Judge: Mark A. Young, Case: 21STCV07431, Date: 2023-09-19 Tentative Ruling


Case Number: 21STCV07431    Hearing Date: April 9, 2024    Dept: M

CASE NAME:           Wallach, et al., v. Providence Health System-So. Cal., et al.

CASE NO.:                21STCV07431

MOTION:                  Motion for Summary Judgment/Adjudication

HEARING DATE:   4/9/2024

 

Legal Standard

 

            A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The purpose of the law of summary judgment 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.)

 

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.)  “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (CCP, § 437c(t).) 

 

            To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP, § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (CCP, § 437c(e).) 

 

            Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) 

 

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.) 

 

Analysis

 

Defendant Khalil Tabsh MD moves for summary judgment and summary adjudication of the wrongful death and survival causes of action of Plaintiffs David Wallach, Time Wallach, and the estate of Elizabeth Wallach. Plaintiffs filed a notice of non-opposition.

 

To allege a cause of action for wrongful death, a plaintiff must allege: 1) a wrongful act or neglect on the part of one or more persons; 2) causing the death of another. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404.) To establish the “wrongful act or neglect” element, a plaintiff must rely on an independent legal theory of liability, such as negligence. (Id. at 390; see also CCP §377.30 [re: survival cause of action].)

 

A healthcare provider is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful healthcare providers of the same type would use in the same or similar circumstances. (Landeros v. Flood (1976) 17 Cal.3d 399, 408.) As the practice of medicine is not within the common knowledge of lay persons, expert opinion testimony is necessary to establish the standard of care. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) “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. App. 3d 977, 984-985, citations omitted.) An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal. App. 3d 988, 999.)

 

Defendant’s expert testimony sufficiently demonstrates that he met the standard of care throughout the course of treatment. Defendant initially saw Decedent on August 27, 2019, when she was 32 years old and approximately 11 weeks pregnant. (UMF 1.) Defendant considered Decedent’s pregnancy to be high risk because she had Lynch syndrome (hereditary non-polyposis colorectal cancer), fibroids, low PAPP-A, equivocal varicella immunity results, and pregnancy resulting from in vitro fertilization. (Id.) That said, none of those factors would lead to a higher-than-normal risk of developing Deep Venous Thrombosis (“DVT”). (Id.) Further, Decedent had no reported history of blood clots. (Id.) During each of Decedent’s visits with Defendant, she reported no unusual complaints, but just general pregnancy discomfort toward the end of her pregnancy. (UMF 2.)

 

On February 24, 2020, Defendant suggested, and Decedent agreed, that due to the high-risk nature of her pregnancy, primarily uterine fibroids, she would deliver the baby by Caesarean-section on March 14, 2020. (UMF 3) At that time, Decedent signed a disclosure and consent form, which identified “Venous Thrombosis/pulmonary embolism” which may be “life-threatening”. (UMF 4.)

 

On March 14, 2020, Decedent’s water broke, and she was admitted to defendant Providence Health System-Southern California dba Providence Saint John’s Health Center (“St. John’s Hospital” or the “Hospital”) at 39 weeks, 2 days gestation. (UMF 5.) At around 1:00 pm, Decedent was taken to the Operating Room for the C-section. (UMF 6.) During the C-Section, Decedent had Sequential Compression Devices (“SCDs”), “sleeves” that wrap around the legs and inflate with air and compress the lower legs in order to improve blood flow and reduce the risk of DVT, were present on her legs. (UMF 8.) This was a standard practice at the Hospital to prevent stasis, i.e., blood clotting in the veins. (Id.) At 1:44 pm, Decedent delivered Time Wallach. (UMF 7.) Decedent tolerated the procedure well and was taken to the Post Anesthesia Care Unit in stable condition. (Id.) Further, there were no complications noted in the operative report. (Id.)

 

Following the C-Section, at around 2:53 pm, Defendant issued a post-partum order which included placement of “compression stockings,” meaning to place compression stockings on Decedent’s legs as a DVT prophylaxis. (UMF 9.) Although Defendant ordered compression stockings, he was not averse to using SCDs instead, as they served the same function. (Id.) Defendant trusted the nurses to decide which was to be used based upon patient comfort and/or preference. (UMF 10.)

 

Decedent arrived from the PACU to her room around 4:45 p.m. (UMF 11.) Around 5:53 p.m., Nurse Ribeiro confirmed that compression devices were on Decedent’s legs. (Id.) The SCDs remained on Decedent’s legs until at least the afternoon of March 15, 2020. (Id.) Per Hospital policy, the nurses were to attempt to ambulate mothers around eight hours post-C-section. (UMF 12.) Nurses Ribeiro and Bhutia, who cared for Decedent from the time she was transferred to her room on March 14, 2020, to around March 15, 2020, at 7:00 a.m., were aware of that policy when they treated Decedent. (UMF 12.) On the evening of March 14, 2020, Decedent was ambulatory at least once. (UMF 13.) At around midnight, Decedent ambulated with assistance from a Certified Nurse Assistant to the bathroom. (Id.) It is also Hospital policy for nurses to enter into a patients’ medical charts whether their patients have any difficulties with ambulation. (UMF 14.) Notably, Decedent’s medical chart does not contain any entries indicating she had difficulty with ambulation until March 15, 2020, at around 4:20 p.m., immediately prior to the Code Blue. (Id.)

 

On March 15, 2020, at around 1:00 p.m., Defendant physically examined the Decedent. (UMF 15.) In his chart, Defendant noted Decedent’s vital signs were within normal limits, she had slight swelling in her legs, no calf tenderness to palpation, the SCDs were in place, and that there was no evidence of DVT seen on his physical examination of her legs. (Id.) At this time, Defendant expected that the SCD’s would remain on Decedent until she was up and walking around, which meant to him more than a single trip to the bathroom. (UMF 16.) Defendant was not notified by the nursing staff that Decedent had any difficulty ambulating after the C-section delivery. (UMF 17.) Further, Defendant neither gave an order for the SCDs to be removed, nor was notified by the nurses that the SCDs were to be removed. (UMF 18-19.) After the exam, and after Mr. Wallach had left the room for lunch, a nurse came to the room to remove Decedent’s urinary catheter. (UMF 20.) After Mr. Wallach returned, he was informed that the SCDs were removed from Decedent’s legs while he was at lunch. (UMF 21.) Decedent confirmed this to Mr. Wallach and told him that she was in a tremendous amount of pain. (Id.) Defendant was never told the Decedent was having increased pain after his examination at 1:00 p.m. (UMF 22.)

 

On March 15, 2020, at around 4:20 p.m., after having gotten out of bed to use the bathroom with the assistance of a nurse, Decedent fainted multiple times. (UMF 23.) Two nurses provided smelling salts to Decedent and helped her back to bed. (Id.) At around 4:24 p.m., a “Code Blue” was called. (UMF 24.) Upon learning of the code blue, Defendant got in his car and went to the Hospital, but he did not participate in the Code Blue which was already underway when he arrived. (UMF 25.) After approximately 50 minutes of CPR and inability to resuscitate, the Code Blue was terminated. (UMF 26.) Decedent’s time of death was noted as 5:44 p.m. (Id.) According to the Autopsy Report, Decedent’s cause of death was listed as pulmonary embolism due to probable DVT. (UMF 27.)

 

Defendant presents the declaration of Thomas R. Moore, M.D., a board-certified obstetrician/gynecologist with a subspecialty in fetal medicine, who has been a practicing OB/GYN in Southern California since 1979, and is familiar with the standard of care applicable to Defendant. (Moore Decl., ¶¶ 2-4.) Defendant establishes that Dr. Moore possesses the professional education, training, and experience necessary to qualify to render expert opinions in this case, including a determination of compliance or non-compliance with the applicable standard of care and causation. (Id.)

 

Dr. Moore details the care and treatment at issue and the reasons for his opinion that the care and treatment Defendant rendered to Decedent complied with the standard of care. (UMF 24.) In summary, Dr. Moore opines that Defendant did not breach the standard of care in his pre-operative care, performance of the C-section, and in his post-partum care. (UMF 28-34.) Defendant properly recommended that Decedent deliver via C-Section. (UMF 29.) Defendant informed Decedent of the risks of complications, including pulmonary embolism. (Id.) The standard of care did not require Defendant administer anti-coagulants to reduce the risk of VTE absent a history of blood clots, which Decedent did not have. (Id.)

 

SCDs were properly placed on Decedent’s legs for the duration of the C-Section delivery to reduce the risk of DVT, in compliance with the standard of care. (UMF 30.) The standard of care did not require Defendant to administer anti-coagulants at this time absent a history of blood clots. (Id.)  Defendant’s post-partum orders appropriately included the continuation of compression stockings on both of Decedent’s legs. (UMF 31.) Again, the standard of care did not require administering anti-coagulants post-C-section, absent a history of blood clots. (Id.) Further, the standard of care did not require Defendant to issue post-partum orders for the nurses to ambulate Decedent, as it was already the Hospital’s policy that the nurses would do so eight hours after the C-section. (UMF 32.)

 

Defendant properly examined Decedent the day after the C-section, which showed her vital signs were within normal limits, the SCDs were in place, and there was no evidence of DVT through physical examination. (UMF 33.) The standard of care did not require Defendant to do anything further, as he was never notified by anyone from the time of his examination of Decedent through the time of the Code Blue of her increased pain or that the SCDs had been discontinued. (UMF 34.)

 

With the above evidence, Defendant meets his burden of production to show entitlement to judgment as a matter of law. No opposition was submitted to create a dispute as to any material fact. Accordingly, the motion is GRANTED.