Judge: Theresa M. Traber, Case: 23STCV00075, Date: 2025-01-16 Tentative Ruling
Case Number: 23STCV00075 Hearing Date: January 16, 2025 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: January 16, 2025 TRIAL
DATE: May 13, 2025
CASE: Melissa Hansen, et al., v. Jodie
Votava-Smith, et al.
CASE NO.: 23STCV00075 
MOTION
FOR SUMMARY JUDGMENT
MOVING PARTY: Defendant Jodie Votava-Smith, M.D.
RESPONDING PARTY(S): Plaintiffs Melissa
and Collier Hansen, individually and as successors in interest to Maia Hansen.
CASE
HISTORY:
·
01/03/23: Complaint filed.
·
03/20/23: First Amended Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a wrongful death and medical malpractice action. Plaintiffs
allege that Defendants acted below the standard of care in treating their
newborn child’s cardiovascular syndromes.
Defendant Jodie Votava-Smith, M.D.,
moves for summary judgment.
TENTATIVE RULING:
Defendant’s Motion for Summary
Judgment is DENIED.
DISCUSSION:
Defendant Jodie Votava-Smith, M.D, moves
for summary judgment.
Legal Standard
The function of a motion for
summary judgment or adjudication is to allow a determination as to whether an
opposing party can show evidentiary support for a pleading or claim and, if
not, to enable an order of summary dismissal without the need for trial. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil
Procedure Section 437c(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, 381-82.)
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. (Code Civ Proc. § 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.) The lack of opposition by a plaintiff is
not grounds to grant a motion for summary judgment if a defendant cannot meet
their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000)
79 Cal.App.4th 1081, 1087.)
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.)
Professional Negligence
Defendant Votava-Smith
moves for summary judgment on the grounds that she cannot be liable under a
theory of professional negligence because she complied with the standard of
care during her treatment of the decedent and did not cause or contribute to
the alleged injuries.
Plaintiffs assert a claim for
wrongful death due to professional negligence under the first cause of action
and a survivorship claim under the same theory in the third cause of action.
(FAC ¶¶ 52-62; 74-77.) 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.) In a medical negligence action,
the standard of care is a matter that must be established by expert testimony.
(See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632-33.) The
causal connection between the negligent conduct and the injury is similarly a
matter of expert testimony, and that testimony must establish that the injury
was more likely than not the result of medical negligence. (Jones v.
Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.)
The First
Amended Complaint alleges that the doctor Defendants failed to adhere to the
standard of care in treating the infant decedent Maia Hansen by (1) failing “to
deem Maia an emergent ENCI level four case after discovering pulmonary vein
flow reversal on her fetal echocardiogram on August 31, 2021” (FAC ¶ 56); (2)
failing to instruct Plaintiffs to deliver at the closest available hospital,
rather than Huntington Memorial Hospital “to facilitate immediate treatment for
suspected atrial restriction,” (Id.) and (3) failing “to act on the
clear and demonstrated need to perform a balloon atrial septostomy prior to the
Norwood procedure after Maia’s first postnatal echocardiogram.” (Id.) Plaintiffs
allege that this failure was a direct cause of Maia’s death. (FAC ¶ 60.)
In support
of her contention that she complied with the standard of care, Dr. Votava-Smith
offers the expert testimony of Dr. Wyman Lai, a board-certified pediatric and
fetal cardiologist licensed to practice medicine in California. (Declaration of
Wyman W. Lai ISO Mot. ¶¶ 2-4.) Dr. Lai testifies that, based on his review of
the medical records and his own expertise, Dr. Shah complied with the standard
of care in providing treatment. (Separate Statement of Undisputed Material Fact
No. 30.) Dr. Lai testifies that Defendant correctly diagnosed Maia with “Shones
Syndrome Variant,” that the notation of a possible Ventricular Septum Defect
was reasonable and a “common mistake,” that Maia was correctly designated an
ENCI category 3 case, and that surgical intervention, including a balloon
atrial septostomy, was not required. (SSUMF No. 31.) Dr. Lai further elaborates
that the ENCI category 3 designation was proper because Maia was stabilized for
the first 24 hours without surgery, there was no evidence of obstruction in the
first four hours, Maia tolerated transfer “without incident” and did not
require intubation until mid-day October 6, 2021. (SSUMF No. 34.) Because Maia
did not have evidence of severe pre-natal obstruction or obstruction within the
first 24 hours of life, and because Maia was given prostaglandin to prevent
closure the patent ductus arteriosus, Dr. Lai testifies that a balloon atrial
septostomy was not required. (No. 35.) Dr. Lai also opines that Defendant
appropriately counselled Plaintiffs to deliver at a center comfortable with
complex neonatal congenital heart defects, as CHLA does not have a delivery
room. (SSUMF No. 36.) Defendant has offered substantial evidence tending to
show that Plaintiffs’ claims against her lack merit because she complied with
the standard of care. The burden therefore shifts to Plaintiffs to demonstrate
a triable issue of fact in this respect.
In
opposition, Plaintiffs put forward contrary expert testimony by Dr. Pushpa
Shivaram, a board-certified pediatrician and specialist in pediatric
cardiovascular disease licensed to practice medicine by the State of Georgia.
(Declaration of Pushpa Shivaram ISO Opp. ¶¶ 1-2.) Dr. Shivaram opines, based
upon her review of the medical records and her own expertise, that the
physicians’ treatment of Maia fell below the standard of care and directly led
to Maia’s death. (Separate Statement of Disputed Fact Nos. 30-36; Shivaram
Decl. ¶ 7.) Specifically, Dr. Shivaram testifies that Defendant failed to
recognize the absence of a ventricular septum defect, that Maia’s records
indicate that she in fact should have been designated ENCI category 4, and that
Maia should have been delivered via scheduled Cesarian section immediately, and
the failure to do so fell below the standard of care. (Id.) In reply,
Defendant attacks the credibility of Dr. Shivaram’s opinions but fails to offer
formal objections to that testimony. Expert credibility is a question of fact
not suited to resolution on summary judgment. For that reason, Plaintiffs’
contrary testimony demonstrates the existence of a triable issue of fact
regarding Defendant’s adherence to the standard of care.
With
respect to the issue of causation, Dr. Lai also testifies, based on the same
records, that no act or omission by Defendant caused or contributed to Maia’s
death. (SSUMF No. 40.) However, although Dr. Lai offers this opinion based upon
his education, training, experience, knowledge, and review of the records, his
opinion is not offered “to a reasonable degree of medical probability,” nor
does he state that causation “to a reasonable degree of medical probability”
cannot be established. (Lai Decl. ¶ 13.) As of January 1, 2024, Evidence Code section
801.1 states:
(a) In a general
civil case, as defined in Rule 1.6 of the California Rules of Court, where the
party bearing the burden of proof proffers expert testimony regarding medical
causation and where that party's expert is required as a condition of
testifying to opine that causation exists to a reasonable medical probability,
the party not bearing the burden of proof may offer a contrary expert only if
its expert is able to opine that the proffered alternative cause or causes each
exists to a reasonable medical probability, except as provided in subdivision
(b).
(b) Subdivision (a)
does not preclude a witness testifying as an expert from testifying that a
matter cannot meet a reasonable degree of probability in the applicable field,
and providing the basis for that opinion.
(Evid. Code § 801.1.) Professional negligence in a medical
context requires a plaintiff to proffer expert testimony establishing causation
“to a reasonable medical probability.” (Belfiore-Braman v. Rotenberg
(2018) 25 Cal.App.5th 234, 247.) Thus, any expert testimony offered by
Defendant as to causation must be offered “to a reasonable medical probability”
whether offering an alternative cause or merely to state affirmatively that the
cause proffered by Plaintiffs cannot meet that standard. As Dr. Lai’s testimony
offers no such opinion, the Court cannot find that Defendant has offered
appropriate evidence of the absence of causation. Consequently, the burden does
not shift to Plaintiffs to demonstrate a triable issue of fact in this respect.
CONCLUSION:
Accordingly, Defendant’s Motion
for Summary Judgment is DENIED.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: January 16,
2025 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still conduct
a hearing if any party appears. By submitting on the tentative you have, in
essence, waived your right to be present at the hearing, and you should be
aware that the court may not adopt the tentative, and may issue an order which
modifies the tentative ruling in whole or in part.