Judge: Joel L. Lofton, Case: 20STCV37759, Date: 2022-08-11 Tentative Ruling
Case Number: 20STCV37759 Hearing Date: August 11, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: August
11, 2022 TRIAL
DATE: October 4, 2022
CASE: SANDRA KIM AND
SARAH KIM v. GARFIELD MEDICAL CENTER; JAMES T. LIN, M.D., and DOES 1 through
50, inclusive.
CASE NO.: 20STCV37759
MOTION
FOR SUMMARY JUDGMENT
MOVING PARTY: Defendant James T. Lin,
M.D. (“Dr. Lin”)
RESPONDING PARTY: Plaintiffs Sandra Kim and Sarah Kim
SERVICE: Filed
May 24, 2022
OPPOSITION: Filed
July 28, 2022
REPLY: No reply filed.
RELIEF
REQUESTED
Dr. Lin moves for
summary judgment as to the entirety of the First Amended Complaint.
BACKGROUND
This case arises out of Plaintiffs
Sandra Kim and Sarah Kim’s (“Plaintiff”) claim that Defendants Garfield Medical
Center (“GMC”) and James T. Lin, M.D. (“Dr. Lin”) provided inadequate medical
treatment to their father Samuel Kim (“Decedent”), resulting in Decedent’s
death on August 9, 2019. Plaintiffs allege that Decedent was suffering from
Parkinson’s Disease but was taking medicine to control his diagnosis.
Plaintiffs allege that on July 22, 2019, Decedent suffered a fall while at home
and was taken to the emergency room of GMC. Plaintiffs allege that Decedent
died at GMC, where he died from complications due to sepsis and aspiration
pneumonia.
Plaintiffs filed a First Amended Complaint
(“FAC”) on December 23, 2020, alleging three causes of action for (1) wrongful
death – medical malpractice, (2) negligent infliction of emotional distress,
and (3) elder abuse and neglect.
TENTATIVE RULING
Dr. Lin’s motion for summary judgment is DENIED.
OBJECTIONS TO EVIDENCE
Plaintiffs’ objections numbers one through thirteen are
overruled.
LEGAL STANDARD
“The purpose of the law of 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. Atlantic Richfield Co.
(2001) 25 Cal. 4th 826, 843.) “A party
may move for summary judgement in an action or proceeding if it is contented
that the action has no merit or that there is no defense to the action or
proceeding.” (Code of Civil Procedure section 473c subd. (a)(1).) “The motion for
summary judgment shall be granted if all the papers submitted show that there
is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code of Civil Procedures section
473c subd. (c).)
A three-step analysis is employed in
ruling on motions for summary judgment. First, the court identifies the issues
framed by the pleadings. Next, the court determines, when the moving party is
the defendant, whether it has produced evidence showing one or more of the
elements of the cause of action cannot be established or there is a complete
defense to that cause of action. If the defendant does so, the burden shifts to
the plaintiff to show the existence of a triable issue of material fact as to
that cause of action or defense. (Kline v. Turner (2001) 87 Cal.App.4th
1369, 1373.) The court must “view the evidence in the light most
favorable to the opposing party and accept all inferences reasonably drawn
therefrom.” (Ibid.; see also Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389 [Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”].)
“A defendant moving for summary
judgment must show that one or more elements of the plaintiff's cause of action
cannot be established or that there is a complete defense. The defendant can
satisfy its burden by presenting evidence that negates an element of the cause
of action or evidence that the plaintiff does not possess and cannot
reasonably expect to obtain evidence needed to establish an essential element.
(Veera v. Banana Republic, LLC, (2016) 6 Cal.App.5th 907, 914.)
DISCUSSION
Dr. Lin moves for summary judgment as to the entirety of the complaint.
The FAC does not allege the second cause of action for negligent infliction of
emotional distress against Dr. Lin.
First Cause of Action for Wrongful Death based on Medical
Malpractice
Dr. Lin asserts there are no triable issues of material fact (1) establishing
Dr. Lin breached the standard of care and (2) establishing Dr. Lin caused Decedent’s
injury and subsequent death. To support his contention, Dr. Lin submits the
declarations of Daniel J. Bressler, M.D., (“Dr. Bressler”) and Edward J. O’Connor,
M.D. (“Dr. O’Connor.”)
To bring a medical malpractice
action, Plaintiff must establish: “ ‘(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.’ ” (Borrayo
v. Avery, (2016) 2 Cal.App.5th 304, 310.)
“California courts have
incorporated the expert evidence requirement into their standard for summary
judgment in medical malpractice cases. 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.” (Munro
v. Regents of University of California, (1989) 215 Cal.App.3d 977, 984-85.)
Dr. Lin’s Evidence in Support of
Summary Judgment – Standard of Care
The first issue is whether Dr. Lin
has established his conduct fell within the standard of care.
First, Dr. Lin submits the
declaration of Dr. Bressler, who is a medical doctor licensed to practice in
California and board certified in Internal Medicine and Geriatric Medicine.
(Bressler Decl. ¶¶ 1 and 2.) Dr. Bressler states
he is familiar with the standard of care applicable to the treatment of
patients like Decedent. (Id. ¶ 4.) Dr. Bressler provides that he has
reviewed Decedent’s medical records from Dr. Lin’s office, GMC’s medical
records, Keck Hospital of USC medical records, and the death certificate for
Decedent. (Id. ¶ 5.)
Dr. Bressler provides that Decedent had been treated by
neurologist Dr. Lin since 2009 and neurologist Jennifer Hui, M.D., since
February 2012. (Id. ¶ 6.) After Decedent’s fall, Decedent was transported
to the emergency room at GMC, where Dr. Lin was contacted and agreed to have
Decedent admitted. (Bressler Decl. ¶ 6B.)
Dr. Bressler opines that Dr. Lin
complied with the standard of care for an attending physician. (Bressler Decl. ¶ 8.) Specifically, Dr. Bressler opines that
Dr. Lin acted properly by ordering physical therapy, occupational therapy, diet
and nutrition, and speech pathology for Decedent. (Id. ¶ 9.) Further,
Dr. Bressler opines that Dr. Lin properly contacted various specialists,
including a rehabilitation specialist, cardiology, neurosurgery, infectious
disease, gastroenterology, vascular surgery, pulmonology, hematology/oncology,
and neurology. (Ibid.) Dr. Bressler opines that Dr. Lin acted properly
by requesting second opinion consultations in infectious disease and neurology.
(Ibid.)
Dr. Lin also submits the declaration of Dr. O’Connor, who is a licensed
medical doctor and board certified in Neurology and Psychology and
Electrodiagnostic medicine. (O’Conner Decl. ¶ 2.) Dr. O’Connor also states he
is familiar with the standard of care applicable to the treatment of patients
like Decedent. (Id. ¶ 4.) Dr. O’Connor provides that he has reviewed
Decedent’s medical records from Dr. Lin’s office, GMC’s medical records, Keck
Hospital of USC medical records, and the death certificate for Decedent. (Id.
¶ 5.)
Dr. O’Connor provides that prior to
admission at GMC, Decedent was taking Sinement, Requip, and Azilect. (Id.
¶ 9.) Dr. O’Connor provides
that after Decedent was admitted, Decedent’s Sinement dosage was reduced from
1250 mg to 1000 mg, which is not sufficient to cause aspiration. (Ibid.)
Dr. O’Connor provides that, although Parkinson’s Disease will cause difficulty
swallowing, aspiration precautions were taken, including ordering a swallow
test. (Ibid.) Dr. O’Connor opines that Dr. Lin complied with the
standard of care for an attending physician by making the necessary orders and
contacting various specialists. (Ibid.) Dr. O’Connor also opines that Dr.
Lin appropriately addressed Decedent’s neurological issues.
Dr. Lin has met his burden of establishing he acted within the
applicable standard of care for an attending physician.
Dr. Lin’s Evidence in Support of
Summary Judgment – Causation
The next issue is whether Dr. Lin
has established that none of his acts or omissions caused Decedent’s injury and
death.
“In a medical malpractice action the
element of causation is satisfied when a plaintiff produces sufficient evidence
‘to allow the jury to infer that in the absence of the defendant's negligence,
there was a reasonable medical probability the
plaintiff would have obtained a better result.’” (Espinosa V. Little Co. of
Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-15.) “[C]ausation must be
proven within a reasonable medical probability based upon competent expert
testimony.” (Dumas v. Cooney, (1991) 235 Cal.App.3d 1593, 1603.) The
summary judgment standard “is not satisfied by laconic expert declarations
which provide only an ultimate opinion, unsupported by reasoned explanation.”
(Kelley v. Trunk, (1998) 66 Cal.App.4th 519, 525.)
Dr. Lin again relies on the
declarations of Dr. Bressler and Dr. O’Connor. Dr. Bressler first opines that Decedent
died as a result of his fall on July 22, 2019, coupled with his underlying
health condition. (Dr. Bressler Decl. ¶ 11.) Dr. Bressler opines that Decedent’s fall caused cervical
cord compression, which weakened Decedent. (Ibid.) Dr. Bressler opines
that the narrowing Decedent’s neck in addition to Parkinson’s Disease likely
caused difficulty swallowing and increased the tendency for aspiration. (Ibid.)
Dr. Bressler provides that Dr. Lin recommended placement of a feeding tube,
referred to as a G-Tube, which was initially denied by Decedent’s family. (Ibid.)
Dr. Bressler provides that a feeding tube was placed on August 4, 2019, after
two failed swallow examinations and Decedent’s family’s consent. (Ibid.)
Dr. Bressler opines that “[t]he cause of death was
failure to thrive with cachexia with advanced Parkinson’s disease leading to an
inability to clear secretions, aspiration, and aspiration pneumonia leading to
intractable sepsis syndrome.” (Bressler Decl. ¶ 11.) He opines that, to a
reasonable degree of medical probability, Dr. Lin did not cause or
contribute to Decedent’s death. (Ibid.) Dr. O’Connor adds that the
lowering of Sinement from 1250 mg to 1000 mg nor the discontinuing of Requip or
Ezilect did not contribute to an aspiration event. (O’Connor Decl. ¶ 11.) Dr.
O’Connor opines, to a reasonable degree of medical probability, Dr. Lin did not
cause or contribute to Decedent’s death. (Ibid.)
Dr. Lin has met his burden of showing that Plaintiffs are unable
to establish causation as to their claim for medical malpractice.
Opposition Evidence
The burden now shifts to Plaintiffs to establish a triable issue
of material fact as to whether Dr. Lin acted within the standard of care and
causation.
Plaintiffs first argue that Dr. O’Connor has failed to establish
that he is qualified to testify to the standard of care for the treatment of
care of patients with Parkinson’s Disease in a hospital setting. Dr. O’Connor’s
curriculum vitae (“CV”), however, establishes that Dr. O’Connor is qualified to
testify as an expert.
Evidence Code section 720, subdivision (a), provides, in relevant
part: “A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education sufficient to
qualify him as an expert on the subject to which his testimony relates.” Dr.
O’Connor’s CV demonstrates that Dr. O’Connor has an educational and
experiential background in the field of Neurology. Dr. O’Connor is board
certified in Neurology and a clinical associate professor of neurology at UCLA
and USC. (O’Connor Decl. ¶ 2.) Dr. O’Connor’s education and experience in neurology qualify
him to testify to the standard of care for a neurologist in the present case.
Plaintiffs also argue that Dr. Lin’s experts fail to provide a
reasoned explanation as to how they reached their conclusion that Dr. Lin
complied with the standard of care. Plaintiffs’ argument is unavailing. Dr.
Bressler and Dr. O’Connor support their conclusion that Dr. Lin complied with
the standard of care by pointing to specific actions that they deemed proper.
Dr. Bressler provides that Dr. Lin complied with the standard of care for an
attending physician by making appropriate orders and requesting appropriate
consultations. Dr. O’Connor echoes Dr. Bressler’s conclusion and adds that Dr.
Lin’s changes to Decedent’s medical regimen was within the standard of care and
did not contribute to an aspiration event. (O’Connor Decl. ¶ 9-10.)
Plaintiffs also submit the declaration of Jonathan Marehbian,
M.D., (“Dr. Marehbian”) who is licensed to practice in California and a
board-certified Neurologist. (Marehbian Decl. ¶ 2.) Dr. Marehbian states he has
experience in providing treatment to individuals with Parkinson’s Disease in
the hospital setting and is familiar with the standard of care for
neurologists. (Id. ¶ 4.) Dr. Marehbian provides he has reviewed the
autopsy report, death certificate, and medical records for Decedent.
Dr. Marehbian provides that during the time of the incident,
Decedent was on a medication regimen ordered by Dr. Jennifer Hui, that
consisted of scheduled doses of Sinemet, Ropinirole, and Azilect. (Dr. Marehbian
Decl. ¶ 6f.) Dr. Marehbian provides that when Decedent was admitted to GMC
under Dr. Lin’s care, Dr. Lin decreased the Sinemet dosage and discontinued
Azilect and Ropinirole entirely. (Id. ¶ 6j.) Dr. Marehbian opines that
Dr. Lin breached the standard of care for an examining neurologist by making
substantial changes to Decedent’s medication regimen. (Idi. ¶ 7g.) Dr. Marehbian
also opines that Dr. Lin breached the standard of care by failing to order
aspiration precautions for Decedent when he was admitted. (Id. ¶ 7i.)
Dr. Marehbian further opines that Dr. Lin’s breach of the standard
of care was a substantial factor in causing Decedent to develop aspiration pneumonia
and sepsis. (Dr. Marehbian Decl. ¶ 8.) Dr. Marehbian specifically notes that
Decedent’s medication regimen was important for Decedent’s well-being,
including Azilect, which was specifically prescribed to address Decedent’s
“off” time between Sinemet doses. (Id. ¶ 7f.) Dr. Marehbian also opines
that Dr. Lin failed, as the attending physician, to prevent Decedent’s dehydration.
(Id. ¶ 9.)
Plaintiffs have raised a triable issue of material fact as to (1)
whether Dr. Lin acted within the standard of care and (2) whether Dr. Lin’s
acts or omissions were a substantial factor in causing Decedent’s injury and
death.
Dr. Lin’s motion for summary as to the first cause of action for
wrongful death based on medical malpractice is denied.
Third Cause of Action for Elder Abuse and Neglect
Next, Dr. Lin moves for summary judgment as to the FAC’s third cause of
action for elder abuse and neglect. Dr. Lin asserts that there is no claim for
neglect and no custodial relationship existed.
Welfare and Institutions Code
section 15610.07, subd. (a), provides that abuse of an elder means any of the
following: “(1)
Physical abuse, neglect, abandonment, isolation, abduction, or other treatment
with resulting physical harm or pain or mental suffering. [¶] (2) The deprivation by a care
custodian of goods or services that are necessary to avoid physical harm or
mental suffering. [¶] (3) Financial
abuse, as defined in Section 15610.30.” Welfare and
Institutions Code section 15610.57, subdivision (b)(2), provides that neglect
includes “[f]ailure to prevent malnutrition or dehydration.”
Dr. Lin asserts that Decedent was
neither dehydrated nor malnourished during the admission. (Bressler Decl. ¶ 12.) Plaintiffs counter by asserting that Decedent suffered from dehydration
while at GMC and that Decedent and his daughters informed Dr. Lin of Decedent’s
complaints of extreme thirst. (Marehbian Decl. ¶ 9e.) Plaintiffs provide that Dr. Lin failed
to take any action to address the repeated complaints. (Ibid.) Thus, there is a triable issue of material
fact as to whether Decedent was dehydrated and whether Dr. Lin engaged in the
neglect of an elder.
The next issue is whether a
custodial relationship existed.
“The statutory scheme further
persuades us that the concept of neglect—though broad enough to encompass
settings beyond residential care facilities—is not intended to apply to any
conceivable negligent conduct that might adversely impact an elder or dependent
adult. Instead, neglect requires a caretaking or custodial relationship that
arises where an elder or dependent adult depends on another for the provision
of some or all of his or her fundamental needs.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th
148, 160 (“Winn”).) “Similarly, in Covenant Care, we
noted that the elder suffered “from Parkinson's disease and
was unable to care for his personal needs.” [citation.] The elder in Covenant Care relied on the defendants to provide
nutrition, hydration, and medication—needs that an able-bodied and fully
competent adult would ordinarily be capable of handling on his or her own.
[citation.] Our prior case law thus illustrates the type of caretaking or
custodial relationship that the Act requires: one where a party has accepted
responsibility for attending to the basic needs of an elder or dependent
adult.” (Id. at p. 161.)
Here, Dr.
Lin does not submit any evidence to demonstrate he did not have a custodial
relationship with Decedent. Rather, Dr. Lin seeks to establish that the holding
in Winn provides Plaintiffs’ claim must fail as a matter of law. The
Court notes that in Winn the California Supreme Court noted that the
Elder Abuse Act was not intended to apply in each instance when a doctor treats
any elderly patient. (Winn, supra, 63 Cal.4th at p. 163.) However, Dr.
Lin has not established a lack of custodial relationship. The mere fact that
Dr. Lin was providing medical services to Decedent, by itself, does not establish
there was no custodial relationship. Plaintiffs, on the other hand, assert that
Decdent was unable to care for himself and relied on others, including Dr. Lin,
when he was admitted to GMC. (Marehbian Decl. ¶ 9a.)
Dr. Lin’s motion for summary judgment as to the third
cause of action for elder abuse or neglect is denied.
CONCLUSION
Dr. Lin’s
motion for summary judgment is denied. Moving
party to give notice.
Dated: August 11,
2022 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an email to the court
indicating their