O'Rourke v. Ali
| Decision Date | 31 October 2022 |
| Docket Number | B305139,B310392 |
| Parties | WALTER O'ROURKE et al., Plaintiffs and Appellants, v. NAYYER Z. ALI et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC514989, Mark C. Kim, Judge. Affirmed.
Dykema Gossett, Becky S. James and Lisa M. Burnett for Plaintiffs and Appellants.
Cole Pedroza, Kenneth R. Pedroza and Alysia B. Carroll; Kjar McKenna &Stockalper, Robert L. McKenna and Michael R Pittman for Defendants and Respondents Nayyer Z. Ali, M.D. and Nayyer Z. Ali, M.D., Inc.
West &Rosa, Stephen A. Rosa and Andrew W. Salmond for Defendants and Respondents Charles B. O'Brien, M.D., CBO a Medical Corporation, and Emergency Physicians Medical Associates of Long Beach.
Plaintiff and appellant Walter O'Rourke went to an emergency room complaining of arm pain. Hours later, he had a heart attack. He and his wife, Wendy O'Rourke,[1] sued two of the doctors who treated him and their medical corporations: defendants and respondents Dr. Nayyer Z. Ali; Nayyer Z. Ali, M.D., Inc.; Dr. Charles O'Brien; CBO, a Medical Corporation; and Emergency Physicians Medical Associates of Long Beach. A jury found that the doctors were not negligent in caring for Walter. The trial court entered judgment in their favor and awarded them costs, including expert witness fees based on offers to compromise defendants had served under Code of Civil Procedure[2] section 998. Plaintiffs now appeal, contending that juror and attorney misconduct and the improper admission of an expert witness's testimony require reversal of the judgment. They also appeal the award of expert witness fees. We reject plaintiffs' contentions and affirm the judgment.
On January 13, 2012, at about 3:30 a.m., 53-year old Walter woke with excruciating pain in his arm. Thinking he was having a heart attack, his wife, Wendy, and his son drove him to Community Hospital of Long Beach.
Soon after Walter arrived at the hospital, emergency room physician Charles O'Brien saw him at 4:30 a.m. Walter had reported a pain level of 10 out of 10 on a pain scale to a nurse but a five out of 10 to Dr. O'Brien. He also reported left arm and epigastric pain but denied chest and jaw pain and shortness of breath. Walter denied being a smoker or having a family history of coronary artery disease, hypertension, high cholesterol, or diabetes. Dr. O'Brien ordered a test to detect troponin, an enzyme released into blood when the heart is irritated. Walter's troponin level was normal, although the doctor knew it might take hours for it to become elevated after a cardiac event.
At 4:45 a.m., the doctor ordered an electrocardiogram (EKG), which the computer interpreted as showing an "inferior infarct age undetermined." Dr. O'Brien, however, interpreted the EKG as showing "nonspecific ST changes" only, although he agreed the results were abnormal. A second EKG ordered 10 minutes later had the same result. Walter was given an antacid, aspirin, and three doses of nitroglycerin, none of which helped his pain, so the doctor ordered morphine, which also had no impact on the pain. At 6:00 a.m., Walter was given Dilaudid, a narcotic, which reduced Walter's pain to a three. Based in part on a CT scan, Dr. O'Brien had ruled out by 7:00 a.m. aortic dissection (a tear in the main artery), pulmonary embolism, liver issues, and pancreatitis. On a risk assessment tool called TIMI, Walter scored a zero, meaning he was at minimal risk of a cardiac event.
At about 7:15 a.m., Dr. O'Brien told Dr. Ali, a critical care physician and hospitalist who was taking over Walter's care, that his differential diagnosis was either cardiac ischemia or gastritis, and he recommended a cardiac workup. They agreed to admit Walter to the hospital's telemetry unit for monitoring and possible acute coronary syndrome.
A nurse assessed Walter on his admission to the telemetry unit. At 9:40 a.m., she paged Dr. Ali to get his admission orders and, when he didn't respond, paged him again at 10:30 a.m. At 10:30 a.m., Dr. Ali ordered aspirin and nitroglycerin, but he did not order lab tests, special imaging studies, and cardio diagnostics or other consultations. At 1:00 p.m., a nurse told Dr. Ali that Walter had arm and upper chest pain. But when the doctor saw Walter at 1:35 p.m., Walter said he was only having arm pain, and he added that he had a negative stress test two years ago. Dr. Ali ordered Dilaudid for pain, troponin stat (urgent), and a cardiology consult. An EKG done at 1:21 p.m. showed what Dr. Ali thought was a possible inferior infarct, age undetermined, which is what the earlier EKGs had shown. Dr. Ali did not see Walter again that day.
Instead, at 3:10 p.m., a nurse directly informed cardiologist Dr. Emmanuel Vasilomanolakis that Walter's troponin was critically elevated. Dr. Vasilomanolakis assessed that Walter was having a non-STEMI heart attack, which is generally considered low risk.[3] But, by about 4:00 p.m., Walter had a massive infarct, a STEMI heart attack. Dr. Vasilomanolakis ordered intravenous nitroglycerin and heparin.
On Dr. Vasilomanolakis's order, Walter had been transferred to the intensive care unit, where the doctor saw him at 4:30 p.m. Walter told Dr. Vasilomanolakis that he had been having left arm pain for six months but thought it was from lifting his grandchildren. Dr. Vasilomanolakis intended to perform an angiogram, but Walter went into cardiac arrest and was revived.
The doctor proceeded with the angiogram at 6:00 p.m., and as expected, Walter's left anterior descending artery was blocked. Unexpectedly, the blockage was not a fresh clot but instead was rock hard, suggesting the artery had been closed off or occluded for anywhere from 30 days to years. Walter's first diagonal artery had been acting as a collateral source for blood flow to the blocked artery. Because fresh blood clots were breaking off and traveling down the first diagonal artery, it had to be bypassed.
After the procedure, Walter was transferred to a hospital closer to his home, and he remained in a coma for a week. Ultimately, he had a heart transplant in April 2015. Since his heart attack in 2012, Walter has suffered multiple hospitalizations and cannot resume his prior lifestyle, which included working full-time, traveling, playing sports, and actively engaging with his large family.
The O'Rourkes initiated their lawsuit in 2013, alleging, as relevant here, causes of action for professional negligence and loss of consortium against Dr. Ali and his professional corporation (the Ali defendants) and Dr. O'Brien and his professional corporations (the O'Brien defendants).[4]
Before trial, the Ali defendants and the O'Brien defendants made offers to compromise under section 998,[5] each agreeing to waive costs in exchange for dismissals. Plaintiffs did not accept the offers.
The matter proceeded to trial in October 2019. Plaintiffs filed numerous motions in limine, including ones to exclude evidence of: comparative fault, plaintiffs' immigration status,[6]and Dr. Vasilomanolakis's undisclosed expert opinions.
At trial, the parties' competing expert witnesses testified about the standard of care for emergency room physicians (Dr. O'Brien) and hospitalists (Dr. Ali), with plaintiffs' experts saying the physicians fell below that standard, and defendants' experts saying they met it. In short, defense expert Dr. Raymond Ricci, an emergency room physician, testified that Dr. O'Brien complied with the standard of care by ordering the appropriate tests. Dr. Ricci agreed with Dr. O'Brien's assessment that Walter's EKG did not show evidence of ischemia. Intravenous nitroglycerin, intravenous heparin, and a cardiology consult were not indicated because none of the tests showed that Walter was about to have a heart attack. Based on Walter's test results and the medical history he related, Dr. Ricci also considered him at low risk of a cardiac event.
Plaintiffs' expert, Dr. Michael Ritter, opined to the contrary that Dr. O'Brien fell below the standard of care applicable to emergency room physicians and this was a substantial factor in causing injury to Walter. Once Walter's pain lasted longer than 20 minutes, Dr. O'Brien should have given him nitroglycerin intravenously. Once the CT came back, he should have started Walter on intravenous heparin and called a cardiologist.
As to whether Dr. Ali met the standard of care, defense expert Dr. Michael Eilbert, an internal medicine hospitalist, said that the 2012 guidelines suggested that if troponin was drawn within the first six hours of the onset of symptoms, a second draw should be done eight to 12 hours after initial presentation. According to Dr. Eilbert, Dr. Ali complied with the standard of care when repeating the troponin test and at all times when caring for Walter. Defense expert Dr. Morton Kern concurred that the standard of care required a second troponin draw eight to 12 hours after the first and that Walter was at low risk for a cardiac event. He also testified that the standard of care did not require Walter's immediate transfer to the catheterization lab.
Plaintiffs' expert Jay Schapira testified that had Walter been in the catheterization lab by 4:45 or 5:00 p.m., he could have been successfully stented. Dr. Benny Gavi opined that Dr. Ali should have seen Walter within an hour of taking over his care or should have called for a cardiology consult.
After two days of deliberating, the jury found that Drs. Ali and O'Brien were not negligent in diagnosing or treating Walter. The jury's vote was nine to three as to Dr. Ali...
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