Judge: Mel Red Recana, Case: 21STCV46566, Date: 2024-07-18 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 21STCV46566    Hearing Date: July 18, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:               July 18, 2024

Moving Party:             Defendant Prime Healthcare Services – St. Francis, LLC DBA St. Francis Medical Center

Responding Party:       None

Motion for Summary Judgment     

The Court considered the moving papers. No opposition or reply papers were filed.

            The motion is GRANTED.

Background

Plaintiffs Keegan Davis, Jerry Davis, and Kimberly Penny filed this action on December 21, 2021 against defendants Prime Healthcare Services - St. Francis, LLC dba St. Francis Medical Center (“Defendant” or “St. Francis Medical Center”) and Elite Funerals and Cremation Center of California (“Elite Funerals”), alleging (1) Intentional Infliction of Emotional Distress; (2) Negligent Infliction of Emotional Distress; (3) General Negligence; (4) Fraud; (5) Breach of Fiduciary Duty; (6) Breach of Contract; (7) Breach of Covenant of Good Faith and Fair Dealing; (8) Negligent Infliction of Emotional Distress (against St. Francis Medical Center); and (9) General Negligence (against St. Francis Medical Center). The Complaint alleges that Andrew Kirksey (“Decedent”) died on August 22, 2020 while a patient at St. Francis Medical Center. (Compl., ¶ 13.) While alive and a patient at St. Francis Medical Center, respiratory equipment to aid breathing was used to aid Decedent’s breathing. (Id.) Plaintiffs allege that St. Francis Medical Center failed to properly prepare Decedent’s body for transport to Elite Funerals by failing to remove “a medical device attached to both cheeks.” (Id. at ¶¶ 72, 80.) When the breathing apparatus was removed by the Mortician at Evins Funeral Home, it caused the skin on both cheeks to peel off leaving large light complexion spots on Decedent’s face. (Id.)

Defendant St. Francis Medical Center now moves for summary judgment pursuant to California Code of Civil Procedure Section 437c. Defendant alternatively moves for summary adjudication of the following issues, pursuant to Code of Civil Procedure Section 437c(f)(1): There is no triable issue of material fact as to Plaintiffs’ eighth cause of action for negligent infliction of emotional distress against Defendant. No opposition has been filed as of July 15, 2024.

Legal Standard

“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.) Code of Civil Procedure section 437c(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.) “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.)

As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.)

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); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.) 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.)

Evidentiary Objections

            None.

Discussion

            Defendant moves for summary judgment on the grounds that there is no triable issue of material fact in this action as to the care and treatment rendered to Decedent by Defendant and at all times relative to this action, Defendant’s care and treatment of Plaintiff complied with the applicable standard of care. Moreover, to a reasonable degree of medical probability, there was no act or omission on the part of Defendant which caused or contributed to Plaintiffs’ injuries. Defendant alternatively moves for summary adjudication of the following issues: There is no triable issue of material fact as to Plaintiffs’ eighth cause of action for negligent infliction of emotional distress against Defendant.

Negligence

In a medical negligence action, a plaintiff must establish the following elements: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of [the] 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.4tha 1410, 1420; Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02.) “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.)

A medical professional breaches the duty of professional care by failing to act in accordance with the prevailing industry standard of care. (See Folk v. Kilk (1975) 53 Cal.App.3d 176, 186.) “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony …, unless the conduct required by the particular circumstances is within the common knowledge of the layman.’” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Super. Ct. (2006) 143 Cal.App.4th 297, 305.) “When a defendant moves for summary judgment and supports [the] motion with expert declarations that [their] conduct fell within the community standard of care, [the defendant] 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.) 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.)

Here, Defendant presents the declaration of Daniel Luthringer, M.D. (Dr. Luthringer”) in support of Defendant’s motion. Dr. Luthringer is a physician duly licensed to practice medicine in the State of California who has been certified by the National Board of Medical Examiners, American Board of Pathology in Anatomic Pathology and American Board of Pathology in Cytopathology at all times relevant to this case. (Declaration of Daniel Luthringer, M.D., ¶ 1.) Dr. Luthringer has been a Staff Pathologist and Co-Director Autopsy Service, Department of Pathology at Cedars-Sinai Medical Center in Los Angeles, California since 1992. Dr. Luthringer has also been a Deputy Coroner in Los Angeles County since 1992. (Luthringer Decl., ¶ 3.) Based upon his background, education, training and experience in the field of pathology, Dr. Luthringer is familiar with the care to deceased patients admitted to acute care hospitals. (Id., ¶ 4.)

            Dr. Luthringer has reviewed Plaintiffs’ Complaint, Consumer Complaint Statement and Decedent’s records from St. Francis Medical Center and Evins Funeral Home. (Id., ¶ 6.) Dr. Luthringer recounts the following.

Decedent was a resident of Greenfield Nursing Home. On August 22, 2020, he was found unresponsive by staff. CPR was initiated and emergency medical services (“EMS”) was dispatched at 1:31 p.m. Decedent was taken to the Emergency Department at St. Francis Medical Center via EMS. Spontaneous circulation was achieved prior to arrival but Decedent was pronounced dead at 2:23 p.m. at St. Francis Medical Center. (Id., ¶ 8.)

On August 22, 2020, Keegan Davis was contacted by the hospital to make arrangements for transporting Decedent’s body to a mortuary. Mr. Davis arranged for Defendant Elite Funerals to take possession of the body from St. Francis Medical Center. Defendant Elite Funerals picked up Decedent’s body from St. Francis Medical Center on August 24, 2020. (Id., ¶ 9.)

On August 27, 2020, Mr. Davis became upset with Elite Funerals and hired Evins Funeral Home to prepare Decedent’s body for a funeral. However, Elite Funerals refused to release Decedent’s body until they were compensated for their services. (Id., ¶ 10.)

On September 1, 2020, Evins Funeral Home took possession of Decedent’s body. Decedent allegedly had begun to decompose due to lack of refrigeration and embalming at Elite Funerals. A “medical device” (likely the breathing apparatus from when EMS and the physicians tried to revive Decedent) was attached to Decedent’s facial cheeks. A significant part of the cheek skin peeled away when the device was removed by Evins Funeral Home staff. The funeral was on September 15, 2020. (Id., ¶ 11.)

Based on the materials reviewed, as well as his background, education, experience and training, it is Dr. Luthringer’s expert opinion that St. Francis Medical Center met the standard of care at all times during their care of Decedent. (Id., ¶ 12.) Decedent's body was stored in the morgue and released to Elite Funerals. The standard of care does not require an acute care hospital to remove breathing devices from a deceased patient. (Id., ¶ 13.)

This is “evidence which, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.) The expert opinion testimony of Dr. Luthringer is evidence that Defendant complied with the standard of care at all times during its care of Decedent.

With this evidence, Defendant has satisfied its initial burden of showing that one or more elements of Plaintiffs’ case cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) This shifts the burden to Plaintiffs  to show that there is a triable issue of one or more material facts as to the causes of action. (Id.) Plaintiffs have not filed an opposition or other evidence making this showing. Therefore, Defendant is entitled to summary judgment.

NIED

“[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . .¿ The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, internal citations omitted.)¿ 

Here, because summary judgment is granted as to Plaintiffs’ negligence cause of action, Plaintiffs’ claim for negligent infliction of emotional distress cannot be sustained.

            Accordingly, Defendant Prime Healthcare Services – St. Francis, LLC DBA St. Francis Medical Center’s Motion for Summary Judgement is GRANTED.

            It is so ordered.

Dated: July 18, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court