TENTATIVE RULING:

The above-captioned matters are called for hearing.

The Court has read the moving papers in the above-captioned motions and announces its tentative rulings in open Court.

The Motion for Summary Judgment reservation no.: 617817155277 filed by Defendant Cedars Sinai Medical Center on 12/13/2022 is GRANTED.

Defendant Cedars-Sinai Medical Center (“Cedars”) moves for summary judgment against Plaintiff Oriana Parks (“Plaintiff”) as to Plaintiff’s entire operative first amended complaint (“FAC”). Specifically, Cedars moves on the grounds that no triable issues exist for any material facts in this case because Cedars met the standard of care at all times during the care and treatment of Michael Park (“Decedent”) and nothing Cedars did contributed to Decedent’s death. (Notice of Mtn., p. 2.) Plaintiff, now in pro per, does not oppose.

Cedars filed the motion on December 13, 2023, for a summary judgment hearing set for November 23, 2023. Based on a calendaring error, the motion papers were not timely served prior to the November 23, 2023 hearing. Cedars concurrently served an ex parte application to continue the trial and specially set Cedars’ motion for summary judgment in March 2023. On December 15, 2023 the court granted the ex parte motion to continue trial to July 17, 2023 and ordered Cedars to reserve a new motion for summary judgment date. Cedars reserved March 29, 2023. (Minute Order; Dec. 15, 2022.) Based on the new date, the motion was timely, providing 107 days’ notice prior to the March 29 hearing date.

Background

On May 8, 2018, Plaintiff filed a complaint against Cedars, Barlow Respiratory Hospital (“Barlow”), and Valley Presbyterian Hospital (“Valley Presbyterian”) (collectively “Defendants”) alleging five causes of action elder abuse, willful misconduct, wrongful death, violations of the business and professions code, and negligent infliction of emotional distress (“NIED”). On March 12, 2019, Plaintiff filed the FAC alleging two causes of action for elder abuse and wrongful death against Defendants.

Plaintiff brought the suit as the Successor-in-interest and surviving spouse of Decedent. (FAC, ¶1.) Plaintiff alleges that Defendants were Decedent’s care takers but neglected him while he was in their care and caused physical harm to Decedent. (FAC, ¶¶16-19) Decedent is over the age of 65. (FAC, ¶¶19.) Their neglect eventually caused his death.

Specifically, in August 2016 Plaintiff was admitted to Cedars after a fall and two weeks stay and Encino Hospital. (FAC, ¶¶22-15.) Upon admission to Cedars, Decedent’s skin was noted to be intact but he was assessed as being high risk for pressure ulcers. (FAC, ¶¶26-27.) As a result, Cedars initiated and developed a skin integrity care plan. The plan required Cedars staff to monitor Decedent twice daily for redness or breakdown and report to a physician for further treatment in the event of skin breakdown. (FAC, ¶¶28-29.) Cedars staff were also required to reposition Decedent at least every two-hours. (FAC, ¶30.) Plaintiff alleges Cedars’ staff repeatedly failed to monitor Decedent’s skin from August 23, 2016, through September 15, 2016. (FAC, ¶¶31-42.) Decedent developed Stage IV pressure ulcers while in Cedars’ care. (FAC, ¶43.) At some point Decedent was then admitted to Barlow where he developed further Stage IV pressure ulcers and sepsis. (FAC, ¶44.) Finally, Decedent was admitted to Valley Presbyterian where he developed multiple infections and was removed from his ventilator against his families wishes. (FAC, ¶46.) Decedent succumbed to his injuries in May 2017. (FAC, ¶47.)

Evidence

Cedars attached just over twenty thousand pages to its motion for summary judgment comprised of 39 separate volumes. Some of the volumes number three thousand pages. This avalanche of evidence appears unnecessary as Cedars relies on only a small portion of the documents in its separate statement. The relevant documents to the motion are the medical records from Cedars, Encino Hospital Medical Center (“Encino”), and Valley Presbyterian.

“Although hospital and medical records are hearsay, they can be admitted under the business records exception to the hearsay rule.” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742.) Under the exception, “[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) [t]he writing was made in the regular course of business; [¶] (b) [t]he writing was at or near the time of the act, condition, or event; [¶] (c) [t] custodian or other qualified witness testifies to its identity and the mode of its preparation; and, [¶] (d) [t]he source of information and method and time of preparation were such as to indicate its trustworthiness.” (Evid. Code, § 1271.) The records may be admissible based on the affidavit accompanying the records from the custodian or other qualified witness. (Evid. Code, § 1561.) However, “a custodian’s declaration may state all the matters it is required to state under section 1561, yet fail to provide a sufficient foundation for admission of the records under section 1271. [Citation] Most significantly, the custodian’s declaration is not required to state the identity or mode of preparation of the records. As a result, it will usually fail to show that the sources of information and method and time of preparation of the records indicate their trustworthiness.” (Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697, 1706 (Taggart) [internal quotations omitted].)

Here, Cedars submits a Custodian of Records declaration for the Cedars Medical Records and the Valley Presbyterian medical records. (Declaration of Brandon Sanchez [“Sanchez Dec.,”], ¶¶ 7, Ex. D, Vol 4 at p. 3; 10 Ex. F at p. 2.) The court finds the custodian of records declarations sufficient. However, Cedars does not identify, and the court has been unable to locate, a custodian of record declaration for the Encino records (Sanchez Decl. ¶ 9, Ex. E, Vol 24-29, 33.) Therefore, the Encino records are inadmissible for lack of authentication. (See Evid. Code, §§ 1271, 1271.) The Cedars records provides the primary evidentiary support for Cedars’ motion regarding Decedent’s medical treatment while in its care. The inadmissibility of the Encino records does not change the outcome.

A brief summary of the relevant facts supported by admissible records are as follows:

From 8/8/2016 to 8/22/2016, while in Cedars’ care Decedent had redness on his sacrum, but no pressure ulcers. (Sanchez Decl., ¶7, Ex. D, Vol 4, at p. 1491; Vol 5, at p. 1246-1249, 1180-1183.)

On 09/17/2016, Decedent arrived at Cedar’s emergency department. At that time, Decedent skin was warm and dry without a rash. (Sanchez Decl., ¶ 7, Ex. D, Vol 23, at p. 14181.) A month later, on 10/10/2016, Decedent was readmitted to Cedars and assessed to have a pressure ulcer, stage one. (Sanchez Decl., ¶ 7, Ex. D, Vol. at p. 4104; Vol 8, at p. 3413.) During this stay, until 10/18/2016, Decedent’s pressure ulcer did not worsen. (Sanchez Decl., ¶ 7, Ex. D, Vol. 8, at p. 3418-25, 3431, 3372.)

Decedent was readmitted to Cedars on 10/23/2016 and stayed until 11/11/2016. (Sanchez Decl., ¶ 7, Ex. D, Vol 9, at p. 4207, 4193.) He still had a stage one pressure ulcer. (Sanchez Decl., ¶ 7, Ex. D, Vol 10, at p. 4207, 4193.)

Decedent was readmitted on 11/29/2016. (Sanchez Decl., ¶ 7, Ex. D, Vol 9, at p. 4198) At that time he presented with abdominal pain, sepsis, a pelvic mass, and a momentarily unstageable pressure ulcer on his sacrum. (Sanchez Decl., ¶ 7, Ex. D, Vol 11, at p. 7352) Later that day it was determined to be a stage 2/3 pressure ulcer. (Sanchez Decl., ¶ 7, Ex. D, Vol 11, at p. 7480.) During this stay, Decedent was severely underweight and had food intolerance or difficulty eating. (Sanchez Decl., ¶7, Ex. D, Vol. 11, at p. 6531-6352) At six feet, Decedent only weighed 120 pounds. (Sanchez Decl., ¶7, Ex. D, Vol. 11, at p. 6351-6352.) Decedent required G-tube feedings for nutritional support (Sanchez Decl., ¶7, Ex. D, Vol. 11, at p. 6328.) On 12/5/2016, Dr. Matthew Bui of Urology noted Decedent likely had stage four cancer and was not a surgical candidate given his comorbidities. (Sanchez Decl., ¶ 7, Ex. D, Vol 11, at p. 7184.) On 12/10/2016, Cedars doctors discussed Decedent’s poor prognosis and that Plaintiff did not want to discuss hospice. (Sanchez Decl., ¶ 7, Ex. D, Vol 11, at p. 7076.) By 12/15/2016 while at Cedars, Decedent’s pressure ulcer advanced to stage 3/4. (Sanchez Decl., ¶ 7, Ex. D, Vol 11, at p. 7340-42.) By December 21, 2016, Doctor Leland Green wrote that Decedent was a “chronically ill, wasted male who is unresponsive to name and nonverbal.” (Sanchez Decl., ¶7, Ex. D, Vol. 11, at p. 6329.)

Cedars discharged Decedent on January 11, 2017, for the final time. (Sanchez Decl., ¶ 7, Ex. D, Vol 11, at p. 6315.) The discharge notes that Decedent has “a chronic neurodegenerative disease which was diagnosed as supranuclear palsy versus Parkinson’s” and problems with feeding. (Sanchez Decl., ¶ 7, Ex. D, Vol 11, at p. 6315.) His final diagnosis on discharge was “1. Multiorgan failure. 2. Progressive supranuclear palsy. 3. Cancer of the tongue, metastatic. 4. Large abdominal mass likely due to metastatic colon cancer. 5. Moderate protein-calorie malnutrition. 6. Sacral decubitus ulcer stage IV. 7. Sepsis. 8. Recurrent urinary tract infections. 9. Colonization with vancomycin-resistant enterococcus. 10.Tachypnea likely due to sepsis and central nervous system involvement with the above problems. 11. Chronic obstructive pulmonary disease and asthma. 12.Failure to thrive. 13.Dehydration. 14.Hypercalcemia likely secondary to malignancy. 15.Hypernatremia. 16.Acute on chronic diastolic heart failure. 17.Neurogenic bladder. 18.History of prostate cancer. 19.Dysphagia.” (Sanchez Decl., ¶ 7, Ex. D, Vol 11, at p. 6316.)

Discussion

1. Legal Standard

In reviewing a motion for summary judgment, the Court must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has met his or her initial burden; 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 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 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 may satisfy the initial burden to show that one or more elements cannot be established by “presenting evidence that conclusively negates an element of the plaintiff's cause of action or by relying on the plaintiff's factually devoid discovery responses to show that the plaintiff does not possess, and cannot reasonably obtain, evidence to establish that element.” (Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1119.) Unless and until a defendant meets that burden, the plaintiff has no burden to present controverting evidence. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal. App. 4th 454, 468 [“There is no obligation on the opposing party . . . to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element . . . necessary to sustain a judgment in his favor.”]) If a defendant fails to meet that burden, summary judgment must be denied, even if the plaintiff fails to file an opposition and fails to proffer any evidence.

On the other hand, if 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 in 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.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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.)

2. Adequacy of Care

The issue is whether Plaintiff can establish that Cedars failed to use the degree of care necessary in treating Decedent such that its negligence cause Decedent’s death.

To prove a claim for elder abuse based on neglect, Plaintiff must show (1) Cedars has a substantial caretaking or custodial relationship with Decedent, involving ongoing responsibility for his based needs, which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance, (2) that Decedent was 65 years or older while in Cedars’ care, (3) that Cedars failed to use the degree of care that a reasonable person in the same situation would have used in providing for Decedent’s basic needs include providing medical care for physical and health needs, (4) that Decedent was harmed, and (5) that Cedars’ conduct was a substantial factor in causing Decedent’s harm. (See CACI No. 3103 see also Norman v. Life Care Centers of Am., Inc. (2003) 107 Cal. App. 4th 1233, 1239)

To prevail against Cedars on the claim for “wrongful death, plaintiff[] must prove (1) a wrongful act or neglect on the part of one or more persons (that is, negligence) that (2) causes (3) the death of another person.” (Musgrove v. Silver (2022) 82 Cal.App.5th 694, 705 [internal brackets and quotations omitted].)

Accordingly, if Plaintiff cannot establish Cedars engaged in neglect which caused Decedent’s death, then she cannot prevail on either claim. “In most instances there is the need for expert testimony on the subject of just what constitutes medical negligence, because the average judge or juror does not possess the necessary level of knowledge about medical practice and procedure to decide on his own whether the doctor was negligent.” (Barton v. Owen (1977) 71 Cal.App.3d 484, 493.)

In seeking summary judgment Cedars relies primarily on the declaration of Dr. Robert Winters M.D.. Winters is a licensed California physician who is board certified in internal medicine and infectious disease. (Declaration of Robert Winters [“Winters Decl.,”], ¶1.) Winters received his medical education at Tel Aviv University followed by a residency in internal medicine at SUNY-Stonybrook and a fellowship in infectious disease a Cornel University Medical Center. (Winters Decl., ¶2.)

After reviewing Plaintiff’s complaint and Decedent’s medical records, Winters opines that the health care providers at Cedars “complied at all times with the standard of care and nothing they did or failed to do caused or contributed to the death of [Decedent].” (Winters Decl., ¶6.) Specifically, during the August 8-22, 2016, and September 7-12, 2016, stays at Cedars, Decedent had blanchable redness on the sacrum, but the wound was documented and stabilized during the admissions without worsening. It was upon readmission from October 10-18, 2016; October 23, 2016; and November 11, 2016, that the sacral ulcer had advanced to stage 1. As a result, Cedars took ulcer precautions and treatments which stabilized the wound and prevented it from deteriorating further. (Winters Decl., ¶6.) Upon admission on November 12, 2016 the pressure ulcer had advanced to stage 2. Winter opines that Decedent’s body was failing given his persistent UTI, his inoperable metastatic cancerous pelvic mass, cognitive impairment, respiratory failure, and supranuclear palsy. At that time Decedent also could not obtain the nutritional support necessary for his body and pressure ulcers to heal. Winters opines that Decedent’s cause of death was the inoperable carcinoma combined with his co-morbidities and his irreversible catabolic state, and not the care he received at Cedars. (Winters Decl., ¶6.)

Winters’ declaration is sufficient to shift the burden on summary judgment to Plaintiff regarding the allegations in the FAC, provided the medical records Cedars submits as evidence are properly brought before the court. A medical expert’s declaration stating an opinion based entirely on review of medical records could not support summary judgment where the records were not attached to the declaration or otherwise before the court. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743.) As discussed previously, the records primarily relied up on for this motion are admissible and Winters’ testimony as to the facts in those records is sufficient to shift the burden to Plaintiff. Plaintiff has not opposed the motion.

The court is sympathetic to what appears to have been a harrowing experience for Plaintiff Oriana Parks regarding her husband’s deteriorating condition and serious health complications prior to his death. The court’s ruling does not disregard this. Nonetheless, Plaintiff has not presented evidence to rebut Cedars’ showing.

Accordingly, the motion for summary judgment is granted.

Moving party is directed to give notice.