Judge Lynette Gridiron Winston, Case Number: 22PSCV00789, Date: 2024-05-06 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV00789, Date: 2024-05-06 Tentative Ruling

CASE NAME: Lorena Wenger v. Emanate Queen of the Valley Hospital, et al.

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

This is a medical malpractice case. On June 28, 2022, plaintiff Lorena Wenger, successor-in-interest to Salvador Velazquez (Plaintiff) filed this action. On September 13, 2022, Plaintiff filed the operative First Amended Complaint (FAC) against defendants Emanate Queen of the Valley Hospital (Queen of the Valley), Kindred Hospital Baldwin Park (Kindred Hospital), Rambod Amani-Yazdi, M.D., Azhar Haq, M.D, Sheri Pham, M.D. (Dr. Pham), Radhika Tulpule, M.D., and Does 1 through 100, alleging causes of action for wrongful death and statutory elder abuse. Plaintiff also named Maria Velazquez, Salvador Velazquez, Juan Velazuez, Martha Mercado, Socorro Velazquez, Monica Cedillo, and Jesus Velazquez as nominal defendants.

On February 20, 2024, Dr. Pham moved for summary judgment. On April 3, 2024, Plaintiff filed a notice of non-opposition.[1]

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.)

Decedent Salvador Velazquez (Decedent) was admitted to Queen of the Valley on January 19, 2022, at which time he consulted Dr. Pham regarding renal failure. (SSF 1.) Dr. Pham prescribed treatment to Decedent for approximately one week when he was transferred to Kindred Hospital. (SSF 2-9.) Dr. Pham continued to prescribe treatment to Decedent following his transfer to Kindred Hospital. (SSF 9-12.) Starting on February 2, 2022, Dr. Pham first discussed dialysis treatment with Decedent’s family on multiple occasions, but they did not consent to it until February 9, 2022. (SSF 13-18.) Dialysis treatment commenced on February 9, 2022 and continued until Decedent’s death on February 22, 2022. (SSF 19-24.)

Decedent’s cause of death was pneumonia, COVID-19, and diabetes mellitus Type II. (SSF 25.) Dr. Keith L. Klein, Dr. Pham’s expert, opines that Dr. Pham’s treatment of Decedent complied with the standard of care. (SSF 26.) Dr. Klein further opines to a reasonable degree of medical certainty that nothing Dr. Pham did or did not do caused Decedent’s death, as dialysis was never going to save his life, such that earlier dialysis would not have made a difference in Decedent’s ultimate death. (SSF 27.)

“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. Pham contends no triable issue of material fact exists to support a claim for wrongful death against Dr. Pham. Dr. Pham contends there is no evidence to show that Dr. Pham failed to comply with the applicable standard of care with respect to Decedent. Dr. Pham contends the undisputed evidence shows Dr. Pham complied with the applicable standard of care at all times.

Dr. Pham cites the expert testimony provided by Dr. Klein to conclusively establish that she met the applicable standard of care. Dr. Pham contends the standard of care did not require Dr. Pham to commence dialysis for Decedent at any point during Decedent’s stay at Queen of the Valley, as dialysis is indicated for patients with Stage 5 kidney disease, which Decedent did not have during his stay at Queen of the Valley.

Dr. Pham also contends that the care and treatment provided to Decedent during his stay at Kindred Hospital also complied with the applicable standard of care in all respects. Dr. Pham contends to have appropriately monitored Decedent’s deteriorating condition and timely discussed the initiation of dialysis with Decedent’s family. Dr. Pham contends the family was initially resistant to the suggestion of dialysis treatment. Dr. Pham contends she recognized in a timely fashion Decedent’s need for dialysis treatment, that she appropriately communicated the recommendations to Decedent’s family, and that dialysis treatment was initiated in a timely manner once Decedent’s family consented and after the Decedent was deemed stable for placement of a dialysis catheter.

Dr. Pham further contends she is entitled to summary judgment because none of her alleged actions caused Decedent’s death. Dr. Pham contends that Decedent was critically ill with other problems, such as COVID, sepsis, respiratory failure, and failure of his major organs. Dr. Pham contends dialysis was never going to save Decedent’s life, and an earlier, more aggressive start to the dialysis treatment was not going to make a difference in Decedent’s ultimate outcome.

The Court finds Dr. Pham has met her moving burden. “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. Klein’s expert testimony clearly provides that Dr. Pham did not breach the applicable standard of care within the relevant professional community. (See Klein Decl., ¶ 17.) Dr. Klein states that Decedent did not require dialysis during his stay at Queen of the Valley, as Decedent did not have Stage 5 kidney disease then. (Klein Decl., ¶ 20.) Dr. Klein indicates that Dr. Pham appropriately monitored Decedent’s condition and initiated timely discussions with Decedent’s family to start dialysis treatment, which they initially resisted, due to no fault of Dr. Pham. (Klein Decl., ¶ 22.) Dr. Klein states that Dr. Pham appropriately followed up with Decedent’s family regarding the dialysis treatment, and that treatment was timely initiated once Decedent’s family consented and after Decedent was considered stable for placement of a dialysis catheter. (Klein Decl., ¶ 23.) Dr. Klein also opines that dialysis was never going to save Decedent’s life due to his being critically ill on other grounds, such as COVID, sepsis, respiratory failure, and failure of his major organs, and that an earlier, more aggressive start to dialysis would not have saved his life. (Klein Decl., ¶ 24.)

Accordingly, Dr. Pham 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 expressly declined to oppose Dr. Pham’s motion for summary judgment. (Notice of Non-opposition (4/3/24).) Accordingly, Plaintiff failed to establish the existence of a triable issue of material fact as to Dr. Pham, and the Court finds that Dr. Pham is entitled to judgment as a matter of law.[2]

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

[1] The Court notes that the proofs of service attached to Defendant Pham’s motion for summary judgment do not indicate how the documents were served, but the Court infers that service was proper given Plaintiff’s notice of non-opposition. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [failure to raise service issues in opposition waives issue on appeal].)

[2] The Court notes that the Second Cause of Action for statutory elder abuse is not alleged against Dr. Pham, so there is no other cause of action to assess in this motion. (FAC, 8:15-16.)