Judge: Frank M. Tavelman, Case: 21STCV24782, Date: 2023-04-21 Tentative Ruling

Case Number: 21STCV24782    Hearing Date: April 21, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR SUMMARY JUDGMENT

ALLEGATIONS: 

Cathy Schlesinger (“Schlesinger”) and David Gaines (“Gaines”) (collectively “Plaintiffs”) allege that, on April 8, 2020, Schlesinger was a patient of Nadia Jean Fakoory, M.D. (“Fakoory”) in the emergency department of Providence St. Joseph Medical Center (hereinafter “ED”). On July 6, 2021, Plaintiffs filed a complaint against Fakoory, Providence Health System-Southern California dba Providence St. Joseph Medical Center erroneously sued as Providence St. Joseph Med Center (“Providence”), Woody Herman Jackson, M.D. (“Jackson”), 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 Jackson and Solymanijam], (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 Fakoory. Plaintiffs allege Fakoory’s conduct fell below the standard of care during treatment of Schlesinger. Specifically, Plaintiffs allege Fakoory negligently ordered the administration of the vasopressor drugs Levophed and Dopamine (“vasopressors”) which subsequently caused a paroxysmal atrial fibrillation. Plaintiffs further allege Fakoory failed to provide adequate information prior to the administration of the vasopressors, preventing Schlesinger from objecting to the treatment.

HISTORY: 

Fakoory moves for summary judgment of the FAC. Fakoory argues there is no triable issue of material fact as to the first cause of action for Medical Negligence and second cause of action for Lack of Informed Consent. Fakoory argues that the Schlesinger claims against her cannot be sustained, and therefore Gaines’ derivative claim for loss of consortium likewise fails.

Plaintiffs oppose the motion and Fakoory replies.

EVIDENTIARY OBJECTIONS:

Fakoory’s evidentiary objections Nos. 1-7 to the declaration of Gregory Wu, M.D. are OVERRULED.

ANALYSIS: 

I.                LEGAL STANDARD 

A party may move for summary judgment when the action has no merit or that there is no defense to the action or proceeding. (C.C.P. § 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. (C.C.P. § 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.” (C.C.P. § 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. (Id.) 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. (Id.) 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. (Id.)

When considering the declarations of the parties’ experts, the Court liberally construes the declaration for the plaintiff’s experts and resolves any doubts as to the propriety of granting the motion in favor of plaintiff. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 126.)

II.              MERITS

Medical Negligence (First COA)

“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.4^th 1557, 1571.)

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. (Hanson v. Grode (1999) 76 Cal.App.4^th 601, as modified (Nov. 29, 1999). When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’ (Citations.)” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984–985.)

Fakoory claims no material fact exists as to whether her behavior fell below the standard of care. To satisfy her burden, Fakoory must produce evidence that her treatment of Schlesinger did not fall below the standard of care. Fakoory submits the declaration of George Baskevitch, M.D. (“Baskevitch”). Baskevitch states Fakoory’s administration of IV fluids was within the standard of care. (Baskevitch Decl. ¶ 5.) Baskevitch explains the standard of care for fluid administration requires individual assessment of the patient to treat sepsis/septic shock. (Id. ¶ 14.) Baskevitch states the actions Fakoory took in assessing and administering vasopressors were within the standard of care. (Baskevitch Decl. ¶ 18.)

The Court finds Fakoory has satisfied her burden. Plaintiffs subsequently bear the burden to produce evidence of the existence of a triable issue of material fact surrounding Fakoory’s administration of vasopressors.

Plaintiffs dispute Baskevitch’s claim that the administration of vasopressors was within the standard of care. Baskevitch states:

“At 5:17 a.m., the plaintiff’s BP was still critically low. Dr. Fakoory ordered a Dopamine infusion in conjunction with the Levophed and IV fluid support, which was administered at 5:30 am. At 5:42 a.m. the plaintiff’s BP had improved to 97/51, which is consistent with Sepsis Criteria Goals MAP [Mean Arterial Pressure] over 65 (66.3).”

(Baskevitch, Decl. ¶11.)

Baskevitch also states:

“Dr. Fakoory’s initial order that in conjunction with IV fluids the plaintiff receive Levophed 3mcg at 3:58 a.m., and then subsequent titrations up incrementally to a maximum of 30mcg at 5:15 a.m., was appropriate and met the standard of care. The plaintiff’s BP remained critically low. Dr. Fakoory’s choice of Levophed and then Dopamine was in keeping with standard of care recommendations. Vasopressors are given to septic patients in order to help support a patient’s low BP. An optimal systolic BP should be 90 or above. Low BP is associated with organ hypoperfusion, which can lead to organ failure and death. Because of this, it is imperative that a patient’s BP is raised through the use of vasopressors.”

(Baskevitch Decl. ¶¶ 5, 8-10, 17-20, Exhibit C, Exhibit D.)

In opposition, Plaintiffs submit the declaration of Gregory Wu, M.D. (“Wu”). Wu states “The target to measure the response with the mean arterial pressure (MAP) =65 mmHg was being met when FAKOORY ordered dopamine infusion on 04/08/20 at 0520. (Wu Decl. ¶ 46.) Wu also states Fakoory violated the appropriate standard of care when she ordered the dopamine. (Id.)

In reply, Fakoory argues Wu’s statement is contradictory. Wu states the MAP reading taken at 0517, minutes before Dr. Fakoory placed her order at 0520, was 64, which is not =65 mmHg. (Wu Decl. ¶¶ 28, 30.) Fakoory argues that, by Wu’s own statement, the Plaintiff’s MAP target was not being met at the time Dr. Fakoory placed her order for dopamine.

“[E]xpert opinions … are worth no more than the reasons and factual data upon which they are based.” (Griffith v. County of Los Angeles (1968) 267 Cal.App.2d 837, 847.) Both Baskevitch and Wu base their opinions on Schlesinger’s medical record. Schlesinger’s medical record is attached as Exhibit C to the Baskevitch declaration and Exhibit 1 to the Wu declaration. Relevant to the disputed statements of fact is the ED care timeline located at pages 656-695 of Schlesinger’s medical record.

Page 682 of this record confirms that 5:17 was the most recent measurement of MAP before Fakoory ordered vasopressors be administered. At 5:17, Kristine Adalmy, RN measured Schlesinger’s MAP to be 64 mmHg. (Schlesinger Med. Rec. pg. 682.) At 5:19:04, Fakoory placed orders for dopamine 3,200 mcg/mL in sodium chloride 0.9% 250 mL infusion (Id.) At 5:19:41, these orders were discontinued by Divvjyot Singh, PharmD. (Id.) At 5:20:27, orders were placed for dopamine in dextrose 1,600 mcg/mL infusion by Woody Herman Jackson, M.D. (Id.) At 5:30 dopamine began to be administered. (Id. at 683.)

Schlesinger’s record indicates her MAP was measured twice between Fakoory’s ordering the dopamine at 5:19:04 and its administration at 5:30. Schlesinger’s MAP was measured to be 65 mmHg at 5:22. Schlesinger’s MAP was measured again at 5:27, reading 68 mmHg. Both readings were at or above the target MAP of =65 mmHg. Wu’s statement acknowledges both measurements. (Wu Decl. ¶¶ 32-33.) The Court finds Wu’s statement, based upon his review of Schlesinger’s medical record, is not contradictory.

The Court finds Wu’s statement presents a triable issue of fact as to whether Fakoory was negligent in administering the dopamine. Fakoory and Plaintiff have presented competing expert witness statements. Fakoory has met her initial burden and Plaintiffs have met their burden in kind. As such, the Court denies the motion for summary judgment.

Lack of Informed Consent (Second Cause of Action)

Considering the denial of summary judgment, the Court does not address Fakoory’s arguments as to lack of informed consent.

Loss of Consortium (Fifth COA)

A claim for loss of consortium contains four elements: (1) a valid and lawful marriage between

the plaintiff and the person injured at the time of the injury, (2) a tortious injury to the plaintiff's spouse, (3) loss of consortium suffered by the plaintiff, and (4) the loss was proximately caused by the defendant's act. (LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284-285.) “‘A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.’ (Citation).” (Id.)

Fakoory argues Gaines’ loss of consortium claim against her is derivative of Schlesinger’s professional negligence action. (Mot. pg. 9.) Fakoory argues because the claims of negligence and lack of informed consent fail, so too must Gaines’ loss of consortium claim. As the Court denies summary judgment, it cannot be said Gaines’ claim fails as matter of law.

III.            CONCLUSION

The Court finds Fakoory has met her burden through the declaration of Baskevitch. The Court finds Plaintiffs have met their burden through the declaration of Wu. As such, Plaintiffs show a triable issue of fact as to whether Fakoory’s actions fell below the standard of care. As such, the court DENIES the Motion for Summary Judgment.

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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 

Nadia J. Fakoory M.D.’s Motion for Summary Judgment came on regularly for hearing on March 28, 2023 AND WAS CONTINUED ON THE COURT’S MOTION TO APRIL 21, 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: 

THE MOTION FOR SUMMARY JUDGMENT IS DENIED. 

PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  April 21, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles