Judge: Loren G. Freestone, Case: 37-2022-00048401-CU-PO-CTL, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 20, 2024

06/21/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00048401-CU-PO-CTL THATCHER VS AURORA BEHAVIORAL HEALTH SYSTEM [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Karun Gogna MD's motion for summary judgment as to the second amended complaint filed by Plaintiff Silvena Thatcher is GRANTED.

Preliminary Matters Thatcher's evidentiary objections to the Declaration of Saul Lopez (ROA #286): Overruled.

Thatcher's evidentiary objections to the Declaration of Mace Beckson M.D. (ROA #285): Overruled.

Gogna's evidentiary objections to the Declaration of Alan Newman M.D. (ROA #291): 1–27, 29–32, and 35 are overruled; 28, 33–34, and 36 are sustained.

Negligence Thatcher's first and second causes of action are for negligence.

Gogna argues these claims fail as a matter of law because his actions did not fall below the standard of care and were not a cause of decedent Tyler Thatcher Cox's death.

Expert testimony is generally required to establish whether the diagnosis and treatment of a suicidal psychiatric patient fell below the standard of care. (See Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 105–106.) Here, Gogna submits a declaration from a psychiatric expert (Dr. Beckson) who opines that Gogna's evaluation/reevaluations, diagnoses, treatment, and pharmacotherapy for decedent Tyler Fox were all within the standard of psychiatric inpatient care. Dr. Beckson opines that Gogna acted within the standard of care by placing Cox on line-of-sight observation (SP2) and relying on the hospital's nursing staff to carry out his order. Dr. Beckson opines that the standard of care did not require Cox be placed on one-to-one arm's length observation (SP1), nor did it require that bed sheets and doors be removed from his environment.

Thatcher, in turn, submitted a declaration from her psychiatric expert (Dr. Newman) who opines that Gogna's conduct fell below the standard of care because he failed to complete a systemic risk Calendar No.: Event ID:  TENTATIVE RULINGS

3097534  44 CASE NUMBER: CASE TITLE:  THATCHER VS AURORA BEHAVIORAL HEALTH SYSTEM  37-2022-00048401-CU-PO-CTL assessment and should have placed Cox on one-to-one observation (SP1) upon admission-and no later than when Cox was discovered twisting a bedsheet into a lanyard.

Both experts explain the basis for their opinions on the standard of care in light of the facts of this case.

Based on the conflicting expert declarations, there are triable issues as to whether Gogna fell below the standard of care.

However, even if Gogna fell below the standard of care by not placing Cox on SP1 observation, he cannot be held liable unless 'it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury.' (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 247; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118.) 'An act is a cause in fact if it is a necessary antecedent of an event.' (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1458.) If an injury would have occurred even if the defendant had taken extra precautions, then that negligent act is not a cause in fact of the injury. (See Akins v. Sonoma County (1967) 67 Cal.2d 185, 199.) SP1 generally involves a more intense level of supervision than SP2. Specifically, SP1 requires staff to continuously be no more than 5 feet from the patient, whereas SP2 generally requires the patient to only remain in the staff's line of sight. However, Gogna submits evidence that when a patient goes to the bathroom, SP1 and SP2 involve the same level of observation. The SP2 observation guidelines state: '[T]he patient should be escorted to and observed while in the bathroom as with Level I observation.' Here, Cox committed suicide in the bathroom. Thus, at the relevant time, there was no functional difference between SP1 and SP2. Gogna also submits evidence that even though his order required Aurora staff to escort Cox to the bathroom and observe him while inside it, that Aurora staff did not comply with that order and instead left him unattended for an extended period. Thatcher herself alleges that Aurora failed to conduct line of sight observation on Cox as ordered. As such, Dr. Beckson opines that 'there was nothing Dr. Gogna did or did not do that negligently caused or contributed to Mr. Cox's passing. Hospital staff error led to Mr. Cox's death by creating an opportunity to be unobserved, during which time he created a noose, anchored it using the top of his bathroom door, and hanged himself. . . .

Had hospital staff appropriately followed Dr. Gogna's orders for line-of-sight nursing observation, hospital staff would have been able to intervene before Mr. Cox could engage in the suicidal behavior on July 4, 2022 that caused his hanging death.' Thatcher does not submit any evidence in opposition that would permit a reasonable inference Aurora staff would have accompanied Cox to the bathroom if Gogna had placed him on SP1 observation, even though they failed to accompany him to the bathroom as required by the SP2 observation order. (See Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483–484 ['mere speculation and conjecture is insufficient' to avert summary judgment; plaintiff opposing summary judgment 'must show that the inferences favorable to her are more reasonable or probable than those against her'].) In seeking to raise a triable issue on causation, Thatcher relies entirely on Dr. Newman's opinion that 'Dr. Gogna negligently caused and/or contributed to Decedent Tyler Thatcher Cox's death.' However, to 'assist in a causation determination, the expert must be able to explain why the researched facts convincingly led to a conclusion that it is more probable than not that a given negligent act was a cause-in-fact of the subject injury.' (Belfiore-Braman, supra, 25 Cal.App.5th at p. 247.) An expert declaration that merely concludes a negligent act was the cause of an injury, without discussing how that opinion was reached in light of the facts of the case, is insufficient to raise a triable issue. (See, e.g., Wicks v. Antelope Valley Healthcare Dist. (2020) 49 Cal.App.5th 866, 880–881; Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 228–230; Pipitone, supra, 244 Cal.App.4th at pp.

1460–1461.) Here, Dr. Newman simply declares: 'Had Dr. Gogna placed Decedent on SP1 observation either upon admission to Aurora Behavioral Health or after the bedsheet-tying incident on June 27, 2022, Decedent would likely still be alive today.

SP1 Observation, which would require continuous observation within arms-length on a one-to-one basis Calendar No.: Event ID:  TENTATIVE RULINGS

3097534  44 CASE NUMBER: CASE TITLE:  THATCHER VS AURORA BEHAVIORAL HEALTH SYSTEM  37-2022-00048401-CU-PO-CTL and staff accompanying a patient into the bathroom, would not have permitted Decedent to complete his suicidal act.' Dr. Newman never mentions the fact that SP2 observation also requires staff accompany a patient into the bathroom. Nor does Dr. Newman ever mention the fact that Aurora staff failed to accompany Cox to the bathroom as Gogna had ordered. Dr. Newman does not explain why an SP2 observation would not also have enabled Aurora staff to stop Cox from committing suicide if Aurora staff had complied with the order, nor does he explain why an SP1 observation would have resulted in Aurora staff accompanying Cox to the bathroom even though they did not comply with the SP2 order that had the same directive.

Without discussing these facts and how they impacted his conclusion that Gogna's failure to order SP1 observation substantially contributed to Cox's death, Dr. Newman's opinion on causation has no evidentiary value and is insufficient to raise a triable issue of fact.

For the reasons set forth above, the motion is granted as to the first and second causes of action.

Dependent Adult Abuse Thatcher's third and fourth causes of action are for dependent adult abuse under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA).

The parties dispute whether Gogna's actions can properly be classified as 'neglect.' It is unnecessary to resolve that issue because, as with negligence, an essential element of an EADACPA claim is causation. (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407; Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 664; CACI 3103.) As set forth above, Gogna met his initial burden to show that he was not a cause of Cox's suicide and Thatcher failed to raise a triable issue of fact. Absent a causal connection between the alleged neglect and Cox's suicide, the claims fail as a matter of law.

The motion it therefore granted as to the third and fourth causes of action.

Patient Bill of Rights / Welfare & Institutions Code Thatcher's fifth, sixth, and seventh cause of action allege that Gogna violated the Patient Bill of Rights (Cal. Code Regs., tit. 22, § 72527) and Welfare & Institution Code section 5250 et seq. by detaining Cox beyond his 72-hour hold without providing him a hearing.

A person that is a danger to themselves because of a mental health disorder may, upon probable cause, be involuntarily detained for up to 72-hours for evaluation and treatment. (See Welf. & Inst. Code, § 5150, subd. (a).) At the end of the 72-hour hold, the individual must 'be released, referred for further care and treatment on a voluntary basis, certified for intensive treatment, or a conservator or temporary conservatory shall be appointed.' (Id. at § 5152.) If a physician certifies the individual for intensive treatment because the physician has determined, after an evaluation that the person 'is, as a result of mental disorder . . . a danger to . . . himself or herself' and the person 'has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis,' the physician may initiate a 14-day hold for involuntary hospitalization and treatment. (Welf. & Inst. Code, § 5250.) 'When a person is certified for intensive treatment pursuant to Section 5250 . . . , a certification review hearing shall be held unless judicial review has been requested . . . The certification review hearing shall be within four days of the date on which the person is certified for a period of intensive treatment unless postponed by request of the person or their attorney or advocate.' (Welf. & Inst. Code, § 52565, subd.

(a).) Calendar No.: Event ID:  TENTATIVE RULINGS

3097534  44 CASE NUMBER: CASE TITLE:  THATCHER VS AURORA BEHAVIORAL HEALTH SYSTEM  37-2022-00048401-CU-PO-CTL Here, Gogna submits that evidence that (1) Cox was placed on a 5150 on June 19, 2022 which was set to expire at 9:08pm on June 22, 2022, (2) Cox was certified for intensive treatment at 12:40pm on June 22, 2022, and (3) a certification hearing was held on June 24, 2022.

Thatcher did not address this cause of action in her opposition or submit any evidence on this issue.

Thatcher expressly limited her opposition to 'Causes of Action 1 through 4 regarding negligence and dependent adult abuse.' As such, she has not raised a triable issue on the remaining claims.

The motion is therefore granted as to the fifth, sixth, and seventh causes of action.

Request for Continuance Thatcher requests that the court deny or continue the motion to allow for additional discovery.

'If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.' (Code Civ. Proc., § 437c, subd. (h).) The declaration 'must detail the specific facts that would show the existence of controverting evidence' and explain 'why these facts were essential to oppose the summary judgment motion.' (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 420; accord Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532.) The declaration must also 'show why the discovery necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner.' (Braganza v. Albertson's LLC (2021) 67 Cal.App.5th 144, 156.) A continuance need not be granted when the outstanding discovery is unrelated to the basis upon which the motion is granted. (See Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270; Jade Fashion & Co. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 657; Allyson v. Department of Transportation (1997) 53 Cal.App.4th 1304, 1321.) Here, counsel for Thatcher declares that two individuals (Virginia Esperanza and Stephanie Mereday) were deposed before her opposition was filed but transcripts were not yet available, another two individuals (Christine Kwiat and Gary Bell) would be deposed after her opposition was filed but before the motion was heard, and that progress notes produced by Aurora were not the finalized versions because they did not contain Gogna's signature. The declaration then states: 'Plaintiff is informed and believes that these depositions and the finalized progress notes from Aurora may reveal material facts in dispute that satisfy the requirements for the trial court to find that Defendant was negligent in multiple respects.' The declaration is deficient in several respects. The declaration does not detail what specific facts and testimony Kwiat and Bell are expected to provide, nor does it identify any pertinent facts or testimony from Esperanza and Mereday even though they had already been deposed. The declaration similarly fails to identify any specific information that the finalized progress notes are expected to include beyond the addition of Gogna's signature. It necessarily follows that the declaration fails to explain why any of that additional discovery is essential to oppose the motion. Simply asserting that it may show Gogna was 'negligent in multiple respects' is not sufficient.

The declaration also does not explain why the depositions were not taken earlier. This case was filed more than 1 ½ years ago. Then, seven months ago, Thatcher moved for trial preference. That motion was granted, and at the concurrent case management conference this motion for summary judgment was set to be heard one week before the preferential trial date (which has since been continued two weeks per stipulation). There is no explanation for why the four depositions, three of whom were of named defendants, were not taken until the opposition to this motion was due. Thatcher also fails to explain how she intends to obtain the finalized progress notes considering the discovery cut-off has passed.

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3097534  44 CASE NUMBER: CASE TITLE:  THATCHER VS AURORA BEHAVIORAL HEALTH SYSTEM  37-2022-00048401-CU-PO-CTL Finally, although Thatcher claims the discovery is needed to show that Gogna was 'negligent in multiple respects,' she has already established a triable issue as to whether his actions fell below the standard of care. She has not shown how this discovery relates to the issue of causation.

The request for a continuance is therefore denied.

Conclusion The motion for summary judgment is granted. Gogna is directed to submit a proposed judgment within 10 days.

All remaining dates on calendar are vacated.

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