Judge Lynette Gridiron Winston, Case Number: 21STCV32844, Date: 2024-04-18 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 21STCV32844, Date: 2024-04-18 Tentative Ruling

Case Number: 21STCV32844 Hearing Date: April 18, 2024 Dept: 6

CASE NAME: Jennifer Alcox v. Emanate Health Medical Center dba Queen of the Valley Hospital, et al.

Defendant Augen Batou, D.O.’s Motion for Summary Judgment

TENTATIVE RULING

The Court GRANTS Dr. Batou’s motion for summary judgment. Dr. Batou must submit a proposed judgment for the Court’s review and signature.

Dr. Batou is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a medical malpractice action. On September 7, 2021, plaintiff Jennifer Alcox, individually and as successor in interest to decedent Yvonne Alcox (Plaintiff), filed this action. On September 14, 2023, Plaintiff filed the operative Second Amended Complaint against defendants Emanate Health Medical Center dba Queen of the Valley Hospital (Queen of the Valley), Augen Batou, D.O. (Dr. Batou), Adel Sandouk, M.D. (Dr. Sandouk), and Does 1 through 100, alleging causes of action for dependent adult abuse and neglect (against Queen of the Valley only), negligence based upon medical malpractice, and wrongful death.

On January 31, 2024, Dr. Batou moved for summary judgment. Plaintiff did not oppose the motion.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “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. Atlantic 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, italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

“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 or summary adjudication “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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)

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.” (Code Civ. Proc., § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion “shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Id.; see also Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

PRELIMINARY ISSUE

The Court notes that Dr. Batou’s separate statement contains 82 proffered statements of undisputed material fact. While the Court appreciates the complexity of the practice of medicine, the Court finds this does not comply with Rule 3.1350, subdivision (d)(2), of the California Rules of Court, which provides that, “[t]he separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (Cal. Rules of Court, rule 3.1350, subd. (d)(2).) The Court will still consider the motion for summary judgment, but admonishes Dr. Batou to comply with the requirements of the California Rules of Court going forward.

DISCUSSION

Summary of Relevant Material Facts

Decedent Yvonne Alcox (Decedent), who had a history of respiratory problems, was admitted to Queen of the Valley’s emergency department on June 9, 2020, complaining of shortness of breath. (UMF 16.) Decedent had refused an oral intubation, and was placed on BiPAP. (UMF 25.) During this stay, Decedent continued manifesting respiratory problems, but she was alert and responsive while also agitated towards hospital staff, and she removed breathing equipment (BiPAP) on her own on multiple occasions. (UMF 17-67.) On June 10, 2020, at 8:58 p.m., a nurse went into Decedent’s room to administer medication and found Decedent’s BiPAP and BiPAP mask on the floor, while Decedent was unresponsive and without a pulse. (UMF 68.) CPR was administered, which successfully resuscitated Decedent, but Decedent suffered a brain injury and was later transferred to Kindred Hospital Baldwin Park, where she remained until July 23, 2020. (UMF 69-73.) Decedent was transferred to Inland Valley Care and Rehab Center on July 23, 2020, where her admission report noted pressure sores on certain parts of her body, along with other health problems, and she remained there until August 4, 2020. (UMF 74.) On August 4, 2020, Decedent was admitted to Pomona Valley Hospital Medical Center, where she remained until her death on September 11, 2020, which was reportedly caused by acute respiratory failure, sepsis, and cerebrovascular accident. (UMF 75.)

Dr. Batou was Decedent’s attending physician for part of her stay with Queen of the Valley, which entailed prescribing medications, a referral to a pulmonologist, and ordering soft restraints at one point. (UMF 39-40, 45, 49, 55, 57-59.) Batou’s expert, Dr. Michael J. Eilbert, M.D., opines that Dr. Batou complied with the applicable standard of care in treating Decedent. (UMF 76-79.) Dr. Eilbert also opines that no allegedly negligent act or omission of Dr. Batou caused injury or contributed to Decedent’s death. (UMF 80-82.)

Analysis

“The elements of Plaintiff's medical negligence cause of action allege ‘(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.]” (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 238 fn. 3.) “As in medical malpractice cases, standards of due care and competence are commonly established by the generally accepted practices and procedures within the professional community. [Citations.]” (Milligan v. Hearing Aid Dispensers Examining Com. (1983) 142 Cal.App.3d 1002, 1006.)

Dr. Batou contends that the expert testimony from Dr. Eilbert establishes that there are no triable issues of material fact, as Dr. Batou complied with the standard of care and did not cause or contribute to Decedent’s injuries. The Court agrees.

“Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.” (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412, quoting Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.) Dr. Eilbert’s expert testimony clearly provides that Dr. Batou did not breach the applicable standard of care within the relevant professional community, and that Dr. Batou did not cause or contribute to Decedent’s injuries. (See Eilbert Decl., ¶¶ 9-14.) Dr. Eilbert opines that the use of BiPAP was appropriate given Decedent’s history of respiratory problems and refusal of intubation. (Id., ¶ 10.) The decision to intubate and treat with BiPAP was also the responsibility of the pulmonologist, not the hospitalist, i.e., Dr. Batou. (Id.) The evidence shows that Decedent was alert and responsive during treatment she received before the emergency at 9:00 p.m. on June 10, 2020. (Id.)

Dr. Eilbert further opines that the standard of care did not require Dr. Batou to contact Plaintiff because Decedent was competent to make decisions and think clearly. (Eilbert Decl., ¶ 11.) Dr. Eilbert opines that the standard of care also did not require that a sitter be ordered, as Decedent was not a suicide risk or demented. (Id., ¶ 12.) Dr. Eilbert also opines that Decedent’s respiratory arrest and subsequent death likely resulted from her underlying respiratory issues and her own removal of the BiPAP mask. (Id., ¶ 13.)

The Court finds Dr. Batou has established the absence of a triable issue of material fact. The burden of proof now shifts to Plaintiff to establish the existence of a triable issue of material fact.

Plaintiff did not oppose Dr. Batou’s motion for summary judgment. Accordingly, Plaintiff failed to establish the existence of a triable issue of material fact as to Dr. Batou.

Based on the foregoing, the Court GRANTS Dr. Batou’s motion for summary judgment finding that there is no triable issues of material fact and that Dr. Batou is entitled to judgment as a matter of law.

CONCLUSION

The Court GRANTS Dr. Batou’s motion for summary judgment. Dr. Batou must submit a proposed judgment for the Court’s review and signature.

Dr. Batou is ordered to give notice of the Court’s respective rulings within five calendar days of this order.

CASE NAME: Jennifer Alcox v. Emanate Health Medical Center dba Queen of the Valley Hospital, et al.

Defendant Adel G. Sandouk, M.D.’s Motion for Summary Judgment

TENTATIVE RULING

The Court GRANTS Dr. Sandouk’s motion for summary judgment. Dr. Sandouk must submit a proposed judgment for the Court’s review and signature.

Dr. Sandouk is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

On January 31, 2024, Dr. Sandouk moved for summary judgment. Plaintiff did not oppose the motion.

LEGAL STANDARD

PRELIMINARY ISSUES

The Court notes that Dr. Sandouk’s separate statement contains 83 proffered statements of undisputed material fact. While the Court appreciates the complexity of the practice of medicine, the Court finds this does not comply with Rule 3.1350, subdivision (d)(2), of the California Rules of Court, which provides that, “[t]he separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (Cal. Rules of Court, rule 3.1350, subd. (d)(2).) The Court will still consider the motion for summary judgment, but admonishes Dr. Sandouk to comply with the requirements of the California Rules of Court going forward.

DISCUSSION

Summary of Relevant Material Facts

Dr. Sandouk is a pulmonologist whom Dr. Batou requested to assist Plaintiff during part of her stay with Queen of the Valley. (UMF 53, 60-61.) Dr. Sandouk’s expert, Dr. Andrew S. Wachtel, M.D., opines that Dr. Sandouk complied with the applicable standard of care in treating Decedent. (UMF 76-80.) Dr. Wachtel also opines that no allegedly negligent act or omission of Dr. Sandouk caused injury or contributed to Decedent’s death. (UMF 81-83.)

Analysis

Dr. Sandouk contends that the expert testimony from Dr. Wachtel establishes that there are no triable issues of material fact, as Dr. Sandouk complied with the standard of care and did not cause or contribute to Decedent’s injuries. The Court agrees.

“Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.” (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412, quoting Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.) Dr. Wachtel’s expert testimony clearly provides that Dr. Sandouk did not breach the applicable standard of care within the relevant professional community, and that Dr. Sandouk did not cause or contribute to Decedent’s injuries. (See Wachtel Decl., ¶¶ 9-15.) Dr. Wachtel opines that the use of BiPAP was appropriate given Decedent’s history of respiratory problems and refusal of intubation, and opines that Decedent would have died without BiPAP. (Id., ¶ 10.) Dr. Wachtel also opines that there is no evidence the Decedent was overly sedated with Ativan while she was using the BiPAP. (Id., ¶ 11.) Dr. Wachtel opines that the record shows the Decedent was alert and responsive. (Id.)

Dr. Wachtel further opines that the standard of care did not require Dr. Sandouk to contact Plaintiff because Decedent was competent to make decisions and think clearly. (Wachtel Decl., ¶ 12.) The standard of care also did not require that a sitter be ordered. (Id., ¶ 13.) Dr. Wachtel also opines that Decedent’s respiratory arrest and subsequent death were caused by a lack of oxygen, which was caused by Decedent removing her BiPAP mask. (Id., ¶ 14.) Dr. Wachtel opines that nothing Dr. Sandouk did caused or contributed to Decedent’s death.

The Court finds Dr. Sandouk has established the absence of a triable issue of material fact. The burden of proof now shifts to Plaintiff to establish the existence of a triable issue of material fact.

Plaintiff did not oppose Dr. Sandouk’s motion for summary judgment. Accordingly, Plaintiff failed to establish the existence of a triable issue of material fact as to Dr. Sandouk.

Based on the foregoing, the Court GRANTS Dr. Sandouk’s motion for summary judgment finding that there is no triable issues of material fact and that Dr. Sandouk is entitled to judgment as a matter of law.

CONCLUSION

The Court GRANTS Dr. Sandouk’s motion for summary judgment. Dr. Sandouk must submit a proposed judgment for the Court’s review and signature.

Dr. Sandouk is ordered to give notice of the Court’s respective rulings within five calendar days of this order.