Judge: Gail Killefer, Case: 21STCV14924, Date: 2023-03-02 Tentative Ruling
Case Number: 21STCV14924 Hearing Date: March 2, 2023 Dept: 37
HEARING DATE: March 2, 2023
CASE NUMBER: 21STCV14924
CASE NAME: Ahmad Sadeghein, et al. v. Cedars-Sinai Medical Center, et al.
MOVING PARTY: Defendant, Cedars-Sinai Medical
Center
OPPOSING PARTIES: Plaintiffs, Ahmad Sadeghein and
Nadereh Golbou
TRIAL DATE: October 10, 2023
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary Judgment
OPPOSITION: February 17, 2023
REPLY: February
24, 2023
TENTATIVE: Cedars’ motion for
summary judgment is denied. Plaintiffs are to give notice.
Background
This is a medical malpractice action arising out of the care
and treatment of Plaintiff Ahmad Sadeghein (“Sadeghein”) at Defendant
Cedars-Sinai Medical Center (“Cedars”) for a spinal procedure. Sadeghein’s wife, Plaintiff Nadereh Golbou
(“Golbou”), also seek compensation for loss of consortium. The Complaint alleges that
Sadeghein received medical care and underwent surgery at Cedars, performed by
Defendant J. Patrick Johnson, M.D. (“Johnson”). According to Plaintiffs,
Defendants acted negligently in providing medical care and in performing the
surgery, which has left Sadeghein with severe weakness and sensory disturbances,
along with loss of movement, in his extremities.
Plaintiffs’ operative Complaint contains two causes of
action: (1) Negligence—Sadeghein against all Defendants; (2) loss of
consortium—Golbou against all Defendants.
Cedars now moves for summary judgment on Plaintiffs’
Complaint. Plaintiffs oppose the motion.
Evidentiary Objections
Plaintiffs’ Objections to Cedars’ Declarations &
Materials
Objections to Declaration of
Lawrence Shuer, M.D.
Objection 1-2:
overruled.
Objections to Declaration of
Tara O’Shea
Objection 1-5: overruled.
Defendant’s Objections to Declaration of Ahmad
Sadeghein
Objection 1-5: overruled.
Objection 2: overruled.
Defendant’s Objections to Declaration of Jeffrey
Dembner, M.D.
Objection 1: overruled.
Factual Summary
Sadeghein suffered from degenerative disc disease and
cervical stenosis. (Separate Statement of Undisputed Material Facts (“DSS”), ¶ 2.)
Sadeghein was referred to Dr. Johnson, and in December 2006, Johnson performed
spinal surgery on plaintiff’s cervical spine at Cedars. (DSS ¶¶ 2-4.) After the
surgery, Sadeghein’s symptoms improved for several years, but then returned.
(DSS ¶5.) In the years prior to July 28, 2020, Sadeghein underwent various
injections and nerve root blocks for the issue. (DSS ¶6.)
In the fall of 2019, Sadeghein consulted Johnson several
times regarding his ongoing neck and bilateral upper extremity pain. (DSS ¶7.)
In January 2020, Plaintiff agreed to undergo an anterior cervical
reconstruction with an artificial disk (the “Procedure”) which was to be
performed by Dr. Johnson. (DSS ¶8.)
On July 28, 2020, Plaintiff admitted to Cedars for the
Procedure. (DSS ¶9.) During the Procedure, a bone fragment from C4 fractured
and displaced into Sadeghein’s spinal canal causing a drop in “evoked
potentials,” which signaled an injury. (DSS ¶10.) Dr. Johnson then removed the
artificial disc and bone fragments and performed a C3-C4 “interbody fusion” and
C3-C4 laminectomy and posterior spinal fusion. (DSS ¶12.) Sadeghein suffered
quadriparesis as a result of this injury. (DSS ¶13.)
The parties dispute the employment relationship of the
several doctors named as Defendants, including Dr. Johnson and Dr. Kim, with
Cedars. (DSS ¶¶14-15.)
The parties further dispute whether Cedars complied with the
appropriate standard of care. (DSS ¶¶16-17.)
Discussion
“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.) CCP § 437c(a) provides:
A party may move for summary judgment in any action or
proceeding if it is contended that the action has no merit or that there is no
defense to the action or proceeding. The
motion may be made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the motion is
directed or at any earlier time after the general appearance that the court,
with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30
days before the date of trial, unless the court for good cause orders
otherwise. The filing of the motion
shall not extend the time within which a party must otherwise file a responsive
pleading.
A
motion for summary judgment may be granted “if all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (CCP § 437c(c).)
“The
motion shall be supported by affidavits, declarations, admissions, answers to
interrogatories, depositions, and matters of which judicial notice shall or may
be taken. The supporting papers shall
include a separate statement setting forth plainly and concisely all material
facts that the moving party contends are undisputed. Each of the material facts stated shall be
followed by a reference to the supporting evidence. The failure to comply with this requirement
of a separate statement may in the court’s discretion constitute a sufficient
ground for denial of the motion.” (CCP §
437c(b)(1); see also Cal. Rules of
Court, rule 3.1350(c)(2) & (d).)
In
analyzing motions for summary judgment, courts must apply a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine
whether the moving party has negated the opponent's claims; and (3) determine
whether the opposition has demonstrated the existence of a triable, material
factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) CCP § 437c(p)(2) provides:
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.
The
court must “view the evidence in the light most favorable to the opposing party
and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39
Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.”].) A motion for
summary judgment must be denied where the moving party’s evidence does not
prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d
462, 475) or where the opposition is weak (Salasguevara
v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).
II.
Analysis
The elements of a claim for professional negligence are:
“(1) the duty of the professional to use such skill, prudence, and
diligence as other members of his 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.” (Paul v. Patton (2015) 235
Cal.App.4th 1088, 1095.)
“California case
precedent establishes a hospital may be held liable for a doctor’s malpractice
when the physician is actually employed by the hospital or is ostensibly the
agent of the hospital [Citations], but not absent such a relationship
[Citations].” (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332,
337.)
“‘An agent is one
who represents another, called the principal, in dealings with third persons.’
[Citation] ‘In California agency is either actual or ostensible. [Citation] An
agency is actual when the agent is really employed by the principal. [Citation]
An agency is ostensible when a principal causes a third person to believe
another to be his agent, who is really not employed by him. [Citation] An agent
has the authority that the principal, actually or ostensibly, confers upon him.
[Citation]…Ostensible authority… is the authority of the agent which the
principal causes or allows a third person to believe that the agent possesses.
[Citation]’ [Citations]” (J.L. v. Children’s Institute, Inc. (2009)
177 Cal.App.4th 388, 403.)
“Although the
cases discussing ostensible agency use various linguistic formulations to
describe the elements of the doctrine, in essence, they require the same 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. [Citations]” (Mejia
v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453,
1456-1457.)
Cedars
contends summary judgment should be granted here as:
“the
undisputed evidence establishes that (1) Drs. Sarmiento, Burkert, and Kim did
not participate in the alleged injury-causing event; (2) Drs. Johnson and Kim
were not actual employees/agents of CSMC; (3) Drs. Johnson and Kim were not
ostensible agents of CSMC; (4) Dr. Johnson and Dr. Kim are qualified and
competent physicians and thus, there is no basis for CSMC’s liability under
Elam v. College Park Hospital; and (5) the medical care and treatment provided
by CSMC medical and nursing personnel was within the standard of care and did
not cause any injury or damage to plaintiff.” (Motion, 6.)
First, Cedars contends agency is not presumed in these circumstances,
and that “[a]bsent an agency or employment relationship, a hospital is not
vicariously liable for the negligence of a physician or nurse.”
(Motion, 6; citing Meier v. Ross General Hospital (1968) 69 Cal.2d 420,
435; Mayers v. Litow (1957) 154 Cal.App.2d 413, 417-418.) To the extent
the Complaint alleges Cedars is liable for the alleged negligent conduct of Dr.
Johnson and Dr. Kim, “Dr. Johnson and Dr. Kim were not, at any relevant time,
employees/agents of [Cedars].” (Motion, 7.) In support, Cedars points to the
declaration of its Vice President of Academic Human Resources, who makes
statements to that effect. (O’Shea Decl. ¶¶3-4.)
Next, Cedars contends Dr. Johnson and Dr. Kim are also not
ostensible agents of Cedars, as Cedars “did not bring plaintiff and Dr. Johnson
together,” since “plaintiff had been referred by another physican” to Dr.
Johnson, and “had previously undergone spinal surgery with Dr. Johnson in 2006
with positive results and elected to undergo spinal surgery with Dr. Johnson again.”
(Motion, 8.)
Further, Cedars contends there are no triable issues of
material fact as to its liability under Elam as well since the
“undisputed evidence establishes Drs. Johnson and Kim were, at all relevant
times, well-qualified physicians, licensed, and in good standing with the
Medical Board of California... There is no evidence to suggest that it was
improper for [Cedars] to grant either of them medical privileges to treat
patients at [Cedars], nor ... that granting such privileges would place
patients at risk.” (Motion, 9; Exh. F.)
Lastly, Cedars submits the declaration of their expert, Dr.
Lawrence Shuer (“Shuer”) to contend:
“the care and treatment provided by [Cedars] nursing
personnel and medical personnel, including Drs. Sarmiento and Burkert complied
with the standard care... The records reflect that Dr. Johnson cleared disc
space, performed the discectomies, trialed the artificial disc, and placed the
artificial disc... The records reflect that [Cedars] nurses followed physician
orders and provided care, which complied with the applicable standards...” and
“Finally, the undisputed evidence is that Drs. Johnson and Kim are
well-qualified and experienced physicians... No act or failure to act on the
part of any [Cedars] medical or nursing personnel was a cause of plaintiff’s
alleged injuries or damages.” (Motion, 9-10.)
In a medical malpractice case, “[w]hen 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).¿ 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.)
In opposition,
Plaintiffs rely on their own expert declarations, Dr. Jeffrey Dembner and Dr.
Jaime Lopez, to contend triable issues of material fact remain regarding
whether Cedars met the standard of care or caused or contributed to Sadeghein’s
alleged damages. (Opp., 12-13.)
Plaintiffs argue
the Dr. Lopez declaration shows triable issues exist as to whether Cedars’
staff “breached the standard of care and caused a delay in treatment,” which
Plaintiffs contend caused Sadeghein’s alleged injuries, and also as to whether
Cedars is vicariously liable for Dr. Johnson’s negligence as well. (Opp., 12.)
Plaintiffs
further point to supporting authorities to show the scope of employment is
routinely found to be a question of fact left for the jury to determine. (Opp.,
13; citing Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202,
221; Linton v. DeSoto Cab Co., Inc. (2017) 15 Cal.App.5th 1208, 1225.)
“There is a triable issue of fact that he is acting within
the scope of his employment when he is in the operating room teaching residents
and fellows. Dr. Johnson believes teaching residents and fellows in the
operating room is part of his employment responsibilities. He was teaching a
resident and a fellow during Sadeghein’s surgery as part of his job duties as a
CSMC director. Both Dr. Johnson and a CSMC Human Resources executive, Tara
O’Shea, admit that teaching is one of the tasks that Dr. Johnson was employed
to perform. It is reasonably foreseeable that the director of the spine
fellowship program and co-director of the spine center’s job responsibilities
will teach fellows and residents during surgeries. There are therefore triable
issues of fact that Dr. Johnson was acting in the course and scope of his
employment at the time of the incident.” (Id.)
Plaintiffs
further contend triable issues of material fact remain regarding whether Dr.
Johnson was an ostensible agent of Cedars—namely “’whether the patient had
reason to know that the physician was not an agent of the hospital.’” (Opp.,
15; citing Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1028.)
Plaintiffs further assert Dr. Johnson was not Sadeghein’s “personal physician,”
and that Sadeghein “only ever saw Dr. Johnson at the hospital’s clinic, in a
hospital building, that he ran as its director. When choosing to treat at the
clinic, Sadeghein relied on the hospital’s selection of Dr. Johnson as its
clinic director.” (Opp., 16.)
Further,
Plaintiffs argue that even if the court considers the admissions forms Cedars
has filed, “they say nothing about dual status physicians like Dr. Johnson, who
not only practice at [Cedars] but also run an administrative unit of the
hospital. California courts have held that the director of a hospital’s
administrative unit ‘may be an agent of the hospital.’” (Opp., 17-18; citing Jacoves
v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 104.)
In reply, Cedars contends it has met its burden of showing
it complied with the relevant standard of care by producing its expert
declaration, and asserts the opposition “does not submit admissible evidence to
refute Dr. Shuer’s opinion vis-à-vis causation.” (Reply, 2-3.) Cedars contends
Plaintiffs have failed to make a showing of any triable issues of material fact
regarding the causation of Sadeghein’s alleged injuries. (Reply, 4-5.)
“Dr. Dembner vaguely opines that a delay in diagnosing the
injury was a substantial cause of the injury ... this opinion—delay caused
injury—lacks foundation, is conclusory, speculative, and inadmissible. Dr.
Dembner spends 91 paragraphs detailing the underlying facts and connecting
those facts to his opinions on standard of care. He devotes only 3 conclusory
sentences—which do not connect facts to conclusions—on substantial causation.
Where does Dr. Dembner opine about the specific injury caused by the alleged
delay (versus that caused when the vertebral body penetrated the canal)? Where
does Dr. Dembner opine that removal of the fragment “by X minute” would have
prevented further injury? Where does he explain how the delay caused injury?
Nowhere. Dr. Dembner’s opinion, that the delay caused injury, is wholly
speculative and conclusory.” (Id.)
Cedars then
reiterates earlier arguments regarding the lack of triable issues of the scope
of Dr. Johnson’s employment with Cedars, and the lack of an ostensible agency
relationship between Dr. Johnson and Cedars. (Reply, 6-8.) Cedars further
points to the acknowledgement forms it asked Plaintiff to review and sign,
which state Physicians are independent contractors. (Reply, 7-8.)
However, the
volume of evidence presented, and factual arguments littered through the
parties’ papers, evince the existence of several triable issues which cannot be
adjudicated at this junction.
Expert
Qualifications
Here, both
parties offer expert declarations. Evid. Code § 720(a) provides that “a person
is qualified to testify as an expert if he has the special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on
the subject to which his testimony relates.” In a medical malpractice case, an
expert witness doctor “must have enough knowledge, learning, and skill with the
relevant subject to speak with authority, and he or she must be familiar with
the standard of care to which the defendant was held.” (Avivi v. Centro
Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “[A]
party opposing a motion for summary judgment may use declarations by an expert
to raise a triable issue of fact on an element of the case provided the
requirements for admissibility are established as if the expert was testifying
at trial.” (Towns v. Davidson (2007) 147 Cal.App.4th 561, 472.)
Defendant Cedars
relies on their expert, Dr. Shuer, and Plaintiffs rely on their expert in
opposing this motion, Dr. Dembner.
In reply, Defendant argues Dr. Dembner’s declaration fails to
create triable issues. However,
this Court rejects Defendant’s argument because the “reasoned explanation”
required in an opposing expert’s declaration “need not be as detailed or
extensive as that required in expert testimony presented in support of a
summary judgment motion or at trial.” (Garrett v. Howmedica Osteonics Corp.
(2013) 214 Cal.App.4th 173, 187-189.) Accordingly, the Court finds that both
parties’ experts are sufficiently qualified.
Breach
“Whether the
standard of care in the community has been breached presents the basic issue in
a malpractice action and can only be proved by opinion testimony unless the
medical question is within the common knowledge of laypersons”.¿¿(Jambazian¿v.
Borden¿(1994) 25 Cal.App4th 836, 844 (citations omitted).)¿¿Additionally,
“causation must be proven within a reasonable medical probability based upon
competent expert testimony. Mere possibility alone is insufficient to establish
a prima facie case.”¿¿(Jones v. Ortho Pharmaceutical Corp.¿(1985) 163
Cal.App.3d 396, 402.)¿¿Expert testimony “can enable a plaintiff's action to go
to the jury only if it establishes a reasonably probable causal connection
between an act and a present injury.”¿¿(Id.¿at 403.)¿¿“The issue of
proximate cause ordinarily presents a question of fact. However, it becomes a
question of law when the facts of the case permit only one reasonable
conclusion.”¿ (Capolungo¿v. Bondi¿(1986) 179 Cal.App.3d 346,
354.)¿
“‘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 (“Munro”) ; citing Hutchinson
v. United States (9th Cir.1988) 838 F.2d 390, 392; Willard v.
Hagemeister (1981) 121 Cal.App.3d 406, 412, 175 Cal.Rptr. 365.)¿
Here, Defendant’s expert opined Defendant’s treatment and
assessment were appropriate and within the standard of care, shifting the
burden to Plaintiffs. Plaintiffs, in turn, rely on their expert testimony,
opining Cedars’ conduct, and the conduct of its alleged agents and/or
employees, fell below the relevant standard of care. Thus, Plaintiffs have
shown a triable issue of material fact as to the element of breach of the
relevant standard of care, pursuant to Munro.
Causation
A plaintiff must
show that the defendant’s act or omission was a substantial factor in bringing
about the injury.¿ (Saelzler¿v. Advanced Group 400¿(2001) 25 Cal.4th
763, 778 (“[P]laintiff¿must show some substantial link or nexus between
omission and injury”).)¿¿Further, “causation must be proven within a reasonable
medical probability based upon competent expert testimony.”¿ (Jones v. Ortho
Pharmaceutical Corp.¿(1985) 163 Cal.App.3d 396, 402-03.)¿
The proper test
for proving causation in a negligence action is the substantial factor test.¿ (Mayes
v. Bryan¿(2006) 139 Cal.App.4th 1075, 1092-93.)¿ The plaintiff must
establish that “(1) that the defendant's breach of duty ... was a substantial
factor in bringing about the plaintiff's harm and (2) that there is no rule of
law relieving the defendant of liability.”¿ (Id.¿at 1093.)¿¿“Conduct can
be considered a substantial factor in bringing about harm if it ‘has created a
force or series of forces which are in continuous and active operation up to
the time of the harm’ [citation], or stated another way, ‘the effects of the
actor's negligent conduct actively and continuously operate to bring about harm
to another’ [citation].”¿ (Id.¿at 1093.)¿ In a medical malpractice
action, causation is proven when a plaintiff produces sufficient evidence to
allow a jury to infer that in the absence of defendant’s negligence, there was
a reasonable medical probability the plaintiff would have obtained a better
result.¿ (Id.)¿
Here again, the dueling expert declarations of the parties
successfully shift the burden from Defendant to Plaintiff, and move toward
showing triable issues of material fact regarding causation. The contested
nature of the factual circumstances, especially regarding a causation of
Plaintiff Sadeghein’s injuries, shows the court this question is rife with
material facts that cannot be determined at this junction without a weighing of
the evidence. The court will not engage in such weighing of credibility, and
recognizes the disputed factual nature of this litigation. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.)
Furthermore, much in the same way, the court agrees with Plaintiffs that
questions surrounding the scope of employment of the treating doctors,
Defendants, and Cedars staff, as well any alleged agency relationship, are
further rife with questions of fact that cannot be determined at this junction
and ask a trier of fact to resolve at a later time. (Mary M. v. City
of Los Angeles (1991) 54 Cal.3d 202, 221; Linton v. DeSoto Cab Co., Inc.
(2017) 15 Cal.App.5th 1208, 1225.)
Therefore, the court finds that several triable issues of
fact exists as to whether Defendant Cedars is vicariously liable for
the alleged negligence of Dr. Johnson, Dr. Kim, and the treating Cedars
personnel. The court further finds several triable issues of fact exist as to
whether the treating physicians and Cedars personnel were employees and/or
agents of Cedars during the Procedure, and whether their conduct contributed
to, or caused, Plaintiff Sadeghein’s alleged injuries. Thus, Cedars’ motion for
summary judgment is denied.
As the parties concede the second cause of action to be
derivative of the first cause of action of the Complaint, the court similarly
finds summary adjudication to not be merited as to the second cause of action
here as well.
Conclusion
Cedars’ motion for summary judgment is denied. Plaintiffs
are to give notice.