Judge William A. Crowfoot, Case Number: 22STCV14691, Date: 2023-07-11 Tentative Ruling

Judge: William A. Crowfoot, Case: 22STCV14691, Date: 2023-07-11 Tentative Ruling

Defendant Burbank Healthcare and Rehabilitation Center (“Defendant”) moves for an order compelling plaintiff Samantha McNeilly (“Plaintiff”) to produce: (1) a previously executed authorization to obtain her medical and billing records from San Rafael Hospital in Costa Rica (“San Rafael”) and (2) documents supporting her loss of earnings claim. Defendant also moves for leave to take a second deposition of Plaintiff and for monetary sanctions in the amount of $5,610 on Plaintiff and/or Plaintiff’s counsel of record.

Defendant’s motion is premised on its requests for production served with its deposition notice to Plaintiff. (Motion, Ex. G.) The specific requests for production at issue, identified in Defendant’s separate statement, are as follows:

Request No. 1: “Any and all original bills, original invoices, etc., evidencing any claim of damages in this action, including, but not limited to, any medical billing records for the medical care and treatment provided to [P]laintiff in Costa Rica immediately after her fall from the third story balcony and prior to her return to the United States.”

Request No. 15: Any and all medical records in the possession of plaintiff, which have not yet been produced by [her] counsel in connection with this litigation, including, but not limited to, any medical records relating to the medical care and treatment provided to [P]laintiff in Costa Rica immediately after her fall from the third story balcony, and prior to her return in the United States.”

Defendant argues that the previously executed authorization is necessary to obtain Plaintiff’s medical records from San Rafael, which are probative of the cause for Plaintiff’s alleged “sepsis and subsequent osteomyelitis of her right ankle.” The most glaring issue with Defendant’s motion is that no previously executed authorization to obtain medical records from San Rafael Hospital in Costa Rica was included in either request for production or could otherwise be deemed to be encompassed within either request for production. Moreover, an order compelling Plaintiff to produce an authorization for Defendant’s use would be tantamount to the court issuing an order compelling Plaintiff to provide a signed authorization, which is outside the scope of the Civil Discovery Act and an act which the Court specifically noted it was unable to perform during the informal discovery conference (“IDC”) held on May 10, 2023. Defendant’s motion for an order compelling the production of this executed authorization is DENIED.

It is undisputed that Plaintiff has not provided documents supporting her loss of earnings claim. Plaintiff explains in her opposition brief that she “cannot currently locate the pertinent records” and vaguely suggests that she is “endeavoring to locate and to provide [them]” without describing any of those endeavors. (Opp., p. 15.) However, Plaintiff provides no sworn testimony from herself or her counsel attesting to this fact or explaining any attempts to obtain these documents ever since the deposition notice was first served in March of 2023.

Additionally, Defendant argues in its reply brief that Plaintiff’s assertion is disingenuous because Plaintiff’s employer was her father and documentation of her earnings could be acquired if only she made a reasonable inquiry. This characterization is not strictly accurate as Plaintiff was employed by two companies, Sky Tag and Sky Posters, which are owned by her father, Michael McNeilly. Nevertheless, the Court is not persuaded by Plaintiff’s unsubstantiated assertion that she cannot locate the documents supporting her loss of earnings claim.

Therefore, Defendant’s motion with respect to these documents is GRANTED. Plaintiff is ordered to produce documents supporting her loss of earnings claim within 20 days of the date of this order and attend a second deposition within 30 days of the date of that production. This deposition session will not exceed 2 hours in length.

Defendant’s motion is granted in part, but the Court DENIES Defendant’s request for sanctions because the motion was meritless with respect to the authorization. The Court also DENIES Plaintiff’s request for sanctions under Code of Civil Procedure section 2023.030(a) because Defendant was partially successful on its motion.

Defendant’s motion is GRANTED in part with respect to documents supporting Plaintiff’s loss of earnings. Documents are to be produced within 20 days and Plaintiff is to attend a second deposition within 30 days of the production of documents.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.

This medical malpractice action was filed by plaintiff Samantha McNeilly (“Plaintiff’) on May 3, 2022. On June 16, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”) naming Mayur Patel, M.D. (“Defendant”), Burbank Healthcare, Inc. dba Burbank Healthcare and Rehabilitation Center (“Burbank Healthcare”), and Richard Kroop, M.D. (“Dr. Kroop”) (collectively, “Defendants”). Plaintiff alleges that she was a patient at Burbank Healthcare in or about February through March of 2021 while she was convalescing from several surgical operations on her lower extremities. (FAC, ¶ 17.) Plaintiff claims that on or about February 26, 2021, she developed a urinary tract infection (“UTI”), severe tenderness in the lymph node in her right groin, abdominal pain and constipation, as well as an abscess/pressure sore in her right heel. (FAC, ¶ 18.) Plaintiff alleges that she made “vocal, continuous, and frequent complaints and demands to be seen by a physician and prescribed treatment for her worsening infection” but that Defendants ignored and disregarded her for over 10 days. (FAC, ¶ 19.) As a result of Defendants’ conduct, she alleges, the infection spread to her blood stream and led to a severe and dangerous infection of the bone. (Ibid.) By the time she was transported to St. Joseph Medical Center by ambulance on or about March 9, 2021, Plaintiff alleges she was diagnosed with acute cystitis, septic shock, raging sepsis with multiple infectious agents, and osteomyelitis of her ankle, resulting in multiple surgical procedures, several months of hospitalization, and severe and permanent injuries. (Ibid.)

On April 26, 2023, Defendant filed this motion for summary judgment on the grounds that he complied with the standard of care in his care and treatment of Plaintiff and, to a reasonable degree of medical probability, Plaintiff’s claimed injuries were not due to any breach of the standard of care by Defendant.

Defendant objects to Plaintiff’s evidence in opposition to his motion. The Court SUSTAINS the objections to paragraphs 5 through 13 of the Declaration of Stephen Bernard on the grounds that he lacks foundation and personal knowledge to testify as to the events underlying Plaintiff’s action. Mr. Bernard also fails to establish that he is a physician qualified to provide expert testimony regarding Plaintiff’s medical condition.

The Court also SUSTAINS Defendant’s objections to the Declaration of Jeffrey Galpin, M.D., in its entirety. Dr. Galpin’s declaration fails to state which materials he relied on when forming his expert opinion. Therefore, his opinions lack foundation and are thus inadmissible. (See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524 (finding that a declaration that does not disclose the matter relied on in forming the opinion expressed is inadmissible and that “an expert opinion is worth no more than the reasons upon which it rests”). Furthermore, Dr. Galpin’s declaration includes no facts or reasoned explanation for his opinion, nor does Dr. Galpin specifically opine on Defendant’s conduct and whether it breached the applicable standard of care or caused Plaintiff’s injuries. While courts liberally construe the declarations for the plaintiff’s experts and plaintiff is entitled to all favorable inferences derived from the expert’s declaration, “these principles in no way eliminate the need for some form of ‘reasoned explanation,’ and it remains the case that any inferences must ‘reasonably be derived from’ the declaration.” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 782.) In fact, Defendant is not mentioned by name other than to state that Defendant was Plaintiff’s admitting physician at PSJMC and Defendant was called to check on Plaintiff once. (See also, Reply, p. 6.)

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).) “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).)

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 submits the declaration of Abraham M. Ishaaya, M.D. (“Dr. Ishaaya”), a licensed physician board-certified in Internal Medicine with a subspecialty certification in Pulmonary Medicine. (Ishaaya Decl., ¶ 2.) Dr. Ishaaya states that he has reviewed Plaintiff’s records from Providence St. Joseph Medical Center (“PSJMC”), Burbank Healthcare, and Plaintiff’s records maintained by Defendant. (Ishaaya Decl., ¶ 5.) He also reviewed records from the Burbank Fire Department, as well as the deposition transcripts of both Plaintiff and Defendant in this matter. (Ibid.) He declares that he currently serves as Medical Director for skilled nursing facilities similar to Burbank Healthcare and is “familiar with how those facilities operate and with the expectations of physicians managing patients admitted to such facilities.” (Ishaaya Decl., ¶ 2.) He also declares that he is familiar with the applicable standard of care for physicians specializing in internal medicine, pulmonology and critical care in the Southern California community during the time period relevant to this case and up to the present time. (Ishaaya Decl., ¶ 6.)

Based on his review of the above-listed materials, as well as his education, knowledge, background, training, and experiences, Dr. Ishaaya opines that Dr. Patel did not breach the standard of care. (Ishaaya Decl., ¶ 107.) Dr. Ishaaya reviewed the medical record and found that Plaintiff was medically stable and that there were no findings of infection during her admission on February 2, 2021, to PSJMC for an orthopedic surgery consultation. (Ishaaya Decl., ¶ 107(a), 107(c).) Dr. Ishaaya notes that within 72 hours of Plaintiff’s admission to Burbank Healthcare, Defendant visited Plaintiff and that during the first few weeks of at Burbank Healthcare, she remained stable and Defendant responded and issued orders as appropriate when he was contacted. (Ishaaya Decl., ¶ 107(e)-(f).) Dr. Ishaaya also states that Plaintiff’s first complaint of painful urination at Burbank Healthcare was on March 2, 2021, and that nursing notes reflected that Defendant would be advised, but there is no indication that the complaint was ever communicated to Defendant. (Ishaaya Decl., ¶ 107(h); Motion, Ex. D, p. 498.) He observes that additional nursing notes from Burbank Healthcare on March 2, 2021, do not include any mention of painful urination, but document a decrease of range of motion of the right lower extremity which indicates that Plaintiff was being monitored for signs of infection. (Ishaaya Decl., ¶ 107(h); Motion, Ex. E, p. 235.)

On March 5, 2022, painful urination was noted and two messages were left with Defendant. Burbank Healthcare’s medical director, referred only to as Dr. Hernandez, issued an order for urinalysis and culture, not Defendant. (Ishaaya Decl., ¶ 107(i).) Dr. Ishaaya states that Dr. Hernandez’s involvement does not imply a breach of the standard of care by Defendant as Defendant may have been attending to other patients requiring acute care, especially as he was a pulmonologist attending to patients in the Intensive Care Unit during the COVID-19 pandemic. (Ibid.) On March 6, 2021, Defendant saw Plaintiff and performed a physical assessment; he noted that she was doing well and had no complaints and that her vital signs were stable. (Ishaaya Decl., ¶ 107(j).) Since a urinalysis had already been ordered, no further orders from Defendant were required because there was “no indication for empiric treatment with antibiotics due to the lack of subjective complaints or findings and it was within the standard of care to await the preliminary results of the urinalysis ordered prior to further intervention.” (Ishaaya Decl., ¶ 107(k).) Those urinalysis results were sent on March 7, 2021, and showed the presence of leukocytes and bacteria, prompting Defendant to issue an order for Cipro the morning of March 8, 2021. (Ishaaya Decl., ¶ 107(l).) Defendant also issued an order for an abdominal ultrasound after Burbank Healthcare’s staff noted a new lump in Plaintiff’s right inguinal area and a complaint of pain radiating to Plaintiff’s right flank and back; the ultrasound was obtained on March 9, 2021 and did not reveal any significant findings. (Ishaaya Decl., ¶ 107(m).)

Defendant ultimately ordered Plaintiff to be transferred back to Providence St. Joseph Medical Center on March 9, 2021, for further evaluation after Plaintiff continued to complain of right foot pain and swelling. (Ishaaya Decl., ¶ 107(o).) Plaintiff was started on broad spectrum antibiotics and urine, blood, and wound cultures from her right foot were obtained. (Ishaaya Decl., ¶ 107(p).) Defendant requested that the emergency department contact orthopedic surgery and he requested wound care; Defendant subsequently upgraded Plaintiff’s admission to the ICU. (Ishaaya Decl., ¶ 107(p).)

Ultimately, Dr. Ishaaya states that Defendant was appropriately attended to while at Burbank Healthcare and later at PSJMC because she had fairly minor urinary symptoms, as reflected by the lack of documentation of any urinary symptoms or objective findings when seen by Defendant on March 6. (Ishaaya Decl., ¶ 107(r).) Furthermore, Dr. Ishaaya states that Defendant appropriately started antibiotics after the urinalysis results were made available and that Defendant’s choice of Cipro was within the standard of care because Plaintiff was a young patient without a history of UTIs, frequent antibiotics, or frequent hospitalization. (Ibid.)

In opposition, Plaintiff submits the declaration of Jeffrey Galpin, M.D. Not only does the declaration violate the Rules of Court governing the formatting of documents filed with the trial court, but the declaration, as discussed by the Court above, is inadmissible. Therefore, Plaintiff fails to raise a triable issue of fact by providing a competing expert declaration. And, even if the Court overruled Defendant’s objections to Dr. Galpin’s declaration, as further discussed below, summary judgment would still be appropriate on the grounds that Plaintiff does not raise any triable issue of material fact regarding the element of causation.

In California, to satisfy the causation element, a medical malpractice plaintiff must show that the professional negligence was a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.)

Dr. Ishaaya opines that Plaintiff’s foot infection was not caused in any way by the UTI because cultures from her right ankle grew gram positive bacilli and cocci, while her urine cultures grew gram negative bacilli. (Ishaaya Decl., ¶ 107(q).) Dr. Ishaaya states that these were not the same bacteria and there was never any growth from blood cultures, therefore, to a reasonable degree of medical probability, Plaintiff’s UTI and right foot infection were not related. (Ibid.)

Even if Dr. Galpin’s declaration were admissible, Plaintiff still fails to raise any triable issue of material fact regarding causation. Dr. Galpin does not mention any causal link between Defendant’s conduct and Plaintiff’s foot infection or osteomyelitis other than to say that Plaintiff “had two different sources of sepsis.” Dr. Galpin also does not address any of Dr. Ishaaya’s opinions in his declaration, nor could he, as Dr. Galpin executed his declaration on March 20, 2022, and Defendant’s motion for summary judgment and supporting papers were not served until April 25, 2023.

William A. Crowfoot

Judge of the Superior Court