Case Name: Roy v. Stanford Hospital and Clinics
Case No.: 2015-1-CV-285155

This is a medical malpractice action initiated by plaintiff Daniel Roy (“Plaintiff”) against defendant Stanford Hospital and Clinics (“Defendant”).

According to the allegations of the complaint (“Complaint”), Defendant provided medical care to Emmalynne Roy (“Roy”), Plaintiff’s mother, in connection with the labor and delivery of Plaintiff. Defendant negligently evaluated and treated Plaintiff, causing him to suffer permanent and disabling injuries, including hypoxic-ischemic brain damage. Plaintiff asserts a single cause of action for medical negligence. Defendant presently moves for summary judgment of the Complaint.

Legal Standard

“A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit . . . .” (Code Civ. Proc., § 437c, subd. (a)(1).) A defendant moving for summary judgment bears the initial burden of showing the action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) A defendant can make such a showing by demonstrating one or more of the elements of a cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (o)(1).)

“If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) “However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.” (Ibid.; see also Code Civ. Proc., § 437c, subd. (p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

I. Merits of the Motion

Two essential elements of a medical malpractice action are breach of duty and causation. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.) In the notice of motion, Defendant asserts Plaintiff cannot prove either element. While the element of breach is analyzed in the supporting papers, the element of causation is not. For example, the conclusion section of the memorandum does not even mention causation. Defendant only states as follows: “Based on competent expert testimony, defendant has negated the essential element of plaintiff’s claim for medical negligence: breach of the standard of care. Summary judgement is warranted because there is no triable issue of material fact on the following issue: there was no act or omission on the part of [Defendant] that amounted to a breach of the standard of care.” (Mem. Ps. & As., p. 14:24-28.) Consistent therewith, the evidence presented only addresses the element of breach. As such, Defendant does not carry its initial burden with respect to the element of causation.

Turning to the element of breach, a plaintiff must prove that the defendant’s conduct fell below the standard of care that a person of ordinary prudence would exercise under similar circumstances. (Flowers v. Torrance Memorial Hosp. Medical Ctr. (1994) 8 Cal.4th 992, 997.) Here, the Complaint is very general and does not specifically allege Plaintiff’s theory as to what went wrong with his medical care. Defendant consequently addresses the entire labor process in discussing the issue of breach. In doing so, Defendant relies on the testimony of Karen Harmon (“Harmon”), a labor and delivery nurse. (Harmon Decl., ¶ 1.) Harmon begins by describing the facts of the case as follows.

On May 3, 2014, at approximately 4 pm, Roy had a spontaneous rupture of membranes. (Harmon Decl., ¶ 6.2.) An external fetal monitor was placed at 6:22 pm and she was admitted to the labor and delivery unit at the hospital at 6:45 pm. (Ibid.) At 7:45 pm, nurse Ping Jin (“Jin”) called Laurie Karl, M.D. (“Karl”) to update her on Roy’s condition. (Id. at ¶ 6.2.) At that time, Karl ordered “for Pitocin augmentation,” which started at approximately 8:12 pm. (Ibid.) Later, at 12:08 am, Jin performed a vaginal examination, which revealed the cervix was 3 cm dilated and 90% effaced and the fetal station was -3. (Id. at ¶ 6.3.) From 12:27 am through 12:30 am, “there was a decelatory pattern,” which Jin addressed by turning off the Pitocin, placing an oxygen mask on Roy, providing intravenous “fluid bolus of lactated ringers,” turning her on her left side to increase oxygen and blood flow to the fetus, and informing Karl of her status. (Id. at ¶ 6.4.) The fetal heart rate returned to a normal baseline rate with minimal to moderate variability. (Ibid.)

At 12:45 am, Jin performed another vaginal examination, this time revealing the cervix was 4 cm dilated and 90% effaced, and the fetal station was -2. (Harmon Decl., ¶ 6.5) An hour later, Karl performed another examination, showing the cervix was now 100% effaced. (Id. at ¶ 6.6.) A fetal scalp electrode was placed and Karl planned to keep Roy off of Pitocin for another one to two hours to see if she “progressed on her own.” (Ibid.) An hour and a half later, Roy “had a variable deceleration to the 50s,” but the fetal heart rate returned to baseline with moderate variability. (Id. at ¶ 6.7.) Due to the deceleration, Jin called Karl, who arrived at 2:24 am to perform another vaginal exam, which revealed the cervix was 6-7 cm dilated and 100% effaced, and the fetal station was -1. (Ibid.) Karl then advised Roy to turn onto her left side and opined the deceleration was likely due to the rapid progression of labor. (Ibid.)

Several minutes later, Roy reported feeling pressure. (Harmon Decl., ¶ 6.8.) Karl then performed another vaginal exam, revealing the cervix was 7-8 cm dilated. (Ibid.) An oxygen mask was again placed on Roy. (Ibid.) Jin performed two more vaginal exams. (Id. at ¶¶ 6.9-6.10.) The second exam was performed at 6:40 am and showed the cervix was 10 cm dilated and 100% effaced, and the fetal station was +3. (Id. at ¶ 6.10.) At 7:00 am, nurse Kim Akin (“Akin”) replaced Jin. (Id. at ¶ 6.11.) Almost an hour later, Roy was actively pushing until the delivery at 8:20 am. (Id. at ¶ 6.12.) All of Plaintiff’s vital signs were normal between his birth and 10:30 am. (Id. at ¶ 6.13.) At around 10:30 am, Roy started to try to breast feed Plaintiff. (Ibid.)

Between 10:45 am and 11:02 am, nurse Michelle Lucero (“Lucero”) was in the room with Roy while Akin was on a break. (Harmon Decl., ¶ 6.14.) Plaintiff’s father was also in the room until around 10:50-10:55 am, at which point he left to eat. (Ibid.) At 11:02 am, Lucero took off Roy’s blood pressure cuff and also left the room, leaving Roy alone with Plaintiff. (Ibid.) Before leaving the room, Lucero checked to make sure Plaintiff was doing well, which included confirming his “color was good, he was breast feeding well, and that there was no evidence of grunting or nasal flaring.” (Ibid.)

At approximately 11:05 am, Akin, along with nurse Lucy Baldwin (“Baldwin”), returned to the room. (Harmon Decl., ¶ 6.15.) Akin immediately noticed Plaintiff was not moving and looked discolored. (Ibid.) She picked him up and took him to the radiant warmer. (Ibid.) He was not breathing, “had poor tone,” and had a decreased umbilical pulse. (Ibid.) Akin and Baldwin began resuscitation efforts, including bag breathing and chest compressions. (Ibid.) Akin called for the neonatal intensive care unit (“NICU”) team, which included the attending neonatal hospitalist Kathleen Forcier (“Forcier”) and a nurse. (Ibid.)

Forcier arrived in the room about 30-40 seconds after being called. (Harmon Decl., ¶ 6.16.) After being apprised of what happened, Forcier immediately called the Pediatric Code Team, which arrived at 11:10 am. (Id. at ¶ 6.17.) In the meantime, Forcier repositioned Plaintiff and continued positive pressure ventilation, which had already started prior to her arrival. (Ibid.) Plaintiff’s heartrate was less than 60 and the staff continued chest compressions. (Ibid.) At 11:12 am, Plaintiff was intubated with a 3.5 ETT without complication. (Id. at ¶ 6.18.) Two minutes later, Plaintiff’s heartrate was between 60 and 100 and, as a result, chest compressions were stopped. (Id. at ¶ 6.19.) Within another minute, his heartrate had increased to the 160s and his oxygen saturation was in the high 90s. (Ibid.) Several minutes later, Plaintiff was transferred to the NICU. (Ibid.)

Based on the above facts, Harmon opines the care provided by Defendant complied with the applicable standard of care. (Harmon Decl., ¶ 7.) In forming that conclusion, Harmon attests Plaintiff was born healthy. (Id. at ¶ 7.1.) Harmon also states Roy was educated on proper breast feeding techniques, including how to hold her child, obtain a good latch, and make sure her child’s breathing is not obstructed. (Id. at ¶ 7.3.) Harmon opines the applicable standard of care did not require the nurses to stay in the room at all times while a mother is breastfeeding. (Id. at ¶ 7.4.) Instead, according to Harmon, the standard of care requires a nurse to be present at all times during the first hour after delivery, at which time the mother could be transferred to postpartum care. (Ibid.) Harmon insists the nursing staff did not violate the standard of care because, when the nurses left the room, it had been more than two hours since Plaintiff’s birth and by all accounts he was doing well. (Ibid.) Harmon also attests Defendant’s staff responded to and handled the resuscitation of Plaintiff and the deceleration prior to birth did not fall below the applicable standard of care. (Id. at ¶¶ 7.5-7.6.) This evidence reflects Defendant did not breach its duty of care. Thus, Defendant meets its initial burden of demonstrating Plaintiff cannot prove the element of breach.

Relying on the testimony of nurse Christine Stelly (“Stelly”), Plaintiff raises a triable of issue of material fact as to the element of breach. Stelly states that the relevant standard of care is that a nurse must ensure the mother and baby are each in a safe position and place. (Stelly Decl., ¶ 8.) Stelly identifies the following five factors affecting such assessment: (1) whether the mother is fatigued; (2) whether the mother is still under the effects of anesthesia; (3) whether the mother has previously had a child and successfully breastfed; (4) the mother’s body type and size; and (5) whether the mother and baby are alone. (Ibid.)

Applying these factors, Stelly concludes Defendant breached the standard of care because Roy and Plaintiff were not in a safe position and place when Lucero left them alone in the room. (Stelly Decl., ¶ 9.) As to the first factor, Stelly attests Roy was fatigued. (Ibid.) In support, she points to Lucero’s description of Roy as exhausted and tired and Baldwin’s testimony that Roy was dozing or asleep when she entered the room shortly after 11:00 am. (Id. at ¶¶ 9, 7l.) With respect to the second factor, Stelly states the hospital records do not show the staff performed any required post-removal epidural assessments after Plaintiff’s birth, such as rotating Roy every two hours or testing her ability to walk. (Ibid.) In fact, Stelly indicates Defendant’s staff did not chart any evaluation of Roy’s mobility until after the subject accident. (Id. at ¶ 7n.) Turning to the third factor, Stelly insists the evidence reflects Plaintiff is Roy’s first child and this was her first pregnancy. (Id. at ¶ 7a.) Stelly also maintains Roy had not successfully breastfed Plaintiff prior to the incident and she had a “LATCH” score of 3, which is low. (Id. at ¶¶ 7g-h.) As to the fourth factor, Stelly attests Roy was 5’3” and weighed 207 pounds, placing her body mass index in the category of obese. (Id. at ¶ 7b.) Last, with respect to the fifth factor, Plaintiff and Roy were left alone in the room. (Id. at ¶ 7j.)

Based on the above, Stelly opines it is more likely than not that Plaintiff suffocated due to contact with Roy’s body, likely her breasts. (Stelly Decl., ¶ 7m.) Stelly attests Roy was tired, likely to fall asleep, unable to control large parts of her body due to the effects of anesthesia, overweight and at a greater risk of causing suffocation, and an inexperienced mother trying to breastfeed for the first time. (Ibid.) In addition, Stelly directly responds to Harmon’s insistence that the standard of care did not require a nurse to be with Roy at all times. (Id. at ¶ 13.) Stelly insists that consideration is irrelevant to her conclusion because, even with a lower staffing ratio, a nurse breaches the standard of care by leaving a mother and child alone in an unsafe position and place, as was the case here. (Ibid.)

Consequently, Stelly’s testimony raises a triable issue of material fact as to whether Defendant breached the standard of care by failing to ensure Roy and Plaintiff were in a safe position and place. Accordingly, the motion for summary judgment is DENIED.