Judge: Monica Bachner, Case: 19STCV21985, Date: 2022-09-16 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 19STCV21985    Hearing Date: September 16, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant DVA Renal Healthcare, Inc. dba Tower Dialysis’s motion for summary judgment is granted.  

Defendant DVA Renal Healthcare, Inc. dba Tower Dialysis (“DVA”) moves for summary judgment on the complaint of Plaintiffs Alejandro Molina (“Molina”), Alejandro Molina Portillo (“Portillo”), Berta Molina (“Berta”), Daisy Molina (“Daisy”), Erika Molina (“Erika”), Francisco Molina (“Francisco”), Jose Molina (“Jose”), Kelvin Molina (“Kelvin”), Marcos Molina (“Marcos”), Michael Molina (“Michael”), Olivia Molina (“Olivia”), Ricardo Molina (“Ricardo”), Rosa Molina (“Rosa”) and Teresa Molina (“Teresa”) (collectively, “Plaintiffs”).  (Notice of Motion, pgs. 1-2; C.C.P. §437c(a).) 

CRC Violations

Plaintiffs did not file a separate statement in violation of CRC Rule 3.1350(e), which provides that the opposition to a motion for summary judgment must consist of an opposition, separate statement in opposition, evidence (if appropriate), and request for judicial notice (if appropriate).  Plaintiffs filed only an opposition and a Declaration of their counsel Ashkan Ashour (“Ashour”) in support thereof.

The Court notes Plaintiffs have not filed any evidentiary objections in support of their opposition. Plaintiffs argue that the declaration of DVA’s expert physician is a “conclusory opinion,” however, this argument is unsupported and not properly raised in evidentiary objections.  (Opposition, pg. 5.)

Procedural Background & Complaint

On June 21, 2019, Plaintiffs filed their complaint against DVA and non-moving Defendants Cedars-Sinai Medical Center (“Cedars MC”) and Cedars-Sinai Medical Group Dialysis Center (“Cedars Dialysis”) alleging causes of action for wrongful death and professional negligence in connection with the September 10, 2018 death of decedent Josefina Asencio De Molina (“Decedent”).  DVA filed its answer on August 7, 2019.  On December 6, 2019, Plaintiffs filed a DOE Amendment naming Defendant P&I Transportation, Inc. (“P&I”) as DOE 1.  On January 21, 2020, Plaintiffs filed a request for dismissal as to Cedars MC, and on January 23, 2020, the Court entered Cedars MC’s dismissal.  On August 21, 2020, Plaintiffs filed a DOE Amendment naming Defendant Vardan Gevorgyan (“Gevorgyan”), an employee of P&I and the driver of the vehicle involved in the incident, as DOE 2.  P&I and Gevorgyan have since filed answers to the complaint.  In light of the dismissal of Cedars MC, the ruling’s references to “Defendants” includes remaining defendants DVA, Cedars Dialysis, P&I, and Gevorgyan.

Plaintiff’s wrongful death and professional negligence causes of action are based on allegations that while Decedent was being transported for her routine dialysis treatment on September 10, 2018, she and Defendants’ agents and/or employees were in the parking lot of Cedars Dialysis, when Decedent’s intravenous therapy (“IV”) line connected to her upper left extremity arteriovenous (“AV”) fistula got caught on the door of Defendants’ transport vehicle and, as a result of Defendants’ negligence, the IV line was separated from Decedent’s AV, causing her to bleed profusely, which Defendants did nothing to prevent or stop and as a result, Decedent was pronounced dead shortly after the incident.  (Complaint, pgs. 4, 5.) Plaintiffs allege Decedent’s death was the result of Defendants’ intentional, reckless, and/or gross professional negligence.  Plaintiffs allege Defendants’ professional negligence on September 10, 2018, caused Decedent’s untimely death on that same day.  As such, both causes of action are based on Defendants’ negligent treatment of Decedent and her resulting injury and/or death during and after such treatment.  The Court notes the complaint does not assert specific allegations as to the three separate defendants, but groups them together and asserts all allegations collectively against “Defendants.”

DVA argues that based on its expert opinion, DVA’s conduct did not result in a breach of the standard of care, and as such, Plaintiffs cannot submit evidence creating a triable issue of fact as to whether DVA’s caused Decedent’s death.  (Motion, pgs. 10-11.)  In opposition, Plaintiffs argue triable issues of fact exist because DVA knew, prior to the incident, that Decedent bled from her left arm AV fistula post dialysis treatment with DVA and that it could take up to 100 minutes for her to stop such bleeding and, as such, DVA failed to adequately diagnose and treat Decedent by ignoring her prior bleeding issues leading to the incident.  (Opposition, pg. 3.)

Wrongful Death & Medical Malpractice (1^st & 2^nd COAs)

A cause of action for professional negligence (medical malpractice) requires the following elements: (1) duty of care owed plaintiff to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach; (3) causation; and (4) damage.  (Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1077.) 

The elements of a wrongful death claim “include (1) a ‘wrongful act or neglect’ on the part of one or more persons that (2) ‘cause[s]’ (3) the ‘death of [another] person.’ [Citation]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404.) (See also C.C.P. §377.60.)

DVA submitted evidence showing Plaintiffs cannot establish DVA breached a duty of care or caused Decedent’s death.  (C.C.P. §437c(p)(2).)  Specifically, DVA submitted a declaration from expert Vincent Rowe, M.D. (“Dr. Rowe”).  (Decl. of Rowe ¶¶2-14 [MSJ PDF pgs. 670-672]; Decl. of Smith ¶¶3, 4, 5, Exh. B [DVA Medical Records, pgs. 64-640 of MSJ PDF], Exh. C [LAFD Medical Records, pgs. 641-645 of MSJ PDF], Exh. D [Cedars MC Medical Records, pgs. 647-669 of MSJ PDF].) (See Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412 (“‘Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony. [Citations.]’”).) (See also Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498 (“‘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. [Citation.]’ [Citations]”).)  “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.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606 [citing Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985].)

DVA submitted the following evidence relating to the September 10, 2018 incident: (1) Decedent was picked up by P&I for her dialysis treatment at DVA’s facility; (2) at 9:30 a.m. P&I’s driver called DVA indicating Decedent was bleeding profusely and DVA instructed the driver to call 911; (3) at 9:58 a.m., paramedics arrived to find Decedent bleeding from her AV fistula; (4) ambulance records indicated DVA’s driver indicated that Decedent’s AV fistula line got caught on something, she began to actively pump out blood, and paramedics were unable to get a blood pressure or pulse and took her to Cedars MC emergency; (5) Decedent arrived at Cedars MC at 10:10 a.m. with blood pressure of 52, became bradycardic and was in hemorrhagic shock; (6) Decedent was unable to achieve spontaneous circulation after three units of packed red blood cells, during which time she had no pulse or cardiac activity, and staff began CPR and resuscitation attempts; however, Decedent was pronounced dead at 10:55 a.m. after having coded for 33 minutes.  (Undisputed Separate Statement of Fact (“USSF”) Nos. 3-7, 14.)  DVA submitted evidence Decedent was not experiencing complications from her AV fistula line in September 2018 and rather, the complications and bleeding manifested in the process of being removed from P&I’s vehicle, namely, after she was removed from the vehicle, after having just arrived at DVA’s parking lot, at which time DVA was not involved.  (USSF No. 13.)

DVA submitted evidence supporting Dr. Rowe’s background as a medical expert and his qualification to opine as to the applicable standard of care now and in 2018 on whether DVA and its staff complied with the applicable standards of care of rendering treatment to Plaintiff.  (USSF Nos. 9-10.)  [The Court notes DVA the Declaration of Dr. Rowe sets forth his medical background and experience, but does not attach a CV.]  Dr. Rowe opined that throughout Decedent’s dialysis treatments with DVA, there were never complications with Decedent nor with her AV Fistula line and each of her treatments resulted in successful cannulations.  (USSF No. 11.)  Dr. Rowe noted the last three years of dialysis medical records do not indicate any problems from a vascular surgeon’s point of view.  (USSF No. 12.)  Based on his education, training, experience, and review of Decedent’s DVA medical records, emergency records, and paramedic records, Dr. Rowe opined that, with a degree of reasonable medical probability, no act or omission to act on the part of DVA were a substantial factor in causing or contributing to Decedent’s death.  (USSF Nos. 10, 15.) 

Based on the foregoing, DVA met its burden on summary judgment.  Therefore, the burden shifts to Plaintiff to create a triable issue of material fact.  (C.C.P. §437c(p)(2).)  Plaintiffs failed to meet her burden. 

Plaintiffs failed to submit admissible competent evidence creating a triable issue of fact as to DVA’s submitted evidence that it met the standard of care and that DVA’s care of Decedent was not the cause of Decedent’s injury or death.  As discussed above, Plaintiffs’ opposition is procedurally improper, as Plaintiffs failed to submit a Response Separate Statement addressing DVA’s evidence and whether the facts submitted are disputed or not.  Moreover, Plaintiff has not submitted a declaration of a competent medical expert to dispute Dr. Rowe’s expert testimony that Defendant met the standard of care in its care and treatment of Decedent.  (See Hanson v. Grode, supra, 76Cal App 4^th 601, 607.)

In opposition, Plaintiff argues DVA knew that Decedent, on multiple occasions, bled from her left arm AV fistula and that it could take up to 100 minutes before the bleeding would stop and yet, despite this knowledge, DVA did not take any action to prevent the bleeding nor did DVA refer Decedent to a specialist to examine her condition, instead ignoring Decedent’s condition which, contributed to Decedent’s death. (Opposition, pg. 4.)  In support of this assertion, Plaintiffs submit DVA’s responses to Plaintiffs’ Requests for Admission (“RFAs”), in which, DVA admits that prior to the incident, it knew Decedent bled from her left arm AV fistula following her dialysis treatment(s) with DVA and that it could take up to 100 minutes for her to stop bleeding from that location at such times.  (Decl. of Ashour ¶2, Exh. A, RFAs Nos. 7 and 8.)  In response to the RFAs, DVA specifically addresses its knowledge that Decedent’s bleeding could happen after her dialysis procedure.  However, the undisputed facts demonstrate that the incident that resulted in Decedent’s death occurred prior to Decedent’s dialysis procedure, namely, after the van carrying her had arrived at the DVA facility parking lot, and before she entered DVA’s facility.  As such, evidence of DVA’s knowledge of Decedent’s propensity to bleed after dialysis procedures is not relevant so as to create a triable issue of fact for the incident at issue in this action in which Decedent’s bleeding manifested prior to her dialysis procedure. 

Plaintiffs’ argument that DVA did not “refer Decedent to any specialist to examine her condition,” is apparently based on DVA’s admitted knowledge of Decedent’s propensity to bleed following dialysis appointments.  However, DVA’s purported failure to diagnose Decedent’s condition or refer her to a specialist does not create a triable issue of fact with respect to whether DVA caused Decedent’s death.  Plaintiffs do not submit expert testimony, or any evidence, suggesting that bleeding following a dialysis appointment qualifies as a condition that DVA had a duty to report and/or that DVA had a duty to recommend Decedent to a specialist in connection therewith, and Plaintiffs’ conclusory assertion is not supported.  Moreover, Plaintiffs have failed to submit any evidence creating a triable issue of fact as to DVA’s evidence that Decedent’s medical records from the last three years indicate no problems from a vascular surgeon’s point of view.  (USSF No. 12.)  As such, Plaintiffs’ contention that Decedent had a “condition” that should have been reported or diagnosed by DVA is not supported by competent evidence. 

Plaintiffs failed to submit evidence creating a triable issue of fact as to whether DVA’s treatment of Decedent was within the standard of care and/or caused Decedent’s injury and/or death.

Based on the foregoing, DVA’s motion for summary judgment is granted.

Dated:  September _____, 2022

Hon. Monica Bachner

Judge of the Superior Court