Judge: Frank M. Tavelman, Case: 21STCV24782, Date: 2023-01-13 Tentative Ruling

Case Number: 21STCV24782    Hearing Date: January 13, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR SUMMARY JUDGMENT

MP:    Woody Herman Jackson, M.D. (“Defendant”)

RP:     Cathy Schlesinger and David Gaines (“Plaintiffs”)

ALLEGATIONS:

Cathy Schlesinger (“Schlesinger”) and David Gaines (“Gaines”) (collectively “Plaintiffs”) allege that on April 8, 2020, Schlesinger was a patient of Woody Herman Jackson, M.D. (“Defendant”) in the emergency department of Providence St. Joseph Medical Center (hereinafter “ED”).  On July 6, 2021, Plaintiffs filed a complaint against Defendant, Providence Health System-Southern California dba Providence St. Joseph Medical Center erroneously sued as Providence St. Joseph Med Ctr (“Providence”), Nadia Jean Fakoory, M.D. (“Fakoory”), Robin Solymanijam, M.D. (“Solymanijam”), Karo K Arzoo, M.D. (“Arzoo”), Mariam Torossian (“Torossian”), and Grace I. Wong, M.D. (“Wong”) (collectively, “Defendants”).  On December 21, 2021, Plaintiffs filed a first amended complaint (“FAC”) against Defendants alleging five causes of action for (1) medical negligence [by Schlesinger against Defendants], (2) lack of informed consent [by Schlesinger against Fakoory], (3) lack of informed consent [by Schlesinger against Defendant and Solymanijan], (4) lack of informed consent [by Schlesinger against Arzoo], and (5) loss of consortium [by Gaines against Defendants].  Accordingly, three causes of action are asserted against Defendant. Plaintiffs allege that Defendant’s conduct fell below the standard of care during treatment of Schlesinger. Specifically, Plaintiffs allege that Defendant negligently ordered the administration of the vasopressor drugs Levophed and Dopamine (“Vasopressors”) which subsequently caused a paroxysmal atrial fibrillation. Plaintiffs also allege that Defendant negligently failed to order necessary treatment within three hours of presentation septic shock, subsequently causing a Symmetrical Peripheral Gangrene that required the amputation of Schlesinger’s feet. Plaintiffs further allege that Defendant failed to provide adequate information prior to the administration of the Vasopressors, preventing Schlesinger from objecting to the treatment.

HISTORY:

Defendant moves for summary judgment of the FAC. In the alternative, Defendant moves for summary adjudication of the 1^st (Medical Negligence) and 3^rd (Lack of Informed Consent) causes of action.  (Notice of Motion, pg. 2; Motion, pgs. 11-12.).

The Court notes Defendant’s Notice of Motion does not indicate as to which issues and/or causes of action Defendant seeks summary adjudication, as Defendant only requests, “an order granting summary adjudication.”  Defendant’s request for summary adjudication is deficient because Defendant fails to specify in his notice of motion and separate statement “the specific cause of action, affirmative defense, claims for damages, or issues of duty” that Defendant is seeking summary adjudication of as required by California Rules of Court, Rule 3.1350(b). However, since Defendant’s request for summary adjudication is based on the same grounds as his motion for summary judgment, the Court considers the request for summary adjudication of individual causes of action together with Defendant’s motion for summary judgment as to the FAC as a whole.

Plaintiffs oppose the motion and Defendant replies.

Evidentiary Objections

Defendant’s evidentiary objections to the Declaration of Toby Paulson, D.O. (“Paulson”) are OVERRULED as to Nos. 1, 2, 3, 4, and 5. Defendant provides detailed objections to the statements made by Paulson primarily relying on Kelley v. Trunk (1998) 66 Cal.App.4th 519. Defendant argues that Kelly requires all expert testimony in a motion for summary judgment be accompanied with a reasonable explanation of any conclusions.  In response Plaintiffs argue that expert testimony offered in opposition to a motion for summary judgment is afforded a more liberal standard than expert testimony offered in support. (Powell v. Kleinman (2007) 151 Cal.App.4th 112.) While it is true that defects in expert testimony can cause it to fall below this more liberal standard, the Court does not find that to be the case here. As such Defendant’s objections are overruled.

Defendant similarly objects to Plaintiffs’ Disputed Material Facts. These objections are OVERRULED as improper. Plaintiffs’ Separate Statement of Facts is not evidence but rather Plaintiffs’ summary of material facts which are supported by evidence, and as such are not the proper subject of an evidentiary objection. 

ANALYSIS:

I.                LEGAL STANDARD

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP § 437c(a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute. 

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP § 437c(p)(2).) 

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.) 

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Ibid.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Ibid.) When summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ibid.)  

II.              mERITS

Defendant moves for summary judgment on the basis that (1) Defendant did not deviate from the standard of care in the course of caring for Schlesinger; (2) any deviation in the standard of care by Defendant did not cause Schlesinger’s injuries; and (3) Defendant was not required to receive consent for treatment administered under lifesaving pretenses.

Breach of Standard of Care

“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.” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.)

In moving for summary judgment, Defendant claims that no material fact exists as to whether Defendant’s behavior fell below the standard of care. In order to satisfy his burden, Defendant must produce evidence that Defendant’s treatment of Schlesinger did not fall below the standard of care. Ordinarily, whether a physician has met the standard of care is a matter uniquely within the knowledge of experts. (Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690.)

Defendant presents the expert declaration of Michael J. Eilbert, M.D. (“Eilbert”).  Eilbert states that Defendant’s administration of Vasopressors to Schlesinger was within the standard of care considering Schlesinger’s presentation of septic shock. (Eilbert Decl. ¶7.) Eilbert further contends that, to a reasonable degree of medical certainty, Schlesinger would have died without the administration of the Vasopressors. (Ibid.) Further, Eilbert states that Defendant had no duty to continually monitor the administration of the Vasopressors once Schlesinger was transferred to the Intensive Care Unit. (Eilbert Decl. ¶¶8-9.)

The declaration of Eilbert is sufficient to satisfy Defendant’s burden. Plaintiffs subsequently bear the burden to produce evidence of the existence of a triable issue of material fact surrounding Defendant’s administration of Vasopressors.

Plaintiffs offer the declaration of Toby Paulson D.O. (“Paulson”). Paulson opines that Defendant’s decision to administer the Vasopressors was below the standard of care. (Paulson Decl. ¶50.) Paulson also states that Defendant violated the standard of care when he failed to administer the septic shock core measure of a fluid bolus within three hours of septic shock. (Paulson Decl. ¶56.) Plaintiffs’ submissions are sufficient to meet their shifted burden. The Paulson declaration indicates that a material dispute of fact exists as to whether Defendant violated the relevant standard of care while caring for Schlesinger. As such, Defendant is not entitled to an order granting summary judgment against Plaintiffs.

In his reply the Defendant argues that the opinions of Paulson do not have adequate basis to serve as evidence of standard of care. Defendant cites Johnson v. Superior Court (2006) 143 Cal.App.4th 297, wherein it was determined that an expert opinion cannot rely on conclusory statements in making declarations about standards of care. Defendant argues that Paulson, like the expert in Johnson, has not adequately explained his determination as regards the standard of care. The expert testimony the Court in Johnson was concerned with read thus:

“On September 2, 1999, Plaintiff had an ultrasound of his prostate. Thereafter, plans were made on where and how many radioactive seeds should be placed. The implantation plan was created by DR. ROSENTHAL. DR. LEIBENHAUT, another radiation oncologist, reviewed the plan and agreed with DR. ROSENTHAL'S calculation. The plan was within the standard of care at the time.”

By comparison the opinions provided by Paulson go into considerably more detail as to how his conclusion was reached. Paulson provides an extensive explanation of the documentation that he reviewed and provides an explanation as to typical procedure in treating patients presenting with septic shock. Paulson then concludes that as a result of Defendant’s failure to follow certain procedure (administration of the fluid bolus) and decision to administer the Vasopressors, that the standard of care was violated. It does not necessarily follow that Paulson’s explanation will prevail at trial, but his opinion is sufficient to rebut Defendant’s assertion of no triable issue of fact.

Causation of Injuries

Assuming, arguendo, Plaintiffs had not met their burden of submitting evidence creating a triable issue of fact as to whether they can establish that Defendant breached the standard duty of care, as discussed below, Plaintiffs submitted evidence creating a triable issue of fact as to causation. 

Defendant argues that there exists no material issue of fact as to whether his alleged misconduct, even if it did breach the standard of care, actually caused Schlesinger’s injuries. Defendant again relies on the declaration of Eilbert. Eilbert states that, to a reasonable degree of medical certainty, no act or omission of Defendant caused Schlesinger’s injuries. (Eilbert Decl. ¶12.) Eilbert further opines that there was nothing Defendant could have done differently to improve Schlesinger’s outcome or to prevent her subsequently developed ischemic injuries. (Ibid.) Eilbert states that Schlesinger bore several contributing factors to her amputations, which increased her risk of infection and gangrene. (Eilbert Decl. ¶14.) Lastly, Eilbert states that any gangrene that developed on Schlesinger’s extremities developed after she was no longer in Defendant’s care and his duty to her had terminated. (Ibid.) The Eilbert declaration is sufficient to satisfy Defendant’s burden as to causation, thus the burden shifts to Plaintiffs.

Plaintiffs’ opposition again relies on the declaration of Paulson. Paulson states that Defendant’s ordering the Vasopressors was, to a reasonable degree of medical probability, a substantial factor in causing the paroxysmal atrial fibrillation. (Paulson Decl. ¶53.) Further, Paulson states that Defendant’s failure to order the septic shock core measure of a fluid bolus within three hours of septic shock was a substantial factor in causing the acute liver failure, which in turn was a substantial factor in causing the Symmetrical Peripheral Gangrene. (Paulson Decl. ¶¶57-58.) Paulson similarly contends that Defendant’s duty to uphold the standard of care continued after her transfer to the ICU as a result of the continued administration of the Vasopressors during that time. (Paulson Decl. ¶ 64.) By virtue of these statements, Plaintiffs have carried their burden and established that triable issues of fact exist as to whether the behavior of Defendant caused Schlesinger’s injuries. As such, summary judgment is denied. Accordingly, Defendant’s motion for summary adjudication of the 1^st cause of action is denied.

Defendant’s reply argues that Paulson’s testimony relies on too many hypothetical occurrences for him to state an opinion on causation. Defendant relies on Wicks v. Antelope Valley Healthcare District (2020) 49 Cal.App.5th 866, in which MSJ was granted where an expert opined that if a nurse had obtained medical history of a patient, then a prudent physician would have summoned a cardiologist, who would have ordered certain tests, which would have resulted in the proper care being given. The Paulson testimony contains no such convoluted chain of assumption. Paulson explicitly states that the administration of Vasopressors can cause the paroxysmal atrial fibrillation that Schlesinger suffered. Defendant also relies on Fernandez v. Alexander (2019) 31 Cal.App.5th 770. The expert testimony in Fernandez stated that the defendant failed to obtain a new x-ray for a patient presenting a wrist deformity. The testimony went on to simply conclude that plaintiff’s further wrist deformity was caused by this failure. Unlike the defendant in Fernandez, the Paulson declaration does provide an explanation as to how the acts or omissions of Defendant caused Schlesinger’s eventual injuries.

Informed Consent

Plaintiffs’ FAC alleges that Defendant failed to provide the required information to Schlesinger by never mentioning the risks associated with Vasopressors prior to administration.

To state a cause of action for lack of informed consent, a plaintiff must allege (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.”].)

Defendant contends in moving for summary judgment that there is no triable issue of fact as to the causation element of informed consent. “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.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 245)

Here, Defendant fails to carry his burden in that the evidence is insufficient to show no triable issue of fact exists as to causation. Defendant offers a statement by Schlesinger during her deposition in which she said

“… if they said to me, well, you are either going to die or you take the pressors. I would have said, okay, I'll take the pressors. So, you know, you are either going to die or you are going to lose your feet, then I would say oh, okay. But if I may not die, it might be a different question. May not die and you may not lose your feet, but – so I was like well, maybe I should take my chances . . . .”

(Schlesinger Depo. at 125:23-126:6.)

It is not clear to the Court that this statement by Schlesinger satisfies the Defendant’s burden. Defendant claims this statement shows that there is no triable issue of fact as to whether Schlesinger would have granted treatment if properly informed, but her testimony is too conflicted to support such a contention. Schlesinger’s statement indicates that, if properly informed, she would have granted the treatment with Vasopressors only if it was certain she would die without them. Schlesinger continues that if there were any chance she would live without the Vasopressors, she may have denied treatment. Through Defendant’s evidence alone it is clear that there is a dispute of fact as to whether Schlesinger would have consented to the use of Vasopressors. As such, summary judgment cannot be granted.  In light of Defendant’s failure to meet his burden, the burden does not shift to Plaintiffs to submit evidence creating a triable issue of fact on this cause of action.  Accordingly, Defendant’s motion for summary adjudication of the 3^rd cause of action is denied.

Loss of Consortium

Defendant moves for summary judgment on the grounds Gaines cannot establish his claim for loss of consortium against Defendant. However, Defendant’s motion as to the loss of consortium claim is predicated on the Court granting summary adjudication of Schlesinger’s claims of negligence and lack of informed consent against Defendant. (Motion, pgs. 3. 11.)  Given that the court has denied Defendant’s motion for summary adjudication of the negligence and lack of informed consent claims against Defendant, Defendant is not entitled to an order granting summary adjudication of the claim for loss of consortium.

III.            CONCLUSION

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Woody Herman Jackson, M.D. Motion for Summary Judgment came on regularly for hearing on January 13, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION, IS DENIED.

PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED.

DATE:  January 13, 2023                              

_______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles