Judge Lee W. Tsao, Case Number: 23NWCV00020, Date: 2024-03-12 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00020, Date: 2024-03-12 Tentative Ruling

Case Number: 23NWCV00020 Hearing Date: March 12, 2024 Dept: C

Eunice Thompson vs Lakewood Regional Medical Center, et al.

Case No.: 23NWCV00020

Hearing Date: March 12, 2024 @ 10:30 AM

Tentative Ruling

Defendant Southern California Permanente Medical Group’s Motion for Summary Judgement is DENIED.

Plaintiff to give notice.

Background

This is a wrongful death action. On January 7, 2023, Plaintiff Eunice Thompson (Decedent Jesse L. Thompson's surviving spouse) filed this action against Defendant Southern California Permanente Medical Group alleging that it was negligent in its medical care and treatment of Decedent, resulting in his death.

Defendant Southern California Permanente Medical Group now moves generally for a Motion for Summary Judgment.

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

“[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 declarations of Kevin Ehrhart, M.D. and Michael Bolaris, M.D. Dr. Ehrhart opined that Defendant’s orthopedists met the standard of care at all relevant times related to the treatment of Decedent’s left femoral neck fractures/hip dislocations. (Ehrhart Decl., ¶ 35.) He asserts that Dr. Batchelor’s decision to perform a left hip hemiarthroplasty, his performance during the surgery, and his decision to discharge decedent in a brace were all within the applicable standard of care. (Ehrhart Decl., ¶¶ 36-38.) Moreover, Dr. Kumar's decision to perform a total left revision hip replacement procedure and his performance during the surgery were within the applicable standard of care. (Ehrhart Decl., ¶¶ 39-40.)

The declaration of Mr. Bolaris asserts that to a reasonable degree of medical probability, there is no clinical indication that decedent’s hip incision (and/or hardware) from either of the hip procedures were ever infected before he left Kaiser, decedent did not become septic before he left Kaiser, decedent did not suffer from an MRSA infection before he left Kaiser, and that the MRSA infection became septic due to multiple medical comorbidities, including diabetes, immunosuppression, hypertension, gammaglobulinopathy, and a history of UTI. (Bolaris Decl., ¶¶ 43-46.)

“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) “Mere possibility alone is insufficient to establish a prima facie case.” (Id.) “There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.” (Id. at 403.) “A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.” (Id.)

Here, Dr. Ehrhart opines there were no negligence on the part of any of decedent’s orthopedists which caused, or contributed to, any of Decedent’s alleged injuries and/or death. (Ehrhart Decl., ¶ 43.) Further, Dr. Ehrhart opines that decedent’s multiple traumatic dislocations after falling at his home on or around 12/20, 12/22, 12/26, 12/29 and 12/31, all which caused the ball to be tom out of the posterior capsule of the socket in his left hip, were not impacted by Dr. Batchelor’s performance. (Ehrhart Decl., ¶ 44.)

With the declarations of Dr. Ehrhart and Dr. Bolaris and the relevant facts therein, the burden shifts to the Plaintiff to provide contrary expert testimony.

Here, Plaintiff submits the declaration of Randy Feldman, M.D.

Dr. Feldman opines that care provided by Defendant was below the standard of care. Dr. Feldman submits that appropriate workup and treatment for high grade MRSA bacteremia/infection was not performed, the pressure injury was a possible source of decedent’s bacteremia which caused or contributed to decedent’s death, the decedent developed endocarditis possibly as a result of the wound infection, and the high grade bacteremia was deeply seated and present for a long time likely prior to the transport to Lakewood Medical Center, and therefore fell below the standard of care. (Feldman ¶¶ 8-12.)

The Court finds that Plaintiff’s contrary expert testimony raises a triable issue of material fact.

Accordingly, Defendant’s motion for summary judgment is DENIED.