Judge Marcella O. Mclaughlin, Case 37-2023-00000321-CU-NP-CTL 2024-01-19 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2023-00000321-CU-NP-CTL, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 18, 2024

01/19/2024 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited Non-PI/PD/WD tort - Other Summary Judgment / Summary Adjudication (Civil) 37-2023-00000321-CU-NP-CTL JOAN NEWSOME BY AND THROUGH HER SUCCESSOR IN INTEREST SARA BURNS VS BALBOA HEALTHCARE INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 09/12/2023

The motion for summary judgment or, in the alternative, summary adjudication is DENIED.

A. The court rules on the parties' evidentiary objections as follows: Defendant's objections to the declaration of Richard Greengold, M.D (ROA 95) are overruled.

Plaintiff's objection to the new evidence submitted on reply (ROA 89) is sustained. 'Generally, a party moving for summary judgment may not rely on new evidence filed with its reply papers.' Moore v. William Jessup University (2015) 243 Cal.App.4th 427, 432 fn. 3.

B. The motion for summary adjudication of issue 1 is denied.

'Neglect' is defined as 'the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.' Welf. & Inst. Code § 15610.57(a)(1). '[T]he statutory definition of 'neglect' speaks not of the undertaking of medical services, but of the failure to provide medical care.' Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783. The plaintiff must show that the defendant 'denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness).' Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07.

In this case, plaintiffs allege that defendant recklessly breached the duties owed to decedent in the following ways: (1) failing to properly administer prescription antibiotics and medications; (2) failing to properly monitor and properly administer oxygen therapy; (3) failing to monitor decedent to notice signs and symptoms of infections; and (4) failing to hire and maintain adequate staffing positions to maintain regular supervision. (Complaint at ¶ 18.) The moving papers, however, only address conduct in the first two categories. Defendant did not submit any evidence with its moving papers regarding the fourth category. Accordingly, defendant has failed to carry its initial burden of showing that it did not recklessly deny or withhold goods or services from decedent. See Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 13 ('If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them.'); see also Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1348-49 ('[A] violation of staffing regulations...may provide a basis for finding neglect.').

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3037438 47 CASE NUMBER: CASE TITLE: JOAN NEWSOME BY AND THROUGH HER SUCCESSOR IN 37-2023-00000321-CU-NP-CTL Assuming arguendo that the burden does shift to plaintiffs, there is a triable issue of material fact regarding whether defendant's alleged neglect caused decedent to suffer physical harm, pain, or mental suffering. See Carter, 198 Cal.App.4th at 407. The evidence that creates this triable issue includes the declarations of William Klein, M.D. and Richard Greengold, M.D.

C. The motion for summary adjudication of issue 2 is denied.

In a medical malpractice case, the plaintiff must establish: (1) that the standard of care required 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. Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420. Expert medical testimony is required to establish the appropriate standard of care (Selden v. Dinner (1993) 17 Cal .App.4th 166, 173) and causation (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603).

Here, defendant has submitted the declaration of Dr. Klein, is a licensed physician who is on the medical staff at Orange Coast Memorial Medical Center and Hoag Memorial Hospital. (Klein Decl., ¶ 1.) Dr.

Klein opines that defendant maintained the standard of care in the care and treatment of decedent. (Id.

at ¶ 26.) Dr. Klein further opines that the care and supervision decedent received from defendant did not cause of act as a substantial factor in bringing about her death. (Id. at ¶ 27.) This evidence is sufficient to shift the burden to plaintiffs to show the existence of a triable issue of material fact.

In opposition, plaintiffs have submitted the declaration of Dr. Greengold, a licensed physician, specializing in internal medicine. (Greengold Decl., ¶ 2.) Dr. Greengold opines that defendant breached the standard of care by failing to monitor, administer, assess and evaluate decedent's oxygen saturation levels and edema. (See id. at ¶¶ 6-7, 9.) According to Dr. Greengold, decedent had low oxygen levels on February 4 and should have been sent to the hospital that day. (Id. at ¶¶ 9, 13.) Dr. Greengold concludes that defendant's failure to send decedent to the hospital on February 4 was a substantial factor in decedent's death. (Id. at ¶ 14.) This evidence creates triable issues of material fact concerning whether defendant acted within the standard of care and was a cause of decedent's death.

Relying on Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, defendant argues that Dr.

Greengold's declaration is deficient because his opinion about decedent's low oxygen levels is based on assumptions of fact without evidentiary support. The court disagrees. Unlike the experts in Bushling, Dr. Greengold does not rely on factually unsupported hypotheticals and assumptions. To the contrary, the medical records that form the basis for Dr. Greengold's opinion show that (1) decedent arrived at her cardiology appointment on February 4 with the oxygen tank set to 8L per minute, and (2) decedent's oxygen levels were 'in the 80's' and her respiratory rate 'in the 30's' the very next day. (See Pltfs.' Exs.

8, 28.) Whether or not decedent's oxygen levels were, in fact, low on February 4 is ultimately a question for the jury to resolve. See CACI 219-221. Accordingly, liberally construing Dr. Greengold's declaration, the court finds there are disputed issues of material fact regarding whether defendant breached the standard of care in its care and treatment of the decedent and whether defendant's alleged negligence was a substantial factor in causing the decedent's injuries and death. See Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 600 ('In ruling on the motion, the court must draw all reasonable inferences from the evidence in the light most favorable to the opposing party.'); see also Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 304 ('Any doubts about the propriety of granting a summary judgment motion must be resolved in favor of the party opposing the motion.').

D. The motion for summary adjudication of issue 3 is denied.

Health and Safety Code section 1430, subdivision (b) gives a current or former nursing care patient or resident the right to bring a private cause of action against a skilled nursing facility for violating certain regulations. Here, plaintiffs allege that violated decedent's rights in numerous ways, including by failing to provide sufficient staffing in violation of 42 C.F.R. § 438.30. (See Complaint at ¶ 29.) As noted Calendar No.: Event ID: TENTATIVE RULINGS

3037438 47 CASE NUMBER: CASE TITLE: JOAN NEWSOME BY AND THROUGH HER SUCCESSOR IN 37-2023-00000321-CU-NP-CTL above, defendant did not submit any evidence with its moving papers regarding staffing levels. Thus, defendant has failed to meet its initial burden as the moving party of showing the Patient's Bill of Rights claim lacks merit. See Code Civ. Proc. § 437c(p)(2); see also Hufft, 4 Cal.App.4th at 13.

E. The motion for summary adjudication of issue 4 is denied. For the reasons discussed Wrongful death is a statutory cause of action that may be asserted when death is 'caused by the wrongful act or neglect of another.' Code Civ. Proc. § 377.60. Here, for the reasons discussed above, there is a triable issue of material fact regarding causation. The evidence that creates this triable issue includes the declarations of William Klein, M.D. and Richard Greengold, M.D.

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