Precious Mubanga vs. Mercy San Juan Medical Center
Nature of Proceeding:
Filed By:
Motion for Summary Judgment and/or Adjudication
McPherson, Dennis P.

Defendant Mercy San Juan Medical Center’s motion for summary judgment, or in the alternative, summary adjudication is granted.

Plaintiff Precious Mubanga alleges that she was admitted to Defendant’s medical center to deliver her child. Prior to her admission she alleges that she was examined by defendant Jenifer L. Schwarz, M.D. and it was determined that she would deliver her child via C-section. During delivery, Ms. Mubanga alleges that during the January 2, 2012, delivery, her bladder was injured and that no one identified or diagnosed the injury. Dr. Naftulin (whom Ms. Mubanga states will be added via Doe amendment) performed a procedure to repair her bladder, though she continued to suffer pain and the incision from the procedure did not properly heal. Ms. Mubanga alleges causes of action for medial malpractice and Plaintiff Gaulden Chindime alleges a loss of consortium cause of action.

Defendant moves for summary judgment on the basis that defendant Schwartz was not its agent, partner, joint venturer or franchisee such that it could be liable for her conduct. In addition, it argues that its nursing staff met the standard of care and did not cause or contribute to her injuries.

Ms. Mubanga’s request for a continuance, first made in the opposition papers, pursuant to CCP § 437c(h) on the basis that she needs to conduct discovery on the agency issues and the issues regarding whether Defendant’s nursing staff were negligent is denied. Ms. Mubanga seeks to depose Defendant’s medical expert who submitted a declaration on the standard of care and Defendant’s Vice President of Human Resources, Amy Mantell, who submitted a declaration regarding the agency issues Ms. Mubanga’s counsel declares that counsel wishes to “obtain and present evidence of the agency theory that will prove that Defendant and its’ staff were negligent for all or part of the Plaintiffs’ injuries…I would like the opportunity to obtain documentary evidence to support Plaintiff’s agency theory and depose Amy Mantell.” (Geron Decl. ¶ 7.) “I would like to obtain and present evidence of the standard of care and the breach of the standard of care. I would like to obtain the identity of Defendant’s medical experts and depose them. (Id. ¶ 8.) I would like to obtain the identity of the staff, including the nurses. I would like to depose them.” (Id. ¶ 9.) Plaintiff’s counsel states that this discovery has not yet been conducted because “I recently discovered the identity of another potential defendant and in order to preserve judicial economy, I held off conducting depositions in order to avoid duplicity.” (Id. ¶ 11.)

Ms. Mubanga’s counsel’s declaration is insufficient even under the liberal standard of CCP § 437c(h). Indeed, Ms. Mubanga essentially seeks to depose the two witnesses that offered declarations in support of Defendant’s motion and obtain unidentified “documentary evidence.” However, there is no reason why such discovery was not obtained prior to the instant opposition. The statement that counsel held off on depositions to “avoid duplicity” because counsel discovered the identity of another potential defendant makes little sense and does not justify a failure to conduct the discovery necessary to oppose Defendant’s motion. Further, counsel’s argument that a continuance is permitted to depose an expert who supplied an opinion in support of a motion for summary judgment where there has been no expert witness exchange is inapplicable. Indeed, that authority makes clear that “under the proper circumstances, the parties should be allowed to depose an expert who supplies a declaration or affidavit in support of or in opposition to summary judgment or summary adjudication where there is a legitimate question regarding the foundation of the opinion of the expert.” (St. Mary Medical Center v. Superior Court (1997) 50 Cal.App.4th 1531, 1540 [evidence submitted to suggest the bases for the expert’s opinion were untenable].) “In reaching this conclusion we caution that the process should not be utilized to turn summary proceedings into mini-trials. Whether to grant discovery in a given case falls within the sound discretion of the trial court based upon all the facts presented.

There must be objective facts presented which create a significant question regarding the validity of the affidavit or declaration which, if successfully pursued, will impeach the foundational basis of the affidavit or declaration in question.” (Id. at 1540-1541 [emphasis added].) Plaintiff has presented no evidence in opposition, much less any “objective facts” which raise any question regarding the validity of Defendant’s expert’s declaration. As a result, the request for continuance pursuant to CCP § 437c(h) is denied.

Defendant’s separate statement includes the following. Ms. Mubanga received prenatal care from defendant Jenifer Schwarz, M.D. at Camelia Women’s Health office prior to delivering her child. All the information she received during her prenatal care was printed on Cameila letterhead. Camelia offered Ms. Mubanga a choice of where to deliver her child and Ms. Mubanga chose Mercy San Juan. When she as admitted to Mercy San Juan on January 2, 2012, she was presented a “Conditions of Admission and Treatment-Inpatient” document which states that doctors were independent providers of medial care and not Defendant’s employees or agents. Ms. Mubanga signed the document, acknowledged she read and understood it and was given an opportunity to ask questions. Defendant does not pay physicians for care given to patients admitted to its facility. Physicians do no pay Defendant for staff privileges. Defendant does not control physicians’ practices or delivery of care. Defendant Jenifer Schwarz, M.D. is not and was not an employee, partner, joint venturer franchisee, or agent of Defendant.

Ms. Mubanga previously underwent a surgical procedure called a myomectomy in 2004. Many individuals who undergo this procedure have increased risks to their labor and delivery, including bleeding, uterine scarring and rupture, and scarring between the uterus and surrounding organs, and thus most deliver by C-section. Defendant Schwartz noted during Ms. Mubanga’s C-section that there was significant scarring between the dome of the bladder and the uterus and that the scarring would need to be dissected to deliver Ms. Mubanga’s child. Damage to surrounding organs is a known risk of C-sections, which risk is increased due to the presence of pre-existing scar tissue. None of the hospital employees were involved in making incisions, dissections or holding any instruments during the procedure. Defendant’s expert opines that the nursing staff met the standard of care during the C-section.

Within two hours after the procedure, nurses documented that Ms. Mubanga had blood colored urine and a nurse called the doctor to report the condition at approximately 10 pm on January 2, 2012. An urologist consulted on the matter and recommended that a cystogram be performed. The cystogram was performed by 9:30 am on January 3, 2012 and doctors were aware that she might have a post-operative leak. Nurses documented their observations regarding Ms. Mubanga’s urinary output. A nurse documented that Ms. Mubanga had a distended abdomen at 8:30 on January 3, 2012, and called the doctor two times, first to report on her urinary output and again to report that the abdomen remained distended and that there was no urinary output. The doctor ordered a “stat” CT study of the abdomen which showed the presence of urine and she was taken in for bladder repair surgery. The nurses involved with Ms. Mubanga’s care during the post-partum period up to the bladder repair surgery properly assessed Ms. Mubanga, properly documented their findings and properly communicated with the doctor. Defendant’s expert opines that the nurses met the standard of care during this time period.

Defendant seeks summary judgment on the basis that defendant Jenifer Schwarz, M.D. was not its employee, partner, joint venturer franchisee, or agent such that it could be liable for her conduct and that its staff met the appropriate standard of care and did not cause or contribute to Ms. Mubanga’s injuries.

Here, Defendant’s evidence is sufficient to show that defendant Schawrz was not an employee, partner, joint venturer franchisee, or agent (actual or ostensible) of Defendant. (UF 1-15.) Indeed, Defendant did not employ Schwarz, did not control or direct her delivery of medical services, did not pay Schwarz for services provided to patients, and informed Ms. Mubanga of the nature of the relationship between itself and doctors when she was admitted. Ms. Mubanga does not dispute any of the facts set forth in the separate statement on these issues and thus failed to create a triable issue of material fact on the issue of whether Defendant is liable for defendant Schwarz’s conduct. In addition, Defendant’s evidence shows that Defendant’s nursing staff met the applicable standard of care. Defendant’s expert opines that nursing staff met the appropriate standard of care both during Ms. Mubanga’s C-section and during the post-partum timeframe and did nothing to cause or contribute to Ms. Mubanga’s injuries. (Katz Decl. ¶¶ 9, 12, 13.) Ms. Mubanga presents no evidence in opposition to dispute Defendant’s expert’s opinion and thus failed to create a triable issue of material fact as to whether Defendant’s nursing staff met the appropriate standard of care and/or caused or contributed to her injuries. Thus, Defendant is entitled to judgment on Ms. Mubanga’s medical malpractice cause of action. Given that Plaintiff Mubanga’s cause of action fails, Mr. Chindime’s derivative cause of action for loss of consortium necessarily fails and Defendant is also entitled to judgment on that cause of action.

Besides seeking a continuance which the Court denied above, Plaintiff’s only other opposition to the motion consists of objections to Defendant’s declarations. The objections to Defendant’s expert’s declaration and Defendant’s Vice President of Human Resources, Amy Martell’s declaration are overruled. Each contains a proper foundation for their opinions and statements and none contain improper legal conclusions or inadmissible hearsay. Given that Plaintiff’s objections are overruled and she offered no evidence in support of her opposition, the motion must be granted.

Defendant’s motion for summary judgment is granted.

Defendant’s counsel shall prepare for this Court’s signature and a judgment of dismissal pursuant to CCP § 437c(g) and CRC Rule 3.1312.