Filed 1/3/14 Nguyen v. Guerrero CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

BRANDON NGUYEN et al.,

 Plaintiffs and Appellants,

v.

RICHARD A. GUERRERO,

 Defendant and Respondent.

 G047892

 (Super. Ct. No. 30-2011-00474126)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Geoffrey 

T. Glass, Judge. Affirmed.

Thon Beck Vanni Callahan & Powell and Daniel P. Powell for Plaintiffs 

and Appellants.

Schmid & Voiles, Denise H. Greer and Sidney J. Martin for Defendant and 

Respondent.

* * *
2

Plaintiff Brandon Nguyen filed a complaint against Dr. Richard A. 

Guerrero and others on behalf of himself and, as guardian ad litem, his daughter Sandra

(the Nguyens). The complaint alleged Vivian Vo, Nguyen’s wife and Sandra’s mother, 

died as a result of medical malpractice. The jury found Dr. Guerrero was not negligent in 

his treatment of Vo.1 The Nguyens contend the evidence does not support the verdict and 

judgment, claiming Dr. Guerrero’s expert incorrectly defined the standard of care for the 

jury. We affirm.

I

FACTS

We set forth the facts in accordance with the standard of review. (See 

Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) This case involves the 

unfortunate death of a 29-year-old woman taken by ambulance to the Garden Grove 

Medical Center on April 25, 2010, due to “a massive upper gastrointestinal bleed”

apparently caused by an almost daily use of of nonsteroidal anti-inflammatory drugs

(NSAIDS) and the presence of H. pylori bacteria. At the time she was transported to the 

hospital, she had been vomiting blood. In the hospital, it was noted she was also passing 

blood through her rectum. Vo was critically ill and had a chronic underlying disease: 

inflammatory polyarthtitis involving a number of joints. She also had Behcet’s disease

with difficult to heal ulcers in her mouth. Additionally, she was diagnosed with 

vasculitis, “a harbinger of poor healing.”

Dr. Guerrero was on-call and responded to the emergency room between 

10:30 and 11:00 p.m. Dr. Chung,2 the gastrointestinal physician, was in the process of 

performing an endoscopy in an effort to determine the cause of the bleeding when Dr. 

Guerrero arrived. There was too much blood in the stomach for the camera to see into 

 

1 Dr. Guerrero is the only defendant appearing in this appeal.

2 Dr. Chung’s first name does not appear in the record on appeal.
3

the duodenum, the section of the small intestine connected to the stomach. Dr. Chung

was of the impression that the bleeding was coming from the duodenum. When Dr. 

Chung said he could not stop the bleeding through endoscopic intervention, Dr. Guerrero 

decided to operate. Vo was bleeding to death. At that point she had received a number 

of blood transfusions. Additionally, there was a presumptive diagnosis of disseminated 

intravascular coagulation (DIC), a reduction of the blood’s ability to clot. DIC was most 

likely caused by her massive loss of blood, but NSAIDS also affect clotting ability.

Vo was in shock when she was taken into surgery. Dr. Guerrero first

performed a gastrotomy, cutting into Vo’s stomach and removing half a liter of clotted 

blood. Dr. Guerrero performed the gastrotomy because there was so much clotted blood 

in Vo’s stomach it could not be evacuated by suction. He then repaired the bleeding 

duodenal arterial vessel in the second portion of the duodenum. In an effort to help the 

duodenum heal, Dr. Guerrero sealed off the pylorus, the opening at the base of the 

stomach, to prevent stomach fluids from entering the surgically repaired duodenum. Had 

he not sealed off the pylorus from the stomach and gastric acid from the stomach entered 

the pylorus and eaten through the sutures within 24 to 48 hours, gastric and intestinal 

content could have leaked into the abdominal cavity, resulting in a potentially lifethreatening situation.

The ulcer, just shy of an inch in diameter, had apparently been there for a 

significant period of time. Dr. Guerrero biopsied the ulcer because it had an “extremely 

abnormal” appearance.” Whereas most of a gastrointestinal tract is red or pink, the 

biopsied area was yellowish, and had a translucent, rice paper-like appearance. Upon 

removing the biopsied piece, Dr. Guerrero saw that the sample was not part of the 

duodenum wall at all, but was a replacement wall. He said it appeared the duodenum had 

perforated at some earlier time and a portion of the mesocolon and the omentum then 

filled the area. Because he sealed off the duodenum from the stomach, Dr. Guerrero

performed a gastrojejunostomy, sewing another portion of the small intestine to the 
4

stomach so the stomach’s contents could enter the small intestine.

Later on the morning of April 26, Dr. Guerrero was contacted by the 

admitting physician who said there appeared to be a fair amount of blood in the JP drain. 

To Dr. Guerrero that meant bleeding must have developed after the surgery and further 

surgery was required to determine the source of the bleeding. Dr. Guerrero patched the 

areas believed to be the sources—the head of the pancreas, where he had observed 

seeping during the first surgery and an area in the mesocolon reflected away from the 

duodenum during the first surgery. Dr. Guerrero checked the sutures to the duodenum 

and those used in the gastrojejunostomy. Neither was bleeding. 

Vo was on kidney dialysis the next day when Dr. Guerrero made his 

rounds. The JP drain was putting out a small amount of drainage, a good sign. The lab 

test on Vo’s blood showed her blood’s clotting ability was improving.

While still in the hospital, Vo developed a marginal ulcer and the site of the 

gastrotomy “seemed to be bubbling air,” which meant the wound had not completely 

healed or had broken down. In a third surgery performed on May 14 by Drs. Coa3 and 

Guerrero, Dr. Guerrero found bleeding at a site along the anastomosis. Dr. Guerrero said 

the gastrojejunostomy was intact, as was the previous duodenum repair, but “‘there was a 

significant amount of clot[ted blood] in the right upper quandrant.’”

Nguyen asked to have his wife transferred to UCLA Medical Center and 

she was transferred on May 24. Physicians at UCLA Medical Center operated on her 

twice (May 25 and June 7) and she died at the medical center on June 9.

The defense expert, Dr. Samuel Wilson, was chief of surgery at the HarborUCLA Medical Center in Torrance for 10 years and at the time of trial was the chairman 

of surgery at the University of California Irvine and chief of surgery at the Veterans 

Administration in Long Beach. He is board certified in general surgery and vascular 

 

3 Dr. Coa’s first name does not appear in the record on appeal.
5

surgery. He has worked as a reviewer for the California Medical Board, and currently 

sits on four editorial boards of peer review journals. He has published over 400 articles 

in peer review journals, including articles on the treatment of ulcer disease. Dr. Wilson 

has performed probably more than 150 ulcer repair surgeries.

Dr. Wilson reviewed Vo’s medical records from Garden Grove Community 

Hospital and UCLA Medical Center, as well as depositions of various physicians, 

including Guererro and the Nguyens’ medical expert, Dr. Leo Gordon. Dr. Wilson 

testified Dr. Guerrero’s actions were not negligent.4 On cross-examination, the Nguyens’

counsel asked Dr. Wilson about the standard of care he used in reaching his conclusion:

“Q And the standard of care that you were measuring him is what a 

majority of practitioners would do in the community, but ultimately a standard of care is 

defined by a jury. That was your thought as to how you were measuring Dr. Guerrero’s 

conduct at the time of your deposition.

“A The jury will determine whether or not he met the standard of care, yes.

“Q Do you still believe that the standard of care that you were using, the 

yardstick that you are using to judge Dr. Guerrero’s conduct, is what a majority of 

practitioners would do in the community?

“A Yes.”

Dr. Gordon also reviewed the records from the Garden Grove Community 

Hospital and UCLA Medical Center and read the depositions of the physicians involved 

in the case, including the deposition of Dr. Wilson. Dr. Gordon concluded Dr. Guerrero

did not comply with the applicable standard of care—“what a reasonable doctor would do 

in a similar circumstance”—and that failure was a substantial factor in Vo’s death.

The court instructed the jury on the applicable standard of care: “A surgeon 

is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and 

 

4 Additional details of Dr. Wilson’s testimony are set forth below in the 

discussion section.
6

treatment that other reasonably careful surgeons would use in the same or similar 

circumstances.” (See CACI No. 502.) The jury was provided a special verdict form that 

divided the issue of Dr. Guerrero’s liability into two questions: whether Dr. Guerrero was 

negligent in his diagnosis and treatment of VO; and, if so, whether his negligence was a 

substantial factor in causing her death. The jury found Dr. Guerrero did not act 

negligently. The court entered judgment in favor of defendants and subsequently denied 

the Nguyens’ motion for a new trial.

II

DISCUSSION

The Nguyens argue defendant’s expert, Dr. Wilson, stated an incorrect 

standard of care in a medical malpractice action and, as a result, the jury was required to 

accept the testimony of their medical expert, Dr. Gordon, who testified Dr. Guerrero’s 

action was negligent. From this premise the Nguyens conclude the evidence was 

insufficient to support the defense verdict. Not so.

In deciding a sufficiency of the evidence claim, we must view the evidence 

in favor of the prevailing party below and in support of the judgment. Generally, we 

review the evidence supporting the prevailing party and disregard contrary evidence. 

(Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60.) We uphold the judgment if 

it is supported by substantial evidence, “no matter how slight it may appear in 

comparison with the contradictory evidence.” (Howard v. Owens Corning (1999) 72 

Cal.App.4th 621, 631.) But substantial evidence does not mean any evidence. (Kuhn v. 

Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) Evidence is 

substantial if it is “‘reasonable in nature, credible, and of solid value; it must actually be 

“substantial” proof of the essentials which the law requires in a particular case.’ 

[Citations.]” (United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 

377, 393.) If the judgment is supported by substantial evidence, we must affirm absent 

the commission of prejudicial error at trial. (See Pannu v. Land Rover North America, 
7

Inc. (2011) 191 Cal.App.4th 1298, 1321-1322 [must affirm award of damages supported 

by substantial evidence, absent error in admission of testimony on issue].) The Nguyens 

do not allege prejudicial error.

The Nguyens are correct in claiming their expert testified to the appropriate 

standard of care and Dr. Guerrero’s expert did not. Dr. Gordon stated the applicable 

standard of care as “what a reasonable doctor would do in a similar circumstance.” “[A] 

physician is required to possess and exercise, in both diagnosis and treatment, that 

reasonable degree of knowledge and skill which is ordinarily possessed and exercised by 

other members of his profession in similar circumstances. [Citations.]” (Landeros v. 

Flood (1976) 17 Cal.3d 399, 408.) Dr. Wilson, on the other hand, stated the standard of 

care as “what a majority of practitioners would do in the community.” We do not use 

the standard referred to by Dr. Wilson because “‘we are not permitted to aggregate into a 

common class the quacks, the young [physicians] who have no practice, the old ones who 

have dropped out of the practice, the good, and the very best, and then strike an average 

between them. This method would evidently place the standard too low.’ [Citation.]” 

(Scarano v. Schnoor (1958) 158 Cal.App.2d 612, 618.) 

The jury was instructed as to the proper standard of care. (CACI No. 502.) 

Understandably, the Nguyens do not contend the jury used the wrong standard in 

reaching its verdict.5 (People v. Harris (2013) 57 Cal.4th 804, 842 [court presumes jury 

followed the court’s instruction].)

What they do argue is that as Dr. Wilson misstated the appropriate standard 

of care and their expert, Dr. Gordon, testified to the correct standard, Dr. Gordon’s 

 

5 We note the standard to which Dr. Wilson testified was asked by the 

Nguyens’ counsel in a leading question on cross-examination and counsel did not move 

to strike the answer or the expert’s testimony based on his answer to the question. 

Arguably the issue has not been preserved. (In re Marriage of Falcone & Fyke (2012) 

203 Cal.App.4th 964, 984 [failure to object forfeits issue that could have been corrected 

in trial court].)
8

testimony was binding on the jury. In so far as the standard of care is concerned, we 

agree. However, from that premise the Nguyens extrapolate that as Dr. Gordon was the 

only expert to testify to the proper standard of care and he then testified Dr. Guerrero’s 

actions—the gastrotomy, biopsy, pyloric exclusion, and the gastrojejunpstomy—were not 

appropriate, the evidence demonstrated Dr. Guerrero’s actions were negligent. In Dr. 

Gordon’s opinion, Dr. Guerrero should have located the bleeding ulcer, stopped the

bleeding, and closed.

However, the fact that Dr. Guerrero’s expert may have misstated the 

standard of care does not mean the jury was required to accept Dr. Gordon’s conclusion 

that Dr. Guerrero breached his duty of care. The court properly instructed the jury on the 

standard of care. The Nguyens concede Dr. Wilson qualified as an expert and was 

competent to testify to what a reasonably prudent physician would have done in treating 

Vo. The jury was entitled to accept Dr. Wilson’s testimony concerning the 

appropriateness of Dr. Guerrero’s actions. Specifically, Dr. Wilson testified the 

gastrotomy was “absolutely essential” and “a perfectly appropriate first step.” Indeed, he 

said the procedure followed by Dr. Guerrero was “surgery 101.” Dr. Wilson said that by 

opening the stomach and removing the clotted blood, Dr. Guerrero could not only check 

the stomach to make sure there were no ulcers within, he could also look into the first 

part of the duodenum, where one would expect to find a bleeding ulcer in a location other 

than the stomach. The physician who performed the endoscope procedure told Dr. 

Guerrero he could not see into the duodenum because there was too much blood in the 

stomach. The jury could reasonably conclude the reason Dr. Guerrero was able to make 

an incision into the secondary part of the duodenum where the ulcer was located—a place 

one would not normally expect to find a bleeding ulcer—rather than making an incision 

in the first part of the duodenum where one would normally expect to find an ulcer in the 

duodenum, was because Dr. Guerrero did the gastrotomy.
9

Dr. Wilson said he understood Dr. Gordon’s opinion that having stopped 

the bleed, Dr. Guerrero should have done nothing else—i.e., Dr. Guerrero should not 

have performed the pyloric exclusion and the gastrojejunostomy. But Dr. Wilson 

disagreed with that conclusion. He said the risk of stomach acid entering the duodenum 

and damaging the repair performed by Dr. Guerrero—an event that if it occurred could 

have resulted in the release of stomach acid into the abdomen and “could be literally the 

patient’s life”—made the pyloric exclusion medically appropriate. Without the bypass 

procedure, there would have been an increased risk of a leak to the sutures in the 

duodenum. The duodenum does not have the same protection the stomach has from acid. 

The gastrojejunostomy was but the second component of closing off the duodenum from 

the stomach. By performing that procedure, Dr. Guerrero diverted to the jejunum the 

path the stomach’s contents travel and permitted continued digestion and elimination of 

waste from Vo’s body. In Dr. Wilson’s opinion, the pyloric bypass was in Vo’s best 

interest and the risk of a leak to the repair to the duodenum would have been higher had 

the bypass not been performed. In addition, he stated the risk of bleeding from the 

gastrojejunostomy was low.

Furthermore, Dr. Wilson opined the biopsy was “a worthy goal.” The 

biopsy could possibly determine whether the ulcer was secondary to Vo’s chronic 

inflammatory disease. If it was, it would have called for a change in Vo’s medication 

program.

Dr. Wilson testified the second surgery was necessary and waiting would 

have meant more blood loss, more transfusions, and further deterioration of Vo’s 

condition. The second surgery was not the result of any failure on Dr. Guerrero’s part in 

performing the initial surgery. Dr. Guerrero checked the sutures to the duodenum and 

those used in the gastrojejunostomy. There was no bleeding from either site.

In the third surgery, Dr. Guerrero found some oozing at the site of the 

gastrojejunostomy and a leak at the site of the pyloric closure. Wilson opined the latter 
10

leak was “a consequence of poor healing more than anything else” and Vo’s “underlying 

illness [was] responsible for this deterioration.” In his opinion, had the pyloric exclusion 

not been performed, the leak would have been even more serious.

Dr. Wilson’s testimony was reasonable, credible, of solid value, and 

supports the jury’s verdict (United Professional Planning, Inc. v. Superior Court, supra, 

9 Cal.App.3d at p. 393), Dr. Gordon’s contrary testimony notwithstanding. (Crawford v. 

Southern Pacific Co., supra, 3 Cal.2d at p. 429 [“When two or more inferences can be 

reasonably deduced from the facts, the reviewing court is without power to substitute its 

deductions for those of the trial court.”].) Accordingly, we affirm the judgment.

III

DISPOSITION

The judgment is affirmed. Dr. Guerrero is entitled to his costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.