Judge: Anne Richardson, Case: 20STCV36701, Date: 2023-12-11 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 20STCV36701    Hearing Date: December 11, 2023    Dept: 40

Superior Court of California 

County of Los Angeles 

Department 40 

Background 

This is a medical malpractice action.  Plaintiff Rosalinda Galvez (“Plaintiff”) alleges that she was under the direct care of Defendants University of Southern California (“USC”); Keck Medicine of USC; Keck Hospital of USC; Keck School of Medicine of USC; Niels Kokot, M.D.; John Carmichael, M.D.; Sebina Bulic, M.D.; Efrain Martinez-Alvernia, Res.; Janet Choi, Res.; Clay Wu, Res.; Rajkumar Dasgupta, M.D.; Trevor Angell, M.D.; Reshma Patel, Res.; Braden Barnet, M.D.; Alyssa Lampe, Res.; Okeefe Simmons, Res.; Andrew Ippoliti, M.D.; Saeed Kalantari, Res.; Peggy Nguyen, M.D.; Benjamin Emanuel, D.O.; Joshua Bakhsheshian, Res.; Frank Attenelo, M.D.; Oliver Gantz, Res.; Zhipeng Zhang, Res.; Alexander Markarian, M.D.; Ronica Yalamanchili, Res.; Salina Teja, M.D.; Jing Shan, Res., and Does 1 through 30 (collectively “Defendants”) from May 29, 2019 to August 19, 2019.  Plaintiff alleges that while under the care of Defendants, Defendants told her she had cancer, but never advised her that the tumor that was the basis of the cancer diagnosis was benign.  Plaintiff alleges Defendants also never obtained informed consent from her regarding the proposed treatment to be administered or any alternatives and unilaterally administered treatment, including steroid treatment.  Plaintiff further alleges that, on or about June 3, 2019, she suffered heart failure due to diabetic ketoacidosis and respiratory distress from Defendants’ administration of a large amount of insulin and/or steroids and as a result, had to be intubated.  Plaintiff alleges Defendants punctured and ripped portions of Plaintiff’s tongue during the intubation procedure, resulting in significant blood loss and permanent damage and disfigurement of her tongue. 

On September 25, 2020, Plaintiff filed a complaint against Defendants for (1) professional negligence (medical malpractice); (2) negligent hiring and retention; (3) negligent infliction of emotional distress; (4) respondeat superior (vicarious liability); and (5) breach of fiduciary duty.

On October 5, 2021, Plaintiff filed a First Amended Complaint. 

On December 10, 2021, the Court sustained with leave to amend Defendant Keck Medical Center of USC’ Demurrer to Plaintiffs First Amended Complaint’s second cause of action for negligent hiring and retention.

On January 10, 2022, Plaintiff filed the operative Second Amended Complaint.  Plaintiff’s Second Amended Complaint alleges the following causes of action: (1) professional negligence (medical malpractice); (2) failure to obtain informed consent; and (3) breach of fiduciary duties.

On July 6, 2022, Defendants University of Southern California and Keck Medical Center of USC moved for summary judgment or summary adjudication toward the claims against them in the Second Amended Complaint.

On September 26, 2023, Defendants University of Southern California and Keck Medical Center of USC filed an Amended Motion for Summary Judgment.  Plaintiff has opposed and moving Defendants have replied.  

Summary Judgment, or in the Alternative, Summary Adjudication 

Summary Adjudication Legal Standard: “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  Code of Civil Procedure section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) \

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Discussion

Plaintiff’s Second Amended Complaint sets forth two causes of action against moving Defendants—professional negligence (medical malpractice) and failure to obtain informed consent.

First Cause of Action, Professional Negligence (Medical Malpractice): GRANTED. 

Defendants move for summary judgment or summary adjudication on the grounds that Plaintiff’s causes of action for medical malpractice fails to raise a triable issue of material fact because the care and treatment complied with the requisite standard of care, and that no act or omission by Defendants caused Plaintiff’s alleged injuries. 

In a medical negligence action, a plaintiff must establish the following elements: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of [the] 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.”  (Galvez v. Frields (2001) 88 Cal.App.4tha 1410, 1420; Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02.)  “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.”  (Avivi v. Centro Medico Urgente Medical Center (2008), 159 Cal.App.4th 463, 467.)

A medical professional breaches the duty of professional care by failing to act in accordance with the prevailing industry standard of care.  (See Folk v. Kilk (1975) 53 Cal.App.3d 176, 186.)  “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony …, unless the conduct required by the particular circumstances is within the common knowledge of the layman.’”  (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that their treatment fell below the standard of care.”  (Johnson v. Super. Ct. (2006) 143 Cal.App.4th 297, 305.)  “When a defendant moves for summary judgment and supports [the] motion with expert declarations that [their] conduct fell within the community standard of care, [the defendant] is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.”  (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)  An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.) 

Here, Defendants present the declaration of Richard L. Ruffalo, M.D. (“Dr. Ruffalo”), a physician licensed to practice medicine in California who is board certified in anesthesiology and advanced cardiac life support.  (Declaration of Richard L. Ruffalo, M.D. (“Ruffalo Decl.”), ¶¶ 2,4.)  Dr. Ruffalo is familiar with the applicable standard of care within the professional community in Southern California as it applies to anesthesiology.  (Ruffalo Decl., ¶ 5.)

Dr. Ruffalo testifies that the materials he has reviewed include the operative complaint and Plaintiff’s medical records from Keck Medicine of USC.  (Id. at ¶ 6.)  Dr. Ruffalo recounts that Plaintiff was admitted to Mountain View Hospital on May 27, 2019 due to complaints of left frontal headaches that were progressively worsening.  (Id. at ¶ 8(a).)  Plaintiff received immediate and appropriate care beginning on her initial transfer from Mountain View Hospital to USC on May 27, 2019, until her discharge from USC on August 19, 2019.  (Id. at ¶ 9(a).) 

On June 3, 2019, Plaintiff went into respiratory failure requiring medication-assisted treatment, including emergent intubation and full vent support due to acute encephalopathy from diabetic ketoacidosis. Bassam Yaghmour, M.D. (“Dr. Yaghmour”) and Peter Chung, M.D. (“Dr. Chung”) performed the endotracheal intubation procedure on Plaintiff. Dr. Wu performed the arterial line insertion procedure.  Plaintiff was reported to have tolerated the procedure well and it was noted that Plaintiff did not have any complications.  Plaintiff was deemed critically ill with the following active issues: acute hypoxemic respiratory failure requiring intubation with full vent support; acute metabolic acidosis/lactic acidosis/diabetic ketoacidosis; and acute encephalopathy/brain mass/cerebral edema.  Plaintiff was subsequently moved to the ICU.  This was an emergent lifesaving treatment that was appropriately performed within the standard of care and any reasonable person would consent to this treatment.  (Id. at ¶ 9(b).) 

On June 4, 2019, Plaintiff went into acute respiratory failure.  During this time, Plaintiff had an inability to clear her secretions and a loss of protective reflexes.  Dr. Wu performed an endotracheal intubation procedure.  Dr. Wu also reintubated Plaintiff due to Plaintiff’s failed ventilation and respiratory distress. (Id. at ¶ 9(c).)  Following this procedure, Dr. Wu monitored Plaintiff frequently.  (Id. at ¶ 9(d).) 

On June 6, 2019, Dr. Wu and Ricardo Juarez, M.D. (“Dr. Juarez”) examined Plaintiff and noted that Plaintiff’s endotracheal tube was secured.  Plaintiff’s endotracheal tube secretions and oral secretions were noted to be minimal.  Following Plaintiff’s surgery, Dr. Wu appropriately ordered a radiology examination of Plaintiff’s chest view due to Plaintiff being intubated.  No negative impressions regarding the endotracheal tube were noted.   (Id. at ¶ 9(e).) 

On June 13, 2019, Dr. Wu and Dr. Juarez noted that Plaintiff had a swollen tongue and some ulcers on her tongue.  Dr. Wu and Dr. Juarez recommended Plaintiff to undergo a percutaneous tracheostomy due to upper airway edema, specifically the tongue swelling, to which Plaintiff agreed.  Dr. Wu changed Plaintiff’s ventilator mode for the bedside tracheostomy.  Dr. Wu, Dr. Yaghmour, and Lucas Cruz, M.D. (“Dr. Cruz”) subsequently performed a surgical percutaneous tracheostomy placement on Plaintiff due to her respiratory failure.  Plaintiff was reported not to have active bleeding following her tracheostomy.  It was further reported that Plaintiff tolerated the procedure well and there were no immediate complications reported.  (Id. at ¶ 9(f).) 

Based on Dr. Ruffalo’s review of the materials, education, knowledge, training, and experience, Dr. Ruffalo opines to a reasonable degree of medical certainty that moving Defendants and its medical providers complied with the requisite standard of care.  (Id. at ¶ 9.)  It is also Dr. Ruffalo’s opinion that no negligent action or omission by Defendants caused or contributed  to Plaintiff’s claimed injuries and damages.  (Id. at ¶¶ 9-10.) 

Further, Defendants present the declaration of Steven Edelman, M.D. (“Dr. Edelman”), a physician licensed to practice in California who is board certified in internal medicine and has actively practiced in the field of endocrinology since completing residency.  (Declaration of Steven Edelman, M.D.  (“Edelman Decl.”), ¶¶ 2, 4.)  Dr. Edelman is familiar with the applicable standard of care relating to the practice of endocrinology and the claims set forth in this case.  (Edelman Decl., ¶5.)

Dr. Edelman testifies that the materials he has reviewed include the operative complaint and Plaintiff’s medical records from Keck Medicine of USC.  (Ibid.)  Dr. Edelman recounts that Plaintiff was admitted to Mountain View Hospital on May 27, 2019 due to complaints of left frontal headaches that were progressively worsening.  (Id. at ¶ 7(a).)  Plaintiff received immediate and appropriate care beginning on her initial transfer from Mountain View Hospital on May 27 up until her discharge from USC on August 19.  (Id. at ¶ 8(a).)

Defendants made a correct presumptive diagnosis, before definitive lab work was completed, of a large pituitary tumor (macroadenoma)which was later proven to be correct.  This early evaluation of her differential diagnosis was important and led to a successful outcome.  (Id. at ¶ 8(b).) 

Throughout her hospital course, Defendants ordered multiple head scans (CT and MRI) for Plaintiff to monitor her progress after cabergoline was initiated. Defendants made the appropriate decision to not send the patient to surgery because of the extreme mass of the lesion and that it was encasing the carotid arteries.  Her prolactin went from 73,00 to near normal at the time of her discharge on August 19.  (Id. at ¶ 8(c).) 

Plaintiff’s hospital admission was complicated by diabetic ketoacidosis most likely brought on by the need to use steroids to reduce tumor size as she was experiencing emergent neurologic symptoms.  Plaintiff did have a history of glucose intolerance which put her at risk as well as her having sepsis early on as reported in the medical records.  She was treated in the ICU appropriately with insulin, fluids, and laboratory monitoring data with no sequalae.  (Id. at ¶ 8(d).) 

The ICU team along with the critical care physicians attended to her respiratory failure appropriately, which quite frankly saved her life.  Had she been in a small community hospital without the support staff that USC has, she may have had a poor outcome.  (Id. at ¶ 8(e).) 

In addition, her macroglossia was assessed appropriately by an ENT physician who did an oral exam as well as a bilateral nasal endoscopy.  Although the exact etiology of her tongue issue was never determined except perhaps self-induced by tongue biting, she was examined multiple times during her visit, monitored closely, and ultimately improved.  No matter what the etiology of her tongue swelling was, she received very appropriate care.  (Id. at ¶ 8(f).)

Based on Dr. Edelman’s review of the materials, education, knowledge, training, and experience, Dr. Edelman opines that moving Defendants and its medical providers complied with the requisite standard of care.  (Id. at ¶ 8.)  It is also Dr. Edelman’s opinion that no negligent action or omission by Defendants caused or contributed  to Plaintiff’s claimed injuries and damages.  (Id. at ¶¶ 8-9.) 

The foregoing is “evidence which, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established.”  (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.)  The expert opinions of Dr. Ruffalo and Dr. Edelman are evidence that moving Defendants complied with their duties under California law and the standard of care for a reasonably careful medical professional under similar circumstances.  The expert opinions are also evidence that no acts or omissions by moving Defendants caused or contributed to the alleged injuries of Plaintiff.  With this evidence, Defendants have satisfied their initial burden of showing that one or more elements of each of the causes of action in the FAC cannot be established.  (Code Civ. Proc., § 437c, subd. (p)(2).)  

This shifts the burden to Plaintiff to show that there is a triable issue of one or more material facts as to the causes of action.  (Ibid.)

Plaintiff has failed to make this showing because Plaintiff has submitted no expert declaration or other competent evidence rebutting the Dr. Ruffalo and Dr. Edelman’s declarations.  Instead, Plaintiff argues that Defendants’ expert declarations are based on inadmissible hearsay because they are based on Plaintiff’s medical records.  That is not the case.  Authenticated hospital and medical records can be admitted under the business records exception to the hearsay rule.  (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.)  Plaintiff also argues that Defendants’ experts failed to address a laceration on Plaintiff’s tongue.  However, that is also not the case.  Dr. Ruffalo and Dr. Edelman testified that they reviewed the medical records and rendered their opinions on Plaintiff’s claims concerning her tongue in reaching their conclusions. 

Accordingly, Defendants’ motion for summary judgment will be granted as to Plaintiff’s first cause of action for professional negligence (medical malpractice).

Second Cause of Action, Failure to Obtain Informed Consent: GRANTED. 

Defendant argues that Plaintiff’s cause of action for failure to obtain informed consent fails to raise a triable issue of material fact because Plaintiff consented to the treatment, and or a reasonable person in Plaintiff’s position would have consented to the treatment. 

The necessary elements for lack of informed consent are: (1) the defendant performed a medical procedure on her; (2) the defendant failed to disclose certain information to her that was material to her decision when soliciting her consent to a medical procedure; (3) a reasonable person in the plaintiff’s position would not have agreed to the procedure if she had been adequately informed; and (4) breach of the duty to disclose certain information caused damaged to the plaintiff.  (See Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1164; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [“A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives”]; Cobbs v. Grant (1972) 8 Cal.3d 229, 245 [“There must be a causal relationship between the physician’s failure to inform and the injury to the plaintiff.  Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given”].)  

Like the standard of care defense in traditional medical malpractice actions, a doctor defending a claim that his patient lacked informed consent may assert a defense that the relevant disclosure “was not required within his medical community.”  (Cobbs v. Grant (1972) 8 Cal.3d 229, 240.)  The rationale underlying the applicability of the standard of care defense to lack of informed consent claims is that the tort of lack of informed consent sounds in negligence.  (See id. at pp. 240-241.)

Here, Dr. Ruffalo’s expert declaration includes his testimony that this was an emergency lifesaving treatment that was appropriately performed within the standard of care and any reasonable person would consent to this treatment.  (Ruffalo Decl., ¶ 9(b).)  Defendants’ submitted evidence also shows that when Plaintiff was admitted to Keck Medical Center of USC, she signed consent forms indicating that she consented to care and treatment provided by Defendants including lifesaving treatment.  (Separate Statement of Undisputed Material Fact ¶ 345.)   

Because Defendants provide credible expert witness testimony from a doctor knowledgeable in the relevant field stating that Defendants met the applicable standard of care and any reasonable person would consent to the lifesaving treatment, and because Plaintiff has presented no expert witness testimony in response, Defendants’ motion for summary judgment will be granted as to Plaintiff’s second cause of action for failure to obtain informed consent.

Conclusion

Defendants University of Southern California and Keck Medical Center of USC’s Motion for Summary Judgment, or in the Alternative Summary Adjudication is GRANTED.