Case Number: BC694160 Hearing Date: May 01, 2019 Dept: 2

Defendant City of Long Beach’s Motion for Summary Judgment is GRANTED. Defendant’s alternative Motion for Summary Adjudication is MOOT.

Evidentiary Objections

Plaintiffs’ Objections

The Court notes that Plaintiffs have submitted an objection to Dr. Shea’s opinion within their separate statement. (See Plaintiffs’ Separate Statement, No. 44.) This is improper and not in compliance with CRC Rule 3.1354. (See Cal. Rules of Court, rule 3.1354 (“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion.”).) The Court thus declines to rule on this evidentiary objection. (See Hodjat v. State Farm Mutual Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 7-9 (finding that the trial court did not abuse its discretion in refusing to rule on the plaintiff’s evidentiary objections made in plaintiff’s separate statement, to overlook plaintiff’s deficiency, or to permit plaintiff the opportunity to reformat his opposing papers).)

Defendant’s Objections

Defendant has submitted an evidentiary objection to the declaration of Jeff Pollakoff. Defendant’s evidentiary objection does not comply with CRC Rule 3.1354 as it is not formatted in accordance with CRC Rule 3.1354(b) and does not specifically state the material being objected to. Defendant has also failed to submit the requisite proposed order pursuant to CRC Rule 3.1354(c). Regardless, to the extent Defendant is specifically objecting to Pollakoff’s statements in paragraph 14 of his declaration, the Court will consider the merits of Defendant’s objection.

“‘[A] properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact.’” (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155 (quoting Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510).) “‘However, even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. [Citation.] For example, an expert’s opinion based on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence. [Citations.] Similarly, when an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’” (Id. (quoting Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117).) “‘An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.’” (Id. (quoting Jennings, supra, 114 Cal.App.4th at 1117-18) (emphasis in original).)

Here, Defendant argues that Pollakoff’s conclusion that Paramedic Tyler Viana acted in a grossly negligent manner is not supported by any facts, explanation or rationale as to why Viana’s conduct is an extreme departure from the standard of care such that Pollakoff’s conclusion on Viana’s conduct is without evidentiary value. The Court agrees. Pollakoff opines that the use of the guard rail as an arm support to start an IV would be an extreme departure from standard practice in view of the patient’s age, size, and position on the gurney. (See Plaintiffs’ Exhibits, Ex. A, Pollakoff Decl., ¶ 14.) However, Pollakoff also states that he is not aware of any policy or protocol that prohibits the use of the guard rail as an arm support to start an IV. (Id.) Given Pollakoff’s lack of awareness of any such policies, Pollakoff’s opinion that the use of the gurney as an arm support to start an IV would be an extreme departure from standard practice in this case is unsupported. Pollakoff’s opinion with respect to how the necessity and benefits of attempting to start an IV on a baby’s arm in the back of a moving ambulance was arguable at best in this case is also insufficient to provide support for his opinion that Viana’s conduct was an extreme departure from standard practice. As Pollakoff’s opinion regarding Viana’s conduct constituting gross negligence is unsupported, it is inadmissible. Therefore, the evidentiary objection to paragraph 14 of Pollakoff’s declaration is SUSTAINED.

Discussion

Failure to State Sufficient Facts

Defendant argues that it is entitled to summary judgment because Plaintiff has failed to plead gross negligence. A motion for summary adjudication is brought on grounds that a cause of action has no merit and requires evidence to demonstrate the lack of merit. Code Civ. Proc., § 437c(b), (f). Challenging the pleading for failure to state sufficient facts is thus not a ground for granting summary adjudication. Rather, this argument is more proper on a motion for judgment on the pleadings. Therefore, Defendant is not entitled to summary judgment on Plaintiff’s claims on this ground.

First Cause of Action: Medical Negligence (by Plaintiff Sofia Acevedo)

The elements of medical malpractice are: “(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.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02 [citations omitted].) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Thus, in a medical malpractice case, “[w]hen 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. App. 3d 977, 984-85 [citations omitted].) An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal. App. 3d 988, 999.)

Health and Safety Code section 1799.106 states that “a firefighter, police officer or other law enforcement office, EMT-I, EMT-II, EMT-P, or registered nurse who renders emergency medical services at the scene of an emergency or during an emergency air or ground ambulance transport shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.” (Health & Safety Code, § 1799.106(a); see Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 153 (“Providers of emergency medical services, including paramedics and EMTs, ‘shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.’”).) “A public agency employing such a firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, EMT-P, or registered nurse shall not be liable for civil damages if the firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, EMT-P, or registered nurse is not liable.” (Health & Safety Code, § 1799.106(a).) “Gross negligence is defined as the lack of even scant care or an extreme departure from the ordinary standard of conduct.” (Sanchez, supra, 8 Cal.App.5th at 153.)

Here, it is undisputed that the paramedics involved in the incident are employees of Defendant, a public entity. Therefore, Plaintiffs must demonstrate Defendant’s paramedics acted with gross negligence in order to hold Defendant liable in this case.

Defendant has provided a declaration from Stephen R. Shea, M.D. in support of its motion for summary judgment. Dr. Shea is a board-certified emergency physician who is currently the medical director of the Department of Emergency Medicine at St. Mary’s Medical Center and at Long Beach Emergency Mobile Care System. (Peters Decl., ¶ 11, Ex. 7, Shea Decl., ¶ 1.) Dr. Shea also previously served as the paramedic liaison physician for St. Mary’s Medical Center. (Id.) Dr. Shea opines that, based on a review of the Los Angeles County’s Department of Health Services Pre-hospital Care Policy Manual and Plaintiff Acevedo’s medical records, Defendant’s paramedics’ conduct and medical care provided to Acevedo during their transport of Acevedo to Long Beach Memorial Medical Center did not fall below the standard of care. (Id., ¶¶ 2-3, 6.) Dr. Shea states that, due to Acevedo’s condition and age, appropriate Advanced Life Support (“ALS”) protocols were activated during the transport of Acevedo to the hospital, including the paramedic’s attempt to place an IV delivery system into Acevedo’s left arm for the purposes of administering additional medication in the event Acevedo experienced another seizure. (Id., ¶¶ 3-4.) Dr. Shea also opines that, assuming Acosta’s account of Acevedo’s arm placement at the time of the attempted IV placement is true and accurate for the purposes of his opinion, the amount of force necessary to cause a fracture of the humerus in an infant could not have been produced by a bump in the road and that it is much more likely that the fracture was caused by forceful contractions during the seizure of other unwitnessed trauma subsequent to the seizure. (Id., ¶¶ 4-5.) Based on this, the Court finds that Defendant has met its burden of demonstrating that its paramedics’ conduct did not fall below the standard of care, much less constitute gross negligence. The burden thus shifts to Plaintiffs to show a triable issue of one or more material facts exist as to this cause of action.

The Court finds that Plaintiffs’ evidence is insufficient to demonstrate that a triable issue of material facts exist as to this cause of action. As discussed, Plaintiffs must show that Defendant’s employees engaged in gross negligence in order to hold Defendant liable. The evidence submitted by Plaintiffs is insufficient to raise triable issues of material fact as to whether Defendant’s paramedics’ conduct was grossly negligent. Plaintiffs rely on the declaration from Jeff Pollakoff, a retired paramedic and paramedic preceptor and current principal instructor for EMT training at the UCLA Center for Prehospital Care, to contradict Dr. Shea’s declaration. However, as discussed, Pollakoff’s opinion that Defendant’s paramedic’s conduct in using the guard rail as an arm support to start an IV would be an extreme departure from standard practice is unsupported and inadmissible. The remaining portions of Pollakoff’s expert opinion are insufficient to raise triable issues of fact as to gross negligence. At most, Pollakoff’s declaration only raises triable issues of material fact as to whether Defendant’s paramedic departed from standard practice. (See Plaintiffs’ Exhibits, Ex. A, Pollakoff Decl., ¶ 13.) While this may generally be sufficient to meet Plaintiffs’ burden on an ordinary medical negligence cause of action, this is insufficient to meet Plaintiffs’ burden in this case, given the gross negligence requirement pursuant to Health and Safety Code section 1799.106. The declaration submitted by Sandra J. Murray, Acevedo’s consulting physician, and Dr. Murray’s findings are also insufficient to support gross negligence. (See Plaintiffs’ Exhibits, Ex. C.) At most, Dr. Murray’s findings that Acevedo likely sustained the fracture when her arm was hyperextended over the gurney railing during the IV placement also only raise triable issues as to ordinary negligence, not gross negligence. (See id., Ex. E, p. 125.)

As Plaintiffs have failed to meet their burden of demonstrating triable issues of material fact exist, Defendant is entitled to judgment as to this cause of action.

Second Cause of Action: Medical Negligence (by Plaintiff Blanca Acosta)

As a preliminary matter, the Court notes that, despite this cause of action being labeled as a medical negligence claim, the gravamen of the allegations demonstrate that this is actually a negligent infliction of emotional distress claim based on a bystander theory. (FAC, ¶ 16.) The Court will thus analyze this claim as an NIED claim.

In order to recover on an NIED claim based on a bystander theory, the plaintiff (1) must be closely related to the injury victim; (2) must have been present at the scene of the injury-producing event at the time it occurred and then aware that it was causing injury to the victim; and (3) as a result, must have suffered serious emotional distress. (Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 488; Thing v. La Chusa (1989) 48 Cal.3d 644, 667-68.) “Whether plaintiffs can recover damages for NIED is dependent upon traditional tort analysis and the elements of duty, breach of duty, causation and damages must exist to support the cause of action.” (Klein v. Children’s Hospital Medical Center (1996) 46 Cal.App.4th 889, 894.) “A plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative.” (Bird v. Saenz (2002) 28 Cal.4th 910, 916.)

Defendant argues that Plaintiff Acosta cannot prove that she was contemporaneously aware of the alleged injury-producing event to Plaintiff Acevedo and that she contemporaneously understood the alleged injury-producing event as causing injury to Acevedo. Defendant has submitted Acosta’s deposition, in which she testified that she did not believe the paramedic had injured Acevedo’s elbow at the time the IV was being placed in Acevedo’s arm as she thought it was the needle that caused Acevedo to cry. (Defendants’ Ex. 1, p. 39-40.) Furthermore, it was not until the following day that Acosta noticed swelling and bruising on Acevedo’s arm and took Acevedo back to the ER, where she was diagnosed with a small fracture in her humerus. (Defendant’s Separate Statement, Nos. 26-30.) Based on this, Defendant has met its burden of showing that Plaintiff Acosta cannot prove that she was contemporaneously aware and understood that the use of the guard rail as an arm support to start the IV for Acevedo caused Acevedo’s arm fracture.

Plaintiffs have not disputed that it was not until the next day that Acosta noticed swelling and bruising in Acevedo’s arm and took her to the ER where she was ultimately diagnosed with a fracture. (See Plaintiffs’ Separate Statement, Nos. 26-30.) While Plaintiffs dispute that Acosta was not aware that Acevedo had suffered an injury to her elbow at the time she observed Acevedo’s arm being extended over the gurney railing, Acosta also states that she knew Acevedo’s elbow or arm was hurt but thought it was from the needle. (See id., No. 18.) Believing Acevedo’s elbow or arm was hurt from the needle is not the same as being contemporaneously aware of and understanding that the subject injury-producing event here—i.e., the use of the guard rail as an arm support and extension of the arm over the railing—was the cause of Acevedo’s fracture. Plaintiffs have failed to present any other evidence supporting contemporaneous awareness and understanding. Furthermore, as discussed, Plaintiffs have failed to establish that Defendant engaged in medical negligence, meaning that Plaintiffs have failed to establish any triable issues of fact as to breach of duty by Defendant. Without such breach, Plaintiff Acosta cannot recover on an NIED claim.

As Plaintiffs have failed to meet their burden of demonstrating triable issues of material fact exist, Defendant is entitled to judgment as to this cause of action.

Summary Adjudication

As Defendant is entitled to judgment on Plaintiffs’ claims, Defendant’s alternative motion for summary adjudication is MOOT.

Conclusion

Based on the foregoing, Defendant’s motion for summary judgment is GRANTED. Defendant’s motion for summary adjudication is MOOT.

Moving party is ordered to give notice.