Judge: Frank M. Tavelman, Case: 23BBCV02357, Date: 2025-04-25 Tentative Ruling

Case Number: 23BBCV02357    Hearing Date: April 25, 2025    Dept: A

MOTION FOR SUMMARY JUDGMENT

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Ellie Hernandez (Hernandez), a minor by and through her guardian ad litem, and Emille Delgado (Delgado) (collectively Plaintiffs) bring this action against Providence St. Joseph Medical Center (Providence) and Carlos Flores, Jr. M.D. (Flores) (collectively Defendants). Plaintiffs allege that Providence and Flores were negligent in rendering medical services. Specifically, Plaintiffs allege that Providence and Flores were negligent in administering medical care to Delgado in the process of her giving birth to Hernandez. Plaintiffs allege that as a result of negligent care, Hernandez was born with significant and permanent injuries including right brachial plexus palsy and rights shoulder/elbow paralysis.

The First Amended Complaint (FAC) states causes of action for (1) Medical Malpractice/Professional Negligence (by Delgado as against all Defendants) and (2) Negligent Infliction of Emotional Distress (by Hernandez as against all Defendants).

Before the Court is a motion for summary judgment brought by Providence. Providence asserts that summary judgment must issue because (1) the conduct of Providence and its employees did not fall below the standard of care, and (2) that Providence was not liable for malpractice under the ostensible agency theory. Providence argues that no triable issue of fact exists as to either of the above, and thus Plaintiffs cannot maintain their cause of action for Medical Malpractice. Providence further argues that, in the absence of a valid cause of action for Medical Malpractice, Plaintiffs cannot sustain their cause of action for Negligence Infliction of Emotional Distress.

Plaintiffs do not oppose the motion and instead have filed a notice of non-opposition. Plaintiffs take the position that should any remaining Defendant (i.e. Flores) wish to attribute fault to Providence, it is incumbent upon that Defendant to oppose the motion. Regardless, Flores has not opposed the motion.

ANALYSIS: 

I.                    LEGAL STANDARD 

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) C.C.P.¿§ 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.)¿ 

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As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (C.C.P.¿§437c(p)(2);¿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.)¿ 

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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 that cause of action or a defense thereto. 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.)¿ 

II.                 MERITS

Medical Negligence

As mentioned above, Providence argues an absence of triable issues as to both its own medical negligence (direct liability), and as to any liability it bears for the conduct of Flores (vicarious liability). The Court will address each of these issues in turn.

Direct Liability

“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.)

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.4th 601.) 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. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984–985 [citations omitted].)

In satisfaction of its burden on the issue of Providence’s own conduct, Providence submits the declaration of registered nurse Carolyn Eoff (Eoff). Eoff attests that she has been a registered nurse since 1986, working for over a decade as a labor and delivery nurse for Glendale Adventists Medical Center. (Eoff Decl. ¶ 1.) Eoff has been serving as the labor and delivery nurse at Scripps Memorial Hospital since 1993 and holds a Certificate of Added Qualification in Electronic Fetal Monitoring (C-EFM) through The National Certificate Corporation (NCC). (Id.)

Eoff states that Delgado presented to Providence, “at 40.1 weeks gestation, with complaints of ruptured membranes.” (Eoff Decl. ¶ 4A.) Eoff states that Delgado was then admitted to the labor and development unit, where the nursing staff at Providence performed an initial exam and notified Flores of Delgado’s presentation. (Eoff Decl. ¶ 4B.) Eoff’s declaration details that the nursing staff for Providence continued to perform exams throughout Delgado’s labor. Eoff Decl. ¶¶ 4C-4M.)

Eoff states that Flores’ notes indicate a shoulder dystocia was immediately recognized during Delgado’s at pushing. (Eoff Decl. ¶ 4N.) Eoff states Delgado was in “McRoberts”, which is a phrase she does not explain. (Id.) Regardless, the Court is aware that McRoberts generally refers to a maneuver commonly used in birthing. Eoff continues that, “…suprapubic pressure was applied. Gentle downward traction was applied for approximately 30 seconds until the anterior shoulder was delivered.” (Id.) Eoff states that x-rays after the birth were negative for any fracture or dislocation of either shoulder. (Eoff Decl. ¶ 4P.)

Eoff states that, in her professional opinion, Providence and its nurses adhered to the standard of care in the delivery of Hernandez. (Eoff Decl. ¶ 5.) Eoff sates that the nursing staff appropriately evaluated Delgado upon her presentation and “appropriately managed, monitored and evaluated” her throughout her labor. (Eoff Decl. ¶ 7.) Eoff states that the staff appropriately followed Flores’ directions to apply suprapubic pressure once the shoulder dystocia was recognized. (Eoff Decl. ¶ 8.)

As neither Plaintiff nor Flores have opposed this motion, the declaration of Eoff remains uncontested for purposes of this motion. Providence has provided expert testimony in the form of the Eoff declaration, and no party has presented any countervailing evidence. The law is clear that in such situations, the uncontested declaration of the moving party’s expert is sufficient to satisfy their burden in negating a medical malpractice claim.

Vicarious Liability

In California, a hospital may be held liable for a physician's wrongdoing when the physician is an ostensible agent of the hospital. (See, e.g., Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1038; Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.) Where a patient seeks to hold a hospital liable for the negligence of a physician, the doctrine of ostensible agency requires two elements: “(1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital, and (2) reliance on that apparent agency relationship by the plaintiff.” (Mejia, supra, 99 Cal.App.4th at 1453.) “[O]stensible agency is based on appearances.” (Id. at 1459.)

Generally, the first element is satisfied when the hospital “holds itself out” to the public as a provider of care, unless it gave the patient contrary notice. (Markow, supra, 3 Cal.App.5th at p. 1038.) To establish this element, “it is not necessary to show an express representation by the hospital.” (Mejia, supra, 99 Cal.App.4th at p. 1454.) “Reliance upon an apparent agency, the second element, is demonstrated when the plaintiff ‘looks to’ the hospital for services, rather than to an individual physician.” (Markow, supra, at p. 1038 [cleaned up].)

Although the existence of an agency relationship is usually a question of fact, it “becomes a question of law when the facts can be viewed in only one way.” (Metropolitan Life Ins. Co. v. State Bd. of Equalization (1982) 32 Cal.3d 649, 658.) In the physician-hospital-patient context, ostensible agency is a factual issue “[u]nless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital's agent, such as when the patient is treated by his or her personal physician” or received actual notice of the absence of any agency relationship. (Mejia, supra, 99 Cal.App.4th at 1454, 1458.)

Here, Providence has provided its “Conditions of Admission” form which was signed by Plaintiff on January 19, 2022 upon her admission. (See Exh. N, Comp. of Evi. p. 127) The form contains a sections which reads:

PHYSICIANS ARE INDEPENDENT CONTRACTORS: The undersigned recognizes that all physicians, physician assistants, and surgeons furnishing service to the patient, including the radiologist, pathologist, anesthesiologist, emergency room physician, physician assistants, and the like, are independent contractors and are not employees or agents of the hospital.

(Id. at p. 130.)

The Court finds this form is sufficient prima facie evidence that Delgado was on notice that Flores was not an employee of Providence. The headline of this section is presented in capitalized letters and bolded, presumably to draw the reader’s attention to its terms (though it appears every section received the same treatment). Neither Plaintiff nor Flores have submitted any evidence or argument as to Delgado’s belief that Flores was an employee of Providence. In the absence of contrary evidence, Delgado’s signature on the form serves as evidence that she received actual notice that no agency relationship existed.

The Court finds Providence has satisfied its burden to prima facie demonstrate the lack of a triable issue of fact as to Plaintiffs’ claim for Medical Malpractice. Providence has submitted uncontroverted evidence that its nursing staff and employees adhered to the proper standard of care in delivering Hernandez. Providence has also submitted uncontroverted evidence showing Plaintiff had actual notice that Flores was not an employee of Providence. As Plaintiffs have declined to render any opposition, it follows they have not upheld their shifted burden to demonstrate a triable issue of fact as to either theory of liability.

NIED

The basic elements of a Negligent Infliction of Emotional Distress (NIED) cause of action are that: (1) defendant was negligent; (2) plaintiff suffered serious emotional distress; and (3) defendant's negligence was a substantial factor in causing plaintiff's serious emotional distress. (CACI 1620.)

The Court having found no triable issue of fact as to a breach constituting negligence, it follows that there can be no triable issue of fact as to NIED. The defeat of Plaintiffs’ cause of action for medical negligence means they necessarily lack the first element of an NIED claim.

Conclusion

Given the foregoing, the Court finds the motion for summary judgment should be GRANTED. Providence has satisfied its burden to demonstrate prima facie that Plaintiff cannot sustain either cause of action against them. Plaintiffs have not opposed this motion and thus failed to uphold their shifted burden.

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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 

Providence St. Joseph Medical Center’s Motion for Summary Judgment came on regularly for hearing on April 25, 2025, 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 GRANTED.

DEFENDANT PROVIDENCE ST. JOSEPH MEDICAL CENTER TO GIVE NOTICE.  

IT IS SO ORDERED.