Judge: Ronald F. Frank, Case: 21TRCV00246, Date: 2023-02-08 Tentative Ruling
Case Number: 21TRCV00246 Hearing Date: February 8, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: February 8, 2023¿
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CASE NUMBER: 21TRCV00246
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CASE NAME: Tess
Hernandez, a minor, by and through her Guardian ad Litem, Brittney Lopez v.
Shereen Beverly, M.D., et al
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MOVING PARTY: Defendant, Providence Little Company of Mary Medical Center
Torrance
RESPONDING PARTY: None
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TRIAL DATE: May 2, 2023
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MOTION:¿ (1) Motion for Summary Judgment,
or in the alternative, Summary Adjudication
¿ Tentative Rulings: (1) GRANT Summary Judgment
I. BACKGROUND¿¿
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A. Factual¿¿
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On
April 1, 2021, Tess Hernandez, a minor by and through her Guardian ad Litem,
Brittney Lopez (“Plaintiff”) filed a complaint against Shereen Beverly, M.D.;
Shreen Beverly, M/D/, Inc., and Providence Little Company of Mary Medical
Center for causes of action for Medical Malpractice and Vicarious Liability.
The
complaint alleges that Britney Lopez received her prenatal care from Shereen
Beverly, M.D.. Plaintiff claims that Dr. Beverly negligently failed to diagnose
large for gestational age (L.G.A.) or macrosomic fetus, among other high-risk
factors associated with the pregnancy, and negligently failed to inform Ms.
Lopez of those risks and offer C-Section as a delivery alternative. The
complaint claims that on April 27, 2017, Ms. Lopez was admitted to L.C.M. for
labor and delivery. Plaintiff contends that Dr. Beverly was the attending and
delivering physician. The complaint notes that despite L.G.A. and macrosomic
fetus, and other high-risk factors, Dr. Beverly negligently failed to
offer/recommend a C-Section at admission, or during the labor course, which
resulted in the foreseeable occurrence of a right anterior shoulder dystocia
during the vaginal delivery.
Plaintiff
asserts that once the shoulder dystocia occurred Dr. Beverly negligently failed
to perform the maneuvers required by the standard of care and safely deliver it,
which directly caused and contributed the minor plaintiff suffering severe and
permanent right brachial plexus paralysis and other neurological injuries.
Lastly,
the complaint assures that the nursing staff and other personnel at L.C.M.
negligently failed to properly assist in the safe delivery of the shoulder
dystocia, which caused/contributed to the minor plaintiff’s injuries.
Defendant,
Providence Little Company of Mary Medical Center (“Providence”) now files a
Motion for Summary Judgment, or in the alternative, Summary Adjudication on the
grounds that Providence argues Plaintiff cannot establish triable issues of
material fact to demonstrate that moving defendant committed any negligent act
and/or omission.
B. Procedural¿¿
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On November 18, 2022, Providence filed
their Motion for Summary Judgment with supporting declarations, exhibits and
Separate Statement. On January 9, 2023, Plaintiff filed a non-opposition to the
Motion.
II. ANALYSIS¿
A. Legal Standard
The function of a motion for summary judgment or
adjudication is to allow a determination as to whether an opposing party cannot
show evidentiary support for a pleading or claim and to enable an order of
summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(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 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); 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 that cause of action or a defense thereto.¿¿¿
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.)
B. Discussion
As a preliminary matter, Plaintiff
filed a notice of non-opposition to Providence’s Motion for Summary Judgment,
or in the alternative, Motion for Summary Adjudication.
Medical Malpractice
“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 the duty; (3) a
proximate causal connection between the negligent conduct and the injury; and
(4) resulting loss or damage.” (Chakalis v. Elevator Solutions, Inc. (2012)
205 Cal.App.4th 1557, 1571.)
Actions against health care providers such as Defendant
based on medical negligence must be brought within one year of the plaintiff’s
discovery of the injury and its negligent cause, or three years after the date
of the injury, whichever comes first. (Code Civ. Proc., § 340.5.) The
three-year statute of limitation can be tolled upon (1) proof of fraud, (2)
intentional concealment or (3) the presence of a foreign body which has no
therapeutic or diagnostic purpose or effect. (Ibid.) The “foreign body”
requirement can be satisfied even if the foreign body had a therapeutic purpose
when originally placed inside the patient, as long as it was
not removed after it ceased having a therapeutic purpose or effect. (Maher
v. County of Alameda (2014) 223 Cal.App.4th 1340, 1351.) Once a plaintiff
discovers or should have discovered the foreign body and its role in the
underlying injury through reasonable diligence, the one-year statute of
limitations begins to run. (Ashworth v. Memorial Hospital (1988) 206
Cal.App.3d 1046, 1059.)
First, Providence asserts that it acted within the Standard
of Care. Providence offered into evidence, the Declaration of Anne Taylor,
R.N.C., F.M.C., B.S.N., PHN (“Taylor”). According to Taylor, the delivery care
rendered to Tess Hernandez on April 27, 2017 by Providence, its agents, and/or
employees, including the nurses and non-physician staff, met the nursing standard
of care in the community. (Declaration of Anne Taylor, R.N.C., F.M.C., B.S.N., PHN
(“Taylor Decl.”), ¶¶ 3, 5.) Taylor opined that the nurses provided appropriate
labor and delivery care to Tess Hernandez during the admission and delivery
process. Additionally, Taylor noted that once the shoulder dystocia was
identified, Dr. Beverly instructed the nurses to apply suprapubic pressure and
implement the McRoberts maneuver, and Dr. Beverly noted the maneuvers were
initiated, and successfully delivered the right anterior shoulder with moderate
effort. (Taylor Decl., ¶ 8.)
As such, it is Taylor’s opinion that Providence, its agents
and/or employees, including the nurses and non-physician staff, did not, to a
reasonable degree of medical probability, commit any negligent act or omission.
Plaintiff has not provided an
opposition, or competing evidence. Based on Providence’s moving papers and
evidence, this Court GRANTS Providence’s motion for summary judgement on the
issue of medical malpractice.
Vicarious Liability
“A hospital is liable for a physician's
malpractice when the physician is actually employed by or is the ostensible
agent of the hospital.” (Whitlow v. Rideout Memorial Hospital
(2015) 237 Cal.App.4th 631, 635, quoting Jacoves v. United
Merchandising Corp.
(1992) 9 Cal.App.4th 88, 103.) Since a hospital is not a natural person
and therefore cannot practice medicine, its liability for medical malpractice
must be based on a theory of vicarious liability. (Ermoian
v. Desert Hospital (2007) 152 Cal.App.4th 475, 501.)
“Unless the evidence conclusively indicates that the
patient should have known that the treating physician was not the hospital's
agent, such as when the patient is treated by his or her personal physician,
the issue of ostensible agency must be left to the trier of fact.” (Mejia
v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448,
1458.) Ostensible agency may be shown when the following two elements are
satisfied: “(1) conduct by the hospital that would cause a reasonable person to
believe that the physician was an agent of the hospital, and (2) reliance on
that apparent agency relationship by the plaintiff.” (Ibid. at p.
1453.)
As to the first element of ostensible agency, “[U]nless the patient had some
reason to know of the true relationship between the hospital and the
physician—i.e., because the hospital gave the patient actual notice or because
the patient was treated by his or her personal physician—ostensible agency is
readily inferred.” (Id. at pp. 1454–55.)
Here, Plaintiff alleges that the defendants provided
negligent labor and delivery care to
Tess Hernandez during the April 27, 2017 admission at
Providence Little Company of Mary Medical Center Torrance, and as a result,
Tess Hernandez suffered a right brachial plexus injury. However, Providence
asserts that any physician involved in Ms. Lopez and Tess Hernandez’s care at
Providence Little Company of Mary Medical Center Torrance were not employees of
it. Providence provided exhibits which indicate that the physicians involved,
including Dr. Beverly, were independent contractors, and not employees or
agents of Providence at the time of the incident. Providence also included its
Conditions of Admission form on February 18, 2017 and April 27, 2017, signed by
Ms. Lopez. (Motion, Exhibit M.) Providence alleges that the form specifically
gives notice that the physicians are independent contractors. Based on this,
Providence notes that there is no triable issues of material fact related to
any claim by Tess Hernandez that the physicians involved in her care at
Providence were employees or actual agents of Providence.
Based on
the evidence presented, the fact that Plaintiff filed a non-opposition, and the
fact that there is no such competing evidence, this Court GRANTS Providence’s
IV. CONCLUSION¿¿
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For the foregoing reasons, Providence’s
Motion for Summary Judgment is GRANTED.
Moving party is ordered to give
notice.¿¿¿¿
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