Judge: H. Jay Ford, III, Case: 21STCV14259, Date: 2023-02-28 Tentative Ruling

Case Number: 21STCV14259    Hearing Date: February 28, 2023    Dept: O

  Case Name:  Hill v. Chief Executive Officer Kindred Hospital-Los Angeles, et al.

SUBJECT:                MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant Ali Hadadz, M.D.

RESP. PARTY:         Plaintiff Damon Hill

TENTATIVE RULING

            Defendant Ali Hadadz, MD’s Motion for Summary Judgment is DENIED. Defendant Hadadz’s Motion for Summary Adjudication is DENIED as to the 1^st cause of action wrongful death by negligence and 3^rd cause of action for survival action based on negligence.  Triable issues of fact remain as to whether Hadadz’s treatment of decedent fell below the standard of care and whether it caused decedent’s death to a reasonable probability. 

            Defendant Hadadz’s Motion for Summary Adjudication of the 2^nd cause of action for wrongful death based on negligent hiring, et al. is GRANTED.  Based on the undisputed facts, Defendant Hadadz was not the employer of those employees who allegedly caused decedent’s death.  See Plaintiff’s Response to Defendant’s SSUMF Nos. 40-43.

            Defendant’s objection nos. 12 (para. 18) and 20 (para. 13) to the declaration of Dr. Penina L. Segall-Gutierrez, MD ARE SUSTAINED. The remainder are OVERRULED.

            Defendant’s objections to the Declaration of Isreal Villanueva are OVERRULED.            

I.  Motion for Summary Judgment based on lack of causation

            A. Law Applicable to Medical Malpractice

            The elements of a medical malpractice cause of action 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.  See Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4^th 463, 468 fn 2. 

The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts.  See Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.  “The standard of care for physicians is the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.  The test for determining familiarity with the standard of care is knowledge of similar conditions.  Geographical location may be a factor considered in making that determination, but, by itself, does not provide a practical basis for measuring similar circumstances.”  See Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 470.

Whether the standard of care in the community has been breached presents a basic issue of fact in a malpractice action which can only be proved by expert opinion testimony unless the medical question is within the common knowledge of laypersons.  Id.; see also 1 Witkin, Cal. Evid., supra, Opinion, § 86, p. 631.  “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.”  See Golden Eagle Refinery Co., Inc. v. Associated Intern. Ins. Co. (2001) 85 Cal.App.4th 1300, 1315 (citing See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524).  Accordingly, where a plaintiff provides proper opposing expert testimony via a declaration, a triable issue of material fact is raised which precludes summary judgment.  Jambazian, supra, 25 Cal.App.4th at 844.  The absence of opinion evidence on this issue is fatal to the plaintiff’s cause of action.  Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.  An expert declaration is admissible as long as Defendants’ expert states in detail his qualifications and the factual basis for his opinion.  See generally Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.

Expert testimony is also required to establish the element of causation in a medical malpractice action.  “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. That there is a distinction between a reasonable medical probability and a medical possibility needs little discussion. There can be many possible causes, indeed, an infinite number of circumstances that can produce an injury or disease. A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.”  Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 (trial court properly struck medical expert testimony on issue of causation where expert’s opinion failed ot provide a reasoned explanation regarding the etiology connecting plaintiff’s infected subcutaneous tissue to the nidus inside peritoneal cavity where retractor was retained). 

Finally, “(t)he rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact. [Citations.] In light of the rule of liberal construction, a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial. Michaels v. Greenberg Traurig, LLP (2021) 62 Cal.App.5th 512, 523–524.

B.  Defendant negates the essential element of causation

Defendant moves for summary judgment on the basis of lack of causation.  Defendant does not move for summary judgment based on lack of breach or compliance with the applicable standard of care. 

Defense expert Daniel Wohleglernter, MD testifies that nothing Defendant Hadadz did or failed to do caused decedent harm or contributed to her death.  See Dec. of R. Deane, v. 7 of 7, Ex. L, Dec. of Wohleglernter, ¶¶7-19.  Wohleglernter testifies that decedent “was unfortunately always going to expire secondary to her end stage congestive heart failure as of the time of her presentation to California.”  Id. at ¶19. 

In response, Plaintiff relies on the declarations of Dr. Penina L. Segall-Gutierrez, MD to raise a triable issue of fact as to causation.  However, Segall-Gutierrez’s declaration does not contain any testimony regarding whether Hadadz’s actions or failure to act was a substantial factor in causing decedent’s death or that Hadadz’s actions or omissions were a cause of decedent’s death to a reasonable probability.  Segall-Gutierrez testifies that Hadadz and Kamiel “were both neglectful with respect to the standard of care and that this played a role in worsening infection which ultimately resulted in the patient’s early demise.”  See Plaintiff’s Opposition, Dec. of P. Segall-Gutierrez, ¶18.  Segall-Gutierrez’s testimony that Hadadz’s treatment of decedent “played a role” in worsening the infection that Segall-Gutierrez opines killed her does not raise a triable issue of fact as to medical causation.  “Played a role” does not establish that that Hadadz’s acts and/or omissions were a substantial factor in causing decedent’s death. 

However, Plaintiff’s expert Israel Villanueva testifies that Hadadz’s acts and/or omissions caused decedent medical harm, that Hadadz’s treatment of decedent fell below the standard of care, and give a reasoned explanation how Hadadz’s breach of the standard of care caused decedent’s death that proper treatment would have prevented decedent’s death.  See Plaintiff’s Opposition, Dec. of I. Villanueva, ¶42.  The liberal review of Villanueva’s declaration raises a triable issue of material fact whether Hadad’a neglect was a substantial factor in causing  to causation. 

Defendant Hadadz’s Motion for Summary Judgment, or in the alternative Summary Adjudication, based on causation is DENIED.

II.  Motion for Summary Adjudication of 2^nd cause of action for negligent training, hiring, etc.

            Plaintiff alleges negligent hiring, supervision or retention against Defendant Hadadz.  The elements of a claim for negligent hiring, supervision or retention are set forth in CACI 426.  The elements are (1) employer defendant hired/supervised/retained an employee; (2) the employee was or became unfit or incompetent to perform work for which the employee was hired; (3) employer defendant knew or should have known that employee was or became unfit or incompetent and that this unfitness or incompetence created a particular risk to other; (4) that the employee’s unfitness or incompetence harmed plaintiff; and (5) employer defendant’s negligence in hiring, supervising or retaining the employee was a substantial factor in causing plaintiff’s harm.  See CACI 426. 

            “California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.”  Doe v. Capital Cities (1996) 50 Cal.App.4^th 1038, 1054.  Where an employment relationship between the defendant and the employee who allegedly injured the plaintiff, a threshold determination for negligent hiring, et al. liability is that the defendant hired the employee who allegedly caused plaintiff’s injury.  See Jackson v. AEG Live, LLC (2015) 233 Cal.App.4^th 1156, 1187-1189 (where employment relationship was contested, trial court did not err when it modified CACI 426 instruction to include question as to whether defendant hired doctor who allegedly caused plaintiff’s injury). 

            Defendant moves for summary adjudication of the 2^nd cause of action against him for negligent hiring, supervision, training and retention on grounds that he is not an employer of any of the parties to this action or any persons at Kindred Hospital.  Defendant testifies that (1) he is not an employee of Kindred Hospital—Los Angeles; (2) he is not a member of any committees of Kindred Hospital—Los Angeles; (3) he is not an employer of other health care providers, staff or consultants at Kindred Hospital—Los Angeles, including those who provided care to decedent; (4) he does not directly or indirectly, through an agent or any other person, employ or exercise control over the wages, hours or working conditions of any health care providers, staff or consultants at Kindred Hospital—Los Angeles; and (5) he does not maintain control to hire, evaluate, retain, train, supervise, or terminate the employment status of any health care providers, staff or consultants at Kindred Hospital—Los Angeles.  See Dec. of R. Deane, v. 7 of 7, Ex. M, Dec. of Hadadz, ¶¶4-8. Defendant’s testimony negates Plaintiff’s allegation that he was a supervisor and medical staff member of Kindred.  See TAC, ¶29. 

            In response, Plaintiff submits no evidence to dispute Defendant’s testimony that he is not employed by Kindred, does not hire, evaluate, retain, train, supervise or terminate any employment status of any persons at Kindred Hospital and does not exercise any control over the wages, hours or working conditions of Kindred’s employees.  Plaintiff merely asserts in her response to Defendant’s separate statement that (1) Defendant’s testimony is misleading, incomplete and disingenuous and (2) Defendant fails to present any reliable evidence to prove the subject claim.  See Plaintiff’s Response to Defendant’s SSUMF Nos. 40-43.

            Based on the undisputed evidence, Defendant was not an employer for purposes of the negligent hiring, et al. cause of action.  Defendant’s Motion for Summary Adjudication is GRANTED as to the 2^nd cause of action for negligent hiring, et al.