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Court of Appeal, Second District, Division 7, California.

Silas F. FRY, Plaintiff and Appellant, v. Joel H. BLOCK, M.D., Defendant and Respondent.

No. B045804.

Decided: October 30, 1991

George S. Roback and Thomas Kallay, Los Angeles, for plaintiff and appellant. Kirtland & Packard and Donna P. McCray, Los Angeles, for defendant and respondent.

Appellant, Silas F. Fry, appeals from a judgment notwithstanding the jury verdict in his favor as well as a conditional grant of respondent, Dr. J.H. Block's, new trial motion.   We conclude the jury's verdict finding Dr. Block liable in this medical malpractice action supported by substantial evidence.   We consequently conclude it was error to grant these motions and reverse.


In September 1963, 62–year–old appellant, Silas F. Fry, consulted his family physician for problems with his arms and legs.   The previous month appellant's arm had gone dead and he also experienced pain in his legs when walking.   His family physician referred appellant to Dr. Robert Carroll, a vascular surgeon, for evaluation of his complaints.

In his meeting with Dr. Carroll, appellant explained he had suffered blackouts in 1980.   These episodes had been evaluated with a CT scan and electroencephalogram (EEG) which he told Dr. Carroll were normal.   Dr. Carroll explained appellant's present symptoms were different than those suffered in 1980 and involved different areas of the brain.   The blackouts in 1980 related to a problem in the vertebral vascular system, while the upper extremity symptoms of 1983 involved the parietal area of the brain which blood is supplied through the carotid arteries.   After his examination, Dr. Carroll told appellant he had symptoms of lack of blood supply to the brain that could cause a stroke.   Appellant indicated he wished to have the problem evaluated further.   Dr. Carroll ordered an arch arteriogram to evaluate the carotid arteries and an abdominal arteriogram to evaluate the symptoms of claudication in his legs.   Dr. Carroll briefly described the procedure to appellant and asked whether he had ever had a similar procedure in the past.   Appellant apparently replied he had not although he had undergone a similar angiogram in 1980 to diagnose the cause of his blackouts.

On September 21, 1983, appellant went to Rio Hondo Memorial Hospital for the scheduled tests.   Before the procedure respondent, the radiologist who performed the arch arteriograms, visited appellant and took an independent medical history from him.   At 1 p.m., appellant was pre-medicated with Demerol.   The actual procedure started at 2 p.m. and ended at 3:30 p.m.  During this time a cardiac monitor checked appellant's heart rate to detect heart attack.   However, no blood pressure readings were taken during this entire hour-and a-half period.1  Respondent testified he checked on appellant at approximately 5 p.m. and noticed nothing unusual.   However, at 7 p.m. a nurse noted on the chart appellant complained of blurred vision.   Appellant's vision continued to deteriorate to the point of virtual blindness.   Appellant also suffered brain damage and memory loss.   At the time of trial he could no longer recall any of the details of the procedure or even that he had met respondent.

In September 1986, appellant brought an action for medical malpractice and other causes of action against, inter alia, respondent and Dr. Carroll.   The matter came to trial in May 1989.   At the conclusion of appellant's case Dr. Carroll brought a motion for nonsuit which was granted.   Respondent also moved for nonsuit at that time but the motion was denied.   Appellant's theory of respondent's liability was based on the contention his injuries were caused by a blockage of blood flow to the brain which in turn was due to a drop in blood pressure during the procedure.   This drop in blood pressure could have been detected and treated had respondent checked appellant's blood pressure during the treatment.   Counsel for respondent argued he was entitled to a nonsuit because appellant had failed to present evidence of causation, i.e., that appellant's blood pressure actually dropped during the procedure.

To resolve the issue, the trial court had critical portions of the record re-read by the reporter.  “The court has had the testimony of the third session which commenced around 3:35 read back in the presence of both counsel.

“He clearly said on direct examination that is attributable to falling blood pressure.

“He also clearly said on cross examination when [respondent's counsel] completed her cross examination that he couldn't say so.

“I am reading California Judges Bench Book, Civil Trials, Chapter Nine, 9.77. ․ [¶] I think using that standard there is sufficient—I am really weighing it in terms of your cross examination versus what he [said] on direct.”

After further argument the court concluded:  “I just think that the standard is that I have got to disregard conflicting evidence, give the plaintiff's evidence all the value to which it is legally entitled and indulge every legitimate inference to be drawn from the evidence in plaintiff's favor and then find there is no evidence to [support] a jury verdict of a finding.  [¶] Motion for nonsuit is denied.”

The jury returned a verdict in favor of appellant of $200,000 in noneconomic damages and $110,000 in economic damages.   Thereafter, the trial court granted respondent's motions for judgment notwithstanding the verdict and for new trial based on the perceived lack of proof of causation due to contradictory expert testimony.   Appellant appeals from the judgment subsequently entered in favor of respondent.


The issue presented in this appeal is whether the trial court erred in granting respondent's motions for judgment notwithstanding the verdict and for new trial.   The standard for reviewing an order granting judgment notwithstanding the judgment was announced by our Supreme Court as follows:  “ ‘The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations].   The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses.  [Citation.]   If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied.  [Citations.]  “A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.   If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.”  [Citation.]’ ”   (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877–878, 151 Cal.Rptr. 285, 587 P.2d 1098.)

Thus, we can affirm the trial court's order only if substantial evidence is lacking in the record as to one or more of the elements constituting a medical malpractice cause of action.   Those elements are:  “ ‘(1) The duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise;  (2) a breach of that duty;  (3) a proximate causal connection between the negligent conduct and the resulting injury;  and (4) actual loss or damage resulting from the professional's negligence.’ ”  (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 702, 260 Cal.Rptr. 772.)

There is no real controversy whether sufficient evidence was presented to establish respondent fell below the standard of care in failing to monitor appellant's blood pressure during the angiogram procedure or that he suffered actual loss or damage.   However, respondent contends no substantial evidence was presented to establish the failure to monitor appellant's blood pressure had a causal connection to appellant's injuries because appellant did not demonstrate he in fact had a drop in blood pressure during the procedure which would have been detected and treated had he been monitored.   In other words, respondent's argument is there is insufficient evidence in the record to prove a drop in blood pressure was the proximate cause of appellant's injuries.   Consequently, we concentrate on the proper standard of proof to establish proximate cause in a medical malpractice action in the context of an order granting judgment notwithstanding the verdict.   The standard for reviewing a judgment of nonsuit is the same for reviewing a judgment notwithstanding the verdict.  (7 Witkin Cal. Procedure (3d ed. 1985) Trial, § 435, p. 433.).

“A nonsuit may be granted only where, disregarding conflicting evidence on behalf of the defendant and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.  [Citations.]   Neither the appellate court nor the trial court may weigh the evidence nor consider the credibility of the witnesses.  [Citation.]

“In determining whether a nonsuit was properly granted the reviewing court must resolve every conflict in testimony in favor of the plaintiff and at the same time indulge in every presumption and inference which could reasonably support the plaintiff's case.  [Citation.]   The rules governing the granting of a nonsuit, however, do not relieve the plaintiff of the burden of establishing the elements of his case.   The plaintiff must therefore produce evidence which supports a logical inference in his favor and which does more than merely permit speculation or conjecture.  [Citation.]   If a plaintiff produces no substantial evidence of liability or proximate cause then the granting of a nonsuit is proper.  [Citation.]


“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.   Mere possibility alone is insufficient to establish a prima facie case.  [Citations.]   That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion.   There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.   A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.”  (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402–403, 209 Cal.Rptr. 456.)

This case presents an unusual configuration of facts on the issue of causation.   Here respondent's negligent failure to monitor his patient's blood pressure not only prevented the medical team from responding to any drop in blood pressure and thus to avoid the stroke, it also prevented appellant from proving definitely whether he suffered a drop in blood pressure which the monitoring would have detected.   Thus, a single act of malpractice simultaneously threatened a patient's health and complicated proof of causation.

Appellant argues that in this situation the burden of proof (the risk of nonpersuasion) should shift to the respondent medical practitioner on the causation issue.  (Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 774, fn. 19, 91 Cal.Rptr. 745, 478 P.2d 465 [“when there is a substantial probability that a defendant's negligence makes it impossible, as a practical matter, for plaintiff to prove ‘proximate causation’ conclusively, it is more appropriate to hold the defendant liable than to deny an innocent plaintiff recovery, unless the defendant can prove that his negligence was not a cause of the injury.”], emphasis in original;  1 Witkin Cal. Evidence (3d ed. 1986) § 139, p. 121.)   We find it unnecessary to accept the invitation to consider this interesting question, however, since we conclude appellant met the burden traditional rules impose on plaintiffs.   A review of the evidence in this case reveals substantial evidence supports the jury's finding on causation.


 As respondent points out the expert testimony as to the precise cause of appellant's injury was often equivocal and at some points conflicting.   For this reason, it is contended no substantial evidence supports the jury verdict finding Dr. Block liable for medical malpractice.

Dr. Jose, a neurologist testifying for the plaintiff, explained her study of X-rays taken of appellant revealed he had a 50 percent blockage of arteries supplying blood to the brain.   The doctor noted where a patient already has narrowed veins, any drop in blood pressure for a long enough time could cause a complete blockage of blood resulting in the types of injuries appellant sustained.   The doctor stated patients given Demerol often experience a drop in blood pressure and noted appellant was given Demerol before the procedure.   In the doctor's deposition testimony, she stated when a patient is given Demerol, “there should be a nurse there taking blood pressures every 15 minutes” but expressed the opinion such readings, had they been done, would have revealed a normal pressure.

On direct examination Dr. Jose opined “Most likely what happened is the artery that goes to the occipital lobe of the brain had gone into a spasm and did not deliver enough blood to that part of the brain long enough to cause an infarction”.   The doctor also stated “The patient most likely developed vasospasm of the previously noted right posterior cerebral artery during the angiographic study and developed corticoblindness and the memory difficulty.”   The doctor noted a vasospasm could be triggered by the injection of dye into the blood stream.

On cross-examination the doctor was again asked whether she thought a vasospasm during the procedure caused appellant's problem.   The doctor responded “Yes, either one of the two, vasospasm or his blood pressure dropped because he was given Demerol and because with the drop in blood pressure not enough blood was able to go through.”   Dr. Jose also conceded it was possible occlusions or blockages could be caused by a piece of plaque coming off during the procedure.   She did not say plaque was the probable cause of appellant's drop in blood pressure, however.

Thus, while the doctor could unequivocally say appellant suffered a blockage of blood to the brain, this expert could not say definitively whether the blockage was caused by a drop in blood pressure due to the medication or due to a vasospasm which generally does, but does not necessarily, cause a drop in blood pressure.

The most critical testimony on the issue of causation came from Dr. Grossman, a radiologist.   Dr. Grossman noted typical complications from an angiogram procedure include an allergic reaction to the dye, or contrast material used during the procedure, a fall in blood pressure, a plaque may become dislodged or a blood vessel may go into a spasm and cause blockages.   When asked which of those responses would most likely cause a drop in blood pressure, Dr. Grossman stated “there is what is called a vaso-vagal response, stimulation of vagus nerves which causes the peripheral of the vessels in the extremities to dilate or expand causing a drop in pressure in the body, number one.  [¶] Number two, the material itself is hyperosmole which means it contains a lot of sedium.  [¶] Therefore, can cause dehydration to the patient which could also lower the blood pressure in the patient.”   The Doctor also agreed one of the side effects of Demerol was a drop in blood pressure as well.

The doctor gave his opinion respondent's performance fell below the standard of practice because he took no blood pressure readings while appellant was receiving this treatment.   The doctor explained the basis of his opinion on re-direct examination.

“Q Are there any special particular precautions that must be taken with that particular medication?

“A Well, it does cause hypotension or decrease in blood pressure, yes.

“Q How do you know that?   From personal experience?

“A It has been taught in our residency.   It is on every package insert, and it is in the physician's desk reference and states that it causes drop in blood pressure.   Patients should be monitored for ten minutes after an injection of the material.

“[Respondent's counsel]:  Objection.  [¶] Move to strike as hearsay.

“THE COURT:  Overruled.

“[Appellant's counsel]:  Doctor, taking into consideration that Renograffin 60 was used on this patient, do you have an opinion as to whether with reasonable medical probability whether Mr. Fry's stroke episode was a result of fall in blood pressure or of a vaso-vagal reflex?

“A I think the latter, Mr. Roback.

“Q What is that?

“A It is vaso-vagal reflex and hypotension.

“Q Well, my question is this.  [¶] Was the vaso-vagal reflex a result of the use of that particular medication?

“A Yes.

“Q What is the need for monitoring the blood pressure in this particular patient?

“A This particular patient had previous known intercerebral pathology and, therefore, any drop in his blood pressure could cause a catastrophic event.

“Q. It is your opinion that this patient had a vaso-vagal reflex because of a fall in blood pressure?

“A Yes.

“Q ․ Therefore, knowing the patient's blood pressure was significant in avoiding the catastrophe that occurred?

“A Yes.

“Q And is it your opinion that the stroke that occurred on Mr. Fry could have been avoided with reasonable medical probability if this patient had been monitored and if a fall in blood pressure had been picked up and could have been timely treated?

“[Respondent's counsel]:  Objection.  [¶] Calls for speculation.

“THE COURT:  Overruled.


Thus, appellant presented expert testimony on the issue of causation and this expert testified that within a reasonable medical probability appellant suffered a drop in blood pressure caused by a vaso-vagal reaction which could have been detected and treated if blood pressure readings had been taken during the procedure.

 However, respondent contends this testimony is not substantial evidence on the issue of causation to withstand a motion for judgment notwithstanding the verdict because this expert gave contradictory testimony earlier during the trial and on cross-examination conceded there were many different possible causes for appellant's injuries.2

On the first cross-examination of Dr. Grossman, he was asked “As between a vaso-vagal reaction and vasospasm, can you say within a reasonable degree of medical probability which one of those caused the damage to Mr. Fry?

“A No.

“Q So it would be speculation for you to say that it was a vaso-vagal reaction versus a vasospasm?

“A Yes.

“Q And a vasospasm does not have anything to do with blood pressure, correct?

“A It may not.

“Q Vasospasm is not shown by a significant drop in blood pressure, correct?

“A It may or may not be.

“Q Can you say that vasospasm is shown by a drop in blood pressure?

“A Yes, depending upon what artery goes into spasm.”

At a later cross-examination Dr. Grossman also apparently contradicted his testimony he could say within a reasonable degree of medical probability appellant suffered a drop in blood pressure caused by a vaso-vagal reaction to the dye.

“Q Now you can't say within a reasonable degree of medical probability whether Mr. Fry had a vaso-vagal reaction, whether he had a vasospasm, or whether there was a problem with the dye causing dehydration?

“A That's correct.

“Q And you can't say that a vasospasm, if Mr. Fry had that, caused a decrease in the blood pressure within a reasonable degree of medical probability, can you?

“A No.

“Q And the vasospasm can happen because of the dye or because of bits of artery that are knocked off and get lodged in the vessel, correct?

“A Correct.”

Because the expert testimony from Dr. Grossman was contradictory, respondent urged, and the trial court accepted the view, contradictory evidence does not constitute substantial evidence and may be disregarded in determining whether sufficient evidence supports the jury's verdict.   The trial court felt this conclusion was compelled by the Court of Appeal decision in Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 144 Cal.Rptr. 794.

In Mikialian, the court was asked to decide whether the assertion of facts on direct examination at trial contradictory to party admissions in deposition testimony and later trial testimony was sufficient to constitute a triable issue of fact to justify denial of nonsuit.   In Mikialian, a tow truck driver was struck by a hit and run driver while parked on a street.   In order to establish a duty on the part of the defendant city, the plaintiff had to produce evidence of a special relationship between himself and the police officers.   He attempted to establish the special relationship by testimony the officers directed the driver to park his tow truck at a certain spot across the street, which happened to be a blind spot for northbound traffic where plaintiff was struck.

On direct examination the plaintiff testified the officers told him to get the tow truck out of the water and park it across the street.   On cross-examination, plaintiff's deposition testimony was introduced in which he denied anyone directed him to pull the tow truck to the other side of the street.   When asked if he told the officers he was going to move the tow truck across the street, the plaintiff responded “No sir.   I assumed that is where they wanted me to take it.”   This trial testimony coincided with earlier deposition testimony in which plaintiff admitted the officers did not direct him to park the tow truck in the dangerous location.  “Q. You made that decision to pull it northbound yourself;  is that correct?   A. Yes sir․   Q. Mr. Mikialian, is there any reason why you didn't proceed southbound on Vineland when you pulled the vehicle off the fence?   A. Yes, sir.   A. What is the reason?   A. Because at that time it was much easier, much quicker to pull it into the northbound lanes.   That way I would get my truck and the car out of the way so traffic could proceed freely.   I was going to finish my procedure and then go over to the southbound lanes.   Q. So that was the reason you went to the east side?   A. Yes, sir.”  (Id. at pp. 154–155, 144 Cal.Rptr. 794.)

The court noted the plaintiff never attempted to correct his deposition testimony, nor did he explain at trial his answers were a product of misunderstanding, misreporting or a mistake on his part.   Thus, the court held the plaintiff's trial testimony the police directed him to park in that particular location was insufficient evidence of a special relationship because it was contradicted by the party's own testimony he was not so directed.

 The rationale of the court's holding was that party admissions—especially when given under oath—carry a presumption of trustworthiness not otherwise afforded to regular testimony.  (Id. at p. 160, 144 Cal.Rptr. 794;  see, e.g., Evid.Code, §§ 1220–1230 [admissions and declarations against interest not excluded by hearsay rule due to their indicia of reliability and trustworthiness].)  Because party admissions are entitled to greater credibility, contrary assertions at trial by that party do not suffice to create a triable issue of fact and constitute insufficient evidence to overcome a motion for nonsuit.  “ ‘The reasons for this attitude toward the legitimate products of discovery are clear.   As the law recognizes in other contexts [citations] admissions against interest have a very high credibility value.   This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts.   Accordingly, when such an admission becomes relevant to the determination ․ whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.  [Citations.]   The rule stated in D'Amico [D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10] is that the assertion of facts contradictory to deposition testimony by affidavit does not constitute ‘ “ ‘substantial evidence of the existence of a triable issue of fact’ ” ' for the purpose of denying a motion for summary judgment.   A fortiori, trial testimony simply contradicting a clear and unequivocal admission in a deposition cannot require denial of a nonsuit.' ”  (Id. 79 Cal.App.3d at p. 161, 144 Cal.Rptr. 794;  emphasis in original.)

As noted earlier, in ruling on respondent's motions for judgment notwithstanding the verdict and for new trial, the trial court found Mikialian compelled a ruling that contradictory testimony is not substantial evidence sufficient to withstand such motions.   At the hearing on the motions, the trial court stated:  “My indicated ruling is to grant both motions on a very limited basis, the basis being the authority cited by the defendant in his moving papers, to wit, Mikialian.

“In this matter the court notes that Dr. Grossman in fact testified as set out in the moving papers by [respondent's counsel].

“The court felt at the time and in denying the motion for directed verdict felt that it was for the jury to resolve.

“Mikialian case seems to be controlling.   Basic holding is the conflicting testimony by the same witness under oath does not constitute substantial evidence of the existence of a triable issue of fact.   And I don't see any difference between contradictory evidence at a deposition and in trial.

“This is to say the fact that somebody says one thing at a deposition and another in trial I don't see being distinguishable between saying one thing on direct examination and another thing on cross-examination because he clearly did in fact equivocate dramatically.

“That being the case, there is non-substantial evidence and the rules favoring the judgment do not apply—do apply but Mikialian says that that is not sufficient evidence.

“So I would be inclined to grant the motion for new trial on the ground that the evidence does not support the verdict.

“In that instance, re-weighing the testimony of Dr. Grossman and finding it in my opinion to be contradictory, and using the motion for new trial standard as to Dr. Grossman's testimony, and sitting as the 13th juror grant the motion, and then not sitting as the 13th juror for motion for judgment notwithstanding the verdict but following Mikialian, finding the evidence as a matter of law is insufficient and granting a judgment notwithstanding the verdict.”

However, the trial court's reliance on Mikialian is misplaced.   The case at bar does not involve trial testimony by a party which attempts to create a triable issue of fact by contradicting party admissions given under oath.   Indeed, this case does not involve any party admission nor any statements against interest by a party.   Instead, the contradictions are found in ordinary expert testimony at trial and involve virtually the same factual and legal situation as faced the Supreme Court in Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098.

Clemmer concerned the propriety of the trial court's denial of a motion for nonsuit.   A Dr. Lovelace shot and killed Dr. Clemmer whose heirs then filed a civil action against Dr. Lovelace's insurer on a civil judgment they had obtained against Dr. Lovelace.  (Id. at pp. 871–872, 151 Cal.Rptr. 285, 587 P.2d 1098.)   The dispositive issue was whether Dr. Lovelace's act had been willful in which case there would be no coverage under the insurance policy.   Plaintiff's psychiatric expert testified Dr. Lovelace had the mental capacity to know what he was doing and to know the nature and quality of his acts.   The expert also testified, however, Dr. Lovelace did not know what he was doing at the time he shot Dr. Clemmer because he was suffering from a paranoid delusion.  (Id. at p. 878, 151 Cal.Rptr. 285, 587 P.2d 1098.)   Based on this contradictory testimony by the expert, the defendant insurer moved for judgment notwithstanding the verdict contending the contradictions rendered the expert's testimony insubstantial evidence of the doctor's lack of willfulness.

In addressing this argument, the Supreme Court stated:  “Even if it be assumed that there are logical inconsistencies in the foregoing testimony—a matter which we need not here reach—the fact that inconsistencies may occur in the testimony of a given witness does not require that such testimony be disregarded in its entirety for the purposes of a motion for judgment notwithstanding the verdict, nor does it mean that such testimony is necessarily insufficient to support the verdict.   It is for the trier of fact to consider internal inconsistencies in testimony, to resolve them if this is possible, and to determine what weight should be given to such testimony.   The motion for judgment notwithstanding the verdict was properly denied.”   (Ibid.)

In applying these principles to the instant case, although Dr. Grossman's testimony was inconsistent, this testimony cannot be disregarded or treated as insubstantial evidence of causation.   The trial court's initial inclination was correct, i.e., that appellant presented substantial evidence of liability and causation and any inconsistency in the testimony should be resolved by the jury.   Which version of Dr. Grossman's testimony should be believed was as much a question for the trier of fact as was the issue of whether Dr. Block's performance fell beneath the standard of care because of his failure to monitor appellant's blood pressure during the procedure as Drs. Jose and Grossman testified.   Dr. Block testified he never monitors a patient's blood pressure, even when a patient is suffering a catastrophic event.   The defense expert, Dr. Stulberg, testified regularly monitoring is not necessarily required where a patient is already being monitored by electrocardiogram (EKG) and is being observed by an experienced radiologist.   No one questioned the ability of the jury to resolve the later conflict and there is no reason to undermine the jury's ability to resolve the internal inconsistencies in Dr. Grossman's testimony.

The jury apparently did resolve the conflicts in testimony and issues of credibility and found Dr. Block liable for the injuries appellant suffered as a result of the procedure.   We find substantial, albeit contradictory, evidence supports the jury verdict and it was, therefore, error to grant respondent's motion for judgment notwithstanding the verdict.


 The trial court conditionally granted respondent's motion for new trial in the event the judgment notwithstanding the verdict was reversed.   Appellant contends this order is fatally defective because the trial court failed to state reasons in the order with sufficient specificity for finding insufficient evidence to support the jury verdict.3

The trial court's order granting the new trial stated:

“Alternatively, and, only if on appeal the judgment notwithstanding the verdict is reversed or is not appealed, the motion for new trial is granted on the [grounds] that there was insufficiency of the evidence to justify the verdict (CCP 657.6)

“The motion for new trial is granted for the following reasons:


“2. The plaintiff did not establish causation on the remaining theory of liability in that Dr. Grossman's testimony was contradictory on the issue of causation and inherently unbelievable.”

 While it is true, a trial court “need not cite page and line, nor discuss the testimony of particular witnesses, nor the weight to be given each item of evidence, he must not merely state his reasons in terms of conclusions, issues or ultimate facts, but must supply the reviewing court with information such as to enable it to review the order in a meaningful way.  (Scala v. Jerry Witt & Sons, Inc., supra, (1970) 3 Cal.3d 359, 363–364 [90 Cal.Rptr. 592, 475 P.2d 864.] )”  (Hale v. Farmers Ins. Exch. (1974) 42 Cal.App.3d 681, 693, 117 Cal.Rptr. 146.)   This order granting the new trial motion on the basis of insufficiency of the evidence may be inadequate under different facts and circumstances.   However, in light of the trial court's explanation of reasons at the hearing on the motion outlined above, it is clear the trial court believed causation was not proved because he had to reject Dr. Grossman's contradictory testimony under the authority of Mikialian.   As we have explained, this is an erroneous reading of the Mikialian decision.

“An order granting a new trial on the ground of insufficiency of the evidence to justify the verdict shall be reversed only when there is no substantial basis in the record for any of such reasons.  (Thompson v. John Strona & Sons (1970) 5 Cal.App.3d 705, 709 [85 Cal.Rptr. 350.] )   Granting a motion for new trial rests in the discretion of the trial judge to such an extent that a reviewing court will not interfere unless an abuse of discretion clearly appears.   An appellate court's review is limited to the inquiry as to whether there was any support for the trial court's ruling.   All presumptions are in favor of the order and it may be reversed only when ‘ “ ‘it can be said as a matter of law that there is no substantial evidence to support a contrary judgment,’ ” ' or to support the trial court's specification of reasons.”  [Citations.]  (Hale v. Farmers Ins. Exch., supra, 42 Cal.App.3d 681, 693, 117 Cal.Rptr. 146;  emphasis in original.)

In this case there is not a substantial basis in the record for the reason stated by the trial court to reject Dr. Grossman's testimony on causation.4  While his testimony may have been contradictory, it was for the jury to decide whether appellant proved his injuries were most likely caused by respondent's failure to detect and treat a drop in blood pressure.  (Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098.)   The trial court was not allowed to disregard the conflicting testimony, because, unlike Mikialian, this case did not involve an attempt through broad assertions at trial to contradict contrary previous admissions the complaining party gave under oath.   Thus, for the same reason it was error to grant the judgment notwithstanding the verdict based on this erroneous reading of Mikialian, it was error to grant the conditional motion for new trial on the basis of insufficiency of the evidence of causation by discounting expert testimony stating within a reasonable degree of medical probability appellant suffered a drop in blood pressure because of the procedure which could have been detected and treated if appellant's pressure had been properly monitored.


The judgment is reversed and the cause remanded with directions for the trial court to enter judgment on the jury verdict.   Appellant to recover his costs on appeal.


1.   Expert testimony at trial was irreconcilably conflicting whether a drop in blood pressure would result in an increased heart rate and whether the EKG monitor thus could detect a drop in blood pressure.

2.   Respondent's argument suggests that in order to prevail in a medical malpractice action, a plaintiff must present evidence definitively establishing the exact cause of injury.   However, neither California nor other jurisdictions demand such a rigid standard for proving proximate cause.  (See Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d 396, 209 Cal.Rptr. 456 [reasonable medical probability, or better than a 50 percent chance of causation];  (Annot., Opinion Evidence—Disease or Injury (1959) 66 A.L.R.2d 1118, § 7 and cases cited.)

3.   The notice of appeal in this action states the appeal is from “The judgment entered in the above-entitled action of August 21, 1989 in favor of defendant Joel H. Block, M.D. and against plaintiff Silas Fry, and from whole thereof.”Respondent contends this court is without jurisdiction to review the new trial order because appellant did not specify he was appealing from the independently appealable new trial order.   Respondent relies on Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 269 Cal.Rptr. 228, in which the Court of Appeal found the appellant could not raise the issue of the propriety of the post-judgment order awarding attorneys' fees because the notice of appeal specified it was an appeal from the May 5th judgment and did not mention the post-judgment order.The court found there was no ambiguity in the notice of appeal and stated:  “The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders.  [Citations.]  ‘Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed.’  [Citation.]”  (Id. at p. 46, 269 Cal.Rptr. 228.)In this case the notice of appeal is ambiguous.   It states it is an appeal from the judgment “and the whole thereof” which could be construed to mean “from all the ramifications of the judgment in favor of respondent entered August 21, 1989.”   Because one of the ramifications of the judgment notwithstanding the verdict is the judgment could be reversed on appeal, satisfying the condition precedent for the new trial order, it appears the new trial order was subsumed within the notice of appeal “from the judgment and the whole thereof”.Thus, the general rule applies in this case to resolve ambiguities in favor of the validity of the notice.  (Kellett v. Marvel (1936) 6 Cal.2d 464, 472, 58 P.2d 649;  9 Witkin Cal. Procedure (3d ed. 1985) Appeal, § 372, p. 374.)

4.   Code of Civil Procedure section 657 provides in pertinent part:“On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons, except that (a) the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict or other decision, ․, unless such ground is stated in the order granting the motion and (b) on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, ․, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.”

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.

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