Judge: John C. Gastelum, Case: 20-01123380, Date: 2022-07-28 Tentative Ruling

Motion for Summary Judgment and/or SAI

Tentative Ruling:  The Motion for Summary Judgment filed by Defendant, Chapman Global Medical Center is DENIED.

“When the defendant moves for summary judgment and makes a prima facie showing that one or more elements of plaintiff’s cause of action cannot be established, the burden shifts to the plaintiff to make a prima facie showing that the element in question can be established. [Citations.] If the plaintiff cannot do so, summary judgment should be granted. [Citation.] 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. [Citations.] Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 464, 467.)

Defendant Chapman Global Medical Center (“CGMC”) contends the undisputed material facts establish the care and treatment provided to Plaintiff by the Hospital met the applicable standard of care, and  Plaintiff’s alleged injuries were not caused by CGMC based on the expert opinion of Timothy Luckett, RN, which establishes the care and treatment rendered to Plaintiff by the nurses and non-physician personnel of CGMC, especially during her hiatal hernia repair, complied with the applicable standard of care, and the expert declaration of Stewart Shanfield, M.D. which establishes Plaintiff suffered no injuries to her left arm and/or shoulder during the course of surgery.

Plaintiff contends that CMGC has not presented any admissible or relevant evidence that supports the motion as neither the Declaration of Timothy Luckett or Stewart Shanfield, M.D. address the failure of Nurse Romero or other employees of CGMC to properly attach and secure the armboard to the surgical table, and that as CGMC had complete control over the attachment of the armboard, the inference can be made that Nurse Romero or another one of CGMC’s other employees failed to properly attach and secure Plaintiff’s left armboard which constituted clear negligence.

Standard of Care and Breach

“The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen.” (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215; CACI 501; see, Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 983-984 [“The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment a reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.”].)

In order to testify as an expert in a medical malpractice case, a person must have enough knowledge, learning and skill with the relevant subject to speak with authority, and he or she must be familiar with the standard of care to which the defendant was held. [Evid.Code, § 720, subd. (a); Ammon v. Superior Court (1988) 205 Cal.App.3d 783, 790–791, 252 Cal.Rptr. 748.] An expert may base his or her opinion on any matter reasonably relied upon by experts in forming opinions about the particular subject matter in question, except when the law precludes consideration of a particular matter. [Evid.Code, § 801, subd. (b).] If the expert has disclosed sufficient knowledge of the subject to entitle his or her opinion to go to the jury, the court abuses its discretion by excluding his or her testimony. [Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39, 210 Cal.Rptr. 762, 694 P.2d 1134.]

(Avivi, supra, 159 Cal.App.4th at pp. 467-468.)

Here, as to the standard of care and breach, Defendants present the Declaration of Timothy Luckett, R.N. (“Luckett Decl.”) (ROA 187).

Nurse Luckett received a Bachelor of Science and Nursing degrees from Southeast Missouri State University in 1977, is a Certified Perioperative Nurse in the Operating Room (“CNOR”) and a Certified Registered Nurse First Assist (“CRNFA”), has over 45 years of clinical nursing experience, and is currently the Administrator and Director of Nursing at Advanced Diagnostic and Surgical Center in Alhambra, CA. (Luckett Decl., ¶ 2.) Nurse Luckett provides he is familiar with the standard of care in the operating room relating to the care and treatment of patients in the Southern California area; that the opinions expressed are based upon his education, training, experience and review of Plaintiff’s medical records from Chapman for March 14, 2019 through March 19, 2019, the Complaint, Plaintiff’s responses to Chapman’s Special Interrogatories, Set One, and Plaintiff’s deposition transcripts. (Luckett Decl., ¶¶ 4-6.) Nurse Luckett recounts Plaintiff’s left shoulder pain after surgery, and discusses the role and responsibilities of a circulating nurse including “to prepare the patient for surgery upon entering the operating suite (room),” and “to help position the patient, with the assistance of the surgeon, anesthesiologist, and OR technician.” However, as noted by Plaintiff, Nurse Luckett does not discuss or address whether the failure to properly attach an armboard causing it and Plaintiff’s arm that was attached to it to fall off the operating table, falls within the standard of care, which is encompassed by the allegations in the Complaint. (Luckett Decl., ¶¶ 7(a)-(g), 8(a)-(d), 9; Complaint, ¶¶ 5, 7-11.)

Consequently, CGMC fails to meet its initial burden to show that the Complaint lacks merit on the basis that Plaintiff cannot establish that CGMC breached the standard of care.

Causation

As to causation, CGMC submits the Declaration of Stewart Shanfield, M.D. (“Shanfield Decl.”) (ROA 186.)

“A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert's opinion will assist the trier of fact. [Citation.] Even so, the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.]” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) “ ‘[A]n expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]' [Citation.]” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 529–530.) An opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment. (Kelley v. Trunk (1998) 66 Cal.App.4th 521, 524.)

Based on Dr. Shanfield’s review of the records, and his education, training, and experience, Dr. Shanfield rendered two opinions. First, Dr. Shanfield opines, “After the alleged incident, Plaintiff had a left shoulder x-ray which revealed an AC joint separation, followed by an x-ray of her bilateral AC joints, which revealed no fracture, dislocation, or subluxation. Additionally, Plaintiff underwent an MRI of her left shoulder which revealed chronic tendinitis, bursitis, and an intramuscular strain of the deltoid muscle. The aforementioned imaging studies were not consistent with injuries to the lefts [sic] shoulder that would have occurred as a result of Plaintiff’s arm falling off the OR table during the 3/14/19 surgery.” (Shanfield Decl., ¶ 7(a).) Second, Dr. Shanfield opines, “Within a reasonable degree of medical probability, the Plaintiff’s alleged left shoulder injury was not caused or contributed to by any acts or omissions of CGMC personnel, or, by any physician care at the Hospital, on 3/14/19.” (Shanfield Decl., ¶ 7(b).)

Dr. Shanfield’s opinion that the imaging studies after Plaintiff’s incident were not consistent with injuries to the left shoulder that would have occurred as a result of Plaintiff’s arm falling off the OR table during the 3-14-19 surgery is not supported by reasons or explanations as to why the findings in the x-rays and MRI would not be consistent with injuries to the left shoulder that would have occurred as a result of Plaintiff’s arm falling off of the operating table. In turn, it would not establish the absence of a material fact issue for trial.

“Trial courts possess some inherent power to exclude objectionable evidence on their own motion, but ‘[i]t has been suggested that this power should be exercised only where evidence is irrelevant, unreliable, misleading, or prejudicial, and that relevant and useful evidence that is merely incompetent under technical exclusionary rules ought to be received in the absence of objection by counsel.’ [Citations.]” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 173, emphasis in original.)

As Dr. Shanfield’s opinion is not merely incompetent under technical exclusionary rules as it is not supported by reasons or explanations as to why the findings in the x-rays and MRI would not be consistent with injuries to the left shoulder that would have occurred as a result of Plaintiff’s arm falling off of the operating table, it does not establish the absence of causation. Thus, CGMC’s fails to meet its initial burden.

In addition, there is a triable issue of material fact as to whether Plaintiff’s left shoulder injury was caused by an act or omission of CGMC personnel or by any physician care on March 14, 2019. (See Plaintiff’s Separate Statement of Undisputed Material Facts (“PSS”), 13; Declaration of Stewart  Shanfield, M.D. (“Shanfield Decl.”), ¶ 7(b); Exs. 2 through 5 to Declaration of Andre Rekte (“Rekte Decl.”); Ex. 1 to Rekte Decl., Deposition of Nurse Romero, 5:14-15, 9:5-25, 10:11-23, 12:9-19; 13:5-11, 14:24-15:5.)

Dr. Christopher Ninh’s note for an orthopedic consultation for left shoulder injury dated March 16, 2019, states, in part, “[t]his patient is a 60-year-old female, right hand dominant, sustained a left shoulder injury in the operating room . . . . During surgery, armboard allegedly malfunctiones [sic] and she had traction injury to left shoulder.” (Ex. 2  to Declaration of Andre Rekte (“Rekte Decl.”).) Dr. Anna Selvaggio’s note dated March 19, 2019, states, in part, under the “Assessment and Plan” section, that “L shoulder pain, arm weakness which per nursing report is related to intra-op injury.” (Ex. 3 to Rekte Decl.)

The deposition testimony of Monique Annette Romero, a registered nurse at CGMC (“Nurse Romero”) also provides that Nurse Romero assists with positioning to make sure that the arms and legs are in the correct position and to make sure that there will be no injury to the patient and that the patient is secured to the bed; that detachable armboards were used for Plaintiff’s surgery; that Nurse Romero checks the armboards on every case to make sure that “everything’s tightened and screwed;” that if the armboard is not properly secured, it could fall down; that every licensed personnel in the room is responsible for positioning; that as a circulator, she would be responsible for making sure that the armboard was secured to where it could not drop; and that the nurse practitioner made her aware that she believed the armboard board was off of the bed and that she went under the drape, saw that the armboard was hanging off with Plaintiff’s arm attached, and “quickly reattached it to the bed.” (Ex. 1 to Rekte Decl., Deposition of Nurse Romero, 5:14-15, 9:5-25, 10:11-23, 12:9-19; 13:5-11, 14:24-15:5.)

The notes by Dr. Ninh and Dr. Selvaggio, as well as the deposition testimony of Monique Romero, liberally construed and all reasonable inferences drawn therefrom viewed in the light most favorable to Plaintiff, would allow a reasonable trier of fact to find that Plaintiff’s left shoulder injury was caused by Plaintiff’s arm falling off of the operating table during the March 14, 2019 surgery as a result of a failure of CGMC’s personnel to properly attach the armboard to the operating table.

Plaintiff to give notice.