Affirming Grant Of New Trial In Medical Malpractice Case Based Upon Irregularity In The Proceedings.

The surgeon tore a glove while performing a hysterectomy and prescribed an antibiotic to avoid infection. Within days, she developed vomiting and diarrhea. At a clinic, she was given IV fluids, but the diarrhea was non-stop. She was hospitalized and went into shock and a diagnosis of pseudomembranous colitis, a severe inflammation of the colon, as a result of the antibiotic, Clindamycin. Two other drugs are the known treatment for her condition but the doctor did not want to administer them until her condition was verified with a colonoscopy, but someone forgot to tell that to the person who performs them, and the colonoscopy was not done.  The next morning, the procedure was started, but terminated because the woman was so weak. At that point, the drugs used to treat her condition were administered, and she died the next morning. At trial, a plaintiff’s experts testified surgical removal of the colon should have been done within 24 hours, and that the woman’s condition was treatable when she presented in the E.R. There was testimony it was below the standard of care to wait for the results of a colonoscopy before administering the drug treatment. Two infectious disease experts testified that, had she received the drugs immediately, she would have survived. After some confusing jury instructions and deliberations, judgment was entered for the doctor.  The court then granted a new trial and the doctor appealed. The appellate court did not even consider the evidence, but affirmed the grant of a new trial based upon irregularity in the proceedings. (Montoya v. Barragan (Cal. App. Second Dist., Div. 1; October 29, 2013.) 220 Cal.App.4th 1215.)