Judge: Michael Shultz, Case: 20STCV34677, Date: 2023-01-30 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 20STCV34677 Hearing Date: January 30, 2023 Dept: A
22STCV34677
Orianthi Katalea Perez, a minor, by and through her Guardian ad Litem, Ivett Hita
v. St. Francis Medical Center
[TENTATIVE] ORDER
DENYING
I.
BACKGROUND
Plaintiff commenced this action on
September 10, 2020. The Third Amended Complaint (TAC), filed on October 20, 2021,
alleges that Plaintiff sustained fractures to the left femur and right arm
while in the care of Defendant, St. Francis Medical Center (St. Francis, or
Defendant), shortly after Plaintiff’s birth and after Defendant performed a
lumbar puncture. Plaintiff alleges one cause of action for medical negligence.
II.
ARGUMENTS
Defendant filed this motion on October
11, 2022, arguing that it is entitled to judgment in its favor because there is
no evidence to establish that Defendant violated the applicable standard of
care when Defendant performed a lumbar puncture on Plaintiff on July 13, 2019.
Based on the opinion of its expert Philippe Friedlich, M.D., no act or omission
by Defendant caused or contributed to Plaintiff’s damages or injuries.
In opposition filed on December
16, 2022, Plaintiff argues that the declaration of Defendant’s expert, Dr.
Friedlich, is insufficient to support his opinions. In any event, the
declaration of Joan L. Rosenbaum, M.D., Plaintiff’s expert, controverts Dr. Friedlich’s
opinion. his opinion.
In reply filed December 21, 2022, Defendant
argues that Plaintiff did not object to any of Defendant’s evidence. The expert
declaration of Dr. Rosenbaum is too speculative and conclusory to controvert
the evidence.
III.
LEGAL STANDARDS
Summary judgment is proper “if all
the papers submitted 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.” Code Civ. Proc. §437c subd. (c).
Where a defendant seeks summary judgment or adjudication, defendant must show
that either “one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there is a complete defense
to that cause of action.” Id. at §437c(p)(2). Once the
defendant meets this 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 defense thereto.” Id.
Until the moving defendant has
discharged its burden of proof, the opposing plaintiff has no burden to come
forward with any evidence. Once the moving party has discharged its burden as
to a particular claim, however, the plaintiff may defeat the motion by
producing evidence showing that a triable issue of one or more material facts
exists as to that cause of action. Code Civ. Proc., §437c(p) (2).
The court strictly construes the
moving party's supporting evidence while the opposing party’s evidence is
liberally construed. Doubts as to the propriety of the motion should be
resolved against granting the motion. D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20. The court does not evaluate the credibility of testimony. Binder v. Aetna Life Ins. Co.
(1999) 75 Cal. App. 4th 832, 840.
The court applies the three-step
analysis to motions for summary judgment or adjudication: (1) identify the
issues framed by the pleading, (2) determine whether the moving party
established facts which negate the opponents’ claim, (3) if a defendant meets
its threshold burden of persuasion and the burden shifts, determine whether the
opposing party has controverted those facts with admissible evidence. Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.
IV.
DISCUSSION
A.
The undisputed material facts established by the
evidence.
The parties do not dispute the course
of care and treatment provided to Plaintiff. Plaintiff’s mother was admitted to
St. Francis on July 10, 2019, and Plaintiff was delivered by cesarean section
(UF 1, 4). Defendant admitted Plaintiff to the neonatal intensive care unit in
part because of a report of gram-negative bacilli in the blood culture (UF 12).
A physical examination performed on Plaintiff revealed no gross deformities to
Plaintiff’s extremities; Plaintiff’s extremities had “normal appearance.” (UF 13, 14). Medardo Supnet, M.D., with the
assistance of NICU nurses, performed a lumbar puncture on July 13, 2019, which
took three attempts. Plaintiff tolerated the procedure well (UF 17, UF 18). The
notes do not indicate squirming, or that “unusual” tactics had to be employed
(UF 17).
A post-procedure examination noted a swelling
of the Plaintiff’s right forearm with “crepitation” (UF 18). The x-ray showed a
displaced fracture of Plaintiff’s radius/ulna bones (UF 19). Dr. Supnet’s notes
indicate that on July 13, 2019, Plaintiff was transferred to Children Hospital
of Los Angeles (CHLA) for further evaluation and management of a displaced
right radius and ulna fractures (UF 21, UF 23). CHLA performed a physical
examination which revealed swelling of the right arm and right radial and ulnar
shaft fractures (UF 24, UF 25).
A note dated July 29, 2019,
indicates that the potential causes for right forearm fractures were being
considered: “osteogenesis imperfecta due to COL1 gene mutation, rickets, and
child abuse "(though optho exam neg and no other fx). Rare causes included
syndromes such as ColeCarpenter…, Bruck syndrome… familial osteoporosis” (UF
28). On July 26, 2019, a note indicated that the most likely cause of the
fracture was from “accidental trauma in the hospital setting, possibly from
birth was c/s as she was footling breech." (Emphasis added). Patient to be
discharged following day” (UF 31). A non-accidental trauma investigation
concluded that “no non-accidental trauma to plaintiff had occurred” (UF 32).
B. The applicable standard of care and the element of causation must be
established by expert evidence.
To support a claim for medical
negligence, Plaintiff must establish “(1) the duty of 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.'”Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.
The standard of care
against which a physician’s acts are 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 [citations], 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. Whether the alleged negligence
caused Plaintiff’s injury “must be proven within a reasonable medical
probability based upon competent expert testimony. Mere possibility alone is
insufficient to establish a prima facie case.” Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402. 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 at 403.
C.
Standards governing the sufficiency of an expert’s
declaration.
An expert’s declaration must be
supported by “reasoned explanation” of why the underlying facts lead to the
ultimate conclusion. Johnson v. Superior
Court (2006) 143 Cal.App.4th 297, 308. Expert opinion “is required to prove
or disprove that the defendant performed in accordance with the prevailing
standard of care [citation omitted], except in cases where the negligence
is obvious to laymen." Kelley v.
Trunk (1998) 66 Cal.App.4th 519, 523. Pursuant to the Evidence Code,
"expert testimony is admissible only if based on matter of a type that may
reasonably be relied on by an expert in forming an opinion on the subject to
which his testimony relates.” Kelley at 523; Evid. Code, § 801.
The declaration need not set forth the
factual basis for the opinion in “excruciating detail.” Hanson v. Grode (1999)
76 Cal.App.4th 601, 608 ["The recent case of Kelley v. Trunk (1998)
66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 suggests that even on summary judgment,
an expert's declaration must set forth in excruciating detail the factual basis
for the opinions stated therein. We find this approach, under which all of the
expert declarations in this case would have to be deemed inadequate, to be
unsupported. Accordingly, we decline to utilize it."]. Rather, the expert
declaration is entitled to all favorable inferences that may be reasonably
derived from that declaration. Hanson at 608. The court has discretion to dismiss
declarations that are speculative, lacking in foundation, or stated without
sufficient certainty. However, the expert declaration is sufficient if it
“establishes the matters relied upon in expressing the opinion, that the
opinion rests on matters of a type reasonably relied upon, and the bases for
the opinion." Sanchez v. Hillerich & Bradsby
Co. (2002) 104 Cal.App.4th 703, 718.
D.
Analysis of the facts and evidence
Plaintiff did not file written
evidentiary objections to the declaration of Philippe S. Friedlich, M.D.,
defense expert, which the court has considered. See Defendant’s Sep.
Vol. of Evidence. Dr. Friedlich opines
that all care and treatment provided by St. Francis met the applicable standard
of care. Id., 8:15-19. He states that Plaintiff’s theory of how she
suffered fractures to her right ulna and radius and left femur are “highly
improbable, and would not have occurred during the lumbar procedure to a
reasonable degree of medical certainty.” Id., 8:19-22.
The opinion is adequately
supported by reasoned explanation. Dr. Friedlich opines that the medical
records do not suggest that Plaintiff experienced any kind of trauma during the
lumbar puncture procedure that would have resulted in the breakage of any of
the afore-described bones. Id., 8:26-28. “Significant force” was not
exercised in the performance of the procedure by Dr. Supnet or any of the
nurses, none of whom recalled anything untoward, violent, or traumatic having
occurred during the procedure. Id., 9:1-6. Dr. Friedlich goes on to
describe Plaintiff’s positioning and other circumstances including the passage
of time to support his opinion. Notably, swelling was observed immediately
after the procedure; however, swelling due to broken bones would have shown up
hours later, not minutes later. Id., 9:23-27.
Dr. Friedlich opines that the fact
that the procedure was attempted three times is not unusual or uncommon and
does not support Plaintiff’s theory. Id., 10:1-3. Dr. Friedlich concludes
that the fractures were more likely to have occurred during delivery as further
explained in his declaration. Id., 10:26- 12:3. The opinions are
supported by adequate foundation and reasoned analysis.
E. Plaintiff’s expert declaration
is sufficient to controvert Dr. Friedlich’s expert opinion.
Defendant did not submit written
evidentiary objections to the declaration of Joan L. Rosenbaum, M.D.,
Plaintiff’s expert. Dr. Rosenbaum opines that to a reasonable degree of medical
certainty, the only logical time when Plaintiff could have suffered an arm
fracture was during the lumbar procedure. Rosenbaum decl., 5:10-15. The opinion
is supported by a discussion of the lumbar process which requires the baby to
be held firmly and in a tightly curled position. Id., 5:22-28. It is a
painful, abnormal, and uncomfortable procedure. Id., 6:5:15. There was
conflicting testimony regarding the positioning of the baby’s arms. Id.,
6:19-26. After the puncture, Nurse Tollison noted a bump on the baby’s forearm,
which the nurse assessed as “not a normal thing.” Id., 7:2-5. The same
fracture in an adult is significant and would require surgical placement of
pins and screws. Id., 7:4-8.
Dr. Rosenbaum goes on to explain in
detail the reasons why she disputes Dr. Friedlich’s opinion including the
assertion that Plaintiff suffered from “soft baby bone syndrome.” Id.,
8:12- 27. Dr. Rosenbaum opines “there is no such thing. Id. Dr.
Rosenbaum’s declaration is based on adequate foundation and supported by
reasoned explanation.
V.
CONCLUSION
Based on the
foregoing, Plaintiff has met her burden of showing triable issues of fact
regarding whether Defendant violated the applicable standard of care, and
whether Defendant caused or contributed to Plaintiff’s injury (See Disputed
Facts 41-44, 48-49). Accordingly, Defendant’s
Motion for Summary Judgment is DENIED.