Key Decisions

December 2013 – Evidence Was Properly Admitted

(filed under: Key Decisions Archive | December 19, 2013)

Evidence Was Properly Admitted

Leal v. Mansour
(Cal. Ct. of App., 2d Dist.), filed Oct. 30, 2013, published Nov. 20, 2013


Felines Hernandez experienced a “gallbladder attack,” having suffered for years from problems with her gallbladder. She went to the emergency room at Hollywood Presbyterian Medical Center. Her doctor, Antonie Mansour, had previously discussed surgical options with Mrs. Hernandez, and he again recommended surgery. Mrs. Hernandez agreed and Dr. Mansour did the surgery the 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, Mrs. Hernandez’s condition deteriorated. Dr. Mansour ordered Mrs. Hernandez to be immediately taken to the intensive care unit. He requested several consults from other doctors.

Sometime in the evening, Mrs. Hernandez was placed on a ventilator because of her deteriorating condition.

Later that evening, the alarm on Mrs. Hernandez’s ventilator sounded. An ICU nurse immediately responded and determined the ventilator was properly connected. Mrs. Hernandez appeared to be receiving oxygen, but the ICU nurse called for the respiratory technician anyway. The technician could not determine the reason for the alarm, and switched out the ventilator for a new one, while the nurse manually gave oxygen to Mrs. Hernandez. During this time, Mrs. Hernandez’s pulse dropped resulting in a “Code Blue.”

A neurologist determined that Mrs. Hernandez had suffered brain damage from which she eventually died.

Her husband and son sued the hospital and Dr. Mansour for malpractice.

The case went to trial. At the close of plaintiffs’ evidence, the hospital moved for a nonsuit. The trial court granted it because plaintiffs failed to present any expert testimony on the hospital’s standard of care on the issue of the alleged ventilator malfunction.

Trial continued against Dr. Mansour. The jury found any negligence by Dr. Mansour was not a substantial factor in Mrs. Hernandez’s death. It agreed with his argument that the ventilator malfunction was the cause and ruled in his favor.


The Court of Appeal affirmed.

It rejected plaintiffs’ contention that 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 any negligence by him.

Code of Civil Procedure section 581c says:

“[i]n actions which arise out of an injury to the person or to property, when a motion for judgment of nonsuit was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiff’s objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.”

However, the court found that Dr. Mansour’s evidence that the ventilator malfunction was the cause of Mrs. Hernandez’s death did not contravene the letter or spirit of the law. The court did not distinguish between a nonsuit based on an evidentiary finding, and a nonsuit establishing that the defendant was fault free. Dr. Mansour was not trying to place fault on the hospital.


Section 581c prevented Dr. Mansour from defending on the basis of hospital negligence. However, Section 581c did not stop him from arguing that a simple ventilator malfunction caused the injury.