Case Number: BC687744 Hearing Date: August 26, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT CEDARS-SINAI MEDICAL CENTER’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On December 21, 2017, Plaintiffs Shannon Colby (“Shannon”) and Monica Colby (“Monica”) (collectively “Plaintiffs”) filed a complaint against Defendants Jason Snibbe, M.D. (“Dr. Snibbe”); Cedars-Sinai Medical Center (“CSMC”); and Does 1-100 for medical negligence and loss of consortium. On May 15, 2019, Defendant CSMC (“Defendant” or “CSMC”) filed the instant motion for summary judgment. Plaintiffs filed a notice of non-opposition on July 18, 2019.

II. FACTUAL BACKGROUND

Plaintiff Shannon has a history of left hip pain that developed after she fell from a 25-foot ledge on May 18, 2006. (Undisputed Material Fact (“UMF”) No. 1.) On June 16, 2016, after a referral from Anthony C. Romero, M.D. (“Dr. Romero”), Shannon was evaluated by Dr. Snibbe who diagnosed her with osteoarthritis of the hip and recommended that she undergo a total left hip arthroplasty. (UMF Nos. 2-3.) On October 5, 2016, Shannon underwent a total left hip arthroplasty performed by Dr. Snibbe at CSMC. (UMF No. 4.) Post-surgery, Shannon had decreased muscle strength, impaired proprioception and sensory impairment of the left leg, but was able to walk with the assistance of a front-wheel walker. (UMF No. 6.) Shannon was discharged on October 6, 2016 for home care arranged through Central Coast Home Health, including physical therapy. (UMF No. 8.) Shannon was instructed to follow up with Dr. Snibbe in two weeks. (UMF No. 9.)

On October 20, 2016, Shannon presented to Dr. Snibbe’s office for a follow up appointment and Dr. Snibbe noted that Shannon was progressing well, but had difficulty lifting her leg and getting out of bed. (UMF No. 10.) Shannon also had occasional pain that radiated down her left leg and, on examination, had no quadricep function. (UMF No. 10.) An MRI was conducted and was negative for any nerve root compression. (UMF No. 11.) Dr. Snibbe recommended physical therapy two times per week for six weeks to improve quadriceps strength and gait. (UMF No. 11.)

By December 1, 2016, Shannon’s condition was improving with physical therapy, but she still used a cane to walk. (UMF No. 12.) It was determined that the left femoral nerve palsy was improving. (UMF No. 12.)

On February 2, 2017, Plaintiff Shannon presented to Dr. Snibbe’s office for another follow up appointment. (UMF No. 13.) Shannon had 5/5 strength in her quadriceps musculature, was able to perform hip flexion and knee extension, and had intact sensation in her bilateral lower extremities. (UMF No. 13.) However, Plaintiff presented to Dr. Snibbe’s office on June 29, 2017, complaining of pain in her left knee. (UMF No. 14.)

III. LEGAL STANDARDS

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia 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).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Id.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

Defendant CSMC moves for summary judgment on grounds that it complied with the applicable standard of care and treatment and did not cause Shannon’s injuries.

First Cause of Action: Medical Negligence (asserted by Plaintiff Shannon Colby)

Direct Liability

In a medical malpractice action, a plaintiff must establish: “(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, 984-85.)

Defendant presents a declaration from Daniel Oakes, M.D. (“Dr. Oakes”). Dr. Oakes is board certified in orthopedic surgery who specializes in hip and knee replacement surgeries. (Declaration of Daniel Oakes, M.D., ¶¶ 4-5.) Dr. Oakes opines that, based upon his review of Plaintiff Shannon’s medical records and his education, training and experience, the care and treatment provided by Defendant complied with the community standard of care at all times. (Id., ¶¶ 9, 12.) Dr. Oakes states that no complications were noted during surgery, femoral nerve palsy is a rare but reportable complication following a hip arthroplasty, the presence of femoral nerve palsy is not indicative of medical treatment that fell below the standard of care, the patient was evaluated as suitable for discharge, and there was no treatment that could have been done at CSMC to ameliorate or correct the problems in Shannon’s left leg. (Id., ¶ 12.) Dr. Oakes states that femoral nerve palsy after total hip arthroplasty is usually treated with expectant management as symptoms are typically transient, there is an expectation of recovery within 6 to 24 months after occurrence, treatment would typically involve the use of an assist device, and more advanced imaging such as an MRI or a nerve conduction study would be performed on an outpatient basis, as was done in this case. (Id.) Dr. Oakes further opines that no conduct on the part of Defendant, including its nursing staff and medical personnel, is a substantial cause of Plaintiff Shannon’s femoral nerve palsy following her left hip arthroplasty. (Id., ¶ 13.) Based on this, the Court finds that Defendant has met its burden of demonstrating that Defendant did not breach the duty of care or cause Plaintiff Shannon’s injuries.

Plaintiffs filed a notice of non-opposition to this motion. Plaintiffs have thus conceded that there are no triable issues of material fact as to whether Defendant CSMC breached a duty of care or caused Plaintiff Shannon’s injuries.

Vicarious Liability

Defendant also asserts it cannot be vicariously liable for Dr. Snibbe’s actions.

“Where a patient seeks to hold a hospital liable for the negligence of a physician, the doctrine of ostensible agency is now commonly expressed as having two elements: ‘(1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital, and (2) reliance on that apparent agency relationship by the plaintiff.’ (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal. App. 4th 1448, 1453 . . . .) Generally, the first element is satisfied ‘when the hospital “holds itself out” to the public as a provider of care,’ ‘unless it gave the patient contrary notice.’ (Id. at pp. 1453–1454.) Nonetheless, a hospital’s ‘contrary notice’ may be insufficient ‘to avoid liability in an emergency room context, where an injured patient in need of immediate medical care cannot be expected to understand or act upon that information.’ (Id. at p. 1454.) Reliance upon an apparent agency is demonstrated ‘when the plaintiff “looks to” the hospital for services, rather than to an individual physician.’ (Id.) Ultimately, ‘there is really only one relevant factual issue: whether the patient had reason to know that the physician was not an agent of the hospital. As noted above, hospitals are generally deemed to have held themselves out as the provider of services unless they gave the patient contrary notice, and the patient is generally presumed to have looked to the hospital for care unless he or she was treated by his or her personal physician. Thus, unless the patient had some reason to know of the true relationship between the hospital and the physician—i.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physician—ostensible agency is readily inferred.’ (Id. at pp. 1454–1455.).” (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1038.)

“Although the existence of an agency relationship is usually a question of fact, it ‘becomes a question of law when the facts can be viewed in only one way.’ In the physician-hospital-patient context, ostensible agency is a factual issue ‘[u]nless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital’s agent, such as when the patient is treated by his or her personal physician’ or received actual notice of the absence of any agency relationship.” (Mejia, supra, 99 Cal. App. 4th at pp. 1454, 1458.)

The Court finds Defendant has met its burden of demonstrating that it cannot be vicariously liable for any negligence by co-defendant Dr. Snibbe. According to Defendant’s Vice President of Academic Human Resources, Tara O’Shea, Dr. Snibbe is not an employee or agent of Defendant and is not one of Defendant’s clinical staff faculty members. (Declaration of Tara O’Shea, ¶ 3.) Defendant’s evidence also demonstrates that Plaintiff Shannon presented to Dr. Snibbe after being referred by Dr. Romero, Shannon presented to Dr. Snibbe at his office for follow up appointments, and CSMC is only where she underwent surgery performed by Dr. Snibbe. (Declaration of Daniel Oakes, M.D., ¶ 10; Defendant’s Exhibits, Ex. A.) This is sufficient to demonstrate that Dr. Snibbe is not Defendant’s employee or agent and that there is no ostensible agency as Plaintiff looked to Dr. Snibbe for medical services, not Defendant CSMC.

As Plaintiffs filed a notice of non-opposition, Plaintiffs have conceded that there are no triable issues of material fact as to whether Defendant CSMC is vicariously liable for Dr. Snibbe’s actions.

As Defendant has met its burden of demonstrating that it is neither directly nor vicariously liable for medical negligence, Defendant is entitled to judgment as to the first cause of action.

Second Cause of Action: Loss of Consortium (asserted by Plaintiff Monica Colby)

“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.) Defendant CSMC has not presented any arguments as to this cause of action. However, given that Defendant is entitled to judgment as to the medical negligence cause of action, Defendant is also entitled to judgment as to the second cause of action.

VI. CONCLUSION

Based on the foregoing, Defendant’s Motion for Summary Judgment is GRANTED.

Defendant to give notice.