Judge Thomas Falls, Case 20STCV20574 2023-01-26 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

DEFENDANT, PAWAN VERMANI, M.D.’S MOTION FOR SUMMARY JUDGEMENT OR IN THE ALTERNATIVE MOTION FOR ADJUDICATION

DEFENDANT, PAWAN VERMANI, M.D.’S MOTION FOR SUMMARY JUDGEMENT OR IN THE ALTERNATIVE MOTION FOR ADJUDICATION is GRANTED in its entirety, notably for Plaintiff’s failure to provide admissible evidence.

This is a medical malpractice case. Plaintiff XIAO CHEN alleges the following against Defendants KINDRED HOSPITAL BALDWIN PARK (“Hospital”); DR. PA WAN VERMANI (“Dr. Vermani”); and CHEN LI (“Defendant Li”): Plaintiff Chen is the spouse of decedent Decheng Li. Plaintiff alleges that commencing on or about May 19, 2019, the Hospital’s and Dr. Vermani’s negligent and intentional conduct caused the decedent’s death on June 3, 2019.[1]

On March 10, 2021, the court sustained Dr. Vermani’s demurrer with leave to amend.

On March 30, 2021, Plaintiff filed her Second Amended Complaint (“SAC”) against Defendants for: 1. WRONGFUL DEATH-MEDICAL MALPRACTICE; 2. SURVIVAL ACTION; 3. FRAUD/DECEIT/INTENTIONAL MISREPRESENTATIONS; 4. ELDER ABUSE - VIOLATION OF WEL. & INST. CODE.

On July 19, 2022, the Hospital filed a Motion for Summary Judgment (hearing on March 1, 2023).

On December 22, 2022, Plaintiff filed her Opposition to Dr. Vermani’s MSJ/MSA.

The law of summary judgment provides courts “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 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “The 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).)

A moving defendant bears the initial burden of production to show 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, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, supra, at p. 849.) Specifically, “[t]he opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (2).)

This malpractice includes negligent provision of medical treatment, failure to diagnose life threatening illness and infection, negligent administration of drugs and controlled substances, failure to maintain proper and adequate documentation of treatment administered, negligent administration of hospital staff, negligent administration of medical facility staff, failure to supervise medical staff and further failure to provide proper and competent medical services.

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.)

A cause of action for wrongful death is a statutory claim. (See Code Civ. Proc., §§ 377.60-377.62; See also Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) The elements of the cause of action for wrongful death are (1) the tort (negligence or other wrongful act), (2) the resulting death, and (3) the damages, consisting of the pecuniary loss suffered only by those persons who, because of their relation to the deceased, are presumed to be injured by his or her death, not by persons who are not in the chain of intestate succession. (See Quiroz v. Seventh Ave. Center, supra, 140 Cal.App.4th at pp. 1263-1264.)

“Both the standard of care and defendants' breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.) 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.) “When the moving party produces a competent expert declaration showing there is no triable issue of fact on an essential element of the opposing party's claims, the opposing party's burden is to produce a competent expert declaration to the contrary.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761-762.)¿ Ultimately, where the party moving for summary judgment rests on expert opinion, the opposing party can only defeat the motion by presenting “conflicting expert evidence.” (Hanson v. Goode (1999) 76 Cal.App.4th 601, 606-607.) However, the expert's opinion must rest on a sound evidentiary foundation. An expert's opinion regarding matters not in evidence has no probative value and will not support summary judgment. If the record lacks independent evidence of a patient's treatment history, the expert may not establish those facts simply by describing or relating the contents of medical records on which he or she relied to form an opinion. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743.) Expert declarations may be based on hospital and medical records if they are properly authenticated. (Ibid.) The expert opinions offered by the defendant in support of summary judgment must be supported by reasons based upon evidentiary facts, not bare conclusions without explanation or analysis. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524, [error for trial court to grant summary judgment in favor of defendant physician in medical malpractice action based upon conclusory declaration of medical expert].) In contrast, the expert declaration submitted by a plaintiff opposing summary judgment is construed “liberally,” with the court resolving “any doubts as to the propriety of granting the motion in favor of the plaintiff.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-26.)

Dr. Vermani argues that there is no evidence that he failed to comply with the applicable standard of care during his care and treatment of decedent. (Motion p. 12.) In support of its contention, Dr. Vermani offers the expert evidence of Dr. Christopher B. Cooper (“Dr. Cooper”).[4]

Turning to Dr. Cooper’s declaration, he provides the following relevant facts:

i. Dr. Vermani continued to perform pulmonary consultations during the patient’s admission at Queen of the Valley Hospital from May 3, 2019 until he was discharged on May 15, 2019.

ii. While at Queen of the Valley, Dr. Vermani appropriately managed the patient’s pulmonology needs by ordering oxygen, BiPAP, breathing treatments, repeat radiology to evaluate the chest and various antibiotics to treat the community acquired pneumonia. He was correctly and successfully managed by Dr. Vermani with ceftriaxone, azithromycin, furosemide and NIPPV. He was recognized at this point to be a high aspiration risk. Although still having serious underlying medical problems he was stable enough to be discharged to long-term acute care (Kindred Hospital) on May 15, 2019.

iii. Throughout decedent’s entire stay at the Hospital, either Dr. Vermani himself issued progress reports, a nurse made notes, or another physician (Dr. Brian Leberthon) authored progress notes.

v. Throughout his hospitalization, Dr. Vermani appropriately recognized the patient to be at serious risk of aspiration and was being managed with appropriate aspiration precaution.

Based on the foregoing conduct, Dr. Cooper concluded that it his “expert opinion to a reasonable degree of medical probability that Defendant Pawan Vermani, M.D. met the applicable standard of care at all times relative to Decedent DeCheng Li’s care and treatment. No evidence of substandard care exists.” (Cooper Decl., ¶15.)

Therefore, Dr. Cooper’s declaration—demonstrating that Dr. Vermani adhered to standard care management—demonstrates that Dr. Vermani did not breach his duty to the decent.

Though the court need not address causation because Dr. Vermani conclusively negated an element of Plaintiff's cause of action for medical negligence/wrongful death (i.e., element of breach),[5] the court will nevertheless do so as Dr. Vermani has offered evidence of it.

In a medical malpractice action, a plaintiff must prove the defendant's negligence was a cause-in-fact of injury. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1502.) “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based [on] competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances [that] can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402–403.) Thus, proffering an expert opinion that there is some theoretical possibility the negligent act could have been a cause-in-fact of a particular injury is insufficient to establish causation. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775–776.) “[W]hen the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to determine the issue in favor of the defendant as a matter of law.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 485.)

i. Starting when Dr. Lui[6] took over management of the patient on June 2, 2019 up until his death the morning of June 3, 2019, per Dr. Lui’s orders, the patient was administered over 3,780mL of intravenous fluid during the 24 hours prior to his cardiac arrest causing the patient further fluid burden and likely pulmonary edema. This fluid overload continued into to the morning of June 3, 2019 and the patient had an acute worsening of his condition per critical troponin and creatine kinase blood values (values indicative of significant ischemic episode or massive heart attack).

ii. Once care was transitioned to Dr. Lui on June 2, 2019 from Dr. Vermani, Dr. Lui ordered more than 3,780mL of fluids within 24 hours, which likely accelerated the patient’s expiration due to heart failure due to being overstretched from this extra fluid, leading to passive injection of fluid into the lungs causing accumulation of fluid in his lungs (pulmonary edema). This fluid overload is a life-threatening event.

iii. The next morning, on June 3, 2019, per a nursing note, at 9:08 a.m., the nurse called Dr. Lui’s office due to critical lab values of troponin of 10.69 and CKMB [creatine kinase blood] of 37.54 at 8:54 a.m. A woman answered the call and told the nurse that the “office will be open at 9:30 a.m., call after 9:30.” She refused to take a message or give another number for Dr. Lui. At 9:56 a.m., the nurse noted she called Dr. Lui now twice and left two messages regarding critical lab results. On June 3, 2019, per a nursing note, at 10:50 a.m., after three rounds of CPR, Dr. Lui finally made rounds at Kindred Hospital. He spoke to the family who agreed to stop CPR. At 11:15 a.m., Dr. Lui announced expiration.

iv. Per the patient’s death certificate, the patient’s death was caused by acute cardiac dysfunction and chronic atherosclerotic cardiovascular disease, with contribution from his prior co-morbidities.[7]

Based on the foregoing, Dr. Cooper issued the following conclusion: Decedent’s death due to heart failure and accumulation of fluid in the lungs was “likely caused by the fluid retention from his ongoing congestive heart failure and the additional fluid overload caused by the intravenous fluids that Dr. Lui ordered in the patient’s last 24 hours as evidenced by the high troponin levels, and then the cardiac arrest that caused the death of the patient. (See Cooper Decl., ¶¶24, 27.)[8]

Therefore, the expert evidence shows that Dr. Vermani’s care was not even a possible cause let alone a probable cause to decedent’s death because he did not die from an infection. (See also Cooper Decl., ¶32 [Dr. Cooper concludes that decedent’s death was “not due to any negligence on Dr. Vermani’s part . . . that no act or omission on the part of Dr. Vermani caused or significantly contributed to Decedent’s death.”].)

Effectively, as Dr. Vermani has now conclusively negated another element of Plaintiff's cause of action for medical negligence/wrongful death, the burden shifts to Plaintiff to show that a triable issue of material fact.

Plaintiff argues that its evidence establishes that the decedent’s respiratory condition worsened under Dr. Vermani’s care and his failure to provide competent medical care. More specifically, Plaintiff argues that decedent died from interstitial pneumonitis, which Dr. Vermani failed to detect and that had he detected the pneumonitis and administered proper antibiotics and steroids, decedent’s death could have been prevented (Opp. pp. 12-14) (emphasis added).

In support of its contention, Plaintiff relies on Dr. Adrienne Burrow’s (“Dr. Burrow”) expert evidence. Before addressing Dr. Burrow’s medical conclusions, the court will address whether Dr. Burrow’s declaration is admissible evidence.

Dr. Vermani argues that Dr. Burrow’s declaration is speculative, lacks foundation and is irrelevant. (Defendant’s Objections, p. 1.) More specifically, Dr. Vermani argues that because as a pulmonologist any refuting evidence must also come from a pulmonologist (as is Dr. Cooper), Dr. Burrows is not qualified to opine on the subject at issue because she is not familiar with the standard of care in that medical specialty.

In support of its contention, Dr. Vermani only relies on Sinz v. Owens (1949) 33 Cal.2d 749. However, Dr. Vermani’s emphasis on the court’s language that requires “practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the defendant charged with malpractice” is misplaced because the court focused on practical necessity as one “based upon geographical considerations.” (Id. at p. 754) (emphasis added). Here, however, locality is not a point of contention. In fact, the Sinz court primarily focused its analysis on locality and did not expressly require that only a specialist can offer expert testimony. Accordingly, the court does not determine that Dr. Burrows is an unqualified expert because she does not specialize in pulmonology.

Notwithstanding the foregoing, Dr. Vermani’s Reply offers a more persuasive reason as to why Dr. Burrows’ declaration is inadmissible: her opinion is conclusory because it is unaccompanied by a reasoned explanation.[9] The court agrees.

i. It is to a reasonable medical probability that Plaintiff’s husband died as a result of interstitial pneumonitis.

ii. The patient was for long periods of times treated with a form of mechanical ventilation referred to as BiPap.

iii. Interstitial pneumonitis is a condition known to develop with patients who are ventilated for a prolong period of time, and in care facilities that neglect their patients, as is apparently the case in this matter, which included a failure of the facility to properly sterilize and maintain sterilization of the mechanical ventilator machine.

Based on the foregoing facts, Dr. Burrows draws the following conclusion: If Dr. Vermani had timely detected the interstitial pneumonitis and taken proper measures, Dr. Vermani could have controlled the interstitial pneumonitis and prevented decedent’s death. (Burrows Decl., ¶4(f).) However, as noted by Dr. Vermani, Dr. Burrows does not point to specific facts (foundation) nor provide a medical reasoning that supports her medical conclusion.

Regarding the standard of care, Dr. Burrows states that Dr. Vermani failed to administer antibiotics; yet, the medical records show the contrary: Dr. Vermani had already ordered continued antibiotics as of May 24, 2019. Dr. Burrows does not state what Dr. Vermani was supposed to do differently. Was he to order a different set of antibiotics? Or was he to administer a different dosage? (Reply p. 6.)[10] What’s more, Plaintiff does not cite to any fact (in the medical records), such as that (i) Hospital failed to follow a cleaning protocol, (ii) the Hospital used an incorrect cleaning agent, (iii) deposition testimony that the Hospital failed to sanitize the BiPap, or (iv) that Dr. Vermani was in custody or control of the BiPap and had a responsibility to sanitize it. (Reply p. 5.) Effectively, Dr. Burrows is assuming the existence of a fact (a non-sterilized ventilator).

As such, not only does Dr. Burrows not explain the standard of care, but she also fails to explain how Dr. Vermani alleged breached any such standard of care.

Regarding her medical conclusion that decedent died for interstitial pneumonia, Dr. Burrows “does not identify anywhere in the progress notes, vital signs, or lab results that the patient had signs or symptoms of pneumonia or some other infection.” (Reply p. 5) (emphasis added). In fact, absent contrary evidence, Dr. Cooper stated that the decedent did not die from interstitial pneumonia. (See Cooper Decl., ¶14(ll) [A culture from tracheal aspirate collected from the patient on June 3, 2019 showed normal oropharyngeal flora.], ¶28 [“A culture from tracheal aspirate collected from the patient on June 3, 2019 showed normal oropharyngeal flora, thus, the patient was not suffering from an ongoing infection on the date of his death.”], see also Ex. C ‘Medical Records’ [“Respiratory Culture & Gram Stain Heavy growth of normal oropharyngeal flora.”]) (emphasis added).

All in all, while the court disagrees with Dr. Vermani that only a specialist qualifies as a competent expert, the court cannot view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom when Dr. Burrows’ declaration not only provides conclusions without facts, but her medical conclusion(s) contradicts the very medical records both parties rely upon. Accordingly, considering her insufficient explanations and unfounded assumptions forming the basis for her conclusions, Dr. Burrows’ declaration lacks foundation and is insufficient to carry Plaintiff’s evidentiary burden.[11]

Therefore, the court GRANTS the MSJ as to the 1^st cause of action for medical malpractice.

Defendant VERMANI knowingly and intentionally concealed from decedent DECHENG LI that he had acquired an infection during his admission . . .

Concealing from decedent DECHENG LI, and his agents and representatives that, between May 19, 2019 and June 3, 2019 the existence, nature and extent of an infection that had developed in decedent DECHENG LI's lungs during his treatment with defendants . . .

On June 2, 2019, Defendant VERMANI expressly misrepresented to decedent DECHENG LI, Plaintiff and decedent's personal physician Dr. James Liu that decedent's medical condition was "stable", while defendant VERMANI knew that the infection defendants had allowed to persist and spread had caused a catastrophic physical systems failure in decedent in order to try to prevent Plaintiff and Dr. Liu from accessing decedent, and to try to prevent resuscitation of decedent . . .

On or about May 30, 2019; June 1, 2019 and June 2, 2019, defendant KINDRED and defendant VERMANI intentionally submitted false and fraudulent bills for services not rendered to decedent DECHENG LI in an effort to extract maximum monetary compensation for the patient; On or about June 2, 2019, defendant VERMANI knowingly and intentionally altered medical records relating to decedent DECHENG LI to falsely reflect medical treatment and services that were not actually provided to decedent;

In short, the basis of Plaintiff’s allegations for fraud is that (i) Dr. Vermani knew decedent had an infection but did not disclose the information; (ii) Dr. Vermani submitted false billings; and (iii) Dr. Vermani altered medical records.

“The essential allegations of an action for fraud are a misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage.” (Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.) “The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (b) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4^th 594, 606.) Further, “[f]raud must be pleaded with specificity…[t]o withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4^th 772, 782 [emphasis in original].) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (emphasis in original), quoting Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702, 707.)

Dr. Vermani argues that there is no evidence that he lied to Plaintiff about his condition based on Dr. Cooper’s evidence (concluding that Dr. Vermani appropriately treated decedent) and that Plaintiff deposition testimony (See Separate Statement No. 125, citing to Plaintiff Xiao Chen’s Deposition, Vol. 3, p. 50- 54, attached as Exhibit H.).[12] More specifically, Dr. Vermani argues that Plaintiff “only recalled speaking to Dr. Vermani, ‘the Indian doctor’ twice at Kindred Hospital. Plaintiff testified that she could not recall their conversation during this first meeting. Plaintiff testified that she spoke with Dr. Vermani a second time to discuss her husband’s medications. Then, Plaintiff testified that she never saw or spoke to Dr. Vermani again. Plaintiff never testified that Dr. Vermani intentionally misrepresented a fact about a lung infection or about Decedent’s cause of death.” (SS No. 125.)

Indeed, a review of the relevant pages indicates that Plaintiff “very, very rarely” spoke to Dr. Vermani and that she did not recall much of their discussions.

As for allegations of altered medical records, Plaintiff and her son testified that another doctor wrote in the medical records and took two pages from the chart.[13]

Therefore, Dr. Vermani has met his evidentiary burden that there are no triable issues of material fact as to fraud.

Plaintiff’s separate statement and motion provide no evidence, let alone evidence of fraud.

To the extent that Plaintiff relies on Dr. Burrows’ declaration to show that Dr. Vermani concealed pertinent medical information, her declaration is inadmissible (additioally, the court finds that the medical facts show otherwise).

Therefore, as Plaintiff has NOT met its evidentiary burden meaning it has failed to create a triable issue of material fact, the court GRANTS the MSJ/MSA as to the 3rd cause of action for fraud.

The basis for this cause of action is that Dr. Vermani “knowingly withheld necessary assistance with decedent DECHENG LI's basic needs, including withholding or denying essential medical treatment and intervention related to treatment of an infection.” (SAC ¶60.)

The elements of a cause of action for elder abuse and neglect are determined by the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”). (Welf. & Inst. Code § 15600 et seq.)

At the outset, the EADACPA excludes liability for acts of professional negligence; it does not apply to simple or gross negligence by health care providers. (Delaney v. Baker (1999) 20 Cal.4^th 23, 32; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4^th 771, 785.) Several factors “must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury must be pleaded with particularity, in accordance with the pleading rules governing statutory claims.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4^th 396, 406-407 [quotation marks and citations omitted].)

Neglect under the EADACPA “refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Sababin v. Superior Court (2006) 144 Cal.App.4^th 81, 89 [quotation marks and citation omitted].)

Dr. Vermani advances two arguments: (1) the cause of action does not apply because Dr. Vermani was not decedent’s care custodian and (2) Dr. Vermani’s care met the standard of care.

Here, the court will only focus on the second argument as it has already established that Dr. Cooper’s evidence clearly establishes Dr. Vermani met the standard of care such that if he was not negligent, then that inherently precludes greater liability associated with gross negligence and recklessness.

Based on the foregoing, the crux of the issue is whether there is evidence that Dr. Vermani’s medical treatment fell below the standard of care and, if it did, whether such breached caused decedent’s death. Plaintiff’s opposition consists of conclusions without supporting facts and fails to negate Dr. Vermani’s evidence. Therefore, while the death of decedent is undeniably an irreplaceable loss for Plaintiff and her family, Dr. Vermani acted as any reasonable medical professional would in like or similar circumstances, precluding his liability.

[1] Though not articulated in the SAC nor clearly explained in the MSJ, it appears that Dr. Vermani was the decedent’s doctor before decedent’s admission to the Hospital. More specifically, the decedent was admitted to Queen of the Valley Hospital on May 3, 2019, where Dr. Vermani tended to the decedent. Thereafter, on May 15, 2019, the decedent was discharged and transferred to Kindred Hospital, where Dr. Vermani was “the admitting physician” and continued to care for decedent. (See Dr. Vermani’s MSJ pp. 6-7.)

[2] The court notes that it is unclear what causes of action Dr. Vermani seeks judgment or adjudication on. The notice of the motion states that Dr. Vermani “move[s] this court for an order granting summary judgment or in the alternative adjudication as to the fraud and elder abuse causes of action,” (Motion p. 1:25-27), but the motion itself and the table of contents address all three causes of action.[2] Further confusion is created by the proposed order which only addresses the medical malpractice cause of action and evidence pertaining to the standard of care, breach, and causation. Notwithstanding the foregoing, the court will address all causes of action. (See § 21:54. Notice of motion for summary judgment [Code Civ. Proc., § 437c, subd. (a); Cal. Rules of Court, rule 3.1350], Cal. Civ. Prac. Procedure § 21:54 [“Under California Rules of Court, Rule 3.1113, a notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”].)

[3] As the pleading frames the issues, the crux of the medical malpractice cause of action is the allegation that Dr. Vermani failed to diagnose decedent with an infection. Accordingly, the evidence must speak to this infection and the required treatment for this infection.

[4] Dr. Cooper’s declaration complies with evidentiary requirements. (See Defendant’s Evidence, Ex. A.) His exceptional curriculum vitae, including his role as the director of UCLA’s COPD clinical and research programs and his work as a pulmonologist, illustrate his qualification to render an opinion in the present case as Dr. Vermani is a pulmonologist.

[5] See Aguilar, supra, 25 Cal.4th at p. 853.

[6] On June 2, 2019, the patient’s wife and son requested a different attending physician because the family wanted all Chinese speaking doctors on the case, so all consultations were cancelled as well. The new doctor, Dr. Liu, gave new physician consultation orders. All previous physicians were informed of the cancellation of their consultations. Dr. Vermani was notified that he could not see the patient anymore.

[7] Decedent’s co-morbidities include: 1) Decompensated congestive heart failure; 2) Rheumatic heart disease with aortic and mitral regurgitation; 3) Chronic atrial fibrillation; 4) Pulmonary hypertension; 5) Community acquired pneumonia; 6) Aspiration pneumonia; 6) Pemphigus vulgaris, 7) Steroid dependency; 8) Thrombocytopenia; 9) Systemic HTN; 10) CVA in 2015 with right hemiplegia and contractures; 11) Renal insufficiency; 12) Right renal hypotrophy; 13) Hypocalcemia; and 14) Herpes. (Cooper Decl., ¶16.)

[8] As explained by Dr. Cooper, “Dr. Lui ordered more than 3,780mL of fluids within 24 hours, which likely accelerated the patient’s expiration due to heart failure due to being overstretched from this extra fluid, leading to passive injection of fluid into the lungs causing accumulation of fluid in his lungs (pulmonary edema). This fluid overload is a life-threatening event.” (Cooper Decl., ¶26.)

[9] Of import, a comparison of Dr. Burrows’ declaration and Dr. Cooper’s declaration shows that the latter is deficient in the medical facts, reasoning, and conclusion offered.

[10] See also Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524-525 wherein concluding that the doctor’s opinion was unsupported by reasons or explanations explained that: “What was the nature of the disease or condition that required Kelley's surgery? Was it brought on by the laceration? What symptoms of this condition reasonably might have been observable at the time Kelley complained to Dr. Trunk of continuing intense pain unmediated by medication? Should a reasonable doctor at this point in time have recognized the possibility of severe complications? If so, why? If not, why not? Would complications of the kind Kelley eventually suffered have become evident any earlier than three or four days after the laceration? Would earlier intervention have mitigated Kelley's injury? Herndon's declaration addressed none of these issues. Without illuminating explanation, it was insufficient to carry Dr. Trunks's burden in moving for summary judgment.” Similarly, here, Dr. Burrows’ declaration leaves a myriad of questions as to what a reasonable doctor would have done differently.

[11] Based thereon, the court SUSTAINS Dr. Vermani’s evidentiary objection as to Dr. Burrows’ declaration.

[12] California Rules of Court Rule 3.1116 subsection (c) requires that a party must highlight relevant portions of any testimony used as an exhibit. Here, Dr. Vermani has attached numerous pages of deposition testimony, but has not highlighted the relevant portions thereof.

[13] And on this note, one would assume it is reasonable to take pages of a chart to possibly show other physicians, nurses or medical staff. Therefore, even if Dr. Vermani took two pages, there is a more likely explanation than fraud. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 507 [If the court determines that the evidence presented by the plaintiff and all of the reasonable inferences drawn therefrom show one or more of the elements of the cause of action only as likely as, or less likely than, or an absence of one or more of those elements, it must grant a defendant's motion for summary judgment.”].)