Zannini v. Liker (Jan. 31, 2022, B302404) __ Cal.App.5th __ [2022 WL 278531]
Dr. Mark Liker performed cervical spine surgery on Ronald Zannini. An MRI taken three days after surgery showed no abnormalities, but a week later Zannini was admitted to the ER with acute paralysis. The ER physician managing Zannini’s care consulted with Dr. Liker, an on-call neurosurgeon, and an on-call neurologist. Dr. Liker, who was flying out of town on a red-eye that night, contacted the on-call neurosurgeon to discuss the differential diagnoses and to ensure he was ready to respond as needed once the results of a second MRI were known. Dr. Liker also discussed the care plan with Zannini’s wife before leaving. The second MRI revealed a rare late-developing spinal blood clot. Zannini underwent another surgery, but remained paralyzed. The Zanninis later sued Dr. Liker for medical malpractice, alleging he negligently left the hospital before reviewing the MRI results and performing surgery. The jury returned a defense verdict. The Zanninis appealed, alleging instructional error.
The Court of Appeal affirmed, holding the trial court correctly refused to instruct the jury on CACI No. 509 (abandonment of patient) because that instruction was not supported by the evidence. The court explained that Dr. Liker had not taken over Zannini’s care (which the ER physician was managing); he had informed Mrs. Zannini about his scheduled trip and that the on-call neurosurgeon was available to perform any needed surgery; he remained available to discuss diagnoses and treatment with the care team; and he left the premises only after a plan for Zannini’s treatment was in place. The court also concluded that plaintiffs’ theory of the case was adequately addressed by giving CACI No. 502 (standard of care for medical specialists). That instruction allowed the jury to find negligence based on Dr. Liker’s departure from the hospital prior to another neurosurgeon’s physical arrival in the event they had accepted the testimony of the plaintiffs’ expert rather than the defense expert.
Thomas Watson
htwatson@horvitzlevy.com
Horvitz & Levy LLP
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