Judge: Serena R. Murillo, Case: 20STCV20474, Date: 2023-04-19 Tentative Ruling
Case Number: 20STCV20474 Hearing Date: April 19, 2023 Dept: 29
TENTATIVE
Defendant Providence Health System –
Southern California dba Providence Holy Cross Medical Center’s (erroneously
sued as Providence Holy Cross Medical Center) motion for summary
judgment is GRANTED.
Legal Standard
“Code
of Civil Procedure section 437c, subdivision (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.)
A
defendant moving for summary judgment or summary adjudication “has met his or
her burden of showing that a cause of action has no merit if the party has
shown that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of action.” (Code
Civ. Proc., § 437c(p)(2).) “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 the cause of action or a defense thereto.” (Code
Civ. Proc., § 437c(p)(2).) “If the plaintiff cannot do so, summary judgment
should be granted.” (Avivi v. Centro
Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467 (“Avivi”).)
“When
deciding whether to grant summary judgment, the court must consider all of the
evidence set forth in the papers (except evidence to which the court has
sustained an objection), as well as all reasonable inferences that may be drawn
from that evidence, in the light most favorable to the party opposing summary
judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; Code Civ. Proc., §
437c.)
Discussion
A.
First Cause of
Action for Medical Negligence
The elements
of medical malpractice are: “(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.” (Simmons
v. West Covina Medical Clinic (1989) 212
Cal.App.3d 696, 701-02 [citations omitted].)
“Both the
standard of care and defendants’ breach must normally be established by expert
testimony in a medical malpractice case.” (Avivi, supra, 159
Cal.App.4th at p. 467.)
“‘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.’ [Citation.]”
(Munro v. Regents of University of California (1989) 215
Cal.App.3d 977, 984-985 [citations omitted].)
Here, to prove that Defendant Providence’s
conduct fell within the community standard of care, Defendant submits the
expert declaration of Matthew O. Dolich, M.D., a board-certified medical doctor
in general surgery and surgical critical care, who currently serves as the
Director of the Trauma Intensive Care Unit, among other positions, at the
University of California Irvine’s Medical Center. (Dolich Decl., ¶¶ 1, 2.) Dr.
Dolich reviewed Plaintiffs’ complaint, relevant certified medical records from
Providence, certified records from Defendant Dr. Samuel’s office, and Mrs.
Gaitan’s deposition transcript. (Dolich Decl., ¶ 4.) Dr. Dolich made the following findings based
on those records. On March 15, 2019, Mrs. Gaitan underwent a laparoscopic
cholecystectomy at Providence, by Dr. Samuel, a surgeon, after she was found to
have symptomatic cholelithiasis with chronic gallstone cholecystitis. (Dolich
Decl., ¶ 5.) “Leading up to the subject laparoscopic cholecystectomy, the
patient had a history of multiple abdominal surgeries, including, but not
necessarily limited to, an appendectomy for a perforated appendix, small bowel
obstruction, ovary removal, and Cesarean section(s). These multiple prior
abdominal surgeries placed her at risk for having intrabdominal adhesions (scar
tissue).” (Dolich Decl., ¶ 6.) “Based upon the operative report for the
laparoscopic cholecystectomy and the postoperative documentation, nothing
untoward was identified as occurring during said surgery or in the recovery
room. The operative report reflects that the procedure was of ‘moderate
difficulty’ and involved lysis of adhesions. The report states, ‘There were
multiple adhesions in the mid abdomen and right lower quadrant also.’” (Dolich
Decl., ¶ 7.) “Mrs. Gaitan was discharged on the date of surgery. Based upon the
postoperative records, including the anesthesia notes, the patient was stable
throughout the postoperative period and the anesthesiologist, Michael Wagner,
M.D., deemed the patient ready for discharge. At the time of discharge, her
pain level was improving, she was awake and alert, she was voiding, tolerating
a diet, and ambulating.” (Dolich Decl., ¶ 8.) “On the first postoperative day,
March 16, 2019, Mrs. Gaitan presented to the [Providence] Emergency Room with
considerable pain. This prompted an abdominal CT scan and the patient was
admitted for observation.” (Dolich Decl., ¶ 9.) “The patient was admitted for
intravenous antibiotics and fluid resuscitation. She then underwent surgical
intervention the following day, March 17, 2019, consisting of exploratory
laparotomy, peritoneal lavage, extensive lysis of adhesions, and multiple small
bowel resections with re-anastomoses.” (Dolich Decl., ¶ 10.) “Over the weeks
following, the patient had problems with fistula formation, draining wound
sinuses, and other wound healing issues, and additional operative procedures
were performed.” (Dolich Decl., ¶ 11.)
It is Dr. Dolich’s professional opinion
that Mrs. Gaitan’s laparoscopic cholecystectomy surgery was indicated and not
contraindicated. (Dolich Decl., ¶ 13.) In addition, “Given that the surgery
documentation supports that the surgeon was unable to identify any
intraoperative injury to the bowel or other organs, it was not below the
standard of care for any hospital staff members not to have identified injury
intraoperatively, assuming they would have even been in a position to visualize
the operative field.” (Dolich Decl., ¶ 14.) Once Mrs. Gaitan was moved to the
recovery room, Providence’s nursing staff and anesthesiologist assessed and
monitored her appropriately at all times, and Mrs. Gaitan met all criteria to
be discharged. (Dolich Decl., ¶ 15.) Dr. Dolich was “unable to identify any
departure from the standard of care by hospital staff during the postoperative
period.” (Dolich Decl., ¶ 15.) Further, “[b]ased upon the deposition testimony
of Mrs. Gaitan, the first that she recalls significant pain following surgery
was on the trip home from the hospital after discharge on the date of the
surgery.” (Dolich Decl., ¶ 16.) “When the patient returned to the hospital on
March 16, 2019, she was appropriately assessed by hospital staff, and her complaints
and status were conveyed to her physician(s), including Dr. Samuel, in
compliance with the standard of care.” (Dolich Decl., ¶ 17.) “The care the
patient received from hospital staff while she was hospitalized at PHCMC on all
occasions thereafter was prudent and complied with the standard of care.” (Dolich
Decl., ¶ 18.)
Further, it is Dr. Dolich’s “opinion that
no act or omission by [Providence’s] hospital staff contributed to the
complications of which [Mrs. Gaitan] complains by way of this lawsuit.” (Dolich
Decl., ¶ 19.)
The Court finds that Providence Health
has met its burden of showing that Mrs. Gaitan’s first cause of action for
medical negligence against the defendant has no merit by showing that at least
one element (breach of duty) for that cause of action cannot be established.
(Civ. Code Proc., § 437c, subd. (p)(2).)
Therefore, the burden shifts to
Plaintiffs to show that a triable issue of one or more material facts exists as
to their medical negligence cause of action. (Civ. Code Proc., § 437c, subd.
(p)(2).) Plaintiffs have not opposed the
motion, and therefore, have not produced any evidence to meet their own burden.
An expert declaration, if
uncontradicted, is conclusive proof as to the prevailing standard of care and
the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999 [“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. [Citation.]
This rule has been applied in California to medical malpractice cases
…”].) Therefore, since Dr. Dolich’s declaration is uncontradicted, it
remains conclusive proof of the prevailing standard of care and propriety of
Providence’s staff.
Accordingly, the Court finds that
Plaintiffs have failed to meet their burden to show a triable issue of one or
more material facts exists as to the first cause of action for medical
negligence.
B.
Second Cause of
Action for Loss of Consortium
“By
definition, … a loss of ‘consortium’ is the loss of certain rights and privileges
inhering in [a] marital relationship, including companionship, emotional
support, love, and sexual relations.” (Zwicker v. Altamont Emergency Room
Physicians Medical Group (2002) 98 Cal.App.4th 26, 30.) “‘[I]n California
each spouse has a cause of action for loss of consortium ... caused by a
negligent or intentional injury to the other spouse by a third party.’
[Citation.]” (Ibid.)
“‘[L]oss
of consortium is not a derivative cause of action. While the cause of action is
triggered by [a] spouse’s injury, ‘a loss of consortium claim is separate and
distinct.... [Citations.]” [Citation.]’ [Citation.]” (Leonard v. John Crane,
Inc. (2012) 206 Cal.App.4th 1274, 1279.)
“There
are four elements to a cause of action for loss of consortium: ‘(1) a valid and
lawful marriage between the plaintiff and the person injured at the time of the
injury; [¶] (2) a tortious injury to the plaintiff’s spouse; [¶] (3) loss of
consortium suffered by the plaintiff; and [¶] (4) the loss was proximately
caused by the defendant’s act.’ [Citations.]” (Vanhooser v. Superior Court
(2012) 206 Cal.App.4th 921, 927 [emphasis removed] (“Vanhooser”).)
“Injury
is an essential element of any cause of action,” and, therefore, “[w]ithout
injury to the spouse, the plaintiff has no loss of consortium claim. Thus, a
cause of action is not complete in the sense it is not actionable, without
spousal injury.” (Vanhooser, supra, 206 Cal.App.4th at pp.
927-928.)
Here,
the Court finds that Providence has met its burden of showing that Mr. Gaitan’s
second cause of action for loss of consortium against Defendant Providence has
no merit by showing that at least one element (tortious injury to Mrs. Gaitan)
cannot be established. (Civ. Code Proc., § 437c, subd. (p)(2).)
Therefore,
the burden shifts to Plaintiffs to show that a triable issue of one or more
material facts exists as to the loss of consortium cause of action. (Civ. Code
Proc., § 437c, subd. (p)(2).)
As
stated above, Plaintiffs have not filed an opposition. Therefore, they have failed
to meet their burden.
Therefore, Providence
has shown it is entitled to summary judgment.
Conclusion
Accordingly, Defendant Providence Health
System – Southern California dba Providence Holy Cross Medical Center’s
(erroneously sued as Providence Holy Cross Medical Center) motion for
summary judgment is GRANTED.
Moving party is
ordered to give notice.