Judge Jill Feeney, Case 19STCV27345 2023-01-03 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

This is an action for assault, battery, negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent hiring, and medical negligence arising from an involuntary psychiatric hold Plaintiff completed under Defendants’ care in November 2018. Plaintiff Andrew Walla filed his Complaint against Olive View UCLA Medical Center, the County of Los Angeles, Erica Lubiner, David Scott, Christina Guest, Nan Zhu Chapman, Vanik Vartomian, Chidi G. Obodozie, Conrad Soliman, Svetlana Enyinnaya, Maxson Frechette, Robert Dasher, Michael Omega, Khalid Salim Khan, and John Doe on August 5, 2019.

On March 8, 2022, Plaintiff dismissed Erica Lubiner, David Scott, and Christina Guest from this action. The remaining Defendants are UCLA Medical Center, the County of Los Angeles, Nan Zhu Chapman, Vanik Cartomian, Chidi G. Obodozie, Contrad Soliman, Svetlana Enyinnaya, Maxson Frechette, Robert Dasher, Michael Omega, and Khalid Salim Khan.

COLA argues that Plaintiff cannot maintain his action against it because it is immune under Government Code 856.2. Additionally, Plaintiff’s action is without merit because the care provided by Defendants was at all times within the standard of care and Defendants’ actions did not cause or contribute to Plaintiff’s injuries. COLA also argues that Plaintiff’s claim for negligent infliction of emotional distress must fail because Plaintiff cannot establish COLA was negligent or that Plaintiff suffered serious emotional distress.

Plaintiff argues that Government Code section 856.2 does not protect COLA because Government Code section 856.2(b) provides that liability may be imposed on a public employee for injuries inflicted as a result of that employee’s negligent or wrongful act or omission when recapturing an escaping or escaped mental patient. Plaintiff also argues that Defendants’ conduct fell below the standard of care.

The purpose of a motion for 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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “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 . . . cannot be established.” (Code Civ. Proc., section 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., section 437c(c).)

COLA objects to the Declaration of nurse Katherine A. Kelly. COLA objects to the declaration in its entirety, or in the alternative, paragraphs 7, 8, 12, 13, and 14. COLA argues the declaration lacks foundation and calls for speculation, asserts facts unsupported by evidence, and constitutes an improper expert opinion.

Expert affidavits and declarations must show affirmatively that the expert is competent to testify to matters stated. (Lowery v Kindred Healthcare Operating, Inc. (2020) 49 CA5th 119, 124–125; Salasguevara v Wyeth Labs, Inc. (1990) 222 CA3d 379.) Work in a particular field is not an absolute prerequisite to qualification as an expert in the field. (Chavez v Glock, Inc. (2012) 207 CA4th 1283, 1319.) Where a licensed and practicing physician has knowledge of the standard of care that the physician is not engaged in, but as the physician has an opinion based on education, experience, observation, or association with that specialty, that physician’s opinion is competent. (Fett v Medical Bd. of Cal. (2016) 245 CA4th 211, 221–222.)

Evidence Code, section 801(b) permits a judge to determine whether the matter on which an expert relies in forming the opinion is of a type on which the expert may reasonably rely as a basis for the particular opinion offered. An expert opinion has no value if its basis is unsound, and matter that may provide a reasonable basis for one opinion may not necessarily provide a reasonable basis for another opinion. (Sargon Enters., Inc. v University of So. Cal. (2012) 55 C4th 747, 769–770.)

Katherine Kelly’s declaration states that she is a registered nurse who has been employed in nursing since 1979. (Kelly Decl., ¶1.) Kelly has a Masters of Science in Nursing from the University of Nevada, Reno, where she specialized in emergency and trauma. (Id., ¶2.) She also holds a Doctorate of Nursing Practice from the University of Colorado. (Id.) Kelly worked as a nurse practitioner for Yuba Docs Medical Group and as a nurse practitioner for California Emergency Physicians. (Id.) Kelly is currently a professor of nursing at CalState Sacramento. (Id., ¶3.) Although Kelly states she provided a copy of her CV, which contains her nursing background, training, and experience, no CV was attached to the declaration.

Kelly’s expertise appears to be nursing in the context of emergency medicine. Her extensive education and experience in emergency medicine qualifies her as a competent expert to opine on the standard of care in nursing in the context of emergency medicine. The matter at hand concerns whether Olive View’s medical staff, including many nurses, met the standard of care or were negligent in Plaintiff’s treatment during a 5150 involuntary hold. Olive View provides Emergency Services and Plaintiff’s records from Olive View show that he was receiving emergency medical treatment while on the 5150 hold. Because Plaintiff’s treatment constitutes emergency medical treatment, Kelly is competent to opine on the standard of care for Plaintiff’s treatment.

Kelly’s declaration states that Plaintiff’s records show that Plaintiff was not on a 5150 hold. This is inconsistent with Plaintiff’s records and the Complaint. No party disputes that Plaintiff was in fact on a 5150 hold at the time he was injured. Kelly’s declaration goes on to state there was “no documentation to indicate that [Plaintiff] was at that point considered to be on an involuntary hold.” (Kelly Decl., ¶8.) Kelly also states “given the fact that the patient was never on a 5150 psychiatric hold, to a reasonable degree of medical certainty, the restrain procedures implemented at 1415 were not in compliance with the standard of care. Any attempt to restrain the patient or hold him against his will was not in compliance with the standard of care.” (Kelly Decl., ¶14.)

It appears that Kelly’s declaration is based on a mistaken belief that Plaintiff was not on a 5150 involuntary hold during his treatment at Olive View. To the contrary, Plaintiff’s records show that Dr. Lubliner ordered a 5150 hold by 13:30:00PDT on November 22, 2018. (Decl. Brandon S. Sanchez, Exh. G, p. 223.) The remainder of his records also show that the hold would continue. (Id., p.229.) Kelly appears to have mistakenly relied on Plaintiff’s medical records from 2016, when he was transferred to an inpatient psychiatric unit instead of being placed on a 5150 hold because he could not be managed by a lower level of care. Because Kelly’s opinion is based on the mistaken belief that Plaintiff was not on a 5150 hold at the time of the injuries that are the subject of this lawsuit, the basis of Kelly’s opinion on the standard of care of Plaintiff’s treatment is unsound and her opinion is of no value.

COLA moves for summary judgment on the grounds that (1) COLA is immune from liability under Gov. Code, section 856.2 and (2) Defendants’ conduct at all times was within the standard of care, and (3) Plaintiff’s claim for negligent infliction of emotional distress must fail because Plaintiff cannot show COLA was negligent or that Plaintiff suffered serious emotional distress.

A person may be involuntarily confined for up to 72 hours for treatment and evaluation in a county-designated facility if the person is mentally disordered and a danger to themself or others. (Welf. & Inst. C., section 5150.) No public entity nor public employee is liable for any injury to or by an escaping or escaped patient who was confined for mental illness or addiction. (Gov. Code, section 856.2(a).) Public employees remain liable for injuries proximately caused by their negligent or wrongful act or omission. (Gov. Code 856.2(b); Gov. Code, section 854.8(d).) A public entity must pay any judgment against the employee predicated on medical malpractice in the scope of his or her employment and likewise as to any settlement of an action to which the entity has agreed. (Id.)

Here, COLA’s evidence shows that on November 22, 2018, Plaintiff’s wife brought him to Olive View UCLA Medical Center (“Olive View”) for worsening paranoia and safety concerns because Plaintiff was not willing to enter his home, acting increasingly bizarre, and making grandiose statements. (UMF No. 15.) A physician, Erica Lubliner, noted that Plaintiff had a history of bipolar disorder and one suicide attempt. (UMF No. 16.) Plaintiff was anxious, grandiose with increased energy, hyperverbal, and had racing thoughts. (UMF No. 16.) Dr. Lubliner noted the patient was a danger to himself and determined there was probable cause to initiate a 5150 hold. (UMF Nos. 16-20.)

After Plaintiff was admitted, he became loud and then began approaching the exit door. (UMF No. 21.) After Plaintiff learned he was on an involuntary hold, he stated “Then let me voluntarily leave” and grabbed a nurse’s shirt. (UMF No. 21.) Staff restrained Plaintiff on the floor with hard restraints and moved him to a bed, where he struggled before being medicated. (UMF No. 21.) Dr. Lubliner ordered restraints on Plaintiff’s waist and extremities for four hours due to Plaintiff’s physical abuse to others. (UMF No. 22.). Dr. Lubliner examined Plaintiff after he was restrained and found no signs of injury, but found he was in acute distress. (UMF No. 23.) A nurse later that evening noted Plaintiff had a minimal abrasion on his face that did not bleed. (UMF No. 25.)

In the early morning hours of November 23, 2018, Dr. Nan Zhu Chapman ordered Plaintiff to be restrained after he attempted to leave the facility and attacked a nurse. (UMF No. 26.) Plaintiff had attacked another nurse on the previous shift. (UMF No. 26.) Dr. Chapman found no signs of injury. (UNF No. 26.) Later that morning, Plaintiff again woke up and began walking to the door in an attempt to escape. (UMF No. 28.) A nurse attempted to stop Plaintiff verbally before Plaintiff began yelling at and hitting staff. (UMF No. 28.) Staff again restrained and medicated Plaintiff. (UMF No. 28.) Dr. Christina Guest ordered a chest x-ray because Plaintiff complained of chest pain. (UMF No. 30.) The x-rays showed no evidence of any rib or spine injuries. (UMF Nos. 35-36.) On November 24, 2018, Plaintiff’s wife visited Plaintiff and noticed a small abrasion to his left cheek. (UMF No. 31.) After the visit, Plaintiff began verbally threatening staff, but returned to bed after repeated verbal redirects. (UMF No. 31.) Plaintiff was discharged on November 24, 2018, after being cooperative, demonstrating he was logical and coherent and denying hallucinations and delusions. (UMF No. 37.)

On November 25 and 30, 2018, Plaintiff sought medical treatment at Northridge Hospital Medical Center and West Hills Hospital and Medical Center complaining of body aches. (UMF Nos. 38-39.) A CT scan and X-ray showed no fractures or abnormalities. (UMF Nos. 39-40.)

Olive View UCLA Medical Center is a public entity operating under County of Los Angeles Department of Health Services. (UMF No. 41.) All health care providers involved in treating Plaintiff were employees of the County of Los Angeles. (UMF No. 42.)

COLA’s evidence shows that Plaintiff sustained abrasions to his face and body aches after he was repeatedly restrained while attempting to escape Olive View. The evidence also shows that Olive View is a public entity because it is operating under the County of Los Aneles Department of Health Services. Additionally, COLA, the moving defendant in this matter, is a public entity. The staff members involved in Plaintiff’s care were all employees of the County of Los Angeles. Thus, COLA, Olive View, and the medical staff involved in Plaintiff’s treatment are immune from Plaintiff’s injuries pursuant to Gov. Code, section 856.2(a).

The burden shifts to Plaintiff. Plaintiff argues that Gov. Code, section 856.2(b) does not provide immunity to COLA for negligent or wrongful conduct because it provides that public employees are not shielded from liability for injuries inflicted as a result of their own negligent or wrongful act committed while recapturing an escaping or escaped mental patient.

The elements of medical 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.”¿(Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 (citations omitted).)¿“Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.”¿(Avivi, supra, 159 Cal.App.4th at p. 467.)¿

Thus, 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.)¿ 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. “Mere possibility alone is insufficient to establish a prima facie case.” (Id.) “There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.” (Id. at 403.) “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.” (Id.)

Here, COLA’s evidence shows that Plaintiff was restrained repeatedly while attempting to leave the facility. On one occasion, Plaintiff was restrained to the floor with hard restraints and moved to the bed. Defendant’s expert, David Paster, a psychiatrist, states that “to a reasonable degree of medical probability, the injuries complained of by Plaintiff, including the abrasion to his left cheek, bruising at his extremities and thorax, are the types of injuries that may be expected from multiple elopement and restraint episodes necessitated by a patient’s aggressive, hostile, and non-redirectible behavior.” (Paster Decl., ¶6(g).) Additionally, “the injuries sustained by Plaintiff…are minor compared to what may be expected and the sustaining of such injuries is not below the standard of care because the restraints and actions taken by the physicians and staff at Olive View UCLA Medical Center were necessary and appropriate for the safety of the Plaintiff, staff, and other patients.” (Id.)

Plaintiff’s evidence in response regarding the standard of care relied on Kelly’s declaration. However, the Court sustained COLA’s objection to the declaration. Plaintiff also provides Plaintiff’s deposition in support of his opposition. Plaintiff recalls that during his treatment, he woke up in a dark room with sleeping patients and recalls walking toward the door. (PAMF No. 2.) A man at the front desk asked where Plaintiff was going. (Id.) Plaintiff asked where he was and the staff member responded that he was on an involuntary hold. (Id.) Plaintiff stated he could leave and began walking out the door. (Id.) Plaintiff was tackled and held on the floor and believed someone was stepping on his neck. (Id.)

The evidence shows that Olive View employees acted within the standard of care in restraining Plaintiff. Although Plaintiff testified during his deposition that he recalls someone stepping on his neck, Plaintiff nevertheless fails to provide expert testimony that states Olive View employees failed to act within the standard of care when restraining him. Moreover, there is no record of injuries to Plaintiff’s neck in any of the medical records submitted. Because COLA’s expert testimony states that the medical providers involved in Plaintiff's care acted within the standard of care and Plaintiff fails to provide conflicting expert evidence, COLA is entitled to summary judgment.

“[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, internal citations omitted.)