Judge: Lee W. Tsao, Case: 22STCV04508, Date: 2024-03-26 Tentative Ruling

Case Number: 22STCV04508    Hearing Date: March 26, 2024    Dept: C

Raul Raygoza vs PIH Health Whittier Hospital

Case No.: 22STCV04508

Hearing Date: March 26, 2024 @ 10:30 AM

#8

Tentative Ruling

Defendant PIH Health Whitter Hospital’s Motion for Summary Judgment is GRANTED.

Defendant to give notice.

Background

This is an action brought by Plaintiff Raul Raygoza for the treatment he allegedly received by healthcare providers while he was a patient at PIH Health Whitter Hospital.  Plaintiff brings seven causes of action for: (1) Assault; (2) Battery; (3) Medical Negligence; (4) Sexual Battery; (5) Intentional Infliction of Emotional Distress; (6) Negligent Infliction of Emotional Distress; and (7) Negligent Supervision.  Defendant moves for summary judgment or, in the alternative, summary adjudication on the grounds that Defendant and its nurses, employees, and staff complied with the standard of care with regard to the medical treatment of Plaintiff Raul Raygoza.

Evidentiary Objections

Defendant’s Objections to Declaration of Plaintiff Raul Raygoza

Objections Nos. 1, 2, 4, 5, 6 are SUSTAINED.

Objection No. 3 is OVERRULED.

Defendant’s Objections to Declaration of Tyla DiMaria, RN

Objections Nos. 1, 2, 3, 4, 5, 6, 7 are SUSTAINED.

Legal Standard

The purpose of a motion for 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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)                                                                                             

“On a motion for summary judgment, the 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 “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.”  (Code Civ. Proc., § 437c(p)(2).)  “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.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) 

“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.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).) 

Discussion

1.    Third Cause of Action for Medical Negligence and Seventh Cause of Action for Negligent Supervision

“[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.’” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122, quoting Hanson v. Grade (1999) 76 Cal.App.4th 601, 606.) “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 Medical Center (2008) 159 Cal. App. 4th 463, 467.)

Thus, in a medical malpractice case, “[w]hen 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, 984-985 (citations omitted).)  An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider.  (Starr v. Mooslin (1971) 14 Cal. App. 3d 988, 999.)

Here, Defendant submits the expert declaration of Davina Leary, R.N., who opines that Defendant’s care and treatment of Plaintiff was within the standard of care at all times and did not cause the injuries alleged in this case. (Leary Decl., ¶ 7.) The declaration asserts that nursing staff followed the requisite guidelines on administration of pain medications.  (Leary Decl., ¶ 10.) The declaration relies on a police report indicating that the Police officers believed the nurses were acting in good faith and there was no crime. (Leary Decl., ¶ 27.) The declaration further states that Plaintiff failed to attend post-operative appointments with his neurosurgeon on March 17 and 23, 2021. (Leary Decl., ¶ 30.) Based on the medical record, Registered Nurse Leary believes that the nursing care provided to Plaintiff was within the standard of care and prudent and appropriate. (Leary Decl., ¶ 33.)

With the declaration of Davina Leary, R.N., and the relevant facts therein, the burden shifts to the Plaintiff to raise a triable issue of material fact. 

As to the Third Cause of Action for Medical Negligence and Seventh Cause of Action for Negligent Supervision, Plaintiff submits the declaration of Tyla DiMaria, R.N., who opines that it is below the standard of care for a nurse to leave a patient alone when the patient is a fall risk, to touch a patient on their private parts without consent, to remove a drain from a patient’s neck without approval from a physician, and to withhold medication prescribed by a doctor.  However, the declaration, which is two pages long, does not disclose the material relied on in forming the opinion. Therefore, the declaration is inadmissible. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.)  Further, even if the declaration was admissible, it does not describe or explain how Plaintiff’s expert witness arrived at her conclusions. Therefore, Plaintiff fails to raise a triable issue of material fact as to the Third and Seventh Causes of Action. 

2.    First Cause of Action for Assault, Second Cause of Action for Battery, Fourth Cause of Action for Sexual Battery, Fifth Cause of Action for Intentional Infliction of Emotional Distress, and the Sixth Cause of Action for Negligent Infliction of Emotional Distress.

Having found the Declaration of Tyla DiMaria, R.N., to be inadmissible, the only remaining evidence in support of Plaintiff’s Opposition comes from Plaintiff himself.  Plaintiff declares, “On another night during my stay I was awakened in the middle of the night when I felt someone pulling my underwear down. I realized there were two nurses in my room, a male nurse and a female nurse. The male nurse had pulled down the back of my underwear and was sticking his fingers in my anus. The female nurse was laughing and trying to pull down the front of my underwear, but before she was able to do so I grabbed at my underwear to stop her. Both nurses were extremely surprised that I had awakened and quickly left the room.” (Raygoza Decl., ¶ 5.)  Defendant objects to this portion of Plaintiff’s declaration as self-serving and inconsistent with this deposition testimony.  During his deposition, Plaintiff was asked, “Did [the male nurse] put his finger in your anus?” (Liu Decl., ¶ 3, Ex. A, 154:11.) Plaintiff responded, “He didn’t put his finger, but when he went up like that, it rubbed against my anus.  Yes, it did.” (Liu Decl., ¶ 3, Ex. A, 154:12-13.)  The Court determines that Plaintiff’s declaration is inconsistent with his deposition testimony in so far as he stated in his declaration that the male nurse “was sticking his fingers in my anus.”  The Court will disregard that portion of his declaration. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1.) Consequently, Plaintiff fails to produce evidence that the nurses intended to harm him.  Plaintiff’s deposition testimony – that the male nurse “rubbed against my anus” – does not establish an intent to harm under these circumstances.  Rather, it is consistent with attempts by nursing staff to check if Plaintiff had a bowel movement. (Leary Decl., ¶ 21.) Therefore, Plaintiff has not met his burden of raising a triable issue of material fact as to the First, Second, Fourth, Fifth and Sixth Causes of Action. 

Accordingly, Defendant’s Motion for Summary Judgment is GRANTED.