Judge Kerry Bensinger, Case 19STCV01518 2023-01-20 Tentative Ruling

This is a medical malpractice and wrongful death action. On January 22, 2019, Plaintiffs Kamilah McMillan, an individual and as guardian of Xavier Collins and Jaela Johnson, and the Estate of Markesha Collins (collectively, “Plaintiffs”) brought this action against Long Beach Memorial Medical Center (“Long Beach Medical”), and Vista Cove Care Center (“Vista Cove”) (collectively, “Defendants”). Plaintiffs allege that Markesha Collins died following her caesarean surgery at Long Beach Medical and subsequent rehabilitation at Vista Cove.

On October 26, 2022, Defendant Vista Cove filed a motion for summary judgment. Plaintiffs filed an opposition, and Vista Cove filed a reply.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Vista Cove objects to the declaration of Ivy-Joan Madu, M.D., J.D., arguing that she lacks qualification as an expert, her declarations are based on hearsay, and her opinions lack foundation.

Vista Cover argues that Dr. Madu is a board-certified endocrinologist who does not have training or experience in a skilled nursing facility such as Vista Cove. They argue that she is not competent to offer her opinions regarding the standard of care for Vista Cove and her opinions must be based on speculation.

The declaration of Ivy-Joan Madu, M.D., J.D. states that “I am experienced in the management and treatment of patients like decedent Markesha Collins, and possess significant expertise in endocrinology, diabetes, and metabolism.… I am aware of the standards of care for providers, both Nurses, Physicians Assistants, and Physicians responsible for the care and treatment of patients with complex risk factors including but not limited to obesity, and rehabilitation post-delivery by Caesarian surgery.” (Madu Decl. ¶ 6.) Dr. Madu states that “I regularly evaluate and treat patients referred for endocrine and internal medicine disorders…I have vast experience seeing patients in the hospital and in the nursing home setting.” (Madu Decl. ¶ 8.)

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.) 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.)

Read in the light most favorable to plaintiff, as the Court is required to do, Dr. Madu’s statements demonstrate that she was familiar with the standard of care for physicians and nurses at both hospitals and rehabilitation centers that who treat patients in circumstances similar to decedent with complex risk factors. (See Lattimore v. Dickey (2015) 239 Cal.App.4th 959.)

In a medical negligence action, a plaintiff must establish the following elements: “(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. [citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “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.3d 977, 984-85.)

Vista Cove presents the declaration of Dr. Josephson, M.D., a board-certified physician in internal medicine and geriatric medicine. (Josephson Decl. ¶ 3.) Vista Cove also presents the declaration of Dr. Wachtel, who is board-certified in internal medicine, pulmonary medicine, and critical care medicine. (Wachtel Decl. ¶3.) Both physicians reviewed the medical records of Decedent Markesha Collins from Vista Cove, Plaintiffs’ Complaint, which included a copy of Decedent’s Death Certificate, and Decedent’s medical records from Long Beach Memorial Medical Center. (Josephson Decl. ¶ 5; Wachtel Decl. ¶ 5.) Both physicians opine that Vista Cove’s care and treatment complied with the requisite standard of care and did not contribute to Decedent’s death. (Josephson Decl. ¶¶ 8-13; Wachtel Decl. ¶¶ 8-14.)

Dr. Josephson and Dr. Wachtel declare that Decedent’s health condition was timely and appropriately managed while Decedent was at Vista Cove. (Josephson Decl. ¶ 8; Wachtel Decl. ¶ 8.) They also declare that Decedent was appropriately transferred when Decedent’s level of consciousness suddenly changed. (Josephson Decl. ¶ 10; Wachtel Decl. ¶ 10.) Finally, both physicians opine that no act or omission by Vista Cove caused or contributed to Decedent’s death. (Josephson Decl. ¶ 11; Wachtel Decl. ¶11.)

The Court finds Vista Cove has met its initial burden of showing it complied with the standard of care and did not cause Plaintiff’s injuries. The burden shifts to Plaintiff to show a triable issue of material fact exists.

Plaintiff submits the declaration of Ivy-Joan Madu, M.D. with conflicting expert testimony. Dr. Madu is board-certified in endocrinology, diabetes, and metabolism. (Madu Decl. ¶ 3.) Dr. Madu states that she is experienced in the management and treatment of patients similarly situated to Decedent and is aware of the standards of care for providers, including nurses and physicians, who are responsible for the treatment and care of patients like Decedent. (Madu Decl. ¶ 6, 8.) Dr. Madu reviewed Decedent’s records at Vista Cove and Long Beach Healthcare Center, documents filed in this action, and an academic article. (Madu Decl. ¶ 14.)

Based on this review, Dr. Madu believes that Decedent’s death was caused by a deep vein thrombus that dislodged to the lungs when the physical therapist began physiotherapy on Decedent, and that the lack of prophylactic measures for thromboembolic disease is the most medically probable cause of death. (Madu Decl. ¶ 32, 13.) Dr. Madu states that a pulmonary embolism is a well-known complication of morbid obesity. (Madu Decl. ¶ 34.) Dr. Madu opines that Decedent had other significant risk factors that Costa Vista should have realized, significantly the fact that Decedent was obese, was not able to ambulate and was bedridden, and Decedent was post-partum. (Madu Decl. ¶¶ 37, 39.)

Dr. Madu opines that Vista Cove should have placed Decedent on prophylactic measures because she was at a high risk for venous thromboembolism and that a reasonable rehabilitation facility would have had a protocol to identify patients at risk for thromboembolic disease. (Madu Decl. ¶¶ 42, 45, 46.) Dr. Madu states that Vista Cove’s standard of care and treatment fell below the standard of care because it failed to treat Decedent with thromboprophylaxis, anticoagulant therapy, and sequential compressive device applied to the lower extremities, all of which would have markedly reduced the risks of thromboembolic disease. (Madu Decl. ¶¶ 45-46.)

The Court finds that Plaintiffs have met their burden of showing a triable issue of fact exists as to whether Vista Cove breached the standard of care and caused Plaintiff’s death.

Additionally, Defendant Vista Cove moves for summary judgment as to a cause of action for “dependent adult abuse.” However, the Complaint does not state a cause of action for dependent adult abuse. Rather, the second cause of action in the Complaint is for negligent supervision. Vista Cove provides no argument that summary judgment should be granted as to a cause of action for negligent supervision. Thus, Defendant’s motion for summary judgment as to the cause of action for dependent adult abuse is disregarded as a non-existent cause of action.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. 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.

Hon. Kerry Bensinger

Judge of the Superior Court