Judge: William A. Crowfoot, Case: 19STCV08937, Date: 2022-09-12 Tentative Ruling

Case Number: 19STCV08937    Hearing Date: September 12, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On March 14, 2019, Plaintiffs Lily Ann Reiling (“Lily”) and Carolee Reiling (“Carolee”) (collectively, “Plaintiffs”) filed this medical malpractice action against Defendants Pasadena Hospital dba Huntington Memorial Hospital (“HMH”) (erroneously sued as Pasadena Hospital Association, Ltd. dba Huntington Memorial Hospital), James Macer, M.D., and James A. Macer, M.D. Plaintiffs assert causes of action for negligence and negligent infliction of emotional distress and allege Lily was injured from an extended period of anoxia due to inadequate monitoring. 

On May 10, 2019, Plaintiffs named Nader Bishara, M.D. and Talia Glasberg, M.D. as Doe defendants; they were dismissed on June 5, 2020, at Plaintiff’s request. 

On June 21, 2019, James Macer, M.D. (“Dr. Macer”) and James A. Macer, M.D. (collectively, “Defendants”) filed an answer to the Complaint.  On June 27, 2022, Defendants filed this motion for summary judgment.  On August 9, 2022, Plaintiff filed a notice of non-opposition to the motion. 

II.     FACTUAL BACKGROUND

On May 8, 2018, Carolee attended her first prenatal visit with Dr. Macer.    (Dr. Macer’s Undisputed Material Fact (“UMF”) No. 1.)  Dr, Macer estimated that she would have a delivery date of December 4, 2018 based on the date of the in vitro transfer of the 5-day embryo.  (UMF No. 2.)  At a visit on October 8, 2018, Carolee’s blood pressure was mildly elevated and recorded as 142/80.  (UMF No. 3.)  At a visit on November 13, 2018, Carolee’s blood pressure was recorded as 148/92.  (UMF No. 4.)  On November 15, 2018, her blood pressure was recorded as 166/96.  (UMF No. 5.)  She was admitted to HMH at approximately 9:12 a.m. on November 15, 2018.  (UMF No. 6.) 

Lily was delivered vaginally on November 16, 2018 at 1:57 p.m. and weighed 7 pounds and 5 ounces.  (UMF No. 7.)  Lily's APGAR scores at birth were 9 at one minute and 9 at five minutes.  (UMF No. 8.)  The nuchal cord was loose and no fetal complications during the delivery were noted.  (UMF No. 8.) 

On November 16, 2018, in the afternoon, Carolee reportedly noticed that Lily had stopped breathing.  (UMF No. 9. )  The NICU team at HMH was called by nurses at 3:43 p.m. and arrived at the delivery room at 3:44 p.m., at which time the baby was given positive pressure ventilation and was intubated with a 3.5 ETT.  (UMF No. 10.)  Labs performed at 4:40 p.m. on November 16, 2018, showed the baby had a white blood cell count within normal limits.  (UMF No. 11.)  After stabilizing the infant, the baby was reportedly transferred at her mother's request to Children's Hospital of Los Angeles on the evening of November 16, 2018, for further imaging studies and a neurology consultation.  UMF No. 12.) 

III.    LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply 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.)

“[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  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, subd. (p)(2).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)  However, to meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “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.)

IV.    DISCUSSION

In a medical malpractice action, a plaintiff must establish the following elements: “(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.  [citations.]”  (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)  A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.”  (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)  “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.3d 977, 984-985.)

Defendants submit the expert declaration of John S. Wachtel, M.D. (“Dr. Wachtel”), a licensed physician board-certified in obstetrics and gynecology.  (Wachtel Decl., ¶ 1.)  Dr. Wachtel states that he has reviewed Carolee’s medical records from Dr. Macer as well as Plaintiffs’ medical records from HMH, including the fetal heart tracings.  (Id., ¶ 4.)  He also reviewed the deposition transcripts of Carolee, Dr. Macer, along with five other individuals.  (Ibid.)  Based on his review of the listed materials, as well as his education, training, background, qualifications, and experience as a specialist in the field of Obstetrics and Gynecology, Dr. Wachtel opines that the prenatal care rendered to Carolee was straightfoward and complied with the standard of care in all material respects.  (Wachtel Decl., ¶ 6a.)  He states that Carolee’s pregnancy risk factors included an advanced maternal age of 46, a donor egg pregnancy conceived through IVF, and a history of a prior preterm birth due to preterm labor.  (Ibid.)  He also opines that Dr. Macer’s decision to admit Carolee for induction of labor on November 15, 2018, secondary to elevated blood pressure readings in his office on Novemberr 13, 2018 and November 15, 2018, was within the standard of care for an OB/GYN, as these findings are clinically concerning for possible preeclampsia.  (Wachtel Decl., ¶ 6b.)  He states it was within the standard of care for Dr. Macer to admit Carolee to HMH for evaluation of gestational hypertension and possible induction of labor.  (Ibid.)  Dr. Wachtel further opines that it was appropriate and within the standard of care to give Carolee the option for induction of labor even though she did not have preeclampsia given her risk factors and the fact that she was already at 37 weeks and 2 days of her pregnancy.  (Wachtel Decl., ¶ 6c.)  He states that Dr. Macer’s decision for a medically indicated induction was not elective because Carolee’s blood pressure in the office as concerning and she had no prior history of hypertension.  (Wachtel Decl., ¶ 6e.) 

Defendants have met their burden to produce an expert declaration showing that Dr. Macer complied with the applicable standard of care.  As Plaintiffs filed a notice of non-opposition, the Court GRANTS Defendants’ motion for summary judgment. 

V.      CONCLUSION

          In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice. 

          Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.