Department 58

Hearing Date: June 18, 2024

Case Name: Allison v. Pak

Case No.: 23STCV03614

Matter: Motion for Summary Judgment

Moving Party: Defendant Marian Pak, D.O.

Opposing Party: Plaintiffs Mary Cobb Allison and John Bailey Owen

Tentative Ruling: The motion for summary judgment is denied.

This is a medical malpractice action. The Complaint alleges that, on November 22, 2021, Plaintiff Mary Cobb (Plaintiff) was 40 weeks pregnant and presented to Defendant PIH Health Good Samaritan Hospital for a scheduled induction; while at PIH Health Good Samaritan Hospital, Plaintiff received negligent treatment and care from her treating medical providers, including Defendants Dennis Idowu, M.D., Marian Pak, D.O., Spectrum Women’s Health Care Medical Group, Inc., and PIH Health Good Samaritan Hospital staff that resulted in her injuries. The Complaint contains causes of action for (1.) professional negligence/medical malpractice and (2.) loss of consortium.

Defendant Marian Pak, D.O. (Defendant Pak) now moves for summary judgment. Plaintiffs Mary Cobb Allison (Allison) and John Bailey Owen (Owen) filed an opposition.

The motion for summary judgment is denied.

Legal Standard

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c,¿subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.)

The moving party has the initial burden of production to make¿a prima facie¿showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make¿a prima facie¿showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c,¿subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden by proving that for each cause of action alleged, plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c(p)(2).)

Discussion

Medical Negligence Cause of Action:

Defendant Pak moves for summary judgment on the grounds that (1.) the care and treatment provided to Plaintiff by Defendant Pak was, to a reasonable degree of medical probability, at all times appropriate and within the applicable standard of care in the community; and (2.) no negligent act or omission by Defendant Pak was the cause of, or a substantial factor in causing Plaintiffs’ alleged injuries.

“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) To prove a medical malpractice claim, the plaintiff must first establish the applicable standard of care and then demonstrate that the standard of care was breached. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)

Expert opinion testimony is required to prove or disprove that the defendant in a professional malpractice action performed in accordance with the prevailing standard of care. “The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the expert’s knowledge.” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 105.) It is well-established that “[i]n professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523; Landeros v. Flood (1976) 17 Cal.3d 399, 410; see also Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412 [nurse's conduct must be measured by the standard of care required of other nurses in the same or similar locality and under similar circumstances].)

In support of the motion for summary judgment, Defendant submits the expert declaration of Scott Serden, M.D. Dr. Serden opines that the care and treatment of Plaintiff Allison by Defendant Pak, complied with the applicable standard of care at all times. (Serden Decl., ¶¶ 33, 48.) Specifically, Dr. Serden opines that – given the specifically identified facts in the underlying medical records – Defendant Pak’s actions were appropriate and reasonable.

Further, in anticipation of the opposition arguments, Dr. Serden notes that a consultation by specialist, including infectious disease and/or nephrology specialist, would not have changed the outcome in this case. (Serden Decl., ¶¶ 34-45.) Dr. Serden also states that the standard of care did not require Defendant Pak to order new or additional antibiotics for Plaintiff Allison; that is, Defendant’s use and reliance on Zosyn was appropriate. (Serden Decl., ¶ 46.)

Contrary to the arguments in opposition challenging this expert evidence, Dr. Serden’s declaration is not deficient under Kelley v. Trunk (1998) 66 Cal.App.4th 519 and adequately provides a reasoned explanation on the key issues in this case. Thus, Defendant Pak’s evidence shifts her initial burden on this medical negligence claim by demonstrating that Plaintiff cannot prove the essential elements of a breach of duty of care or causation.

In opposition, Plaintiffs argue that the evidence demonstrates Defendant Pak’s failure to meet the standard of care and demonstrates causation.

In support, Plaintiffs submit their own expert, Howard Mandel, M.D., F.A.C.O.G. Like Dr. Serden, Dr. Mandel is board certified in Obstetrics and Gynecology and is qualified to testify on the standard of care for an obstetrician such as Defendant Pak. (Mandel Decl., ¶¶ 1-2.)

Dr. Mandel opines that Defendant Pak delayed Plaintiff Allison’s diagnosis of septic shock and failed to aggressively manage her clinical situation. (Mandel Decl., ¶ 14.) After discovering that Plaintiff had a decreased urine output and increase white blood cell count, Defendant Pak should have known that Plaintiff was in septic shock and that her antibiotic regime was insufficient. (Mandel Decl., ¶ 14.) “The standard of care at this time required [Defendant] Pak . . . to consult with an infectious disease specialist, ICU physician, emergency department physician, or an internist with experience treating septic shock. [Defendant] Pak fail[ed] to do this allowing [Plaintiff] Allison’s septic shock to worsen.” (Mandel Decl., ¶ 14.) Dr. Mandel continues by opining that “[Defendant] Pak also breached the standard of care by leaving the hospital shortly after this with [Plaintiff] Allison in shock that was not being treated appropriately.” (Mandel Decl., ¶ 14.)

Based on these breaches of the standard of care, Dr. Mandel opines that Defendant Pak’s actions were a substantial factor in causing Plaintiff Allison’s development of septic shock and her subsequent symptoms including loss of kidney function actions. (Mandel Decl., ¶ 17.)

In reply, Defendant Pak attempts to undermine Plaintiff’s expert declaration by arguing that the “Zosyn is the correct antibiotic for Ms. Allison to have been on, but even if it wasn't, an earlier consult would not have changed anything because the specialists all kept her on Zosyn.” (Reply 2:12-15.) Defendant further argues that Plaintiff's expert “is an OBGYN and not an Infection Disease physician, yet he opines beyond the scope of his expertise as to the proper antibiotic to give without at all establishing what the foundational basis for his conclusion.” (Reply 2:18-20.)

These arguments are unpersuasive. It is within Plaintiff’s expert’s expertise to opine on the proper course of conduct for an obstetrician to follow under the circumstances. Further, the argument regarding “Zosyn [being] the correct antibiotic” only highlights the material facts in dispute, specifically regarding whether the usage of Zosyn was sufficient in Plaintiff’s treatment and care.

Therefore, the opposition sufficiently raises a triable issue of material fact in dispute. Based on the triable issue of material facts in dispute as to the medical negligence claim, the challenge to the loss of consortium claim also fails.

Conclusion

The motion for summary judgment is denied.