Judge Salvatore Sirna, Case Number: 21STCV20448, Date: 2023-10-03 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Defendants Prime Healthcare Services – San Dimas, LLC and Lenley B. Jackson, M.D.’s Motions for Summary Judgment, or in the Alternative, Summary Adjudication

Defendants Prime Healthcare Services – San Dimas, LLC and Lenley B. Jackson, M.D.’s Motions for Summary Judgment, or in the Alternative, Summary Adjudication are DENIED.

This is a wrongful death and medical malpractice action. On March 1, 2020, Divine Akih[1] went to San Dimas Community Hospital (SDCH)’s emergency room after experiencing shortness of breath. While Lenley B. Jackson, M.D. examined and diagnosed Divine with sepsis, Dr. Jackson allegedly did not provide sufficient care. SDCH then sent Divine to its intensive care unit for management of Divine’s sepsis. Two days later, Divine passed away from septic shock.

On June 1, 2021, Divine’s estate and parents, Bolanle Akih and Emmanuel Akih, filed a complaint against Prime Healthcare Services – San Dimas, LLC, doing business as SDCH; Prime Healthcare Foundation, Inc. (Prime); Dr. Jackson; and Does 1-10, alleging an action for wrongful death and survival arising from negligence.

On February 27, 2023, SDCH filed the present motion for summary judgment or adjudication. On March 2, Dr. Jackson filed a notice of joinder to SDCH’s motion. A hearing on the motion is set for October 3. Another motion for summary judgment is set for June 4, 2024, with a final status conference on July 16 and a non-jury trial on July 30.

SDCH’s request for judicial notice of a license issued by the California Department of Public Health and a certificate of death issued by the County of Los Angeles Department of Public Health are GRANTED.

SDCH and Dr. Jackson move for summary judgment or adjudication of the Akihs’ entire action. For the following reasons, the court DENIES their motions.

A motion for summary judgment or adjudication provides “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.) It must be granted “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, quoting Code Civ. Proc., § 437c, subd. (c).) To establish a triable issue of material fact, the opposing party must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 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.)

“The elements of a cause of action for wrongful death are a tort, such as negligence, and resulting death.” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.) A cause of action for medical negligence consists of the following elements: “(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.” (Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230, quoting 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 488 et seq., p. 2749.)

“In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [Citation],¿except in cases where the negligence is obvious to laymen. [Citation.]” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) And “[w]hen a defendant moves for summary judgment and supports [their] motion with expert declarations that [their] conduct fell within the community standard of care, [they are] 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, 985, quoting Hutchinson v. United States (9th Cir. 1988) 838 F.2d 390, 392.) Similarly, “[w]here the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation.” (Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal.App.4th 1563, 1569.) Plaintiffs must establish “that defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of [their] injury.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509.)

In this case, the following facts are undisputed by the parties. Prior to receiving care from SDCH, Divine suffered from cerebral palsy, speech impairment, ambulatory issues, contractures, and seizures. (PFRSSS[2], ¶ 5; PFRDSS[3], ¶ 1.) Divine also required the use of a g-tube for feeding. (PFRSSS, ¶ 5; PFRDSS, ¶ 1.) On March 1, 2023, the Akihs took Divine to SDCH’s emergency room after Divine vomited earlier in the day and had difficulty breathing. (PFRSSS, ¶ 7; PFRDSS, ¶ 3; SDCH Exhibits, Ex. 5, p. 1, 15.) At 8:50 PM, Divine’s vitals were recorded with a temperature of 97.6, a pulse of 170, a respiratory rate of 21, a blood pressure measurement of 99/58, and oxygen saturation of 77%. (PFRSSS, ¶ 8; PFRDSS, ¶ 4; SDCH Exhibits, Ex. 5, p. 15, 21.) Dr. Jackson then ordered an EKG, blood tests, oxygen administration, pulse oximetry, cardiac monitoring, breathing treatments, and a saline lock. (PFRSSS, ¶ 8; PFRDSS, ¶ 4.)

From 10:34 PM to 11:10 PM, nursing staff made multiple unsuccessful attempts to secure peripheral IV access before advising Dr. Jackson. (PFRSSS, ¶ 11; PFRDSS, ¶ 7; SDCH Exhibits, Ex. 5, p. 38-39.) After another unsuccessful attempt to secure peripheral IV access at 11:50 PM, nursing staff began preparing for a central line placement. (SDCH Exhibits, Ex. 5, p. 39.) From 12:30 AM to 1:43 AM, nursing notes documented Dr. Jackson making an attempt at external jugular IV access and intra oscular IV access. (PFRSSS, ¶ 12; PFRDSS, ¶ 8; SDCH Exhibits, Ex. 5, p. 39.) Around 2:00 AM, Divine’s laboratory results showed lactic acid measurements of 6.1 mmol/L, a band neutrophil level of 19%, sodium levels of 147 mmol/L, blood urea nitrogen levels of 63 mg/dL, creatinine measurements of 2.93 mg/dL, blood glucose levels of 867 mg/dL, SGOT levels of 51 U/L, troponin measures of 0.507 ng/mL, and a PTT level of 22.5 seconds. (PFRSSS, ¶ 9; PFRDSS, ¶ 5; SDCH Exhibits, Ex. 5, p. 18-19.)

Around 4:00 AM, Dr. Jackson spoke with a surgeon while nursing staff made at least four additional attempts at peripheral IV access. (SDCH Exhibits, Ex. 5, p. 39.) Between 5:00 AM and 5:30 AM, Dr. Jackson unsuccessfully attempted to place a femoral line. (SDCH Exhibits, Ex. 5, p. 39.) At 7:15 AM, a nurse was finally able to start a peripheral IV line in Divine’s chest with a 22-gauge angiocath. (PFRSSS, ¶ 14; PFRDSS, ¶ 10; SDCH Exhibits, Ex. 5, p. 40.) At 7:30 AM, another physician was also able to establish a central line. (PFRSSS, ¶ 14; PFRDSS, ¶ 10; SDCH Exhibits, Ex. 5, p. 40.) Divine was subsequently transferred to the ICU in critical condition before passing away a day later from septic shock. (PFRSSS, ¶ 15-17; PFRDSS, ¶ 11-13.)

SDCH and Dr. Jackson both argue they are entitled to summary judgment because their care fell within the appropriate standard of care. In support of their motion, they point to the declarations of Willaim Klein, M.D., Andrew Wittenberg, M.D., and Patrice Callagy, M.S.N. According to SDCH’s experts, the proper standard of care for a patient “with shortness of breath includes stabilization of respirations, establishing venous access for fluid resuscitation and antibiotic administration and laboratory testing.” (Dr. Klein Decl., ¶ 36; Dr. Wittenberg Decl., ¶ 51.) Intravenous (IV) access is necessary for the care of sepsis patients and peripheral IV access is within the standard of care. (Dr. Klein Decl., ¶ 36; Dr. Wittenberg Decl., ¶ 51.) But SDCH’s experts note that several uncontrollable factors can make peripheral IV access difficult including poor superficial veins, severe infections, and dehydration. (Dr. Klein Decl., ¶ 36; Dr. Wittenberg Decl., ¶ 42; Callagy Decl., ¶ 25.)

Here, SDCH’s experts noted that once Dr. Jackson ordered Divine to be placed on an IV, SDCH’s nursing staff attempted to place a peripheral IV but were unsuccessful. Dr. Klein opined that the nurses were initially unsuccessful because Divine’s vascular system had collapsed. (Dr. Klein Decl., ¶ 36.) Callagy opined that the nurses were initially unsuccessful due to Divine’s dehydration and contractures of the upper extremities which limited potential sites for IV access. (Callagy Decl., ¶ 26.) All three of SDCH’s experts opined that the repeated attempts by SDCH’s nursing staff to establish a peripheral IV in light of these complications and the reporting of these attempts to Dr. Jackson were within the applicable standard of care. (Dr. Klein Decl., ¶ 42-43, 47; Dr. Wittenberg Decl., ¶ 55, 60-61, 65; Callagy Decl., ¶ 25-26, 29-30, 32.) SDCH’s experts also opined that Dr. Jackson acted within the standard of care by attempting to unsuccessfully place a central and intraosseous line after the nurses’ initial attempts at a peripheral line were unsuccessful. (Dr. Klein Decl., ¶ 42; Dr. Wittenberg Decl., ¶ 56-57.)

Ultimately, SDCH’s experts state that Dr. Jackson and SDCH’s nursing staff did not breach their applicable standards of care in attempting to treat Divine and that their actions were not a substantial factor in causing Divine’s death. (Dr. Klein Decl., ¶ 10, 37; Dr. Wittenberg Decl., ¶ 65, 67; Callagy Decl., ¶ 37-38.) Dr. Klein also further opined that even if IV access had been established early on, it would not have changed the outcome for Divine as Divine was already experiencing multisystem organ failure when Divine arrived at SDCH. (Dr. Klein Decl., ¶ 39, 41.) Accordingly, SDCH and Dr. Jackson have met their burden on summary judgment. Therefore, the burden now shifts to the Akihs to create a triable issue of material fact.

The Akihs rely on the expert opinions of Omar Darwish, M.S, D.O.; Stephen Chin, M.D., FAAEM; and Claire Young. Dr. Chin disagreed with Dr. Klein’s assessment of Divine’s condition, stating aspirational pneumonia has a good survival rate when properly treated while severe sepsis has a mortality rate of over 40%. (Dr. Chin Decl., ¶ 55.) When Divine first arrived at SDCH, Dr. Chin and Dr. Darwish both opined that Divine’s vital signs indicated severe hypoxia or sepsis which required immediate antibiotics and IV access. (Dr. Chin Decl., ¶ 50-51; Dr Darwish Decl., ¶ 51.) Furthermore, Divine did not meet the criteria for severe sepsis until 2:00 AM on March 2 when Divine’s laboratory results were released. (Dr. Chin Decl., ¶ 55; Dr. Darwish Decl., ¶ 49.) Dr. Chin and Dr. Darwish both opined to a reasonable degree of medical probability that the failure to promptly administer antibiotics and IV fluids contributed to the development of severe sepsis and Divine’s death. (Dr. Chin Decl., ¶ 56; Dr. Darwish Decl., ¶ 53.)

The Akihs’ experts also contest the opinion that the delay in establishing IV access fell within the standard of care. Dr. Chin notes body contractures make femoral IV access difficult but do not hamper internal jugular and subclavian IV access. (Dr. Chin Decl., ¶ 52.) Dr. Chin describes an uncomplicated central line placement as taking five minutes while a failed one may take fifteen to twenty minutes. (Dr. Chin Decl., ¶ 52.) According to Dr. Chin, a failed attempt is followed by a second attempt at a different site and if that fails, it is followed by a third attempt or immediate assistance from a specialist. (Dr. Chin Decl., ¶ 52.) In this case, although Dr. Jackson made multiple attempts at IV access around 1:00 AM and 5:00 AM, no other attempts were made by a physician until 7:30 AM when another doctor was able to establish a central line. Accordingly, a disputed issue of material exists with regards to whether Dr. Jackson’s failure and delay in obtaining central line IV access fell within the appropriate standard of care and caused Divine’s death.

According to Young, SDCH’s nursing staff also failed to comply with the proper standard of care. When Divine’s vitals were first taken, Young opined that nursing staff should have given Divine an Emergency Severity Index (ESI) level of two instead of three. (Young Decl., ¶ 52(a)(i)-(ii); SDCH Exhibits, Ex. 5, p. 21.) Young also notes that while nursing staff gave Divine a sepsis screening assessment of “severe sepsis risk” around 2:30 AM, nursing staff failed to initiate sepsis protocols until 7:20 AM, although Young did not address if this delay was caused by the delay in obtaining IV access, which was resolved around the same time. (Young Decl., ¶ 52(a); SDCH Exhibits, Ex. 5, p. 29, 40.)

Young also opined that the nursing staff failed to properly advocate for Divine and utilize the chain of command. (Young Decl., ¶ 53.) While nursing staff kept Dr. Jackson informed of their lack of success, Young opined that the nursing staff should have utilized the chain of command outside of Dr. Jackson when they were unsuccessful and identified that the nursing notes do not include any evidence of this escalation. (Young Decl., ¶ 53-54.) Ultimately, Young opined to a reasonable degree of probability that if Divine had received prompt care and a proper assessment by SDCH’s nursing staff, it is more probable than not that Divine would have survived. (Young Decl., ¶ 55-57.)

Accordingly, a disputed issue of material fact exists with regards to whether SDCH’s nursing staff complied with the standard of care and contributed to Divine’s death by initially assessing Divine and failing to seek outside help when they and Dr. Jackson were both unable to secure IV access.

Because a triable issue of fact remains as to whether SDCH’s nursing staff and Dr. Jackson complied with the applicable standards of care and caused Divine’s death, SDCH and Dr. Jackson’s motion for summary judgment or adjudication is DENIED.

Based on the foregoing, the court DENIES SDCH and Dr. Jackson’s motions for summary judgment or adjudication.

[1] Because they have the same last name, the court will refer to Divine Akih, Bolanle Akih, and Emmanuel Akih individually by their first names and collectively by their last name.

[2] Plaintiffs’ Further Response to SDCH’s Separate Statement

[3] Plaintiffs’ Further Response to Dr. Jackson’s Separate Statement