Judge William A. Crowfoot, Case Number: 22AHCV00443, Date: 2024-05-03 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV00443, Date: 2024-05-03 Tentative Ruling

On July 7, 2022, plaintiffs Mario Chavez, Jose Chavez, David Chavez, Vidal Chavez, and Virginia Chavez (collectively, “Plaintiffs”) filed this action against defendant Methodist Hospital of Southern California (“Defendant”). The action arises from the medical treatment provided to Rosalva Chavez (“Chavez”) for a suspected brain lesion. Plaintiffs allege that Defendant, among other medical providers, negligently performed a craniotomy and biopsy of a suspected brain lesion. (Compl., p. 6.) Plaintiffs allege that the neuro-navigation unit used for the craniotomy and biopsy, ExacTrac Dynamic Medical Charged-Particle Radiation Therapy System (“ExacTrac System”), failed and that Defendant, along with other co-defendants, negligently proceeded to conduct a “blind biopsy” which removed healthy brain material and led to severe cognitive failure and decline. Chavez passed away on May 28, 2021.

On February 7, 2024, Defendant filed this motion for summary judgment. Defendant argues that the care and treatment provided to Chavez complied with the standard of care in the community. (Motion, p. 1.) Defendant also argues that there is nothing it, or its agents and employees, did or failed to do that caused or contributed to Chavez’s death. (Motion, p. 1.) In addition, Defendant argues that it cannot be liable for the actions of co-defendant Mike Chen, M.D. (“Dr. Chen”), who was not Defendant’s employee, agent, or ostensible agent.

On April 22, 2024, Plaintiffs filed their opposition brief and evidentiary objections.

On April 26, 2024, Defendant filed its reply papers and objections to Plaintiffs’ evidence.

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).)

Plaintiffs’ objections to the Declaration of Kathryn Biasotti fall into two categories. First, Plaintiffs argue that the declaration “lacks foundation” and constitutes hearsay. These objections are not well-taken. The records referred to are accompanied by a declaration from the custodian of records. (Index of Exhibits, Ex. A.) Also, medical records are subject to the business records exception to the rule against hearsay. (See Evid. Code, § 1271.) Therefore, Objection Nos. 1 through 23 are OVERRULED.

Second, Plaintiffs argue that Defendant’s expert, Kathryn Biasotti, is not qualified to provide an expert opinion on the standard of care for nursing in Southern California because her training is limited to perioperative nursing, not critical or intensive care, and it is unclear if she has ever practiced nursing in Southern California. However, as further discussed below, the opinions that Plaintiffs object to are not relevant to this motion. Plaintiffs do not dispute that Defendant and hospital staff “at all times complied with the processes surrounding [Chavez]’s craniectomy surgery on May 20, 2021, and were fully compliant with the standard of care by following Dr. Mike Chen’s surgical orders and Dr. Eugene Wong’s anesthesia orders. (Response to Separate Statement, UMF No. 86.) Therefore, the Court does not need to rule on Objection Nos. 24-26, and they are preserved for appellate review. (Code Civ. Proc., § 437c, subd. (q).)

Defendant objects to the declaration of Jessica Chavez on the grounds that it lacks foundation and expresses an opinion “contrary to supporting evidence.” The objections are OVERRULED.

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.)

Defendant supports its motion for summary judgment with the expert declaration of Kathryn Biasotti, BSN, MBA, CPHRM, LNCC (“Nurse Biasotti”). Nurse Biasotti is a Registered Nurse who obtained her nursing degree in 1988 from California State University, Sacramento, with a specialty emphasis on Perioperative Nursing. (Index of Exhibits, Biasotti Decl., ¶ 1.) In 2018, Nurse Biasotti received a Master of Business Healthcare Administration Degree from Western Governors University. Between 1988 and 1989, she worked as a Medical Surgical Nurse with Health Force Traveling Nurse Registry. (Ibid.) Between 1988 to 2017, she was employed by the Barton Health System, South Lake Tahoe, CA, in several different capacities, including Perioperative Nurse Circulator and Scrub Nurse, Interim Director of Surgical Services/Unit Leader, Director of Quality & Risk Management & System Compliance Officer, and “Administrative Director of Legal, Risk Management & System Corporate Compliance Officer.” (Ibid.) In 2019, Nurse Biasotti served Kaiser West LA Medical Center in the capacity of Interim Risk Manager. (Ibid.) From 2020 to 2021, she served as Interim Director of Quality and Risk Management at Grande Ronde critical access hospital in La Grande, Oregon. (Ibid.) From February 2022 until May 2023, she served as an interim Clinical Risk Manager for Peace Health in Vancouver, Washington. (Ibid.) She is currently the Principal at KB Consulting Services. (Ibid.)

Nurse Biasotti declares that she reviewed Chavez’s medical records, the pleadings, the deposition transcripts of Plaintiffs and Dr. Chen, the declaration of Dr. Gabriel Zada which was filed in support of Dr. Chen’s summary judgment motion, and the responses of Mario Chavez to Defendant’s special interrogatories. (Id., ¶ 2.) She describes the actions taken by the different doctors, including the emergency department physician, neurologist, nephrologist, oncologist, and the neurosurgeon, Dr. Chen. (Id., ¶¶ 4(c)-(i). The first mention of any involvement by Defendant’s nurses leading up to the craniotomy and biopsy is in paragraph 4(h), in which Nurse Biasotti states that nurses assessed Chavez “as confused with her son at the bedside.” Nurse Biasotti also notes that a nurse was a witness to Mario Chavez’s signature for an informed consent form on May 18, 2021. The next reference to any nurses or staff before the procedure involves another doctor, identified only as “Dr. Yong”, who “authored a brief update note at 1327 about nursing calling her about family wishes for Ms. Chavez’s code status to be changed to a DNR.” (Biasotti Decl., ¶ 4(l).) The next four subparagraphs describe how consent for anesthesia was obtained, and state that the procedures were performed by the physicians “[a]fter verification of informed consent and preoperative checklist completion.” (Id., ¶ 4(m)-(p).)

Nurse Biasotti resumes her discussion of Defendant’s nurses’ actions in subparagraph (q) when she states that on May 21, 2021, after the procedure was completed, the nurses documented Chavez’s “continued confusion, PERRLA, and pulling out her IV.” (Id., ¶ 4(q).) She states again in subparagraph (s) that the nurses documented Chavez’s confusion and noted that Dr. Chen rounded on Ms. Chavez and issued a few orders, including an order for an MRI; the nurse also noted at 1700, when Chavez returned from the MRI, that she had “a slight facial droop on the left side of the nasolabial fold”, “was still lethargic from the Haldol and Ativan [prescribed earlier by Dr. Chen], not eating because of lethargy, would arouse to voice, PERRLA, and practitioners including Dr. Chen were notified of new findings.” Next, on May 22, 2021, Critical Care Nurse Practitioner Jessica Maganda, with an attending physician, documented that Chavez “was awake, [sic] slow mentation, and minimally conversive and on neuro exam [sic], her pupils were equal, round, and reactive.” (Id., ¶ 4(t).) Nurse Maganda also noted Chavez was lethargic and “an NG tube was inserted for nutrition.” (Ibid.) On May 23, 2021, Registered Nurse Aleksey Inokhodov documented Chavez’s lungs as “being more coarse than the day before” and noted that her left pupil was “slightly-oval shaped, [sic] more evident when lights are completely off in the room”; he reported this finding to Dr. Yong. (Id., ¶ 4(u).) He also documented intermittent facial twitching and that Chavez “was no longer PERRLA, was obtunded” and he spoke on the phone with a physician who ordered a Stat CT without contrast. (Ibid.) Nurse Inokhodov additionally documented that the Critical Care team and physicians discussed the plan of care. (Ibid.) On May 26, 2021, Registered Nurse Chanel Rosecrans Seemann and Critical Care nurse practitioner Beltran documented lengthy discussions between Dr. Chen and the family. Nurse Seemann also documented that Chavez was becoming hypotensive. (Id. ¶¶ 4(x)-(y).) On May 27, 2021, the night shift nurse reported to the day shift that Chavez had episodes of hypotension. (Id., ¶ 4(aa).) The tele-intensivist was contacted and doses of Dilantin “were held.” (Ibid.) Other physicians documented additional discussions with family and the decision to plan for compassionate extubation. (Ibid.) At 11:20, RN Seeman documented that Chavez was compassionately extubated with family at bedside, and she was resting comfortably with oxygen at four liters nasal cannula and a morphing drip. (Id., ¶¶ 4(bb).) On May 28, 2021, Chavez was noted to be on a morphine drip at 6 milligrams per hour and appeared comfortable, with no signs of distress; she expired at 9:15 p.m. (Id., ¶¶ 4(dd)-(ee).)

Nurse Biasotti opines that Defendant and its staff complied with the applicable standard of care by adequately assessing Chavez’s condition. (Biasotti Decl., ¶ 7.) She states that the staff carried out all physician orders, and properly reported any and all material changes in Chavez’s condition while she was admitted to Defendants hospital from May 16 to May 28, 2021. (Ibid.) She also opines that the standard of care was met because the staff followed Dr. Chen’s surgical orders and the anesthesiologist’s anesthesia orders during the craniectomy surgery on May 20, 2021. (Id., ¶¶ 6-7.) Nurse Biasotti also opines that Defendant’s staff confirmed proper informed consent was obtained and that no act or omission by Defendant or the hospital staff involved in Chavez’s care and treatment contributed to her death.

In opposition, Plaintiffs submit the declaration of Jessica Chavez, BSN, RN (“Nurse Chavez”). Nurse Chavez earned her nursing degree in 2012 from California State University in Fullerton, California. (Chavez Decl., ¶ 1.) She currently works as a registered nurse in a family practice office and has previously worked as a Registered Nurse in the Neuro-Intensive Care Unit at Kaiser Permanente Los Angeles Medical Center and as a Critical Care Nurse in the Critical Care Unit at Kaiser Permanente Baldwin Medical Center. (Ibid.) She also currently works in an outpatient clinic in the field of physical medicine and rehabilitation, with emphasis on the spine, bones, and muscles. (Ibid.)
Like Nurse Biasotti, Nurse Chavez reviewed Chavez’s medical records; Nurse Chavez also reviewed Nurse Biasotti’s declaration. (Id., ¶ 2.) She bases her expert opinion on her review of Chavez’s medical records, her experience, training and education, and her “numerous personal interactions, communications with hospital staff during [Chavez]’s May 2021 hospitalization.” (Id., ¶ 3.) Her opinions are also based on her personal exchanges with the medical staff. (Ibid.) Nurse Chavez states that Chavez presented to the emergency department with significant hyponatremia (low sodium), poor metabolic profile, suspected urinary tract infection, confusion, and weakness. (Id., ¶ 4.) A nephrologist, Sevag Balikian, M.D. (“Dr. Balikian”) noted on May 16, 2021, that Chavez’s sodium needed to be managed appropriately and slowly increased. (Id. ¶ 8.) Nurse Chavez states that after the biopsy was performed on May 21, 2021, Chavez’s hyponatremia and metabolic levels remained severe and she continued to decline neurologically and physically. (Id., ¶ 11.) Nurse Chavez states she had various interactions with different nurses and at least one physician’s assistant from May 17 through May 28, 2021, but they “routinely demonstrated that they were unaware of and not properly monitoring [Chavez]’s worsening hyponatremia and declining clinical condition, and were often ignorant of basic clinical data, such as her vitals, nutrition, heart rate, metabolic rate, and other factors.” (Id. ,¶ 12.) Nurse Chavez also noted that the nurses and physician assistant “demonstrated an unwillingness to confront and communicate with physicians, and with [Dr. Balikian] and [Dr. Chen] on important clinical information (such as increased brain swelling and decreased cognitive function).” (Ibid.)

Nurse Chavez opines that Defendant and its employees did not comply with the standard of care because “the nurses and physician assistant [should have] taken more reasonable steps within the standard of care to contact physicians (including Dr. Balikian and Dr. Chen) to advise them of the uncontrolled hyponatremia, declining cognitive/physical symptoms, and other alarming developments.” (Id., ¶ 20.) Nurse Chavez states that the nursing and hospital staff mismanaged Chavez’s hyponatremia and metabolic levels and failed to adequately and reasonably communicate urgent clinical information to the physicians, such as the fact that Chavez was experiencing continuing seizures, so that they could make medical decisions to manage uncontrolled sodium levels, intercranial pressure, confusion, discomfort, and mental distress. (Id., ¶¶ 22, 26.) Nurse Chavez also opines that to a reasonable degree of nursing probability, Defendant’s employees’ actions and omissions caused or contributed to increased intercranial swelling, severe seizures that weakened and scared Chavez (to the extent she was able to comprehend them), drained her of energy, and continued to shock her system, ultimately causing her decline and death. (Id., ¶ 21.)

Nurse Chavez also states that it is her opinion that Defendant “lacked a clear system and work culture for nurses to contact and keep physicians informed of crucial clinical developments involving [Chavez].” (Id., ¶ 24.) She states that there were several instances where she was told by nurses that Dr. Chen could not be reached. (Ibid.) In addition, she states that the charge nurse referred to Dr. Chen as “an ass” who never responds to calls and that, in substance, the hospital staff typically needed to “dig everywhere to find him.” (Id., ¶ 25.) Nurse Chavez states that the nurses and physician assistants should have escalated their concerns to a different physician or taken more efforts to locate Dr. Chen. (Ibid.)

On reply, Defendant argues that the opposition brief should be disregarded because it is untimely. Plaintiffs should have filed their opposition papers by April 19, 2024, but did not do so until April 22, 2024. Nevertheless, the Court exercises its discretion to consider the late-filed opposition papers.

Next, Defendant attempts to discredit Nurse Chavez by pointing out that she is the wife of one of the plaintiffs and Chavez’s daughter-in-law. However, Defendant does not address any of Nurse Chavez’s qualifications. The fact that Nurse Chavez may be related to the decedent is not a reason to disregard her expert opinion; her credibility is for the factfinder to assess.

Last, Defendant argues that Nurse Chavez’s opinions go outside the allegations of the pleadings. Defendant claims that the alleged behavior at issue involves the craniectomy and biopsy conducted on May 20, 2021, and Nurse Chavez’s opinions about the care provided to Chavez after the procedure are irrelevant.

“[I]f a plaintiff wishes to introduce issues not encompassed in the original pleadings, the plaintiff must seek leave to amend the complaint at or prior to the hearing on the motion for summary judgment.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1257.) New factual issues presented in opposition to a summary judgment motion should be considered if the pleading, construed broadly, encompasses them. (Ibid.) “In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.” (Ibid.) In cases that find new factual issues are not encompassed by the original pleadings, “the plaintiff did not merely elaborate or add further detail to a claim which was predicated on the same fundamental facts set forth in the complaint. Rather, there was a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim.” (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 226.)

Here, Plaintiffs’ allegations in the Complaint alleged that a craniectomy and biopsy were negligently performed, specifically because the navigation unit failed during the procedure or immediately before it. (Compl., p. 6.) Plaintiffs charge Dr. Chen and Defendant with conducting a “blind” biopsy which resulted in the removal of healthy brain material, leading to severe cognitive failure and decline. (Id.) There are no allegations that Defendant acted negligently in providing care to Chavez after the procedure. Therefore, Plaintiffs’ opposition brief is attempting to create a triable issue of fact concerning events which fall outside the parameters of their Complaint.

Plaintiffs’ discovery responses, served recently on September 2023, confirm that their theory of liability is limited to the way the craniectomy was performed. Defendant attaches a copy of plaintiff Virginia Chavez’s responses to its special interrogatories. Virginia Chavez was asked to “[s]et forth and identify those acts or omissions that [she] contend[s] constitute negligence, or other wrongful conduct, by [Defendant].” (Def.’s Index of Exhibits, Ex. I, SROG Nos. 1-2.) She was also requested to identify the facts upon which she based her negligence claim against Defendant’s employees. (Id., SROG No. 6.) Virginia Chavez repeatedly stated in response to these interrogatories that Defendant negligently proceeded to perform a “blind” biopsy after the ExacTrac System failed, and the biopsy was negligently performed and resulted in the removal of healthy brain material.

Moreover, the Court looks to Plaintiffs’ motion for leave to file an amended complaint, filed recently on April 19, 2024 (which is the day that their opposition brief to this summary judgment motion was actually due). Plaintiffs seek leave to amend the complaint to “clarify” the allegations supporting their negligence claim; in reality, the proposed amendments add allegations that Defendant “fail[ed] to adequately manage and treat [Chavez]’s hyponatremia, and [sic] post-surgical epilleptic [sic] seizures.” Plaintiffs do not explain why the amendment was not requested earlier and Plaintiffs’ counsel only vaguely alludes to the “revelation of vital new information in discovery.” The motion for leave to amend was filed two months after Defendant filed this summary judgment motion; the lack of any meaningful explanation for the delay in seeking leave to amend leads the Court to conclude that the proposed amendment is an attempt to evade summary judgment.

Because Plaintiffs do not offer an expert declaration disputing whether Defendant acted negligently with respect to the craniectomy and biopsy, Plaintiffs do not meet their burden to show that a triable issue of material fact exists.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at AHLDEPT3@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.