Judge H. Jay Ford, III, Case Number: 21STCV46361, Date: 2024-05-30 Tentative Ruling

Judge: H. Jay Ford, III, Case: 21STCV46361, Date: 2024-05-30 Tentative Ruling

Case Number: 21STCV46361 Hearing Date: May 30, 2024 Dept: O

Case Name: Rapore, et al. v. Regents of the University of California

Case No.:	21STCV46361	Complaint Filed:	12-20-21
Hearing Date:	5-30-24	Discovery C/O:	N/A
Calendar No.:	2	Discovery Motion C/O:	N/A
POS:	OK	Trial Date:	None

SUBJECT: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendants (1) The Regents of the University of California and Nasser S. El-Okdi, M.D.

RESP. PARTY: Plaintiffs Jonathan Rapore and Deborah Rapore

TENTATIVE RULING

Defendants The Regents of the University of California and Nasser S. El-Okdi, M.D. Motion for Summary Judgment as to Plaintiffs Jonathan Rapore and Deborah Rapores’ Complaint is DENIED.

Defendants The Regents of the University of California and Nasser S. El-Okdi, M.D.’s Evidentiary Objections nos. 1, 2, 4, 5, 6, , 7 8, 9, 10, 11, 12, 16,17,18, 19, 20, 21,22, 23, and 24 are Overruled. Objection nos 3, 13, and 14 are SUSTAINED, IN PART, as it relates to Dr Thalia M. Nguyen, and otherwise is OVERRULED.

Plaintiffs’ objections made in the separate statement are improper and the Court declines to rule on them. (CRC Rule 3.1354 (“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.”) See, Hodjat v. State Farm Mutual Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 7-9 (finding that the trial court did not abuse its discretion in refusing to rule on the plaintiff’s evidentiary objections made in plaintiff’s separate statement, to overlook plaintiff’s deficiency, or to permit plaintiff the opportunity to reformat his opposing papers).)

Defendants’ RJN of the package insert for olanzapine is denied. “A request for judicial notice of published material is unnecessary. Citation to the material is sufficient. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 34, 36 fn. 9.)

Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.” (Code of Civil Procedure §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.)

I. Defendants The Regents of the University of California and Nasser S. El-Okdi meet their burden to show there are no triable issues of material fact

Defendants The Regents of the University of California (the “Regents”) and Nasser S. El-Okdi (“El-Okdi”), M.D. (collectively “Regents Defendants”) move for summary judgment as to Plaintiff Jonathan Rapore’s cause of action for Professional Negligence based on the elements of breach and causation, and Plaintiff Deborah Rapore’s cause of action for Loss of Consortium, which is dependent on the medical malpractice cause of action.

A. First Cause of Action for 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.” (Avivi, supra, 159 Cal.App.4th at p. 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.”]; Golden Eagle Refinery Co., Inc. v. Associated Intern. Ins. Co. (2001) 85 Cal.App.4th 1300, 1315, citing 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].)

Here, The Regents Defendants submit expert opinion and evidence to negate Plaintiffs’ allegations of causation and breach. (Shapiro Decl., ¶¶ 8(a–p).) Specifically, The Regents Defendants experts declare and provide evidence that Rapore’s condition, prior to and following the administering of olanzapine at issue, was a result of the progressive nature of Parkinson’s Disease in an elderly patient with multiple comorbidities. (SSUF, ¶ 86–99; Lew Decl., ¶¶ 8(a)–(b), 8(d), 8(n)–(r), Ex. B, C, H, and K, pp. 122:9-123:6; Shapiro Decl., ¶ 8(o)-(p).) The Regent Defendants’ expert declares that the package insert and prescribing information for olanzapine does disclose an increased risk of death for elderly patients with dementia-related psychosis “treated with antipsychotic drugs,” including olanzapine. This warning is based on seventeen studies with an average duration of 10 weeks, and most of the deaths in that study appeared to be cardiovascular or infectious in nature. It is also noted that the “extent to which the findings of increased mortality in observational studies may be related to the antipsychotic drug as opposed to some characteristic(s) of the patients is not clear.” (SSUF, ¶ 78.) There is no warning with respect to a single low dose administration for sedation in the package insert and prescribing information for olanzapine. As such, the warnings included in prescribing information are not appliable, and do not establish a breach of the standard of care in connection with the selection of olanzapine to achieve sedation so plaintiff could obtain the needed CT scan. (SSUF, ¶ 79.) Further, Defendants’ expert concludes that based on Rapore’s medical records, Rapore’s overall global decline due to Parkinson’s Disease was not a result of a single low dose of olanzapine administered on 12-25-21. (SSUF, ¶ 99; Lew Decl., ¶ 8(r), Ex. C.) In the years leading up to December 2020, plaintiff’s cognition, hallucinations and overall mental status worsened in the setting of infections. This is evidence of how sickness and infection can cause acute worsening of Parkinson’s, which is what occurred during the December 24, 2020 hospitalization at issue. (SSUF, ¶ 88.)

The Regent Defendants have provided competent expert testimony and evidence to show that there are no triable issues of material fact as to whether the administration of a single dose of olanzapine was within the standard of care and was not the cause of Plaintiff’s injuries as Defendants’ experts declare that there is no warning with respect to a single low dose of olanzapine, and Plaintiff’s overall decline was the result of Plaintiff’s preexisting condition which was exacerbated due to infections. The burden shifts to Plaintiffs to present a triable issue of material fact as to the elements of breach and causation.

B. Second Cause of Action for Loss of Consortium

“There are four elements to a cause of action for loss of consortium: ‘(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.’ [Citations.]” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927 [emphasis removed] (“Vanhooser”).)

“Injury is an essential element of any cause of action,” and, therefore, “[w]ithout injury to the spouse, the plaintiff has no loss of consortium claim. Thus, a cause of action is not complete in the sense it is not actionable, without spousal injury.” (Vanhooser, supra, 206 Cal.App.4th at pp. 927-928.)

Here, the Court finds that The Regent Defendants have met their burden of showing that Plaintiff’s second cause of action for loss of consortium has no merit by showing that at least one element (tortious injury to Plaintiff) cannot be established. (Civ. Code Proc., § 437c, subd. (p)(2).) The burden shifts to Plaintiffs.

II. Plaintiffs meet their burden to show triable issues of material fact exist

In opposition, Plaintiffs’ experts opine that Parkinson’s patients are deficient in dopamine. (SUMF 12; Goodstein Decl., ¶ 13(k); Lobatz Decl., ¶ 23(k).) They further opine that Olanzapine is a known dopamine blocker. (SSUF, ¶ 13; Goodstein Decl., ¶ 13(k); Lobatz Decl., ¶ 23(k).) Giving a dopamine blocker to a Parkinson’s patient is contraindicated and below the standard of care in the community. (SSUF, ¶ 14; Goodstein Decl., ¶ 13(k); Lobatz Decl., ¶ 23(k).) Following the administration of olanzapine (trade name Olanzapine) to Mr. Rapore, the contemporaneous medical records reflect a change in condition, and that Mr. Rapore was somnolent. (SSUF, ¶¶ 18 & 19; Goodstein Decl., ¶ 13(o) & (p); Lobatz Decl., ¶ 23(o) & (p).) Following the administration of Olanzapine, Mr. Rapore was noted to be sleepy, delusional, and paranoid. (SSUF, ¶ 21; Goodstein Decl., ¶ 13(s); Lobatz Decl., ¶ 23(s).) Dr. Bronstein had published an article in a peer-reviewed medical journal which was circulated to UCLA physicians prior to treating Mr. Rapore indicating giving a dopamine blocker and/or dopamine inhibitor to a known Parkinson’s patient is contraindicated. (SSUF, ¶ 24; Goodstein Decl., ¶13(w); Lobatz Decl., ¶ 23(w).) The black box warning for Olanzapine at the time contained the warning in bold and within the black box: “Olanzapine is not approved for the treatment of dementia-related psychosis.” (SSUF, ¶ 28; Goodstein Decl., ¶ 11; Lobatz Decl., ¶ 21) Plaintiffs’ experts further opine that administering even a single dose of Olanzapine under these circumstances is below the standard of care for a Parkinson’s patient. (See Goodstein Decl., ¶ 13(u); Lobatz Decl., ¶ 23(u).) Moreover, Dr. El-Okdi admitted in his contemporaneously written discharge summary, “During the hospitalization, he [Mr. Rapore] did continue to have worsened mental status, perhaps exacerbated by olanzapine administered so that CT orbit could be obtained.” (SSUF, ¶ 35; Goodstein Decl., ¶ 13(hh); Lobatz Decl., ¶ 23(hh).) Plaintiffs’ experts thus opine that giving Olanzapine to Plaintiff was below the standard of care in the community, and the cause of his injuries. (SSUF, ¶¶ 34, 38-39; Goodstein Decl., ¶¶ 11, 13(jj), 13(n), 13(q); Lobatz Decl., ¶¶ 21, 23(jj), 23(n), 23(q).)

“The 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.]” (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189.) It is established in California law that expert declarations offered by the party opposing the motion are “entitled to all favorable inferences,” and are sufficient to defeat the motion if they contain facts that, given the proper inference, would show the existence of a triable issue of material fact. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607. See Avivi v Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 470 [summary judgment reversed because trial court erroneously excluded plaintiff's medical expert's declaration for lack of familiarity with standard of care]; Lyons v Colgate-Palmolive Co. (2017) 16 Cal.App.5th 463, 467 [expert declaration in opposition to summary judgment created triable issue as to whether plaintiff's use of defendant's talcum powder exposed her to asbestos]; Manco Contracting Co. (W.L.L.) v. Bezdikian (2008) 45 Cal.4th 192, 197 [expert's declaration on Qatari law raised triable issue of fact on finality of foreign judgment]; Shugart v Regents of Univ. of Cal. (2011) 199 Cal.App.4th 499, 506 [plaintiff's medical expert declaration raised triable issue of fact on whether defendant physician's medical care met standard of care in medical community and whether that care caused or contributed to plaintiff's alleged damages].) Construing Plaintiffs’ evidence liberally, and in a light most favorable to Plaintiffs, the Court finds Plaintiffs have presented evidence sufficient to show there are triable issues of material fact including:

1. There is a triable issue of material fact as to whether administering olanzapine to Plaintiff Jonathan Rapore on December 25, 2020 fell below the standard of care. In support of their Motion for Summary Judgment, Defendants submitted expert testimony from Jeffrey S. Shapiro, M.D. and Mark F. Lew, M.D. Both Dr. Shapiro and Dr. Lew concluded that administering olanzapine to Mr. Rapore on December 25, 2020 was within the standard of care. (See Declaration of Jeffrey S. Shapiro, M.D. (“Shapiro Decl.”), ¶¶ 8, 8a–o; Declaration of Mark F. Lew, M.D. (“Lew Decl.”), ¶¶ 8, 8a–m.) In response, Plaintiffs submitted expert testimony from Gelsey L. Goodstein, M.D. and Michael Lobatz, M.D. Both Dr. Goodstein and Dr. Lobatz concluded that administering olanzapine to Mr. Rapore on December 25, 2020 fell below the standard of care. (See Declaration of Gelsey L. Goodstein, M.D. (“Goodstein Decl.”), ¶¶ 13(k)– (jj); Declaration of Michael Lobatz, M.D. (“Lobatz Decl.”), ¶¶ 23(k)–(jj), 24(a).) The Court finds that all four medical experts have provided competent and admissible testimony. Therefore, the Court finds that the conflicting opinions of the expert witnesses as to the standard of care creates a triable issue of material fact. See Powell v. Kleinman, 151 Cal. App. 4th 112, 123 (Cal. Ct. App. 2007) (“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.”) (internal quotation marks and citation omitted) (emphasis added).

2. There is a triable issue of fact as to whether administering olanzapine to Mr. Rapore on December 25, 2020 caused or contributed to Mr. Rapore’s injuries. In support of their Motion for Summary Judgment, Defendants submitted evidence that the dose of olanzapine administered to Mr. Rapore on December 25, 2020 did not cause his injuries, specifically the respiratory failure he experienced on December 29, 2020 and the overall decline following his hospitalization. (See Lew Decl., ¶¶ 8p–t; Shapiro Decl., ¶¶ 8o–p.) In response, Plaintiffs have submitted evidence that the dose of olanzapine administered to Mr. Rapore on December 25, 2020 caused or contributed to his injuries. (See Goodstein Decl. at ¶¶ 13(o), (p), (s), (gg)–(jj); Lobatz Decl. at ¶¶ 23(o), (p), (s), (gg)–(jj), 24; Defendants’ Exhibit B at 19, 836, 900–901.) Both Defendants and Plaintiffs rely on their expert witnesses’ opinions based on the experts’ analysis of the evidence. Therefore, the Court finds that the conflicting opinions of the expert witnesses as to whether administering olanzapine to Mr. Rapore on December 25, 2020 caused or contributed to Mr. Rapore’s injuries creates a triable issue of material fact. See Powell, 151 Cal. App. 4th at 123.

As Plaintiffs met their burden as to the cause of action for medical malpractice, the motion for summary judgment as to the loss of consortium claim cannot be granted either.

The Regent Defendants’ Motion for Summary Judgment is DENIED.

Case Name: Rapore, et al. v. Regents of the University of California

Case No.:	21STCV46361	Complaint Filed:	12-20-21
Hearing Date:	5-30-24	Discovery C/O:	N/A
Calendar No.:	11	Discovery Motion C/O:	N/A
POS:	OK	Trial Date:	None

SUBJECT: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant Thalia M. Nguyen

RESP. PARTY: Plaintiffs Jonathan Rapore and Deborah Rapore

TENTATIVE RULING

Defendant Thalia M. Nguyen’s Motion for Summary Judgment as to Plaintiffs Jonathan Rapore and Deborah Rapores’ Complaint is GRANTED. Defendant supplied expert declarations and evidence to refute the breach and causation elements of Plaintiff’s causes of action for Professional Negligence, and the claim for Loss of Consortium depends on tortious injury to Plaintiff. In turn, Plaintiffs provide only speculative expert declarations and no evidence to show a disputed material fact as to the causation element of the claim for Professional Negligence.

Defendant Thalia M. Nguyen, M.D.’s Evidentiary Objection nos. 1, 2, 4, 5, 6, , 7 8, 9, 10, 11, 12, 16,17,18, 19, 20, 21,22, 23, and 24 are Overruled. Objection nos 3, 13, and 14 are SUSTAINED, IN PART, as it relates to Dr Thalia M. Nguyen, and otherwise is OVERRULED.

I. Defendant Nguyen satisfies her burden on summary judgment

Defendant Thalia Nguyen (“Nguyen”) moves for summary judgment as to Plaintiff Jonathan Rapore’s cause of action for Professional Negligence based on the elements of breach and causation, and Plaintiff Deborah Rapore’s cause of action for Loss of Consortium, which is dependent on the medical malpractice cause of action.

A. First Cause of Action for Medical Malpractice

The elements of a spouses claim for loss of consortium are “(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.)

Here, Nguyen submits expert opinion and evidence to negate Plaintiff’s allegations of causation and breach. (Shapiro Decl., ¶¶ 8(a–p).) Specifically, Nguyen provides evidence that she was no longer involved in Rapore’s care and treatment following Rapore’s transfer to the intensive care, which was prior to the administration of the olanzapine at issue. (SSUF, ¶ 44, Ex. I, p. 83:2–5.) Nguyen’s experts declare Nguyen did not issue the order to give Rapore the olanzapine and thus there is no causation between the administration of the pharmaceutical and the alleged harm to Rapore, and even if Nguyen did issue the order to administer the olanzapine it would not have been a breach of the standard of care for her to do so. (Shapiro Decl., ¶¶ 8j, 8k.) Further, Nguyen’s expert declares Plaintiff’s continued global decline is consistent with the progressive nature of Parkinson’s Disease in an elderly patient with multiple comorbidities. (UMF 78.) Plaintiff’s expected decline due to the progression of his Parkinson’s Disease continues to this day, and his alleged inability to speak, communicate, mange household finances, and carry out household chores are the result of his advanced Parkinson’s disease, likely Parkinson’s dementia, and other chronic medical conditions, not the single administration of 2.5 mg of olanzapine on December 25, 2020. (SSUF, ¶ 70.)

Thus, Nguyen met her burden to show that there are no triable issues of material fact as to the elements of breach and causation for the professional negligence cause of action. The evidence presented shows that Nguyen did not issue the order to administer Rapore olanzapine, and even if she did it would have been within the standard of care. Further, because she did not issue the order, no act or omission caused or contributed to Plaintiff’s injuries. The burden shifts to Plaintiffs to present triable issues of material fact.

B. Second Cause of Action for Loss of Consortium

Here, the Court finds that Nguyen has met her burden of showing that Plaintiff Deborah Rapore’s second cause of action for loss of consortium has no merit by showing that at least one element (tortious injury to Plaintiff Jonathan Rapore) cannot be established. (Civ. Code Proc., § 437c, subd. (p)(2).) The burden shifts to Plaintiffs.

II. Plaintiffs do not meet their burden to show a triable issue of material fact

“Admissible evidence is required to show that disputed issues of material fact exist. Responsive evidence that gives rise to no more than mere speculation’ is not sufficient to establish a triable issue of material fact.” (Champlin/GEI Wind Holdings, LLC v. Avery (2023) 92 Cal.App.5th 218, 226, citing Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 994; Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889–890.) “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ [Citation.] Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions' [citation], or mere possibilities [citation].” (Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 237.)

Even construing Plaintiffs’ evidence, and the foundation for that evidence, liberally, and in a light most favorable to Plaintiffs, the Court finds Plaintiffs have not met their burden to show to show there are triable issues of material fact. Specifically, Plaintiff’s failed to show by competent evidence that Dr. Nguyen participated in the decision to administer olanzapine to Plaintiff, and provided no competent evidence to refute the evidence that Nguyen’s was no longer involved in Plaintiff’s care and treatment following his transfer to intensive care. (See SSUF, ¶¶ 44, 45; Goodstein Decl., ¶¶ 13(t)–(z): Labatz Decl., ¶¶ 23(k)–(cc).)

In Plaintiffs’ supplemental brief, Plaintiffs point to evidence that Dr. Nguyen testified that she treated Mr. Rapore and described how she evaluated the risks of prescribing olanzapine to Mr. Rapore. (Nguyen Depo. at 22:7–26:23.) They provide evidence that it was Dr. Nguyen who originally placed the order for olanzapine. (Nguyen Depo. at 64:3–5.) Plaintiffs argue that even if Dr. Nguyen’s order was never carried out, another member of Mr. Rapore’s medical team ordered olanzapine mere minutes after Dr. Nguyen’s order was discontinued, and the reason for discontinuing Dr. Nguyen’s order had nothing to do with the fact that olanzapine is a dopamine inhibitor—in other words, Dr. Nguyen’s order was not discontinued because she considered the risks of prescribing olanzapine to a Parkinson’s patient. (Nguyen Depo. at 66:5–68:3.) From this evidence, Plaintiffs argue the medical records and Dr. Nguyen’s own testimony make clear that she treated Mr. Rapore, and participated as part of the team and further participated in the decision to administer olanzapine to Mr. Rapore.

Even if Nguyen made an initial decision to order olanzapine, that order was not carried out. Nothing Nguyen did caused or contributed to Plaintiffs’ injuries. No evidence has been introduced to show she participated in the decision to administer olanzapine. That someone else ordered the administration of olanzapine after she did, does not show, or support an inference, that Nguyen participated in the decision to administer olanzapine. As such, Plaintiffs fail to show disputed issue of material fact as to the causation element of the Plaintiff’s claim for medical malpractice.

As Plaintiffs have failed to present triable issues of material fact as to the cause of action for medical malpractice, Plaintiffs have failed to show tortious injury to Plaintiff Jonathan Rapore, and therefore, Plaintiff Deborah Rapore’s loss of consortium claim against Nguyen also fails.

Defendant Nguyen’s Motion for Summary Judgment is GRANTED.