Judge: William A. Crowfoot, Case: 21STCV09210, Date: 2022-07-28 Tentative Ruling

Case Number: 21STCV09210    Hearing Date: July 28, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

SUE LIM, et al.,

                   Plaintiff(s),

          vs.

 

TORRANCE MEMORIAL MEDICAL CENTER, et al.,

 

                   Defendant(s).

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      CASE NO.: 21STCV09210

 

[TENTATIVE] ORDER RE: DEFENDANT PATRICK JEN-HAO PAN, M.D.’S MOTION FOR SUMMARY JUDGMENT; JOINDER OF TORRANCE MEMORIAL MEDICAL CENTER IN PATRICK JEN-HAO PAN, M.D.’S MOTION FOR SUMMARY JUDGMENT AS TO THE ISSUE OF CAUSATION

 

 

Dept. 27

1:30 p.m.

July 28, 2022

 

I.       INTRODUCTION

On March 9, 2021, plaintiffs Sue Lim, Paul Lim, and Yvonne Prialux filed this action against defendants Torrance Memorial Medical Center (“Torrance Memorial”) and Patrick Jen-Hao Pan (“Dr. Pan”) (collectively, “Defendants”) alleging the wrongful death of Hong Bae Lim (“Lim”).  On January 18, 2022, the parties stipulated to add Lauren Torres as a plaintiff and file the operative First Amended Complaint. 

Plaintiffs allege Lim visited Torrance Memorial for a routine thoracentesis procedure on May 19, 2020, and that Dr. Pan “negligently attempted to advance the catheter into the pleural space without the aid of an ultrasound” and “negligently caused a 1 mm surface tear of [Lim’s] right lower lung lobe, posterior.”  (FAC, ¶¶ 17, 20.)  Plaintiffs also allege Defendants failed to monitor Lim’s blood pressure, pulse, and breathing, during the thoracentesis procedure and at the conclusion of the procedure up to and including the time of Lim’s discharge.  (FAC, ¶ 28.)  Plaintiffs further allege that the cause of Lim’s death was “sequelae of hemothorax due to complications of Thoracentesis, due to pleural effusions, contributing to congestive heart failure.”  (FAC, ¶ 20.) 

On March 11, 2022, Dr. Pan filed a motion for summary judgment arguing that his care and treatment rendered to Lim complied in all respects with the standard of care in the community and that he did not cause or contribute to Lim’s death. 

On March 16, 2022, Torrance Memorial filed a notice of joinder in Dr. Pan’s motion as to the issue of causation and its own separate statement of material facts.

II.      FACTUAL BACKGROUND

Lim underwent at least 8 thoracentesis procedures at Torrance Memorial between January 17, 2018, and May 19, 2020, due to recurrent buildup of chest fluid.  (Dr. Pan’s Undisputed Material Fact (“UMF”) No. 1.)  Lim’s medical history included acute encephalopathy, generalized fatigue/ weakness, hypertension, stable elevated troponin, chronic diastolic congestive heart failure, end-stage renal disease on hemodialysis, chronic anemia, type 2 diabetes mellitus with hyperglycemia and blindness, hyperlipidemia, and chronic thrombocytopenia.  (UMF No. 20.)  Dr. Pan performed thoracentesis procedures on Lim on March 27, 2020, and May 19, 2020.  (UMF No. 3.)  A consent form in Lim’s medical charts specifically identifies a risk of bleeding.  (UMF No. 4.)  A limited preliminary chest ultrasound again confirmed Lim’s recurrent large simple pleural effusion with no evidence of pleural adhesions nor abnormal fluid echogenicity.  (UMF No. 5.)  On May 19, 2020, Dr. Pan advanced a 5- French catheter into the pleural space using a trocar technique.  (UMF No. 6.)  Charting confirmed that ultrasound guidance was used during the procedure.  (Ibid.)  Dr. Pan drained approximately 700cc of serous pleural fluid, without report of aspiration of any bloody fluid.  (Ibid.)  Accordingly, Dr. Pan reported no significant blood loss.  (Ibid.)  Per the medical chart, Lim tolerated the procedure without any immediate complications.  (UMF No. 7.)  Dr. Pan re-assessed Lim and charted that Lim was without change from his immediate pre-procedure condition.  (Ibid.)  Following the thoracentesis, Lim underwent a post procedure chest x-ray, which showed the stable nodular pleural- parenchymal opacity at the right lateral lower chest.  (UMF No. 8.)  Lim was discharged from the hospital with stable vital signs.  (UMF No. 9.)  Lim’s wife and son confirmed Lim was fine after the procedure and when he got home after the procedure on May 19, 2020.  (UMF No. 10.)  Lim reported he felt great, he was singing, and he was in good spirits.  (Ibid.) 

On May 19, 2020, at approximately 4:25pm, Lim returned to Torrance Memorial via private vehicle and presented to the emergency department.  (UMF No. 11.)  Cardiopulmonary resuscitation was initiated and Lim was intubated.  (Ibid.)  However, the patient was pronounced dead at 4:53pm.  (Ibid.) 

An autopsy was performed on May 26, 2020.  (UMF No. 12.)  The autopsy report found a right hemothorax and the findings included that the visceral pleural surface of Lim’s right lower lung lobe revealed a 1mm focal tear with minimal surface hematoma and without deep parenchymal hematoma.  (Ibid.)  It also revealed “diffuse adhesions in this area with marked thickening of the posterior parietal pleura.”  (Ibid.)  The autopsy also “reveal[ed] thoracentesis needle penetration through the right 9th intercostal space at the midclavicular line.”  (Ibid.) 

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).)  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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 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.     EVIDENTIARY OBJECTIONS

Plaintiffs’ Requests to Strike

Plaintiffs request to strike portions of the deposition transcripts of Yvonne Prialux, Paul Young Lim, and portions of the declarations of Andrea D. Vazquez and Kenneth W. Chin, M.D., FACR, FSIR (“Dr. Chin”).  The Court assumes arguendo that these “requests to strike” are evidentiary objections and rules on these requests as follows:

  1. Request to Strike the Declaration or Portions of the Declarations of Dr. Chin

    Request No. 1: Overruled.

    Request No. 2: Overruled.

    Request No. 3: Overruled.

    Request No. 4: Overruled.

    Request No. 5: Overruled.

    Request No. 6: Overruled.

  2. Request to Strike the Declaration or Portions of the Declarations of Andrea D. Vazquez

    Request No. 1 to strike Exhibit B: Overruled.

    Request No. 1 to strike Exhibit C: Overruled.

    Request No. 2 to strike Exhibit D: Overruled.

    Request No. 3 to strike Exhibit E: Overruled.

    Request No. 4 to strike Exhibit F: Overruled.

    Request No. 5 to strike Exhibit G: Overruled.

    Request No. 6 to strike Exhibit H: Overruled.

    Request No. 7 to strike Exhibit I: Overruled.

    Request No. 8 to strike Exhibit J: Overruled.

    Request No. 9 to strike Exhibit K: Overruled.

    Request No. 10 to strike Exhibit L: Overruled.

    Request No. 11 to strike Exhibit M: Overruled.

  3. Request to Strike Portions of Paul Young Lim’s Deposition Testimony

    Request No. 1: Overruled.

    Request No. 2: Overruled.

  4. Request to Strike Portions of Yvonne Prialux’s Deposition Testimony

    Request No. 1: Overruled.

    Request No. 2: Overruled.

Dr. Pan’s Objections

Objection Nos. 1 to 5 to the Declaration of Saumil Shah, M.D. (“Dr. Shah”): Overruled.

Dr. Pan also objects to Plaintiffs’ separate statement.  These are not evidentiary objections; accordingly, the Court declines to rule on them. 

Torrance Memorial’s Objection

          Torrance Memorial’s objection to Plaintiffs’ separate statement is not an objection to evidence.  Accordingly, the Court declines to rule on this objection.   

V.      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.)

  1. Standard of Care

Dr. Pan submits the declaration of Dr. Chin in support of his motion for summary judgment.  Dr. Chin is a board-certified radiologist currently practicing radiology and interventional radiology.  (Chin Decl., ¶ 2.)  He also serves as the medical director of interventional radiology for the RADNET San Fernando Valley Interventional Radiology and Imaging Center.  (Chin Decl., ¶ 2.)  Dr. Chin declares that he is familiar with the standard of care related to the performance of thoracentesis procedures based on his background, training, and experience.  (Chin Decl., ¶ 3.)  Dr. Chin states he has reviewed Lim’s medical records and imaging from Torrance Memorial, as well as Lim’s autopsy report and death certificate.  (Chin Decl., ¶ 4.)  Dr. Chin has also reviewed Plaintiffs’ complaint, responses to written discovery, and deposition transcripts dated August 4, 2021.  (Ibid.)  Based on his review of these materials, as well as his education, training, and experience, Dr. Chin opines that Dr. Pan met the standard of care throughout the entirety of Lim’s presentation at Torrance Memorial, including Dr. Pan’s performance of the thoracentesis, post-procedure chest x-ray, and discharge.  (Chin Decl., ¶ 5.)  Dr. Chin states it is not a breach in the standard of care for an interventional radiologist to wipe away markings on the insertion site for a catheter, regardless of who makes the markings.  (Chin Decl., ¶ 8.)  Dr. Chin declares that wiping away markings with an antiseptic wipe at the insertion site is a customary practice that occurs when the interventional radiologist sterilizes the patient’s skin at the site of the intended needle and catheter insertion and is necessary to decrease the likelihood of infection.  (Chin Decl., ¶ 8.)  Dr. Chin refers to the autopsy report and notes that its findings indicate that Dr. Pan inserted the needle into the correct space for the thoracentesis procedure because the needle penetrated “through the right 9th intercostal space at the midclavicular line”; therefore, even if the markings were wiped away, the needle was inserted into the correct area.  (Chin Decl., ¶ 8.)  Dr. Chin also opines that the standard of care did not require direct ultrasound guidance to insert the needle due to the large pleural effusion shown on the ultrasound imaging and confirmed by the 700cc of fluid drained during the procedure.  (Chin Decl., ¶ 9.)  Nevertheless, Dr. Chin notes, Dr. Pan met and exceeded the community standard of care by using ultrasound guidance in performing the thoracentesis.  (Chin Decl., ¶ 9.)  Dr. Chin states that an interventional radiologist is not required to stop a thoracentesis procedure upon encountering bleeding while inserting the needle and catheter because bleeding is common and occurs absent negligence.  The standard of care would be to monitor the severity of bleeding because there are blood vessels throughout the rib interspace within the chest wall, so it is not uncommon for a patient to bleed while an interventional radiologist inserts the needle/catheter and such bleeding is minor and stops on its own.  (UMF No. 10.)  Dr. Chin states that there is no evidence of any continued bleeding and Dr. Pan’s contemporaneous note in the medical chart indicated that there was no significant bleeding during the procedure.  (Chin Decl., ¶ 10.)  Also, if there was significant bleeding encountered, the post-procedure x-ray would have identified such bleeding.  (Chin Decl., ¶ 10.)  Dr. Chin opines that Dr. Pan properly performed the thoracentesis procedure using the trocar technique, appropriately ordered the patient to undergo a chest x-ray post-procedure to ensure a lack of procedural complications, and that Lim’s vital signs were appropriately monitored before discharge.  (Chin Decl., ¶ 11.)  The x-ray confirmed there was no significant pneumothorax or serious bleeding and that the pleural effusion had decreased, as expected.  (Chin Decl., ¶ 12.)  Lim’s heart rate, respiratory rate, oxygen saturation, and diastolic blood pressure all remained stable and the only notable change in his vitals was his systolic blood pressure, which decreased from 185 to 151 without any change in his pulse rate.  (Chin Decl., ¶ 13.)  This decrease in systolic blood pressure did not indicate any concerning complication, as patients typically lower their systolic blood pressure after a procedure due to the patient’s level of apprehension decreasing after the procedure’s completion.  (Chin Decl., ¶ 13.)  A systolic blood pressure of 151 is within normal limits, especially given Lim’s unchanged heart rate.  (Chin Decl., ¶ 13.)  Therefore, Dr. Chin concludes, the lack of complications during the procedure, chest x-ray findings, and stability of vital signs all support that Lim was monitored and discharged within the standard of care, and that this is augmented by Lim’s son’s deposition testimony wherein Paul Lim reported that his father felt fine after the thoracentesis procedure, and that his father was singing, as usual, and in good spirits.  (Chin Decl., ¶ 13.) 

In opposition, Plaintiffs essentially argue that Defendants have not met their moving burden.  Plaintiffs submit the declaration of Saumil Shah, M.D. (“Dr. Shah”), a board-certified radiologist practicing at Chicago Access Care/Makris MD Vascular Center in Westmont, Illinois.  (Shah Decl., ¶¶ 2-4.)  Dr. Shah does not opine that Dr. Pan did not comply with the standard of care, but merely claims that Dr. Chin’s findings are unsubstantiated.  Dr. Shah declares that there is no evidence to confirm or conclude that Dr. Pan inserted the needle into the “correct space” during the thoracentesis procedure, and, without knowing the precise entry point of the needle and the relative position of the needle to the nearest rib, there is no factual basis to conclude that Dr. Pan met the applicable standard of care in his treatment of Lim.  (Shah Decl., ¶ 9.) 

The Court rejects Plaintiffs’ argument that Dr. Pan did not meet his moving burden.  Dr. Pan submitted the requisite expert declaration and his expert, Dr. Chin, explained that Dr. Pan met the applicable standard of care in performing the thoracentesis by relying on a preliminary ultrasound examination and palpation.  (Chin Decl., ¶ 9.)  As Plaintiffs failed to introduce a competing expert declaration raising a triable issue of material fact as to whether Dr. Pan met the applicable standard of care, the Court GRANTS Dr. Pan’s motion for summary judgment. 

  1. Causation

Because Torrance Memorial joined in Dr. Pan’s motion as it concerns the issue of causation, the Court analyzes whether summary judgment should be granted on the grounds that there are no triable issues as to whether any act or omission by Dr. Pan caused Lim’s death. 

Dr. Pan (and thus, Torrance Memorial) relies on Dr. Chin’s expert declaration, in which Dr. Chin opines that no negligent act or omission by Dr. Pan caused or contributed to Lim’s injuries or outcome.  Dr. Chin states that minute tears, such as the 1mm focal tear on Lim’s right lower lobe, are not uncommon on patients who routinely undergo thoracentesis.  Dr. Chin states that these tears can occur absent negligence without causing fatal bleeding and can even heal without intervention.  (Chin Decl., ¶ 16.)  Dr. Chin also states that the cause of death identified on Lim’s death certificate was a hemothorax, which is a collection of blood in the space between the chest wall and the lung.  (Chin Decl., ¶ 17.)  Dr. Chin states that the hemothorax was caused by the thoracentesis performed several hours earlier, it occurred absent negligence, and was a known risk of a thoracentesis procedure.  (Ibid.)  This opinion does not show that Plaintiffs cannot establish the element of causation.  Instead, it essentially rephrases the argument that Dr. Pan complied with the applicable standard of care, as evidenced by the reasoning stated in the last paragraph of Dr. Chin’s declaration: “As the thoracentesis was indicated and was performed within the standard of care, there was no negligent medical care by [Dr. Pan] that, to a reasonable degree of medical probability, caused or contributed to Mr. Lim’s death.”  (Chin Decl., ¶ 18.)  Accordingly, Torrance Memorial’s motion for summary judgment is DENIED. 

VI.     CONCLUSION

          In light of the foregoing, the motion for summary judgment is GRANTED only as to Dr. Pan on the grounds that no triable issue of material fact exists as to whether Dr. Pan complied with the standard of care.  Torrance Memorial’s motion for summary judgment is DENIED. 

 

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.