Judge: Lee W. Tsao, Case: 21STCV15446, Date: 2023-03-02 Tentative Ruling
Case Number: 21STCV15446 Hearing Date: March 2, 2023 Dept: C
LEYVA v. PIH
HEALTH, INC.
CASE NO.: 21STCV15446
HEARING: 03/02/23
#5
TENTATIVE ORDER
Defendant PIH HEALTH HOSPITAL -WHITTIER’s Motion for Summary
Judgment is DENIED.
Opposing Party to give Notice.
This medical malpractice action was filed by Plaintiff
CHARLIE LEYVA, a minor and through his Guardian At Litem, DANIELA BARCENAS
(“Plaintiff”) on April 23, 2021. Plaintiff’s Complaint alleges the following
relevant facts: “CHARLIE LEYVA, a minor, became a patient of defendants and
each of them on or about October 11, 2020, when he was taken to the emergency
room at PIH HEALTH HOSPITAL WHITTER, twice-at 0207 hours and again at 0818
hours, for severe abdominal pain and vomiting.” (Complaint ¶10.) “The defendants
and each of them were negligent, careless and unskillful in their diagnosis,
care and treatment of plaintiff…. That negligence, carelessness and
unskillfulness was a legal cause of injuries and damages to plaintiff as set
forth below: [¶] Septic shock and its sequalae resulting in a brain injury;
severe and permanent ischemic injury to CHARLIE’S gut or bowel resulting in a
profound loss of bowel and bowel function requiring parental lifetime feeding
and special drugs and nutritional support.” (Complaint ¶12.)
Plaintiff’s Complaint asserts one sole cause of action for
Negligence.
Defendant PIH HEALTH HOSPITAL - WHITTIER (“PIH”) moves for
summary judgment on the grounds that: (1) Defendant PIH met the applicable
standard of care; and (2) physicians are not an agent or employee of PIH and
therefore, PIH cannot be held liable for the actions of the named or unnamed
doctors of the hospital.
In Opposition, Plaintiff argues that there are triable
issues as to whether PIH complied with the standard of care, and that PIH’s
expert’s opinion is inadmissible and that PIH has failed to show that
Physician’s Assistant (“PA”) Montesano was not an actual or ostensible agent of
PIH.
“[I]n any medical malpractice action, the 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.’ [Citation Omitted.]” (Gami v. Mullikin
Medical Center (1993) Cal.App.4th 870, 877.)
“The elements of the cause of action for wrongful death are
the tort (negligence or other wrongful act), the resulting death, and the
damages, consisting of the pecuniary loss suffered by the heirs.
[Citations.]” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th
1256, 1263.)
When a defendant moves for summary judgment/adjudication of
a medical malpractice cause of action and supports the motion with expert
declarations that the defendant’s conduct fell within the community standard of
care, that defendant is entitled to summary judgment unless the plaintiff comes
forward with conflicting expert evidence.” (Munro v. Regents of California
(1989) 215 Cal.App.3d 977, 984-985.)
Here, PIH proffers the declarations of Lawrence Cohen, M.D. and
Dr. David Barcay, M.D. to support of the instant Motion. Dr. Cohen is board
certified in radiology since 1975. (Cohen Decl., ¶2) Dr. Barcay is board
certified in emergency medicine, internal medicine, and critical care medicine.
(Barcay Decl., ¶2.) Dr. Cohen opines, in pertinent part, “It is my opinion,
based upon my education, training, experience, interaction with radiology
technicians, and review of records and imaging studies, that the radiology
technician appropriately performed an abdominal x-ray during Charlie Leyva’s
first visit to the emergency room…. A provider or physician would have been
responsible for ordering more or different views if the x-ray obtained by the
technician was not adequate.” (Cohen Decl., ¶11.) “It is my opinion, to a
reasonable medical probability, that no negligent act or omission by the
radiology staff (technician and sonographer) employed by PIH… caused the
injuries claimed by plaintiff in this case.” (Cohen Decl., ¶19.) Dr. Barcay
opines: “It is my opinion, to a reasonable medical probability, that no
negligent act or omission on the part of the emergency room nurses, hospital
employees or agents of PIH… led to [Plaintiff’s] volvulus or the injuries
claimed in this action.” (Barcay Decl., ¶31.)
In Opposition, Plaintiff proffers the declarations of Dr.
Alan Leonard Nager, M.D., and Dr. David Bliss, M.D. Dr. Nager is certified in
both Pediatrics and Pediatric Emergency Medicine. (Nager Decl., ¶1.) Dr. Bliss
is board certified by American Board of Surgery in General and Pediatric
Surgery and Surgical Critical Care. (Bliss Decl.,¶1.) Dr. Nager opines:
“Physician Assistant Montesano and Nurse Almarez violated the standard of care
in their respective care, management, evaluation and treatment of [Plaintiff]….
To a reasonable medical probability, the violations of the applicable standards
of care by Physician Assistant Montesano and Nurse Almarez in their capacity as
emergency are providers for [Plaintiff]… were substantial factors in causing
the delay in the diagnosis of the small bowel obstruction and treatment of its
sequelae.” (Nager Decl., ¶10.) Dr. Bliss opines that “[t]o a reasonable medical
probability, Physician Assistant Montesano’s failure to obtain a surgical
consult for Charlie, and Nurse Almarez’s failure to obtain serial or continuous
vital signs including heart rates and blood pressure readings during his
initial visit to the Emergency Department, were substantial factors in delaying
the diagnosis and treatment of his small bowel obstruction. To a reasonable
degree of medical probability, the care that a surgeon consulting on Charlie’s
case would have provided would have significantly delayed or averted the onset
of shock.” (Bliss Decl., ¶2.) “To a reasonable degree of probability, a
substantial portion of the small bowel would probably have been preserved and
the loss of nearly the entire small bowel would have been averted.” (Bliss
Decl., ¶13.)
In Reply, PIH objects to the admissibility of Dr. Nager and
Dr. Bliss’s expert declarations. PIH argues that Dr. Nager does not have the
experience, training, or education with the standard of care for nursing in a
pediatric patient like Plaintiff and that Dr. Bliss does not have the training,
experience, or education that can address nursing policies for vital sign
monitoring in the ER. PIH further
objects to portions of the declaration of Dr. Bliss, arguing that Dr. Bliss’s
opinions of ¶¶10-11 are not relevant to the issues in this Motion. As indicated
below, PIH’s objections to the admissibility of the declarations of Dr. Nager
and Dr. Bliss are OVERRULED. For purposes of summary judgment, the Court finds
that Plaintiffs have adequately submitted competent expert declarations to
refute Dr. Cohen and Dr. Barcay’s opinions. As the opposing party, this Court
must liberally construe Plaintiffs’ evidence. In doing so, the Court finds that
Drs. Nager and Bliss sufficiently declare that they possess the expertise or
relevant knowledge of the standards of care in pediatric emergency medicine
(See Nager Decl., ¶2, and Bliss Decl., ¶¶1-2.)
Since both parties’ experts have testified to differing
conclusions as to whether PIH complied with the relevant standard of care,
summary judgment is DENIED.
The Court notes that Plaintiff’s arguments in Opposition
with respect to ostensible agency do not apply under Wicks v. Antelope
Valley Healthcare District (2020) 49 Cal.App.5th 866.
Plaintiff’s Evidentiary Objections:
No. 1. Overruled
PIH’s Evidentiary Objections:
Nos. 1-5. Overruled