A. Liker, M.D. performed surgery on plaintiff Ronald Zannini to relieve pressure on Mr. Zannini’s cervical spine. Eleven days after the surgery, Mr. Zannini experienced paralysis of his arms and legs and was taken to the emergency room. Mr. Zannini arrived at the ER at 5:25 p.m. on April 5, 2015. Dr. Liker happened to be at the hospital at the time so he went to the ER and consulted with other physicians on duty about Mr. Zannini’s treatment. Mr. Zannini was taken to the CT scanning suite and, after reviewing the scans, Dr. Liker recommended a cervical spine MRI. Dr. Liker informed Mr. Zannini’s wife that if surgery was indicated, he would not be the surgeon to perform the procedure as he was scheduled to board a flight later that night. Dr. Liker left the hospital at 7:17 p.m.
The first MRI images began to emerge from the scanner at around 8:10 p.m. Dr. Liker’s associate and on-call neurosurgeon, Dr. Mortazavi, was notified of the findings at 9:38 p.m. After reviewing the findings, Dr. Mortazavi made the decision to perform emergency surgery. Dr. Mortazavi commenced the surgery at 11:35 p.m. – approximately six hours after Mr. Zannini’s arrival at the ER. Despite the surgery, Mr. Zannini became a partial quadriplegic. After years of physical and occupational therapy, Mr. Zannini can only breathe on his own and move his left hand to operate his wheelchair.
Mr. Zannini believed his partial quadriplegia was solely due to a delay in the diagnosis and treatment of a blood clot. He and his wife filed a medical malpractice suit against Dr. Liker, alleging that the emergency surgery should have happened sooner than six hours after Mr. Zannini’s arrival at the ER.
The sole issue at trial was whether Dr. Liker’s decision to leave the hospital constituted medical negligence because his decision unduly delayed Mr. Zannini’s emergency surgery. After a multi-day trial, the jury rendered a verdict in Dr. Liker’s favor and against the Zanninis.
The Zanninis appealed the judgment in January 2022, claiming that the trial court erred in declining to instruct the jury with CACI 509 (Abandonment of Patient). The trial court viewed the Zanninis’ proposed jury instruction as “too draconian” and observed that the evidence did not support plaintiffs’ claim that Dr. Liker failed to give sufficient notice that he was unavailable to perform the emergency surgery that was ultimately performed by Dr. Liker’s colleague. In an attempt to remedy the instruction, the trial court asked counsel to meet and confer regarding a potentially-modified CACI 509 that achieved two things: (1) recognized all inferences that could be drawn from the evidence; and (2) refrained from referring to the issue of notice. After failing to present a modified instruction that satisfied the court, the trial court refused to instruct the jury with CACI 509.
CACI 509 is based on the general proposition that “a physician who abandons a patient may do so ‘only… after due notice, and an ample opportunity afforded to secure the presence of other medical attendance.” (Payton v. Weaver (1982) 131 Cal.App.3d 38, 45.) In this case, there was no evidence of abandonment due to the fact that when Dr. Liker left the hospital, there was a specific plan in place for Mr. Zannini’s treatment with Dr. Liker’s associates. The law did not require Dr. Liker to remain at the hospital until his replacement physically arrived, and the facts did not support the notion that Dr. Liker assumed Mr. Zannini’s care and treatment and then withdrew without sufficient notice. As such, CACI 509 was not warranted in this instance.
The appellate court also concluded that CACI 502 (Standard of Care for Medical Specialists) adequately covered the Zanninis’ theory of the case and sufficiently permitted the jury to find medical negligence based on Dr. Liker’s early departure. If the jury believed that Dr. Liker was negligent in handing off Mr. Zannini’s care to Dr. Mortazavi, the jury could have found liability on the part of Dr. Liker.
The appellate court affirmed the judgment.
Monica Marks is an associate attorney in Ericksen Arbuthnot’s Fresno/Central Valley Office. She can be reached at (559) 449-2600 or by email at firstname.lastname@example.org