Judge: William A. Crowfoot, Case: 20STCV11451, Date: 2022-09-28 Tentative Ruling

Case Number: 20STCV11451    Hearing Date: September 28, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On March 20, 2020, Plaintiff Vanessa Bardliving filed a complaint for negligence against Defendants Benjamin Aaron Emanuel, M.D. (“Dr. Emanuel”), John Chung Liang-Liu, M.D. (“Dr. Liu”), Anuj Kumar Rajput, M.D. (“Dr. Rajput”), University of Southern California (USC), University of Southern California-Keck School of Medicine, and Keck Hospital.

On July 17, 2020, pursuant to Plaintiff’s request, dismissal was entered as to Defendants Dr. Emanuel, Dr. Liu, and Dr. Rajput.

On March 18, 2022, Defendants University of Southern California (USC), Keck Medicine of USC, and Keck Hospital (“USC Defendants”) filed a motion for summary judgment.  USC Defendants filed notice of non-receipt of Plaintiff’s opposition on July 20, 2022.

On July 26, 2022, the Court continued the hearing to the present date so that Plaintiff could obtain representation. 

On September 15, 2022, USC Defendants filed another notice of non-receipt of Plaintiff’s opposition.

II.          FACTUAL BACKGROUND

On or about December 28, 2018, Plaintiff presented to Keck Hospital for a CT Myelogram.  (Complaint, ¶ 9.)  Dr. Rajput was the primary operator and was assisted by two technicians that were in the course and scope of their employment with USC Defendants.  (Id.)  The table that was being used for Plaintiff’s placement was allegedly malfunctioning, but Defendants chose to use it anyways.  (Id.)  Plaintiff alleges Dr. Rajput was negligent in the technique he used and caused an air embolism to pass into Plaintiff’s bloodstream and later to Plaintiff’s brain, causing her to become unconscious while at home and fall and sustain a brain injury.  (Id.)  Plaintiff further alleges Dr. Rajput and the USC nursing staff released Plaintiff home without properly evaluating her.  (Id.) 

The next day, Plaintiff returned to another USC facility (Verdugo Hills Hospital) and was attended by Dr. Emanuel and Dr. Liu.  (Complaint, ¶ 9.)  Plaintiff alleges they failed to properly evaluate and test Plaintiff and tried to medicate Plaintiff instead of reaching a proper diagnosis and care plan, causing further injury.  (Id.)

III.        LEGAL STANDARD

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 facia 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.)

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

USC Defendants move for summary judgment in their favor and against Plaintiff on the sole cause of action for negligence asserted against them.

The Court notes that the negligence claim asserted by Plaintiff in the complaint is a medical negligence claim.  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 [citations omitted].)

“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.)  Thus, in a medical malpractice case, “[w]hen 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, 984-85 (citations omitted).)  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.)

“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.”  (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)  “Mere possibility alone is insufficient to establish a prima facie case.”  (Id.)  “There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.”  (Id. at 403.)  “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.”  (Id.)

USC Defendants have submitted declarations from Scott Williams, M.D., an interventional and diagnostic radiology specialist, and Andrew Woo, M.D., Ph.D., a licensed physician who is board-certified in psychiatry and neurology.  (Williams Decl., ¶ 2; Woo Decl., ¶¶ 1-2.) 

Dr. Williams opines that, based on a review of the complaint and Plaintiff’s medical records, as well as his education, training and experience, the medical care and treatment provided to Plaintiff at USC, including but not limited to the care by Dr. Rajput and others in relation to the December 28, 2018 CT myelogram, complied at all times and in all aspects with the standard of care for a healthcare provider acting under the same or similar conditions within the community.  (Williams Decl., ¶¶ 4, 6.)  Dr. Williams explains that a CT myelogram was an appropriate procedure to perform to determine whether there was any nerve impingement or cord compression to account for Plaintiff’s clinical symptoms at the time.  (Id., ¶ 6a.)  Dr. Williams declares that there was no contraindication to giving Plaintiff intrathecal contrast as Plaintiff had no prior seizure history, no history of medication use that would lower seizure threshold, and no existing medical conditions that lowered her seizure threshold.  (Id., ¶ 6b.)  There was also no prior history of allergy to iodinated contrast agents.  (Id.)  Dr. Williams declares that proper informed consent was obtained and Dr. Rajput discussed the various risks and complications.  (Id., ¶ 6c.)  According to Dr. Williams, a seizure is a rare complication associated with a CT myelogram and is thus not something that would be discussed as part of the standard of care given its rarity of occurrence.  (Id.)  Dr. Williams further states that Dr. Rajput’s technique and contrast choice and dosage were appropriate; that Dr. Rajput exercised reasonable technique to minimize the introduction of air into the spinal canal through the needle when he introduced the contrast; and that, although there is some air in the thecal sac, he did not believe the small amount of air had any adverse effect or cause a seizure.  (Id., ¶ 6d-6e.)  Dr. Williams declares that Plaintiff was appropriately monitored after the CT myelogram and CT scan before being released to return home and was given proper discharge instructions.  (Id., ¶ 6g.) 

Dr. Williams further opines that, to a reasonable degree of medical probability, there were no acts or omissions by any healthcare provider at USC that cased Plaintiff’s injuries.  (Williams Decl., ¶ 6.)  Dr. Williams declares that, in his opinion, Plaintiff never had an air embolism and that, although Plaintiff had some evidence of air in her brain, he does not believe the presence of that air caused Plaintiff to develop syncope or a seizure.  (Id., ¶¶ 6h-6i.)  Dr. Williams opines that he does not believe Plaintiff ever suffered a subarachnoid hemorrhage or a cerebral edema.  (Id., ¶¶ 6j-6k.)  Dr. Williams opines that Plaintiff likely had a syncopal episode at home, which caused her to fall and strike her head.  (Id., ¶ 6l.)  Dr. Williams explains that syncope is most typically caused by a vasogeal episode and that the cause of such an episode is vast but most typically brought on by stress.  (Id.)  Dr. Williams states it is doubtful the intrathecal contrast used during the course of the CT myelogram was a direct cause of the delayed syncope in this instance.  (Id.)

Dr. Woo opines that, based on a review of the complaint and Plaintiff’s medical records, as well as his education, training, and experience, the medical care and treatment provided to Plaintiff at USC, including but not limited to the care provided by Dr. Emanuel and Dr. Liu, complied at all times and in all aspects with the standard of care for a healthcare provider acting under the same or similar conditions within the community.  (Woo Decl., ¶¶ 4, 6.)  Dr. Woo further opines that, to a reasonable degree of medical probability, there were no acts or omissions by any healthcare provider at USC that caused Plaintiff’s injuries.  (Id., ¶ 6.) 

Dr. Woo explains that the care provided to Plaintiff by Dr. Emanuel and Dr. Liu following the CT myelogram and CT scan was clinically appropriate in identifying, diagnosing, and treating Plaintiff’s medical needs.  (Id., ¶ 6a.)  Dr. Woo states that Dr. Liu’s and Dr. Emanuel’s diagnoses and recommendations for a blood path, caffeine, Dexamethasone, and diagnostic imaging were all appropriate.  (Id.)  Dr. Woo states that he does not believe Plaintiff ever suffered a subarachnoid hemorrhage even though subarachnoid hemorrhage was on the differential when she was admitted to Verdugo Hills Hospital and Keck USC Hospital.  (Id., ¶ 6b.)  Dr. Wood states that the presence of blood and contrast look very similar and that, based on subsequent scans, Plaintiff’s overall clinical presentation was not consistent with subarachnoid hemorrhage.  (Id.)  Dr. Woo further declares that he does not believe Plaintiff ever had cerebral edema, although a cerebral edema was described.  (Id., ¶ 6c.)  Dr. Woo explains that the presence of contrast associated with the CT myelogram mimicked both cerebral edema and subarachnoid hemorrhage and that, if Plaintiff truly had brain edema, she would have been unconscious, on a ventilator, and her pupils would have been dilated.  (Id.)  Instead, the records showed Plaintiff was awake, alert, talking, and walking during her hospitalization.  (Id.)  Dr. Woo states that Dr. Liu and Dr. Emanuel appropriately referred Plaintiff to a headache specialist, Dr. Sahai, who treated her headaches appropriately according to the standard of care.  (Id., ¶ 6d.)

The Court finds the declarations of Dr. Williams and Dr. Woo are sufficient for USC Defendants to meet their burden of demonstrating they did not breach the duty of care or cause or contribute to Plaintiff’s alleged injuries.

Despite being granted a continuance, Plaintiff has not filed an opposition to this motion.  Therefore, Plaintiff has failed to meet her burden of demonstrating triable issues of material fact exist as to breach and causation.

Accordingly, USC Defendants are entitled to summary judgment.

VI.     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 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.