Judge: Virginia Keeny, Case: 18STCV00999, Date: 2023-02-16 Tentative Ruling

Case Number: 18STCV00999    Hearing Date: February 16, 2023    Dept: W

NANCY RYAN, et al. v. KLAUS SEE-THO, M.D., et al.

Defendant west hills hospital’s motion for summary judgment or, in the alternative, summary adjudication

Date of Hearing:        February 16, 2023                             Trial Date:       N/A

Department:              W                                                        Case No.:        18STCV00999

Moving Party:            Defendants West Hills Hospital

Responding Party:     No Opposition  

BACKGROUND

This is a medical malpractice action. On October 15, 2018, Plaintiffs Nancy Ryan and Joseph Ryan filed a complaint against Defendants Klaus See-Tho, M.D., Gerald Rothman, M.D., El Camino Hospital, and West Hills Hospital for medical negligence and loss of consortium.

Defendant West Hills Hospital now move for summary judgment or, in the alternative, summary adjudication.

[Tentative] Ruling

Defendants West Hills Hospital’s Motion for Summary Judgment is GRANTED.

DISCUSSION

Defendant West Hills Hospital moves this court for an order granting summary judgment or, in the alternative, summary adjudication pursuant to Code of Civil Procedure section 437c. On December 21, 2022, Plaintiff filed a Notice of Non-Opposition in exchange for a waiver of costs and waiving any potential claim for malicious prosecution.

In a medical malpractice action, a plaintiff must show “ ‘(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.’ ”  (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.)  A breach of the professional standard of care “can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons.”  (Jambazian v. Borden¿(1994) 25 Cal.App.4th 836, 844.)  “ ‘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.’ ” (Munro v. Regents of University of California¿(1989) 215 Cal.App.3d 977, 985.)

Defendant West Hills Hospital contends that Plaintiffs cannot establish a triable issue of material fact regarding professional negligence by the Hospital’s nursing staff and other non-physician personnel.[1] Defendant West Hills Hospital’s expert, Dawn Padley, R.N., M.N., opined the Hospital’s nursing and other non-physician personnel complied with the applicable standard of care in their care and treatment of Plaintiff. (Padley Decl. ¶¶11, 16.) Specifically, the nursing and other non-physician personnel properly assessed and monitored Plaintiff, updated doctors on any significant clinical data and changed in Plaintiff’s condition, carried out the doctors’ orders, and properly instructed Plaintiff on the purpose and benefits of the ordered medications. (Padley Decl. ¶12.) This evidence may support an inference that Defendant acted within the appropriate standard of care.  The burden thus shifts to Plaintiffs to establish a triable issue of material fact. 

Plaintiffs do not oppose. Because there are no triable issues of material fact as to Defendant West Hills Hospital’s involvement, Defendant’s motion must also be granted as to Plaintiff Joseph Ryan’s loss of consortium claim. (See Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, 30.)

Defendant West Hills Hospital further contends that Plaintiff cannot establish duty under vicarious liability base don either actual agency or ostensible agency. Actual agency either arises by express agreement or may be implied from the conduct of the parties. (van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 571.) There are two elements for the doctrine of ostensible agency to apply: (1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital, and (2) reliance on that apparent agency relationship by the plaintiff.  (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.)

Defendant West Hills Hospital presents evidence Dr. Rothman has been in private practice since 1975. (UMF 13.) Moreover, Plaintiff Nancy Ryan, at the time of her treatment and care at West Hills Hospital, signed a Conditions of Admissions form which noted the physicians performing services in the hospital were independent and not the hospitals agents or employees. (UMF 16.) As such, Dr. Rothman was not an employee of the West Hills Hospital and Plaintiff Nancy Ryan was given actual notice that Dr. Rothman was not an employee of the West Hills Hospital. Again, Plaintiff does not oppose Defendant’s motion for summary judgment.

Accordingly, Defendant West Hills Hospital’s Motion for Summary Judgment is GRANTED.