Zannini v. Liker (2022) 74 Cal.App.5th 610
In 2015, appellant and plaintiff Ronald Zannini began experiencing weakness in his left arm. He ultimately consulted with defendant neurosurgeon, Dr. Mark Liker, who performed surgery on Mr. Zannini’s cervical spine. Eleven days after surgery, Mr. Zannini experienced sudden paralysis and presented to the emergency room of the hospital where he had had surgery. At 5:25 p.m., the time of presentation to the hospital, Mr. Zannini was almost, if not completely, paralyzed and was having difficulty maintaining his blood pressure and heart rate. The experts agreed that he was in very critical condition, and the cause of his condition was not immediately evident.
Mr. Zannini was treated by emergency room physician, Dr. Elaine Lee, who notified the on-call trauma surgeon, on-call neurologist, and on-call neurosurgeon. Dr. Liker was not the on-call neurosurgeon, but he happened to be in the hospital at the time of the page and was in the same neurosurgical medical practice as the on-call neurosurgeon, so he came to examine Mr. Zannini. The on-call neurosurgeon was Dr. Martin Mortazavi.
The trauma surgeon and neurologist both determined that the issue was not within their specialties. Dr. Liker recommended that MRIs be ordered, however the MRI machine was in another building, required the team to be summoned to the hospital, and needed a special pump that was MRI compatible for the necessary medication Mr. Zannini was receiving. During this time, Dr. Liker called Dr. Mortazavi to brief him on what was happening and to let him know to be waiting for the MRI results. Dr. Liker also spoke with Mr. Zannini’s wife, Bonnie Zannini, to let her know the status of events and that if Mr. Zannini needed surgery, Dr. Mortazavi would be the one to do it. Dr. Liker was scheduled to leave for out of town that evening, of which the Zanninis were previously aware.
Dr. Liker left at 7:17 p.m., approximately fifteen minutes after this discussion with Mrs. Zannini and approximately twenty-five minutes before Mr. Zannini was taken to the MRI machine. At 8:10 p.m., the initial images came from the MRI showing a blood clot, a surgical emergency. However, the MRI was not complete and reported to Dr. Lee (the ER doctor) until 9:38 p.m. According to all of the experts, “[f]ormation of such a blood clot, a cervical epidural hematoma, 11 days after the initial surgery was  a ‘very, very rare occurrence.’” Dr. Mortazavi was made aware of the MRI results at 9:39 p.m. and agreed to come to the hospital immediately. He called the hospital to have the operating room prepared for surgery at 10 p.m., but was told that the operating room was in use until 11 p.m. and the other operating room could not be made available before then. Although he had already left the hospital, Dr. Liker reviewed the MRI images on his phone and also called the hospital to try to expedite surgery. He was also unsuccessful. Dr. Mortazavi arrived at the hospital to find that Mr. Zannini had not been prepared for surgery as he had requested. The surgery ultimately started at 11:35 p.m. The blood clot was removed, but Mr. Zannini remained effectively paralyzed.
The Zanninis filed suit for medical malpractice against all of the physicians involved that evening, their medical groups, and the hospital. However, by the time of trial, Dr. Liker was the only defendant remaining. All the experts agreed that there were no other negligent acts beyond that alleged against Dr. Liker. Further, the only question of negligence against Dr. Liker was whether his decision to leave the hospital constituted medical negligence because it unduly delayed the emergency surgery. Plaintiffs argued that Dr. Liker should have remained at the hospital after Mr. Zannini presented to the emergency room until the second neurosurgeon, Dr. Mortazavi, physically arrived. They argued that it was negligent and constituted abandonment of a patient.
The jury returned a verdict in favor of defendant Dr. Liker. Specifically, they found that Dr. Liker’s actions were not below the standard of care and thus did not reach the question of causation. On appeal, plaintiffs challenged several jury instructions given or not given to the jury at trial. The appellate court affirmed the judgment of the trial court, finding that none of the alleged errors in the jury instructions were prejudicial, i.e. that it was not reasonably probable that the Zanninis would have obtained a more favorable result in the absence of the alleged errors.
The Zanninis took issue with the following jury instructions: CACI 509 (abandonment of a patient), CACI 411 (reliance on the good conduct of others), CACI 430 & 431 (regarding causation), CACI 506 (alternative methods of care), and BAJI 6.15 (defining emergency).
The main point of contention on appeal was whether the jury should have been instructed with CACI 509 regarding abandonment of a patient as written. “A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) The jury instructions must be specific and relate to the particular case at hand. Whether a jury instruction was appropriately given or not is reviewed de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)
[Name of plaintiff] claims [name of defendant] was negligent because [he/she/nonbinary pronoun] did not give [name of patient] enough notice before withdrawing from the case. To succeed, [name of plaintiff] must prove both of the following:
- That [name of defendant] withdrew from [name of patient]’s care and treatment; and
- That [name of defendant] did not provide sufficient notice for [name of patient] to obtain another medical practitioner.
However, [name of defendant] was not negligent if [he/she/nonbinary pronoun] proves that [name of patient] consented to the withdrawal or declined further medical care.
The Zanninis requested that the jury be instructed with CACI 509 as written, including with reference to Dr. Liker not having given sufficient notice that he would not be available for the emergency surgery later that evening. The trial court pointed out that the evidence did not support that Dr. Liker failed to give sufficient notice before leaving the hospital and both parties agreed that the case was not about Dr. Liker’s notice. The court indicated that CACI 509 could be given, but would need language that comported with the facts of the case, namely that “good faith efforts to obtain alternative medical assistance are to be credited.” The Zanninis suggested that the instruction should read that Dr. Liker had to remain present at the hospital until Dr. Mortazavi was physically present. The court found that this interpretation was not required as a matter of law and although the Zanninis were permitted to argue, and the jury could possibly find, that Dr. Liker had to remain at the hospital until Dr. Mortazavi arrived, the instruction needed to be more general and recognize “all inferences that could be drawn from the evidence either way without referring to issues of notice.”
Dr. Liker presented a modification to the jury instruction that read that “[e]fforts by Dr. Liker to secure a substitute physician can be considered when determining whether Dr. Liker was medically negligent or acting reasonably under the circumstances.” The Zanninis opposed and again argued that Dr. Liker was required by law to remain at the hospital, which the court denied. Plaintiffs submitted an instruction that read “[a] physician cannot just walk away from a patient after accepting the patient for treatment… In the absence of the patient’s consent, the physician must notify the patient he is withdrawing and allow ample opportunity to secure the presence of another physician.” The trial court refused to give this instruction since it again focused on notice to the patient. Dr. Liker then argued that the abandonment instruction did not apply at all and the usual medical malpractice instructions on the standard of care would suffice since the Zanninis’ expert was to testify that Dr. Liker was medically negligent for leaving the hospital before Dr. Mortazavi was present. The court agreed and no instruction regarding abandonment was given, which the Zanninis then argued was in error.
The appellate court disagreed. It pointed out that the undisputed facts were that 1) Dr. Liker consulted with Dr. Lee but did not take over Mr. Zannini’s care, 2) Dr. Liker reminded Mrs. Zannini he would not be available were surgery to be needed but that the on-call neurosurgeon would be available, 3) Dr. Liker spoke with Dr. Mortazavi regarding Mr. Zannini and made him aware of the situation, and 4) Dr. Liker remained available to discuss with Dr. Mortazavi after the MRI results became available. Further, when Dr. Liker left the hospital, there was a plan in place for treatment by Dr. Lee and Dr. Mortazavi. The appellate court concluded that although the Zanninis could argue that the standard of care required Dr. Liker to stay at the hospital until Dr. Mortazavi arrived, the jury instruction on abandonment was not warranted based on the facts and the jury instruction on the standard of care was sufficient. The appellate court further pointed out that the Zanninis could have requested a modification to the jury instruction on standard of care that reflected their theory of Dr. Liker’s negligence in leaving the hospital, but failed to do so.
The Zanninis’ remaining arguments were dismissed rather quickly by the court of appeal. The argument for CACI 411 regarding reliance on the good conduct of others was dismissed by the court of appeal because there was no argument by any party either way as to what third parties did or did not do. The appellate court similarly found that the Zanninis’ contentions as to CACI 430 and 431 were moot since the jury never reached the issue of causation. The failure to give those two instructions and selecting a specially drafted instruction instead could not have had an effect on the outcome of the verdict. With regard to CACI 506, the appellate court ruled that the Zanninis had waived their argument by not citing any supportive legal authority and making no argument as to the prejudicial effect of the instruction. Lastly, the appellate court declined to take issue with BAJI 6.15 as there was no dispute regarding whether Mr. Zannini’s condition constituted an emergency and thus the jury did not require further explication.
Although the details of jury instructions are often overlooked in the rush of final trial preparation, they can be crucial in dictating the outcome of a case. Further, the failure to compromise can be fatal. Here, the Zanninis insisted on pursuing a jury instruction that did not comport with the evidence or law, or even their own arguments, rather than compromising and/or looking for alternate ways to advance their theory, in this instance, by modifying a different jury instruction. Sometimes the singular fixation on winning a particular issue can cost a trial attorney the war. Keeping focused instead on the theories to be advanced and trial as a whole, with the knowledge that winning may take compromise and agile thinking, is more likely to secure favorable verdicts.
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