Judge: H. Jay Ford, III, Case: 21STCV14259, Date: 2023-04-20 Tentative Ruling

Case Number: 21STCV14259    Hearing Date: April 20, 2023    Dept: O

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

SUBJECT:                MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant THC Orange County, LLC d/b/a Kindred Hospital Los Angeles

RESP. PARTY:         Plaintiff Damon Hill

TENTATIVE RULING

            Defendant THC Orange County, LLC d/b/a Kindred Hospital Los Angeles’ Motion for Summary Judgment is DENIED. 

Plaintiff’s objections to the declaration of Dr. Isreal Villanueva are OVERRULLED. Given the Court’s findings below regarding the declarations of Mr. Johnson and Dr. Segall-Gutierrez, Defendant’s separate specific objections are not material.

I.  THC fails to establish that the Third Amended Complaint is barred by the statute of limitations.

            THC moves for summary judgment based on the 1-year statute of limitations under CCP §340.5.  THC argues decedent died on January 27, 2020.  The 1-year limitations period expired on January 27, 2021, plus ninety days if a notice of intent to sue was sent under CCP §364., or April 27, 2021.  THC argues it was not named as a defendant until April 21, 2022 as DOE 1, more than a year after expiration of the limitations period. 

            DOE amendments relate back to the original filing date of the complaint pursuant to CCP §474 if the statute’s requirements are satisfied.  “Section 474 allows a plaintiff who is ignorant of a defendant's identity to commence suit—before the statute of limitations runs—by using a fictitious name for that defendant and then amending her complaint when the defendant's true name is discovered.  If the statute's requirements are satisfied, the amendment relates back and the substituted defendant is considered to have been a party from the action's start.”  Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 897–898. 

            Plaintiff filed a DOE Amendment naming THC as DOE 1 on 4-21-22.  THC argues the amendment does not relate back because Plaintiff never obtained leave to amend from the Court.  Leave to amend is not required if Plaintiff’s amendment the Plaintiff amendment meets the requirements of CCP §474 complied with CCP §474.  Plaintiff fails to address how the amendment fails to meet the requirements of CCP §474.

Plaintiff properly named THC as DOE 1.  The DOE 1 amendment therefore relates back to the filing of the original complaint.  THC fails to establish that the complaint against it is barred by the statute of limitations. 

II.  Triable issues of fact remain as to THC’s alleged negligence.

            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 to 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.  THC negates Plaintiffs’ allegations of breach of the standard of care and causation.

THC submits expert declarations testifying that Kindred’s medical record keeping was within the standard of care, all treatment provided to decedent was within the standard of care, Kindred staff appropriately followed physicians’ orders and did not cause decedent any injury or contribute to an alleged decline in her medical conditions or cause her death.  See Defendant’s SSUMF Nos. 19, 25 and 26; Dec. of W. Klein, ¶¶4-56.  THC’s expert also testifies that decedent received appropriate wound care, administration of medication, insulin and glucose management, infection control and antibiotic management by Kindred Los Angeles staff.  Id. at ¶¶55-56.  THC’s expert testifies that decedent’s death was the result of her co-morbidities taking their natural progressive death, leading to her death.  Id.

THC submits admissible evidence negating Plaintiff’s allegations that its treatment of decedent fell below the standard of care and caused her injury and death. The burden therefore shifts to Plaintiff to raise a triable issue of fact regarding both these elements with admissible expert testimony.  See Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.

C.  Plaintiffs’ evidence raises a triable issue of fact as to breach and causation.

Plaintiff is entitled to all favorable inferences that may reasonably be derived her experts declarations.  See Hanson v. Grode (1999) 76 Cal.App.4th 60, 609-610 (the trial court erred in finding Plaintiff’s expert medical opinion lacked a factual basis - summary judgment in favor of defendant reversed.)  “[T]he rule [is] that ... we liberally construe the declarations for the plaintiff's experts.”  Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-128 (summary judgment in favor of defendant reversed - trial court erred in finding plaintiff’s medical expert opinion did not have a “detailed reasoned explanation,” rejecting the application of that requirement to expert declarations submitted in opposition to summary judgment); see also Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189, 153 Cal.Rptr.3d 693 (“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”.)

Plaintiff relies on three expert declarations to raise an issue of fact regarding breach of the standard of care and causation. Plaintiff relies on (1) the declaration of Plaintiff’s counsel, E. Samuel Johnson, who is a registered nurse in California and Michigan; (2) the declaration of Dr. Penina L. Segall-Gutierrez, MD; and (3) the declaration of Israel Villanueva, MD.  See Opposition, Dec. of E. Johnson; Dec. of P. Segall-Gutierrez; Dec. of I. Villanueva.

Johnson declaration.  Johnson’s declaration fails to provide any opinion regarding whether THC’s staff breached the applicable standard of care and whether their acts or omissions were a substantial factor in causing decedent’s injury and death.  Johnson’s declaration fails to rebut Klein’s declaration regarding THC’s breach of the standard of care and causation. 

Segall-Gutierrez declaration.  Dr. Segall-Gutierrez’s declaration fails to set forth the factual foundation for her declaration, e.g. her educational and occupational background qualifying her to testify as an expert.  Segall-Gutierrez references her foundational testimony in a different declaration submitted in opposition to the Hadadz MSJ.  Segall-Gutierrez’s declaration should lay sufficient foundation with facts contained in the declaration.

Segall-Gutierrez also fails to testify with certainty that there was a breach of the standard of care by THC. Segall-Gutierrez testifies that based on the evidence she reviewed, either Dr. Hadadz unnecessarily prescribed scabies medication to her or THC failed to adhere to the public health guidelines regarding isolation and notification.  See Dec. of Segall-Gutierrez, ¶8.  Segall-Gutierrez’s testimony does not rebut Klein’s testimony that THC did not breach any standard of care, because she merely opines that THC may have breached the standard of care, not that it breached the standard of care.  Id. at ¶8.

In addition, Segall-Gutierrez does not provide any opinion as to whether Kindred’s acts or omissions were substantial factors in causing decedent’s injuries.  Segall-Gutierrez does not testify that any potential breach of the infectious disease protocol was a substantial factor in causing decedent’s injury and death.  Id. at ¶¶5-8.

Segall-Gutierrez’s declaration fails to rebut Klein’s declaration.  Segall-Gutierrez’s declaration fails to raise a triable issue of fact.

            Villanueva declaration.  Dr. Israel Villanueva testifies that THC rendered substandard care that contributed to decedent’s death.  See Motion, Dec. of I. Villanueva, ¶4.  Villanueva opines that the THC employees improperly documented decedent’s primary condition as a urinary tract infection and diabetes, when objective test results were inconsistent with both conditions.  Id. at ¶¶5-10.  Villanueva opines that THC staff listed uncontrolled diabetes as a comorbidity when it was not, and this error resulted in the failure to treat her for a UTI.  Id. at ¶¶8-10. 

Villanueva opines that THC staff did not adhere to the standard care with regard to tracking the antibiotics a patient is prescribed, including when medications were started.  Id. at ¶16.  Villanueva opines that THC did not have personnel that independently reviewed the patient records, verified the start times of the antibiotics prescribed and monitored white blood cell count for potential antibiotic failure.  Id. at ¶17. 

Villanueva also opines that THC staff breached the standard of care when they failed to report the patient’s bloody urine to the physicians  Id. at ¶¶20-21.  Villanueva testifies that the THC input/output entry from 1-23-20 indicates that the patient voided a large amount of blood, but there is no documentation that this was reported to the physician.  Id. at ¶21.  Villanueva testifies that THC staff never reported to physicians that patient was suffering from cloudy urine or diarrhea.  Id. at ¶23.  Villanueva testifies that all of these symptoms would have been consistent with a urinary tract infection and a vesicorectal fistula.  Id. at ¶¶20-24.

Villanueva opines that these failures by THC staff to properly document, monitor, oversee and report the patient’s symptoms were a breach of the applicable standard of care.  Id. at ¶27.  Villanueva also opines that THC’s breaches of care aided and abetted the negligent medical care of Drs. Hadadz and Kamiel.  Id.  Dr. Israel Villanueva testifies that THC rendered substandard care that contributed to decedent’s death.  See Motion, Dec. of I. Villanueva, ¶4.

Villanueva’s declaration rebuts the expert declaration of Klein.  Villanueva’s declaration raises a triable issue of fact as to whether THC breached the applicable standard of care and whether those breaches caused decedent’s injury and/or death.  Defendant THC’s motion for summary judgment based on the absence of breach of causation is DENIED. 

III.  THC fails to submit any evidence establishing that Plaintiffs cannot recover any damages on their 2^nd cause of action for “survival action—negligence”

            “In an action by the personal representative or successor in interest on the decedent's cause of action, recoverable damages are limited to loss or damage that the decedent sustained or incurred before death, including penalties or punitive or exemplary damages the decedent would have been entitled to recover had the decedent lived. Recoverable damages do not include damages for pain, suffering, or disfigurement. (C.C.P. 377.34.) This limitation does not apply to a cause of action others may have for the wrongful death of the decedent.”  14 Witkin, Summary of California Law (11^th ed. 2022), Wills §560.

            THC argues the survival action fails, because Plaintiffs cannot recover any damages for decedent’s pain, suffering or disfigurement. However, none of the material facts set forth in the separate statement pertain to this argument, nor is there any evidence that decedent did not suffer any recoverable damages before her death separate and apart from any pain, suffering or disfigurement. 

IV. THC fails to submit evidence in support of its argument that they are not vicariously liable for the physicians’ negligence due to their status as independent contractors

            THC argues it is not liable for the negligence of the Physician Defendants, because they were independent contractors, not agents or employees of THC.  The Court need not reach this issue. Triable issues of fact remain as to THC’s own negligence, such that summary judgment or adjudication of the three causes of action for wrongful death (negligence), wrongful death (negligent hiring) and survival action (negligence) may not be granted.  Even if THC negated any alleged vicariously liability for the acts of the physicians, it would not fully dispose of any cause of action.  CCP §437c(f)(1)(adjudication only proper where it would fully dispose of a question of duty, affirmative defense, cause of action or punitive damages claim).