Judge: Michael C. Kelley, Case: 19AVCV00694, Date: 2022-08-02 Tentative Ruling

Case Number: 19AVCV00694    Hearing Date: August 2, 2022    Dept: A15

Background

This case arises from allegations of medical malpractice made by Plaintiff Kameeke Treece (“Plaintiff”) against Defendants Pedro J. Cepeda (“Dr. Cepeda”) and Antelope Valley Hospital.  On September 12, 2018, Plaintiff gave birth at Antelope Valley Hospital. Her delivery was performed by Dr. Cepeda. Plaintiff alleges that, after delivery, she experienced vaginal bleeding, abdominal pain, and blood clots, yet was still discharged from the hospital on September 14, 2018. She alleges she returned to the hospital for emergency care on September 17, 2018, during which she learned that a portion of her placenta remained inside her body. Plaintiff therefore accuses Defendants of medical negligence for failing to completely deliver the placenta.

Plaintiff filed her Complaint on September 18, 2019 alleging one cause of action for professional negligence. After the Court overruled its demurrer, Defendant Antelope Valley Hospital answered the complaint on April 26, 2021. Though Dr. Cepeda was substitute-served on February 16, 2021, he has yet to appear in this action.

Defendant Antelope Valley Hospital filed the instant Motion for Summary Judgment on May 19, 2022, along with its memorandum, its separate statement, a supporting declaration, and three compendia of evidence, the first two being incomplete.  Plaintiff filed a timely opposition on July 19, 2022, along with a response to Antelope Valley Hospital’s separate statement, and two supporting declarations. Antelope Valley Hospital filed a timely reply, as well as evidentiary objections to Plaintiff’s two declarations.

Analysis

Antelope Valley Hospital’s Evidentiary Objections— Evidence Code section 403 requires a proponent of a witness’s testimony to produce evidence of that witness’s personal knowledge. (Evid. Code, § 403, subd. (a)(2).) “[T]he required foundation for personal knowledge is not high. It is well below what is necessary for a determination by the court that a statement is credible.” (Forest Lawn Memorial-Park Association v. Superior Court of Riverside County (2021) 70 Cal.App.5th 1, 11.)

First, Antelope Valley Hospital objects to Plaintiff’s declaration, specifically, paragraph 7, in which she states she “presented at the hospital on September 17, 2018 as a result of the Defendant failing to deliver me completely so that placenta was left inside me, hence the continuous bleeding, presence of tissue and foul smell.”

The Court agrees Plaintiff has not established how she knows the undelivered placenta was the cause of her injuries, for example, whether she learned this from a doctor. Therefore, this objection is SUSTAINED.

Second, Antelope Valley Hospital objects to the declaration of Plaintiff’s attorney, Michael Akhidenor. Specifically, it objects to paragraph 6, in which he states, “I continued to engage the Defendant and their third-party administrators with a view to seeking an amicable resolution of this matter. I continued to engage the Defendant up until this lawsuit was filed when it became clear to Plaintiff that Defendant was not ready to settle.”

The Court finds it self-evident that Mr. Akhidenor, as Plaintiff’s attorney, has personal knowledge as to whether he engaged in negotiations with Antelope Valley Hospital. As for whether Antelope Valley Hospital was “ready to settle,” this is Mr. Akhidenor’s opinion and will not be treated as a fact in itself. This objection is OVERRULED.

Standard for Motion for Summary Judgment – A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.  (Code Civ. Proc., § 437c, subd. (a).)  To prevail on a motion for summary judgment, 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.  (Code Civ. Proc. § 437c, subd. (c).)  

The defendant moving for summary judgment does not need to conclusively negate an element of the plaintiff’s cause of action, but rather, must show “that one or more elements of the cause of action . . . cannot be established . . . or that there is a complete defense to that cause of action.”  (Aguilar v. Atlantic Ridgefield Co. (2001) 25 Cal.4th 826, 849, citing Code Civ. Proc. § 437c, subd. (o)(2).) Once the moving party has met its respective burden, the burden shifts to the responding party, who must demonstrate that a triable issue of material fact exists.  (Code Civ. Proc. §437c, subd. (p).)  The responding party may not rely on allegations in the pleadings, but instead “shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”  (Ibid.)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence.  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 Foods, 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, 1198–1199.)  “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.)

Here, Antelope Valley Hospital moves for summary judgment on the grounds that (1) there is no triable issue of material fact as to whether the care and treatment it provided Plaintiff breached the standard of care, (2) there is no triable issue of material fact as to whether Antelope Valley Hospital caused Plaintiff’s injuries, and (3) the claim is barred by the statute of limitations applicable to an action against a public entity in accordance with Government Code section 945.6.

In the alternative, it moves for summary adjudication of those same three issues.

-----

Duty and Breach–The elements of a cause of action for medical malpractice are: (1) a duty 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 injury; and (4) resulting loss or damage. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

The duty of a hospital is to “exercise such reasonable care toward a patient as his mental and physical condition, if known, require.” (Vistica v. Presbyterian Hospital & Medical Center of San Francisco, Inc. (1967) 67 Cal.2d 465, 469.) Even if the physicians at the hospital are not agents or employees of the hospital,

a hospital generally owes a duty to screen the competency of its medical staff and to evaluate the quality of medical treatment rendered on its premises. [Citation.] Thus, a hospital could be found liable for injury to a patient caused by the hospital's negligent failure ‘to insure the competence of its medical staff through careful selection and review,’ thereby creating an unreasonable risk of harm to the patient.

(Walker v. Sonora Regional Medical Center (2012) 202 Cal.App.4th 948, 959–960, quoting Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 341.) 

Additionally, “‘A hospital must provide procedures, policies, facilities, supplies, and qualified personnel reasonably necessary for the treatment of its patients.’” (Walker v. Sonora Regional Medical Center, supra, 202 Cal.App.4th at 960, quoting CACI No. 514.) 

In medical malpractice cases, the standard of care is established with expert evidence:

Ordinarily, proof of the prevailing standard of skill and learning in the locality and proof on the question of the propriety of particular conduct by the practitioner in particular instances is not a matter of general knowledge and can only be supplied by expert testimony [Citations]. Expert evidence is conclusive where it appears that the matter in issue is one within the knowledge of experts only and is not within the common knowledge of laymen.

(Stephenson v. Kaiser Foundation Hospitals (1962) 203 Cal.App.2d 631, 635.)

Therefore, “‘[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.’ [Citations.]” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984–985.)

Here, Plaintiff’s theory of medical malpractice is that Defendants breached their duty of care when they failed to completely remove her placenta from her body after delivering her newborn; and that the presence of the remnants of the placenta caused her pain, blood clots, and bleeding. (Pl.’s Opp’n Mot. Summ. Judg. at 2.)

Antelope Valley Hospital’s Burden--Antelope Valley Hospital has submitted expert evidence to support its argument that, despite the fact that a portion of Plaintiff’s placenta remained in her body undetected (a fact that Antelope Valley Hospital does not dispute), the care and treatment it provided to Plaintiff had met the standard of care. It submits the declaration of Stephen DiMarzo, M.D., who identifies himself as a board-certified doctor of obstetrics and gynecology, and who currently practices in San Diego and volunteers as an assistant clinical professor of medicine at the University of California San Diego. (Def. Antelope Valley Hosp. Evid. Supp. Mot. Summ. Judg. at Ex. E[1].)

Dr. DiMarzo attests that he has reviewed Plaintiff’s medical records from Antelope Valley Hospital and High Desert Regional Health Center, as well as Plaintiff’s discovery responses. He attests that, based on this review, as well as his education, training, and experience, Antelope Valley Hospital “met the applicable standard of care at all times.” (Def. Antelope Valley Hosp. Evid. Supp. Mot. Summ. Judg. at Ex. E.) He reached this conclusion based on his finding that the medical records show Dr. Cepeda “performed visual inspection of the placenta and noted no abnormalities,” and that a visual inspection is “entirely within the standard of care,” such that it was appropriate for Dr. Cepeda to rely on this inspection. (Id., ¶ 20.) He also concludes that the attending nurses “administered pain medication as ordered and provided the patient with appropriate nursing interventions,” and also “appropriately reported changes with the patient’s leg to the physician,” which prompted an order for an ultrasound. (Id., ¶¶ 22-24.)

Dr. DiMarzo also concludes that the medical records show Plaintiff was not “experiencing excessive post-partum bleeding.” (Def. Antelope Valley Hosp. Evid. Supp. Mot. Summ. Judg. at Ex. E.) He bases this on Plaintiff’s white blood cell, hemoglobin, and hematocrit levels. (Id., ¶ 21.)

He concludes that Dr. Cepeda’s decision to discharge Plaintiff was “reasonable, appropriate, and within the standard of care,” based on her lab results and overall condition, and in particular, the fact that she was not suffering from blood clots on the day she was discharged. (Def. Antelope Valley Hosp. Evid. Supp. Mot. Summ. Judg. at Ex. E.)

The inference drawn from this evidence is that Defendants followed the applicable procedures to evaluate Plaintiff’s condition, yet found no reason to believe there were still remnants of Plaintiff’s placenta inside her body, or that she was at risk of blood clots or hemorrhaging. Thus, it was not negligent for Defendants to have discharged Plaintiff without realizing they had not removed all of the placenta. The Court finds this is sufficient to make a prima facie showing that Antelope Valley Hospital did not breach its duty of care with regard to Plaintiff’s alleged injury.

Plaintiff’s Burden—Generally, a plaintiff’s failure to produce contravening expert evidence is fatal to her opposition to summary adjudication of a medical malpractice claim. Here, Plaintiff has not produced any such expert evidence, but argues that expert testimony is unnecessary because the Court should apply the doctrine of res ipsa loquitur. Indeed, when res ipsa loquitur applies, “the courts have relied both on common knowledge and on expert testimony.” (Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817; Dierman v. Providence Hospital (1947) 31 Cal.2d 290, 292; Stephenson v. Kaiser Foundation Hosps., supra, 203 Cal.App.2d at 635.)

The doctrine of res ipsa loquitur is applicable upon a prima facie showing that the injury “is one which in the ordinary course of events would not have happened if defendants had used due care . . . .” (Dierman v. Providence Hosp., supra, 31 Cal.2d at 294.) For example, our Supreme Court held in Davis v. Memorial Hosp., supra, 58 Cal.2d 815 that res ipsa loquitur could apply to an abscess the plaintiff experienced after a nurse performed a presurgical enema: the injury was “of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.” (Id., 817.) It held that the trial court should have left the question of whether res ipsa loquitur applied to the jury because, “[a]lthough there was no expert testimony as to the probability of negligence in such a situation, it is a matter of common knowledge among laymen that the giving of an enema is not ordinarily harmful unless negligently done.” (Ibid.)

Here, Plaintiff argues that res ipsa loquitur applies because she “presented to the hospital four times on account of the same and/or similar issues and the medical team’s poor handling of her condition . . . .” (Pl.’s Opp’n Mot. Summ. Judg. at 7.) She argues that a factfinder may infer from the fact of her injury that Defendants must have breached their duty of care.

In other words, the injury, according to Plaintiff, is that she began having severe pain, blood clots, bleeding, and that it was caused by the defendants’ failure to completely remove the placenta after birth; and expert testimony is not needed because, the fact that she experienced severe pain, blood clots, bleeding, and the unremoved placenta automatically shows that the quality of Defendants’ care was below professional standards.

Again, Plaintiff does not present any expert testimony whatsoever. She only presents her own declaration, in which she attests that, after her newborn was delivered, she began experiencing severe pain, blood clots, and bleeding; that she informed Defendants of this; and that she was discharged anyway. (Pl.’s Decl. Treece ¶ 5.) She then attests that, three days later, she returned to Antelope Valley Hospital, whose emergency department performed an ultrasound, treated her with medication, then discharged her again that same day. (Id., ¶ 6.)

The Court finds that whether this conduct fell below the standard of professional care is not within a layperson’s purview. Antelope Valley Hospital has submitted evidence that its providers discharged Plaintiff because her test results were not concerning. Plaintiff does not present any evidence to counter Defendants’ assessment of her condition. Instead, she presents evidence that she self-reported pain, blood clots, and bleeding to Dr. Cepeda and the Antelope Valley Hospital nurses. (Pl.’s Decl. Treece ¶ 5.) But it is not clear whether discharging a patient despite her self-report of pain, blood clots, and bleeding after childbirth is below the standard of care. If anything, it is common knowledge that childbirth can sometimes endanger the health of the birthing parent, that complications are not unusual, and that many patients sustain injuries after delivery, including bleeding and pain. The Court is in no position to conclude that any report of pain and bleeding after childbirth is indicative of a retained placenta, when other tests and evaluations yielded nothing outside the ordinary.

The Court does not claim to disbelieve or minimize Plaintiff’s report of pain and bleeding. It only finds that the extent to which this bleeding and pain is a cause for concern is beyond a layperson’s knowledge. Therefore, the doctrine of res ipsa loquitur cannot be applied.

Because res ipsa loquitur cannot be applied, Plaintiff’s failure to provide contravening expert evidence is fatal. Plaintiff has not met her burden of producing evidence to show a triable issue of material fact as to whether Defendants breached their duty of care. Therefore, moving party Antelope Valley Hospital is entitled to summary judgment.

For the sake of completeness, the Court addresses the remaining issues of causation and statute of limitations.

Causation—

The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical “probability” and a medical “possibility” needs little discussion. There can be many possible “causes,” indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.

(Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402–403.)

In Inouye v. Black (1965) 238 Cal.App.2d 31, the Court of Appeal held that res ipsa loquitur did not apply when a medical wire broke after being surgically implanted in the plaintiff’s body, because the breakage could reasonably have been caused by several different individuals or entities: “The negligence of [the manufacturer of the medical device or its supplier] is just as possible as some unspecified and indeterminate lack of care on the surgeon's part.” (Id., 35.) Thus, “[w]hen the defendant's negligence is one of several possible causes reasonably inferable from the evidence,” res ipsa loquitur is not available. (Id., 33-34.)

Antelope Valley Hospital’s Burden--On this issue, Antelope Valley Hospital again refers to Dr. DiMarzo’s declaration, in which he concluded that, “to a reasonable degree of medical probability, meaning more likely than not, no act or omission on the part of Antelope Valley Hospital caused injury to the patient, Kameeke Treece.” (Def. Antelope Valley Hosp. Evid. Supp. Mot. Summ. Judg. at Ex. E.) He based his conclusion on a premise that Plaintiff “was suffering from delayed postpartum bleeding[,]” which is most commonly associated with “retained placenta and infection[,]” and is commonly seen in “women with a history of multiple prior births.” (Id., ¶ 27.) Plaintiff has apparently had at least five prior births. (Id., ¶ 5.) He concluded that “no further treatment was necessary.” (Ibid.)

He also concludes that, because there “were no signs of infection,” and the ultrasound performed in the emergency room “revealed only blood clots and no evidence of retained products of conception[,]”referring Plaintiff to her primary care physician for follow-up care was the appropriate recommendation. (Def. Antelope Valley Hosp. Evid. Supp. Mot. Summ. Judg. at Ex. E.)

Antelope Valley Hospital has therefore produced expert evidence establishing that its conduct did not cause the “retained” placenta or the accompanying bleeding or pain. Instead, its evidence shows that Plaintiff, having given birth before, was apparently susceptible to this condition, that this is common, and that the fact that the entirety of the placenta was not removed was not, to a reasonable degree of medical probability, attributable to any lapse in Defendants’ care. Antelope Valley Hospital’s expert evidence also shows that Defendants responded appropriately to Plaintiff’s condition as presented, such that its decision to discharge her did not exacerbate her injury. Therefore, Antelope Valley Hospital has met its summary judgment burden.

Plaintiff’s Burden—Again, Plaintiff urges the Court to apply the doctrine of res ipsa loquitur, but the Court is unpersuaded.

The Court finds this is not the type of injury whose cause is within a layperson’s common knowledge. Plaintiff alleges her injury was the retained placenta, and the accompanying bleeding and pain. It is not within a layperson’s common knowledge to understand why some, but not all of a placenta would be successfully removed, let alone whether the fact that it was not fully removed must mean Defendants provided negligent care.

While Plaintiff presents evidence in the form of her own declaration, establishing she told Dr. Cepeda and Antelope Valley Hospital’s nurses that she was in pain, she does not present evidence that her self-reports of pain were sufficient for Defendants to suspect that the placenta remained in her body, or even that something was necessarily wrong. It is common knowledge that both vaginal and cesarian deliveries are often followed by periods of pain to the birthing parent. But it is not within common knowledge whether a patient’s self-report of pain and bleeding in the days after giving birth is sufficient to alert a healthcare provider to a potential problem, when that healthcare provider did not see any such indicators from Plaintiff’s blood test results, the visual inspection of the placenta, or Antelope Valley Hospital’s nurses’ regular monitoring of Plaintiff’s condition.

Since the doctrine of res ipsa loquitur did not apply, Plaintiff needed to produce expert evidence. Since she did not do so, Plaintiff has failed to show a triable issue of fact as to whether Defendants caused her injury. Therefore, moving party Antelope Valley Hospital is entitled to summary judgment.

-----

Statute of Limitations – “It is well settled that a public entity may be estopped from asserting the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act.” (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445.) “[T]he public entity must engage in some sort of purposeful conduct or make a representation that leads that particular plaintiff not to take action against the public entity.” (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1056.)

The parties’ briefs reflect an agreement that Antelope Valley Hospital is operated by a government entity, and as such, Plaintiff needed to file her lawsuit within six months of Antelope Valley Hospital’s rejection of her administrative claim. (Gov. Code, § 945.6, subd. (a)(1).) The parties agree that Plaintiff presented a claim on December 11, 2018, and that this action was filed on September 18, 2019.

The parties disagree as to whether Antelope Valley Hospital truly rejected Plaintiff’s claim. Antelope Valley Hospital argues it mailed a rejection notice dated January 24, 2019. (Def. Antelope Valley Hosp. Evid. Supp. Mot. Summ. Judg. at Ex. D[2].) Under this interpretation of the facts, Plaintiff needed to file her lawsuit by June 24, 2019, such that her September 18, 2019 complaint was untimely.

But Plaintiff makes a reasonable argument for finding that Antelope Valley Hospital did not reject her claim: she attaches a letter dated February 18, 2019 from Antelope Valley Healthcare District’s “third-party claims administrator,” which acknowledges its receipt of her claim and asks her for further information that would enable it to “properly evaluate the claim you have presented.” (Pl.’s Decl. Akhidenor at Ex. A.) She also raises an argument that Antelope Valley Hospital could be stopped from asserting the statute of limitations, because of its misleading communications.

The Court agrees this second letter raises a triable issue of fact as to whether Antelope Valley Hospital actually denied Plaintiff’s claim. It would not make sense for Antelope Valley Hospital to have denied Plaintiff’s claim, then sent a subsequent follow-up letter asking for information that would help it evaluate her claim.

Thus, Antelope Valley Hospital would not be entitled to summary adjudication on the statute of limitations issue.

Conclusion