Judge Jill Feeney, Case 19STCV33509 2023-03-17 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 medical negligence, negligent credentialing, battery, and emotional distress arising from a cesarean section which took place in July 2018. Plaintiffs Natay Dereje through his Guardian ad Litem, Misrak Haile and Misrak Haile filed their Complaint against Defendants Arjan Naim, Arjan Naim, Inc., and the CHA Hollywood Presbyterian Medical Center on September 18, 2019.

Hollywood Presbyterian Medical Center (“Hospital”) moves for summary judgment on the grounds that (1) Plaintiffs’ causes of action for negligence has no merit because Hospital and its nurses and employees complied with the standard of care and their actions did not substantially cause Plaintiffs’ injuries, (2) Hospital cannot be held liable for the actions of Dr. Naim and any other named doctors because they are not agents of Hospital, (3) Hospital is not responsible for the credentialing of physicians, and (4) the claim for Negligent Infliction of Emotional Distress (“NIED”) cannot be sustained because the underlying claim for negligence is without merit.

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).)

The elements of medical malpractice 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, Plaintiffs’ complaint alleges that Hospital’s employees failed to notify physicians and properly assist during Dereje’s delivery, which involved a shoulder dystocia. (Comp., p. 4.) As a result of Hospital’s employees’ negligence, Dereje suffered brachial plexus paralysis, emotional distress, and other neurological injuries. (Compl., p. 5.) Haile suffered vaginal injuries and emotional distress. (Id.)

Hospital’s evidence shows that Haile first presented to Dr. Naim on March 6, 2018 at 21 weeks gestation during her pregnancy with Natay Dereje. (UMF No. 2.) Natay Dereje was Haile’s third child. (UMF No. 1.) Dr. Naim had also delivered her second child. (UMF No.1.) Haile’s glucose testing showed she did not have gestational diabetes. (UMF No. 3.)

Haile was admitted to Hollywood Presbyterian Medical Center on July 20, 2018 for induction. (UMF No. 4.) Haile signed a Condition of Service agreement at 1:10 p.m. prior to her admission. (UMF No. 4.) Haile denied any pain or contractions during admission. (UMF No. 4.) Dr. Naim gave an order to insert Cervidil for cervical ripening which was administered at 2:55 p.m. (UMF No. 4.) Hospital’s records show that the fetal heart monitor strips indicated that the fetal hear rate was reactive and there was moderate variability prior to the time Haile began pushing. (UMF No. 5.)

Haile’s labor onset occurred at 1 a.m. on July 21, 2018. (UMF No. 6.) At 2:05 a.m., Haile’s membranes ruptured and she began pushing at 2:13 a.m. (UMF No. 7.) Haile required encouragement to push and there were variable decelerations while Haile was pushing. (UMF No.7.) The fetal hear monitor showed a period of bradycardia in the minutes before delivery. (UMF No. 7.) Dr. Naim delivered Natay Dereje at 2:27 a.m. using a vacuum extraction. (UMF No. 8.)

Hospital’s records show that Dr. Naim chose to place the vacuum because of a non-reassuring fetal heart rate and poor maternal effort. (UMF No. 8.) There is no indication in the records that Dr. Naim anticipated or diagnosed shoulder dystocia. (UMF No. 9.) Dr. Naim did not request additional nursing staff or ask nursing staff to utilize additional maneuvers for shoulder dystocia. (UMF No. 9.) Dr. Naim testified during deposition that he did not diagnose a shoulder dystocia and that he delivered Dereje without much effort on his part. (UMF No. 10.)

Hospital provides expert testimony from Dr. Paul R. Weber in support of its motion for summary judgment. Dr. Weber testifies that although there were some variable decelerations that took place while Haile was pushing, this is common in the second stage of labor. (Weber Decl., ¶13.) Dr. Weber opines that the care and treatment provided by Hospital’s nursing staff complied with the standard of care. (Id., ¶17.) Dr. Naim did not anticipate a shoulder dystocia, never requested additional nursing staff, and never asked nursing staff to undertake additional maneuvers in anticipation for shoulder dystocia delivery. (Id., ¶17.) Dr. Weber opines, to a reasonable medical probability, that no negligent act or omission by nursing staff led to Plaintiffs’ injuries. (Id., ¶18.)

Hospital’s evidence shows that its employees acted withing the standard of care during the delivery of Natay Dereje. Dr. Weber’s expert testimony is uncontradicted, and is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of Hospital’s employees. Because Hospital provides uncontradicted expert testimony that its nursing staff acted within the community standard of care, Hospital is entitled to summary judgment. Plaintiffs did not oppose and therefore fails to meet their burden of proving issues of material fact still exist over whether Hospital’s employees acted within the standard of care.

“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…An agency is actual when the agent is really employed by the principal…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…An agent has the authority that the principal, actually or ostensibly, confers upon him…Ostensible authority… is the authority of the agent which the principal causes or allows a third person to believe that the agent possesses.” (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.” (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453, 1456-1457.)

Here, Hospital’s evidence shows that Haile signed a Conditions of Services agreement on the day she was admitted and prior to being induced. (UMF No. 4.) The agreement states that “All physicians and surgeons furnishing services to me, including the emergency physicians, radiologist, pathologist, and others, are independent contractors with the patient and are not employees or agents of the hospital. The patient is under the care and supervision of his/her attending physician and it is the responsibility of the hospital and its nursing staff to carry out the instructions of the physician.” (UMF No. 19.) Haile confirmed at deposition that she signed the document and that she was not in pain when she came into the hospital. (UMF Nos. 20-21.) Haile also testified that Dr. Naim told her to deliver at Hollywood Presbyterian Medical Center instead of Cedars Sinai. (UMF No. 22.)

Hospital’s evidence shows that Dr. Naim was not an employee or agent of Hospital. Additionally, Haile was informed that Dr. Naim was not an agent or employee of Hospital prior to being admitted. Dr. Naim’s instructions to Haile to give birth at Hollywood Presbyterian Medical Center also show that Haile followed Dr. Naim’s instructions and advice and believed she was his patient. Under these circumstances, Dr. Naim’s conduct would not have led a reasonable person to believe he was an agent of the hospital. Hospital meets its burden of showing there are no issues of material fact remaining over whether Dr. Naim was an employee or agent of hospital. Plaintiffs did not oppose this motion and thus fail to meet their burden of proof.

“[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.)