Judge: Lee W. Tsao, Case: 23NWCV00041, Date: 2024-01-30 Tentative Ruling
Case Number: 23NWCV00041 Hearing Date: January 30, 2024 Dept: C
Edna Melissa Molina vs Whittier Hospital
Medical Center, et al.
Case No.: 23NWCV00041
Hearing Date: January 30, 2024 @ 10:30 AM
#8
Tentative Ruling
Defendants’ Motion for Summary Judgment is
DENIED.
Plaintiff to give notice.
Background
This is an action for Professional Negligence. Plaintiff Edna Melissa Molina (“Plaintiff”) alleges
that on January 13, 2022, Bryan M. Yeh, M.D., and James P. Panlilio, PA-C
(collectively “Defendants”) provided negligent care to her son Gerardo Lorenzo
Molina (“Decedent”) in the Whittier Hospital Medical Center emergency
department, resulting in his death two days later.
Defendants move for summary judgment based upon the
declaration of their expert witness who opines that neither Dr. Yeh nor Mr. Panlilio
breached the standard of care at any time.
Plaintiff’s opposition is based upon the declaration of her expert
witness who opines that Defendants’ actions fell below the standard of
care.
Judicial Notice and Evidentiary Objections
Plaintiff’s Judicial Notice and Evidentiary
Objections
Plaintiff’s Objections to the Declaration of David Barcay are
OVERRULED as to paragraphs: 6, 7a, 7b, 7c, 7d, 8, 9, 11, 13, 14, 15.
Plaintiff’s Request for Judicial Notice Nos. 1, 2, and 3
are GRANTED. (Cal. Evidence Code § 451 and 452.)
Defendant Objections
Defendants’ objections to the Declaration of David Brady
Pregerson are OVERRULED as to numbers: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, 15, 16, 17, 18, 19, 20, and 21.
Legal Standard
Summary
judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) Where a Defendants
seeks summary judgment or adjudication, he must show that either “one or more
elements of the cause of action, even if not separately pleaded, cannot be
established, or that there is a complete defense to that cause of
action.” (Id. at §437c(o)(2).) A Defendants may satisfy this burden
by showing that the claim “cannot be established” because of the lack of
evidence on some essential element of the claim. (Union Bank v.
Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the Defendants
meets this burden, the burden shifts to the plaintiff to show that a “triable
issue of one or more material facts exists as to that cause of action or
defense thereto.” (Id.)
The
moving party bears the initial burden of production to make a prima facie
showing that there are no triable issues of material fact. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A Defendants
moving for summary judgment must show either (1) that one or more elements of
the cause of action cannot be established or (2) that there is a complete
defense to that cause of action. (Code Civ. Proc. §437c(p).) A
Defendants may discharge this burden by furnishing either (1) affirmative
evidence of the required facts or (2) discovery responses conceding that the
plaintiff lacks evidence to establish an essential element of the plaintiff's
case. If a Defendants chooses the latter option, he or she must present
evidence “and not simply point out that plaintiff does not possess and cannot
reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4th
at 865-66.)
[A]
Defendants may simply show the plaintiff cannot establish an essential element
of the cause of action “by showing that the plaintiff does not possess, and
cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather
than affirmatively disproving or negating an element (e.g., causation), a
Defendants moving for summary judgment has the option of presenting evidence
reflecting the plaintiff does not possess evidence to prove that element. “The
Defendants may, but need not, present evidence that conclusively negates an
element of the plaintiff's cause of action. The Defendants may also present
evidence that the plaintiff does not possess, and cannot reasonably obtain,
needed evidence—as through admissions by the plaintiff following extensive
discovery to the effect that he has discovered nothing” to support an essential
element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a
Defendants’ initial evidentiary showing may “consist of the deposition
testimony of the plaintiff's witnesses, the plaintiff's factually devoid
discovery responses, or admissions by the plaintiff in deposition or in
response to requests for admission that he or she has not discovered anything
that supports an essential element of the cause of action.” (Lona v. Citibank,
N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a Defendants may
show the plaintiff does not possess evidence to support an element of the cause
of action by means of presenting the plaintiff's factually devoid discovery
responses from which an absence of evidence may be reasonably inferred.
(Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)
Thus,
a moving Defendants has two means by which to shift the burden of proof under
the summary judgment statute: “The Defendants may rely upon factually
insufficient discovery responses by the plaintiff to show that the plaintiff
cannot establish an essential element of the cause of action sued upon.
[Citation.] [Or a]lternatively, the Defendants may utilize the tried and true
technique of negating (‘disproving’) an essential element of the plaintiff's
cause of action.”
(Leyva
v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)
Until
the moving Defendants has discharged its burden of proof, the opposing
plaintiff has no burden to come forward with any evidence. Once the moving
Defendants has discharged its burden as to a particular cause of action,
however, the plaintiff may defeat the motion by producing evidence showing that
a triable issue of one or more material facts exists as to that cause of
action. (Code Civ. Proc. §437c(p)(2).) On a motion for summary
judgment, the moving party's supporting documents are strictly construed and
those of his opponent liberally construed, and doubts as to the propriety of
summary judgment should be resolved against granting the motion. (D’Amico
v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)
Discussion
In
a medical malpractice 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, 984-985.)
Here, Defendants Bryan M. Yeh,
M.D. and James P. Panlilio, PA-C, offer the expert declaration of David
Barcay, M.D., FACEP, FAAEM, FCCP, FACP who opines that neither Dr. Yeh nor Mr.
Panlilio breached the standard of care at any time. Dr. Barcay reviewed Decedent’s
medical records, the Complaint, and the transcript of Plaintiff’s deposition.
Based on his background, training, experience, and
review of these documents, Dr. Barcay opines that Dr. Yeh and Physician’s
Assistant Panililio’s treatment of Decedent complied with the standard of care
at all times.
Based
on Dr. Barcay’s expert declaration, Dr. Yeh and Physician’s Assistant Panlilio
have met their initial burden of showing there are no triable issues as to
whether they breached the standard of care. The burden shifts to
Plaintiff to show that a triable issue of fact exists.
Plaintiff asserts that Defendants’ expert failed to review
and include extremely relevant medical facts and/or factual information,
including the medical records from Pacific Pediatric Cardiology, the deposition
of Defendant Yeh, M.D., and the deposition of Defendant James P. Panlilio, PA-C.
Moreover, Plaintiff submits the declaration of David Brady Pregerson, M.D., an
emergency medicine physician who has been licensed to practice in the State of
California since 1997.
Dr. Pregerson opines that Physician’s Assistant Panlilio
did not meet the standard of care at all relevant times during his evaluation
and treatment of Decedent. (Pregerson Decl.,
¶ 7.) Specifically, Physician’s Assistant Panlilio failed to acquire an
adequate past medical history (Id., ¶ 9b.), failed to acquire an
adequate history of present illness of Decedent before discharging him (Id.,
¶ 9c.), failed to conduct appropriate testing to rule out life threats (Id.,
¶¶ 9d and 9e.) Based
on the foregoing, the Court determines that Plaintiff has raised a triable
issue of fact with respect to Physician’s Assistant Panlilio.
Dr. Yeh was the attending
physician in the emergency department at Whittier Hospital Medical Center and
was responsible for supervising Physician’s Assistant Panlilio. (PSS, ¶ 4.) Dr.
Yeh did not evaluate Decedent Molina on January 13, 2022. Dr. Yeh reviewed and
cosigned Physician’s Assistant Panlilio’s note for the subject date of service
at 23:17 on 1-13-2022. (PSS, ¶ 20.) Dr. Pregerson
opines that “Dr. Yeh, as the supervising physician, was responsible for the
care and treatment provided by Physician’s Assistant Panlilio, and thus his
actions and/or omissions fell below the standard of care and was a substantial
factor in causing and/or contributing to decedent Molina’s injuries and
damages.” (Pregerson Decl., ¶ 9i.) Defendants argue that the declaration is
conclusory and unsupported by any factors or reasoning. While Dr. Pregerson could have been more explicit
in this regard, he does opine that the standard of care for “a reasonably
prudent emergency physician and/or physician assistant” was breached by failing
to obtain and “adequate and appropriate medical history, including an
appropriate history of the patient’s heart murmur and treatment with a
cardiologist and performing an appropriate physical evaluation, including
repeating vitals.” (Pregerson Decl., ¶ 8b.) Dr. Pregerson also opines that the standard
of care for “a reasonably prudent emergency physician and/or physician
assistant” was breached by failing to conduct appropriate testing “to rule out
life threats that were, or should have been, included in the differential
diagnosis. In this case, that would include both pulmonary embolism and aortic
dissection, neither of which were appropriately investigated …” (Pregerson
Decl., ¶ 8c.) Based on the foregoing, the Court determines that Plaintiff has sufficiently
raised a triable issue of fact with respect to Dr. Yeh.
Accordingly, Defendants’ Motion for Summary Judgment as to Dr.
Yeh and Physician’s Assistant Panlilio is DENIED.