Judge: Maurice A. Leiter, Case: 20STCV25210, Date: 2022-12-09 Tentative Ruling

Case Number: 20STCV25210    Hearing Date: December 9, 2022    Dept: 54

Hearing Date: December 9, 2022

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendant Emanate Health Foothill Presbyterian Hospital

Responding Party: None

T/R:     DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IS GRANTED.

            DEFENDANT TO NOTICE.

            The Court considers the moving papers. No opposition has been received.

BACKGROUND

On July 6, 2020, Plaintiff Rosalinda Freer, individually and as Successor-in-Interest to decedent Marylou Freer, sued Defendants Emanate Health Foothill Presbyterian Hospital and THC Orange County, LLC dba Kindred Hospital Ontario, asserting causes of action for (1) elder abuse; and (2) wrongful death. Plaintiff alleges that Defendants neglected decedent and caused her death. On May 6, 2021, the Court sustained Emanate Health’s demurrer to the complaint. Plaintiff filed the operative first amended complaint on June 8, 2021.

Emanate Health moves for summary judgment on the grounds that it complied with the requisite standard of care and did not contribute to Plaintiff Marylou Freer’s injuries. Alternatively, Emanant Health seeks summary adjudication of Plaintiffs’ elder abuse claim.

JUDICIAL NOTICE

            Emanant Health requests the Court to take judicial notice of the operative first amended complaint. The request is granted under Evidence Code § 452(d).

ANALYSIS

“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.) Trial judges are required “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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) 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 that cause of action or a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (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.)

A. Medical Malpractice

Emanate Health moves for summary judgment on the grounds that it complied with the requisite standard of care and did not cause Plaintiff Marylou Freer’s death.

"The elements of a medical malpractice claim, like any negligence cause of action, are duty, breach, proximate cause, and damages." (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.) In a medical malpractice case, “[w]hen 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 conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal. App. 3d 988, 999.)

As alleged in the first amended complaint, Decedent Marylou Freer was 65 years of age or older; she was admitted to Emanate Health on October 29, 2018 to undergo a cholecystectomy complicated with a perforated viscus, with post operation leak, abscess, enterocutaneous fistula, and abscess drainage. (UMF Nos. 7, 9; FAC ¶¶ 19, 24.) Decedent was readmitted on March 6, 2019. Between March 19, 2019 and April 6, 2019, Decedent’s skin broke down and developed a coccyx injury, which Emanate Health’s staff purportedly failed to inspect. (UMF Nos. 10-11; FAC ¶¶ 25, 28-38, Exh. E.) This coccyx injury allegedly advanced to Stage III by May 3, 2019. (UMF No. 12; Exh. 39.) On May 7, 2019, Decedent was admitted to a different hospital, Kindred Hospital Brea, for wound and respiratory care; on June 3, 2019 Decedent was transferred to Providence St. Jude Hospital with a Stage IV coccyx pressure injury. (UMF Nos. 13-14; FAC ¶¶ 40-41.) Decedent passed away on September 17, 2019 with her coccyx pressure injury at Stage IV. (UMF No. 16; FAC ¶¶ 1, 46.) Plaintiff alleges Emanate Health’s failure to provide proper care to avoid skin breakdown and the development of injury led to Decedent’s death. (FAC ¶¶ 47-48, 54.)

Emanate Health contends its medical care and treatment complied with the community standard of care and did not cause Plaintiffs’ injuries. (Motion at pp. 10-12.) Emanate Health presents the declaration of Sonja Rosen, M.D., a Fellow of the American College of Physicians and a Fellow of the American Geriatrics Society. (UMF No. 18, Rosen Decl. ¶ 1, CV.) Dr. Rosen bases her opinions on her review of the materials and records and her background, training, and experience. (UMF Nos. 19-20; Rosen Decl. ¶¶ 1-3; Mkrchyan Decl., Exhs. A-F.) Dr. Rosen observes that Decedent had several co-morbidities and regularly needed medical care. (UMF Nos. 21-41, 60.) Decedent’s injury to the coccyx was noted on April 11, 2019 and she was repositioned at every two hours since April 1, 2019. (UMF Nos. 42-44; Rosen Decl. ¶¶ C4K-C4L; Exh. A at pp. 13285, 16341, 12964-13176.) Decedent further received a wound care assessment and skin assessment on May 3, 2019, as well as follow-up on her pressure injury. (UMF Nos. 45-46; Rosen Decl. ¶¶ C4M-C4N; Exh. A at pp. 15599-15600, 16448-16449.) 

Dr. Rosen concludes that Emanate Health and its employees complied with the applicable standard of care, because Decedent was properly observed, evaluated and cared for. (UMF Nos. 57-59, 63; Rosen Decl. ¶¶ D5, D7, D9.) Dr. Rosen further opines that the development of Decedent’s pressure injury was not caused by the action or inaction of Emanate Health’s staff; instead, Decedent’s health condition, surgical complications, and various co-morbidities created a higher risk of injury to the coccyx area. (UMF Nos. 61, 67; Rosen Decl. ¶¶ D8, D12.) She concludes the development of pressure injuries could not have been avoided during Plaintiff’s admission at Emanate Health between March 2019 and May 2019. (UMF No. 62; Rosen Decl. ¶ D8.) Dr. Rosen also opines that Decedent’s death was not caused by this injury. (UMF Nos. 64-65; Rosen Decl. ¶ D10; Exh. D.)

Melissa Howard RN, MSN, Chief Nursing and Clinical Executive at Emanate Health and Chief Nurse Executive at Foothill Presbyterian Hospital and Intercommunity Hospital, declares based on her review of the staffing sheets for the relevant periods that staffing ratios were properly maintained. (UMF Nos. 68-73; Howard Decl. ¶¶ 1-3.)

Based on this evidence, Emanate Health has met its burden of showing that Plaintiffs are unable to establish the elements of breach of duty and causation. The burden shifts to Plaintiffs to provide admissible evidence to raise triable issues of material fact. Because no opposition has been filed to the instant motion, Plaintiffs’ have failed to meet their burden.

Because Plaintiffs are unable to establish a claim for medical malpractice, it follows they will be unable to establish the higher standard required for elder abuse. (Welf. & Inst. Code § 15657; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779.)

The motion for summary judgment is GRANTED.