Judge: Teresa A. Beaudet, Case: 23STCV13225, Date: 2024-07-30 Tentative Ruling

Case Number: 23STCV13225    Hearing Date: July 30, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Maribel Avila (“Plaintiff”) filed this action on June 9, 2023 against Defendants Alfred Hong, MD, FACOG; Jamie Chia Lin, MD; Jonathan Azizzadeh, MD; Joseph Matthew Nussbaum, MD; Ben B Ha, MD, FACOG; and CHA Hollywood Presbyterian Medical Center. The Complaint alleges one cause of action for medical negligence.

Joseph Matthew Nussbaum, M.D. (“Nussbaum”) now moves for an order granting summary judgment in his favor and against Plaintiff. The motion is unopposed. 

Legal Standard

“[A] motion for summary judgment shall be granted 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 a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid.) 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.)¿ 

“A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” ((Code Civ. Proc., § 437c, subd. (p)(2).)

Discussion

A.    Allegations of the Complaint

In the Complaint, Plaintiff alleges that “on June 8, 2022, Plaintiff underwent a caesarian section and bilateral tube ligation at the facilities of CHA HOLLYWOOD PRESBYTERIAN MEDICAL CENTER. The procedure was performed by Defendant ALFRED HONG, MD, FACOG, the attending provider and JONATHAN AZIZZADEH, MD assisted.” (Compl., ¶ 20.) Plaintiff alleges that “[t]he procedure and the following care and treatment were negligently [sic] resulting in a post-partum hemorrhage.” (Compl., ¶ 20.) Plaintiff also alleges that “[o]n June 8, 2022, Defendants ALFRED HONG, MD, FACOG, JAMIE CHIA LIN, MD, and JONATHAN AZIZZADEH, MD, negligently performed a D&C and total abdominal hysterectomy. During the procedure, Plaintiff MARIBEL AVILA’s colon was negligently perforated.” (Compl., ¶ 21.)

Plaintiff alleges that “[o]n June 10, 2022, Defendant JOSEPH MATTHEW NUSSBAUM, MD, provided an infectious disease consult for a suspected infection. Defendant JOSEPH MATTHEW NUSSBAUM, MD negligently attributed MARIBEL AVILA with isolated fever and leukocytosis after acute blood loss anemia without performing or ordering any further blood work or imaging to further determine the cause of MARIBEL AVILA’s symptoms.” (Compl., ¶ 22.) Plaintiff alleges that “[o]n June 13, 2022, despite ongoing abdominal distention and pain, elevated WBC, tachycardia, nausea, vomiting, and other ongoing symptoms, without performing or ordering any further blood work or imaging to further determine the cause of MARIBEL AVILA’s symptoms, [sic] was discharged from CHA HOLLYWOOD PRESBYTERIAN MEDICAL CENTER.” (Compl., ¶ 23.)

Plaintiff alleges that “[a]s a direct and proximate result of the acts and omissions of the Defendants, Plaintiff MARIBEL AVILA sustained serious and severe personal injuries, as well as pain, suffering, and mental and emotional anxiety. Said injuries have caused and will continue to cause Plaintiff MARIBEL AVILA to sustain pain, physical disability, disfigurement, anxiety, and disruption of the nervous system, all to her general damages according to proof at the time of trial.” (Compl., ¶ 24.) “As a further direct and proximate result of the acts and omissions of the Defendants, Plaintiff MARIBEL AVILA was compelled to and did employ the services of physicians, surgeons, nurses and the like to handle and care for Plaintiff MARIBEL AVILA’s treatment, thereby incurring medical, professional and incidental expenses.” (Compl., ¶ 25.) “Specifically, on or around June 15, 2022, Plaintiff MARIBEL AVILA was admitted to LAC+USC Medical Center where she underwent an emergency exploratory laparotomy [sic] was diagnosed with multiple colon perforations. Due to the severity of injuries MARIBEL AVILA had to undergo multiple extensive surgeries and procedures, suffered from septic shock, kidney failure, and other injuries.” (Compl., ¶ 26.)

B.    Plaintiff’s First Cause of Action for Medical Negligence

“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.” ((Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 [internal citations omitted].)

As set forth above, in the first cause of action, Plaintiff alleges that “[o]n June 10, 2022, Defendant JOSEPH MATTHEW NUSSBAUM, MD, provided an infectious disease consult for a suspected infection. Defendant JOSEPH MATTHEW NUSSBAUM, MD negligently attributed MARIBEL AVILA with isolated fever and leukocytosis after acute blood loss anemia without performing or ordering any further blood work or imaging to further determine the cause of MARIBEL AVILA’s symptoms.” (Compl., ¶ 22.)

In support of the instant motion, Nussbaum submits the Declaration of Patrick Joseph, M.D., a physician licensed to practice medicine in the State of California. (Joseph Decl., ¶ 1.) Nussbaum asserts that “[t]he Declaration of Dr. Joseph establishes Dr. Nussbaum’s care and treatment of plaintiff was, at all times relevant to this matter, within the applicable standard of care. Thus, Dr. Nussbaum did not breach his legal duty to plaintiff.” (Mot. at p. 9:1-3.) Nussbaum also asserts that “plaintiff cannot establish a triable issue of fact as to the alleged negligence by Dr. Nussbaum, and to that end, plaintiff cannot establish causation within the requisite degree of medical certainty.” (Mot. at p. 9:13-15.)

            In his support declaration, Dr. Joseph states that “Plaintiff was seen in consultation by Infectious Disease Physician, Dr. Joseph Nussbaum on June 10, 2022. Dr. Nussbaum noted he was requested to consult regarding plaintiff’s leukocytosis and for ‘advice for therapy of a suspected infection.’” (Joseph Decl., ¶ 10.) “Dr. Nussbaum noted plaintiff underwent C-section and bilateral tube ligation wherein 500 ml of blood loss was reported. Postoperatively, plaintiff developed significant bleeding, was transfused, and a recommendation was made to undergo D&C and possible hysterectomy. The hysterectomy was performed supracervically and plaintiff sustained another 400 ml of intraoperative blood loss. She was stabilized, extubated, and ‘had a single temperature.’” (Joseph Decl., ¶ 10.) Dr. Joseph states that “Dr. Nussbaum noted the laboratory work revealed a white blood cell count of 17,000, hemoglobin of 9, and platelets of 174. Dr. Nussbaum’s impression included isolated postoperative fever and leukocytosis after acute blood loss anemia. Dr. Nussbaum noted both the fever and leukocytosis ‘could be due to the brisk bleeding she encountered, but infection would be difficult to exclude.’ Dr. Nussbaum recommended continued antibiotics, including ceftriaxone and metronidazole.” (Joseph Decl., ¶ 10.)

Dr. Nussbaum saw Plaintiff again on June 13, 2022. (Joseph Decl., ¶ 12.) “Plaintiff had no complaints and reported her pain was diminishing. Plaintiff also reported she had a bowel movement, was voiding, eating, and ambulating.” (Joseph Decl., ¶ 12.) “Dr. Nussbaum’s examination revealed plaintiff was afebrile, although she remained hypertensive. Her lungs were clear to auscultation and her abdomen was soft, nontender with the surgical dressings clean, dry, and intact. Dr. Nussbaum’s assessment included reactive leukocytosis after a massive bleed. His plan was to stop the ceftriaxone and noted it was ‘okay with me to go home.’” (Joseph Decl., ¶ 12.)

Dr. Joseph states that “[b]ased upon my review of the materials, it is my opinion the care and treatment provided to plaintiff by Dr. Nussbaum was at all times appropriate and within the applicable standard of care. I do not believe Dr. Nussbaum was required to provide any more care above and beyond what is recorded in the chart.” (Joseph Decl., ¶ 15.) Dr. Joseph states that

“I believe Dr. Nussbaum’s care of plaintiff on June 10, 2022 was appropriate and within the standard of care. Dr. Nussbaum’s clinical examination was benign. Plaintiff’s abdomen was soft, rounded, and tender at the incision site. The surgical wound was noted to be covered with clean and dry surgical dressings. Dr. Nussbaum noted plaintiffs white blood count was 17, with a hemoglobin of 9 and platelets of 174. I believe Dr. Nussbaum’s assessment of an isolated fever and leukocytosis after acute blood loss anemia was appropriate and accurate. I also believe Dr. Nussbaum’s recommendations to continue the IV antibiotics was also appropriate.” (Joseph Decl., ¶ 16.)

            In addition, Dr. Joseph states that “I believe Dr. Nussbaum’s care of plaintiff on June 13, 2022 was appropriate and within the standard of care. Dr. Nussbaum’s clinical examination was again benign. Plaintiff’s abdomen was soft and nontender, and the surgical dressings were clean, dry, and intact. Plaintiff was afebrile with no complaints. She reported her pain was diminishing, she had a bowel movement, was voiding, eating, and ambulating. I believe Dr. Nussbaum’s assessment of a reactive leukocytosis after a massive bleed was appropriate and accurate. I also believe Dr. Nussbaum’s recommendations to stop the IV antibiotics was also appropriate. I do not believe the standard of care required Dr. Nussbaum to do anything more than what is reflected in the chart.” (Joseph Decl., ¶ 17.)

            Dr. Joseph states that “[i]t is my further professional opinion no negligent act or failure to act on the part of Dr. Nussbaum played any role in causing or contributing to plaintiff’s alleged injuries. As I believe all of the care provided to plaintiff by Dr. Nussbaum was at all times appropriate, no negligence on the part Dr. Nussbaum played any role in causing or contributing to plaintiffs alleged injuries.” (Joseph Decl., ¶ 18.)

            Based on the foregoing, the Court finds that Nussbaum has met his initial burden of demonstrating that Plaintiff’s cause of action against him for medical negligence is without merit. Plaintiff did not file any opposition to the instant motion. Thus, the Court does not find that Plaintiff has raised a triable issue of material fact as to her cause of action for medical negligence. Accordingly, the Court grants Nussbaum’s motion for summary judgment.

            Conclusion

Based on the foregoing, Nussbaum’s motion for summary judgment is granted. The Court orders Nussbaum to file and serve a proposed judgment within 10 days of the date of this Order.

Nussbaum is ordered to provide notice of this Order. 

DATED:  July 30, 2024                                  ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court