Filed 10/18/19 Albright v. ValleyCare Medical Center CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

STANLEY ALBRIGHT,

Plaintiff and Appellant,

v.

VALLEYCARE MEDICAL CENTER et al.,

Defendants and Respondents.

A151411

(Alameda County

Super. Ct. No. RG15774386)

Plaintiff Stanley Albright sued ValleyCare Medical Center, alleging negligence by its nurses following spinal surgery. ValleyCare moved for summary judgment and, in support, submitted an expert declaration by an independent nurse, stating ValleyCare nurses met the applicable standard of care and any alleged breach did not, in any event, cause Albright’s claimed injuries. While the trial court ruled there was a triable issue as to whether the nurses met the applicable standard of care, it further ruled that neither Albright’s opposing expert declaration, which made no mention of causation, nor any other evidence he submitted, raised a triable issue as to causation.

On appeal, Albright contends ValleyCare, as the moving party, failed to carry its initial burden of proof, claiming its nursing expert was not qualified to render an opinion on causation and, even if she was qualified, her declaration was conclusory and lacked evidentiary value. He further contends, even assuming ValleyCare met its initial burden, the record evidence raised a triable issue as to causation. We affirm.

BACKGROUND

The Post-Surgical Medical Care

Date of Initial Surgery—March 19

On March 19, 2014, Albright underwent spinal surgery, performed by Dr. Joseph Grant. After the surgery, Dr. Grant noted there were no complications, and Albright was transferred to a post-anesthesia care unit. Pursuant to postoperative physician orders, Albright received Dilaudid via a “patient controlled analgesia . . . pump for pain control,” and a nurse “performed neurological assessments every hour which included testing for sensation and motor strength.”

Around 5:15 p.m., Albright complained his pain was 10 out of 10, despite receiving pain medication. The nurse informed a doctor and his pain medication was subsequently modified. Albright also complained of “subjective numbness” in the lower extremities, which was noted by the nurse. She also noted he had “strong” pushes and pulls in his lower extremities.

Three and a half hours later, at approximately 8:45 p.m., Physician Assistant Christopher Hydock examined Albright and was “informed of his complaints of numbness as well as issues with pain control.”

About 30 minutes later, Albright was moved from the post-anesthesia care unit to a hospital room.

Overnight, he complained of “severe back pain” despite pain medication intervention. After being notified of Albright’s complaints by the attending nurse, Hydock increased Albright’s patient-controlled pump settings and ordered that he be given Percocet around the clock for breakthrough pain as needed. The nurse on duty continued to perform neurological assessments, now every two hours, and noted Albright complained of mild numbness and his strength registered as a “4 out of 5” in the bilateral lower extremities.

Post-Operative Day 1—March 20

Early on the morning of March 20, the nurse removed Albright’s Foley catheter pursuant to physician orders, and Albright did not “express any complaints of abnormal sensation in the groin or penis.”

At the next assessment, at around 8:15 a.m., Albright complained of “pain at a 5-6 out of 10 as well as numbness to the tops and bottoms of both feet.”

About 20 minutes later, Hydock saw Albright. According to Hydock’s progress notes, the providers were aware of Albright’s pain issues and “complaints of occasional numbness in the bilateral lower extremities” and that he had no other leg pain or complaints. Upon examination, Hydock found Albright to be “neurologically intact in the bilateral lower extremities with no deficits,” and the “plan was to continue physical therapy and monitor his progress.”

Albright saw the physical therapist twice on March 20. The therapist’s notes reflect that at the morning session, Albright stated “ ‘I can’t move my feet’ ” and he complained of “numbness [and] tingling.” The therapist noted he had decreased ability to advance his lower extremities and decreased foot clearance, especially on the right foot. Albright became “ ‘hot’ [and] ‘dizzy,’ ” but his vitals were stable when returned to a supine position. The notes also indicate the nurse was made “aware” of Albright’s condition, but did not provide the time or elaborate. The therapist testified at deposition she would report information “[i]n a summative fashion” because the nurse “would not know scissoring, adduction, ankle strategy.”

The therapist’s notes reflect that at the afternoon session, Albright stated his pain was a “4-5/10” at rest, and an “ ‘8/10’ ” when moving. He stated, “ ‘I can’t feel/move my legs.’ ” The therapist tested and found his “sensation was intact to light touch in the lower extremities, and he had motor strength of 3 out of 5 with active range of motion.” He was able to walk forward and backward, but had mild instability and decreased foot placement. Albright appeared diaphoretic but denied being dizzy and declined to walk further. He had decreased lower extremity proprioception and fatigue. Albright attempted to void but was unable to do so either sitting or standing. The nurse was “informed of [his] mobility status,” pain, diaphoresis and his inability to void.

A nurse informed Hydock by telephone that Albright was unable to void either by sitting or standing, and Hydock ordered 0.4 mg of Flomax per day, and “placement of a straight catheter twice every six hours and reinsertion of the Foley catheter” if needed. Hydock also prescribed Toradol for Albright’s continuing complaints of pain.

The neurological assessment flowsheet showed Albright complained of acute numbness throughout the day in his lower extremities, but had strong pushes and pulls.

At around 8:00 p.m., the Foley catheter was reinserted as Albright was still unable to void. The catheter was later removed at Albright’s request, but was subsequently reinserted after “he continued to experience urinary retention.” Albright “did not complain of any numbness or sensory deficit in his penis or groin,” after each insertion or removal, but he did complain of burning at the tip of the penis and “numbness in the lower legs to feet.”

A little later, Albright complained of “burning” on the back part of his legs and right thigh. He also expressed some anxiousness and was given 10 mg of Valium. The Foley catheter was once again removed.

Around midnight, Albright reported the numbness was “ ‘the same,’ ” but that the burning was gone. Overnight, Albright complained of an “intermittent burning sensation which migrated to several different areas of his body, including the tip of his penis, his right thigh around the area where the Foley catheter was secured to his leg, his back, his posterior legs, his buttocks and his thighs.” The nurse on duty discussed Albright with her charge nurse and administered Ativan and Toradol pursuant to the physician orders.

Post-Operative Day 2—March 21

At 5:00 a.m., Albright was continuing to complain of “numbness in the lower extremities,” but the “intermittent burning sensations had resolved” or were “subsiding” and he was not experiencing “penile burning.” Albright’s motor strength was a “4 out of 5.”

Hydock saw Albright later in the morning and recorded complaints of “burning pain in the buttocks and posterior thighs,” of “numbness in the lower legs to feet,” that he had “expected post-op Lumbar pain,” and that the Foley catheter had been reinserted due to urinary retention. He noted Albright had no other complaints. He also noted Albright had decreased “sensation to light touch knees to feet,” but measured “5/5 strength.” Hydock scheduled removal of the Foley catheter the next day to determine if Albright could void. Finally, Hydock changed Albright’s back dressing and “ordered new medication . . . for his complaints of burning pain and numbness.”

Neurological assessments continued throughout the rest of the day.

Albright also had two physical therapy sessions. The therapist’s notes indicate Albright reported a “7/10” on the pain scale and he complained of burning in lower extremities and was “ ‘numb’ ” in his left “thigh/calf.” Among other things, the therapist noted some “scissoring/adduction” of the left lower extremities and that Albright was experiencing some fatigue and mild dizziness. Albright also had decreased proprioception. The therapist testified at her deposition that the nurse was “aware of [his] mobility status.”

The physical therapist’s notes reflect that at the afternoon session Albright stated, “ ‘I might be able to feel my feet’ ” and he had decreased “ ‘burning.’ ” Despite saying “ ‘I can’t feel my feet’ ” and that he felt “ ‘like my knees aren’t working,’ ” he was able to walk a little further in this session. He once again experienced mild dizziness. He had improved foot placement and decreased proprioception. However, he was still “unsteady” and “limited by fatigue.”

The nursing notes for the rest of the afternoon, after physical therapy, state Albright could move all his extremities and wiggle his toes, but had complaints of “some numbness.”

Post-Operative Day 3—March 22

The following morning at around 8:30 a.m., Albright complained of “burning on my sides,” and was rubbing his hips and upper thighs.

Less than an hour later, but before the scheduled catheter removal and voiding trial, both Hydock and Dr. Kevin Booth examined Albright. Their notes indicate Albright was “ ‘neurologically intact’ with no deficits and was making slow progress with physical therapy.” If Albright remained unable to void, the plan was to send him home with the Foley catheter reinserted, if physical therapy went well and his pain was controlled.

At 9:55 a.m., the catheter was removed. Albright “reported afterward that he had not felt the removal of the Foley and had no sensation in his penis.” The nurse confirmed with Albright that he had no “sensation around the groin area and further noted he was not able to state how long this symptom had been ongoing.”

Five minutes later, at 10:00 a.m., the nurse contacted Hydock and reported Albright’s symptoms. Twenty minutes after the nurse reported the symptoms, Hydock examined Albright.

The examination “revealed objective numbness in the penis and groin [as] well as decreased sphincter tone,” and the assessment “was new onset saddle anesthesia with decreased anal sphincter tone.” Hydock consulted with Dr. Booth, and Dr. Booth ordered an MRI.

The MRI, performed later that day, “confirmed the presence of an epidural hematoma in the left L4-5 neural foramen with severe canal stenosis and neuroforaminal narrowing.” The diagnosis was “cauda equine syndrome secondary to lumber spine stenosis caused by an epidural hematoma.”

Dr. Booth performed surgery that same day to remove the hematoma.

In his operative report, Dr. Booth stated Albright had, that morning, begun “having a lack of sensitivity in his penis and perineum, [and] noted that he could not sense the removal of the Foley catheter. Immediate neurological examination indicated a slight loss of rectal tone and some numbness in the perineal area without obvious motor strength deficit in the lower extremities. An emergency MRI scan was obtained, showing extensive epidural hematoma and arrangements were made for him to undergo emergency hematoma evacuation.”

The Lawsuit and Summary Judgment Motion

Albright subsequently filed a complaint alleging professional negligence by his medical providers and the nursing staff at ValleyCare. As to the nurses, Albright alleged they “negligently, carelessly, and/or recklessly diagnosed, examined, monitored, cared for, operated on and treated [him], thereby proximately causing severe and permanent injuries.” ValleyCare answered and denied any negligence on the part of the nurses.

ValleyCare eventually moved for summary judgment on the ground Albright could not meet two of the requisite elements of his negligence claim: breach of the duty of care and causation.

ValleyCare supported its motion with the declaration of Denise M. Navellier, R.N., M.S.N., C.C.R.N. ValleyCare asserted Navellier’s expert opinions established that the nursing staff “fully complied with the applicable standard of care in all respects,” and there was no evidence, in any event, that either Drs. Booth or Grant, or P.A. Hydock “relied on ValleyCare Medical Center staff to make any medical diagnosis” or in “formulating treatment plans” and no evidence “any alleged delay in informing Plaintiff’s attending medical providers of his known symptoms in this case had an impact on his ultimate outcome.”

Specifically, Navellier opined that Hydock “was aware of Mr. Albright’s preoperative presentation given that he prepared the admitting history and physical note, he rounded on the patient every morning and he was kept apprised of Mr. Albright’s condition, including his complaints of numbness and tingling beginning in the PACU on March 19, 2014.” The nurses “timely contacted Mr. Albright’s attending medical providers each time there was a significant change in his condition,” including when Hydock was informed about Albright’s complaints of pain and numbness on March 19, when Hydock was called to obtain new orders for Albright’s urinary retention on March 20, and when Hydock was called to report Albright’s penile numbness on March 22. While the providers were not called or notified of the burning sensation Albright experienced the night of March 20 and early hours of March 21, Hydock examined Albright the morning of the 21st and was apprised, first hand, of Albright’s symptoms and, in response, “ordered Decadron and Gabapentin for treatment of it.”

ValleyCare also submitted excerpts of Albright’s medical records, including his post-anesthesia care unit record and pain management flowsheet, the nurses’ notes of their neurological assessments and flowsheets, physician’s orders and progress notes, the therapist’s rehabilitation progress notes, and Dr. Booth’s hematoma operative report.

ValleyCare additionally filed a statement of undisputed material facts. Fact 24 was that, “No act or omission attributable to ValleyCare Medical Center caused or contributed to plaintiff’s claimed injuries,” citing to Navellier’s declaration.

In opposition, Albright maintained that following his initial surgery “up to the moment on 3/22/14 that an MRI finally revealed [he] had a large spinal epidural hematoma . . . Mr. Albright exhibited increasing signs and symptoms of spinal epidural hematoma and cauda equina syndrome,” and that the “nursing standard of care required that these signs and symptoms be reported by the nurses caring for Mr. Albright to the surgeon, Joseph Grant and/or his physician assistant, Christopher Hydock . . . immediately and verbally.”

Albright submitted a declaration by Lorna Lord, R.N., in support of his opposition. Lord opined that “pain, numbness, burning, tingling, and proprioception are all symptoms of both cauda equina syndrome and spinal epidural hematoma, and should be part of [a] checklist of serious symptoms that Registered Nurses caring for a patient who has just undergone spinal surgery must recognize and report to the physician or the physician’s assistant.” She further opined the nurses caring for Albright “breached the nursing standard of care when they failed to communicate these symptoms to Dr. Booth or PA Chris Hydock.” Lord said nothing about causation.

Albright also submitted excerpts of Hydock’s deposition testimony. Hydock testified he had been aware of the numbness and tingling in Albright’s lower legs and that Albright had some numbness in his feet. He had been unaware of Albright’s specific statement to the physical therapist that his feet “felt like they were asleep” and the therapist’s note that Albright “had difficulty advancing his feet.” Hydock was also unaware of the therapist’s note that Albright had “scissoring” (and, in fact, did not know what “scissoring” was) and difficulty with priopreception. Finally, Hydock had been unaware of the burning sensation Albright felt on the tip of his penis, but stated “my assumption would probably be he had irritation from having had a catheter put in. So I honestly—I don’t know if I would have done anything else. Except, again, if they were having that, monitor it.” Hydock also stated he did not “necessarily read the nurses’ note[s],” but would talk to them, instead. He would have reviewed the physical therapist’s notes, however, because of their differing schedules.

Albright also filed a counter-statement of undisputed facts and disputed ValleyCare’s claims that the nursing staff complied with the standard of care and that no conduct of the nursing staff caused or contributed to plaintiff’s injuries. On the latter point, Albright cited only to Lord’s declaration.

Albright filed no written objections to the evidence ValleyCare submitted. In his opposing memorandum he stated, “This Opposition provides an expert declaration and other evidence that exposes substantial omissions in the foundation for Denise M. Navellier, R.N., M.S.N., C.C.R.N.’s opinions.” He provided no further elaboration.

In its reply, ValleyCare maintained Lord’s opinion did not raise a triable issue as to breach of the standard of care for three reasons. First, the medical evidence did not show Albright had all of the symptoms Lord assumed—pain, numbness, burning, tingling, and proprioception—during the entire post-surgical period from March 19 through March 22. Second, the medical evidence showed the nursing staff informed Hydock of reported pain, numbness, burning and tingling on all four days, March 19, 20, 21, and 22. Third, Lord had simply assumed the physical therapist told the nurse of Albright’s decreased proprioception and inability to move his feet because the therapist testified at her deposition that she spoke with nursing staff “before” writing her report. The nursing notes indicated the nursing staff was told only that “Albright was ‘becoming hot and dizzy; vitals stable; returned to supine’ during the morning [PT] session” and was later told of Albright’s “ ‘mobility status, pain/diaphoresis, and inability to void’ during the afternoon [PT] session.”

As to causation, ValleyCare pointed out Lord made no mention of it in her declaration, let alone rendered an opinion there was a triable issue on this element. It also asserted Hydock’s deposition testimony—which Albright had not, in his counter-statement, even identified as raising a triable issue on causation—showed that “Hydock was either aware of the[] symptoms from other sources or would not have taken any different action had he been informed of them.” Rather, the medical records and Hydock’s testimony all showed Hydock was aware of Albright’s continuing pain and had directly asked Albright about it. Hydock’s notes also showed he was aware of Albright’s numbness and tingling and he also personally asked Albright about both when he examined him. The records additionally showed Albright, himself, reported “burning in the thighs” to Hydock on the morning of March 21, and Hydock subsequently ordered a new medication, Gabapentin, to address the issue. Hydock further testified “he would not have undertaken any new or different action if he had been advised of Mr. Albright’s episode of burning in the tip of his penis.” Hydock also testified that he reviewed the physical therapist’s notes and had thus been aware of Mr. Albright’s progress and was aware of the “amount of assistance he needed” with mobility.

The trial court issued a tentative ruling denying the motion. Following a hearing, the court reversed its tentative and granted the motion. In its written order, the court recited that the “undisputed evidence establishe[d] that ValleyCare staff’s alleged breach of the standard of care did not cause or contribute to Plaintiff’s claimed injuries, because Plaintiff’s treating physicians were apprised of his medical condition and symptoms . . . [and] the undisputed evidence establishes that Plaintiff’s course of treatment would have been the same regardless of any additional documentation of Plaintiff’s complaints and symptoms by ValleyCare’s staff.”

DISCUSSION

Expert Declaration

Albright’s principle challenge to the summary judgment rests on a two-prong challenge to Navellier’s declaration. He first claims she was not qualified to render an opinion on causation, and for that reason, maintains ValleyCare did not carry its burden, as the moving party, to establish lack of causation. He second claims that even if Navellier was qualified to render such an opinion, her declaration was conclusory and speculative and thus had no evidentiary value.

As we have recited, the only evidentiary objection Albright made in his written opposition was a passing and generic “lack of foundation” objection in his opposing memorandum of points and authorities. This was not even a sufficient foundational objection, let alone an objection that Navellier was not qualified to render an opinion on causation or that her opinion was conclusory and lacked evidentiary value. (See People v. Roberts (1992) 2 Cal.4th 271, 298 [defendant who made “lack of foundation” objection to expert testimony “never sought to challenge the witness’ qualifications as experts”]; People v. Moore (1970) 13 Cal.App.3d 424, 434, fn. 8 [as a general rule, “where the objection is lack of proper foundation, counsel must point out specifically in what respect the foundation is deficient”].)

At the hearing on the motion, Albright’s counsel commenced his argument as to causation by saying, “I fail to see that causation was appropriately and fully addressed in their motion for summary judgment. I saw this motion as simply one that the hospital was not negligent and that the nurses and the staff did what they were supposed to do, which we put into conflict through our expert and our factual statement.” Counsel continued, “I saw nothing in this motion factually or in expert opinion about causation. The causation references were simply to—we did nothing wrong therefore we couldn’t have caused any harm. The medical causation of his injury as a result of the delay cause[d] by getting him care and treatment for this spinal epidural hematoma that developed into the cauda equina is not presented in these moving papers otherwise we would have addressed that. Therefore, we didn’t do anything wrong, therefore we couldn’t have caused any harm.”

In response, ValleyCare’s lawyer pointed to the “specific portions” of its memorandum and Navellier’s declaration that addressed causation. Indeed, in its supporting memorandum, ValleyCare had separately addressed causation, citing Navellier’s declaration, and claimed it was entitled to summary judgment on that ground, as well.

Albright’s counsel rejoined, “Yes. A nurse is not qualified to make an opinion about medical care and treatment, and the need for surgery that was opined by Dr. Booth when he was advised of this emergency.” (Italics added.)

ValleyCare, referencing Hydock’s deposition that Albright had submitted, then stated, “Our position is that there is no evidence Mr. Highdock’s [sic] course of treatment or his approach to Mr. Albright’s care in this case would have been different had this information come from the nurses as opposed to from Mr. Albright directly or from other sources in the medical record. So that is—I think it is a sufficient way of meeting our burden in this case and transferring that burden to the plaintiff. And again, Your Honor, the evidence provided by plaintiff and submitted by plaintiff in opposition demonstrates from Mr. Highdock’s [sic] own testimony that he would not have done anything different in this case, and specifically relating to the burning sensation, he said I would have had the nurses monitor it.”

The trial court gave no indication it understood Albright to be making an oral evidentiary objection to Navellier’s declaration. And neither Albright nor ValleyCare asked for an evidentiary ruling.

However, on appeal, Albright maintains that his assertion at the hearing—that “ ‘[a] nurse’ ” is “ ‘not qualified to make an opinion about medical care and treatment’ ”—sufficed, first, as an objection that Navellier’s extensive credentials and experience were insufficient to render her qualified to provide an opinion on causation, and, second, as a fallback objection that, even if she was qualified, her declaration testimony was conclusory and lacked evidentiary value.

We first observe that counsel’s sweeping assertion that a nurse is not qualified to “ ‘make an opinion’ ” about “ ‘medical care and treatment,’ ” is patently untenable. Nurses in many contexts, triage nurses and school nurses come readily to mind, routinely form “opinions” about “medical care and treatment.”

Furthermore, it is well-established that an evidentiary objection must be specific and timely. (Evid. Code, § 353, subd. (a); Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 396–397.) A party’s “ ‘ “failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable.’ [Citation.] A proper objection must ‘ “ ‘ fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.’ [Citation.]” ’ ” (People v. Jackson (2016) 1 Cal.5th 269, 328.)

Here, Albright did not object with any specificity, let alone, object that Navellier was not “qualified” to render an opinion on causation and, even if she was qualified, her declaration testimony was “conclusory” and therefore lacked evidentiary value. Accordingly, Albright has waived any such objections on appeal.

Even had Albright made proper objections and preserved these issues, he has failed to demonstrate that the trial court abused its discretion in allowing Navellier’s declaration testimony. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 284 [“ ‘The trial court’s determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse.’ ”].)

“Evidence Code section 720, subdivision (a) provides: ‘A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.’ [¶] When a defendant health care practitioner moves for summary judgment and supports his motion with an expert declaration that his conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.)

“A person who qualifies as an expert may give testimony in the form of an opinion if the subject matter of that opinion ‘is sufficiently beyond common experience that the opinion of [the] expert would assist the trier of fact.’ (Evid. Code, § 801, subd. (a) . . . .) It is undisputed that qualified medical experts may, with a proper foundation, testify on matters involving causation when the causal issue is sufficiently beyond the realm of common experience that the expert’s opinion will assist the trier of fact to assess the issue of causation. [¶] 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.’ ” (Jennings v. Palomar Pomerado Health Systems Inc. (2003) 114 Cal.App.4th 1108, 1116–1117.)

Navellier recited her qualifications at the outset of her declaration. She has a Bachelor of Science and a Master of Science degree in nursing. At the time, she had 35 years of experience as a registered nurse, all at Alta Bates Summit Medical Center. She had been a nurse manager, director of nursing operations support and critical care, and an interim administrative director of nursing operations. At the time of her declaration, she was serving as chief nursing executive. She had “treated many patients and supervised nurses treating patients in circumstances similar to those” in the instant case. All of her opinions were “based upon [her] education, training and experience, and [her] review of the information . . . [she] detailed” in her declaration.

Navellier chronicled in detail what was shown by the medical records. She then discussed the applicable standard of care and rendered the opinion the nurses had not breached that standard. She then addressed causation, stating as follows:

“11. Furthermore, although Ms. Yee did not notify Mr. Albright’s attending medical providers regarding his complaints of an intermittent and migratory burning sensation overnight on March 20–21, 2014, these symptoms had resolved by the end of her shift. More importantly, Mr. Hydock personally learned about this symptom from the patient directly on the morning of March 21, 2014 and ordered Decadron and Gabapentin for treatment of it. Accordingly, there is no evidence that Mr. Albright’s course of treatment would have been any different had Ms. Yee, or any other staff at ValleyCare Medical Center, contracted Mr. Hydock and reported this symptom to him during the night shift.

“12. Similarly, any discrepancies in the nursing documentation regarding Mr. Albright’s complaints of ‘acute’ versus ‘chronic’ numbness and tingling in the lower extremities has no impact on Mr. Albright’s care and treatment. There is no evidence that Mr. Albright’s attending medical providers relied on this documentation in formulating treatment plans for the patient. Moreover, Mr. Hydock was aware of Mr. Albright’s preoperative presentation given that he prepared the admitting history and physical note, he rounded on the patient every morning and he was kept apprised of Mr. Albright’s condition, including his complaints of numbness and tingling beginning in PACU on March 19, 2014. Thus, whether the nursing staff noted Mr. Albright’s numbness and tingling as acute or chronic in the postoperative period between March 19 and 22, 2014 is of no consequence.”

Given Navellier’s credentials and experience, the trial court did not abuse its discretion in allowing this testimony.

Albright complains Navellier was making a “medical diagnos[is],” which she, herself, opined nurses cannot make and which is a responsibility within the “exclusive province” of trained medical providers (i.e., MDs and PAs). But that was not what Navellier did. There is no dispute as to the post-operative “medical diagnosis”—a hematoma—or that that diagnosis was made by Albright’s medical providers. Rather, based on her medical training and extensive experience, and after reviewing the medical records, Navellier opined that the medical diagnosis that was made, and course of treatment that was directed, by the providers would not have differed, even had the nurses orally communicated the specific information on which Albright has focused (and which we shortly discuss in more detail).

Accordingly, even had Albright not waived his complaint about Navellier’s qualifications by failing to object, the trial court did not abuse its discretion in allowing Navellier’s testimony on causation. We similarly conclude that even had Albright not waived his objection that her declaration testimony was conclusory by failing to object, the trial court did not abuse its discretion in considering it, as Navellier adequately explained the basis for her opinion.

Causation

Albright maintains there is a triable issue as to causation because he “exhibited symptoms of cauda equina syndrome and spinal epidural hematoma immediately after his spinal surgery,” and the “frequency and severity of [his] symptoms was not only relevant, but critical,” (italics omitted) and that had Hydock and the physicians been made aware of these symptoms, he would not have been forced to undergo a second “invasive surgery.”

He identifies six specific symptoms as to which he claims there is “no documentation that nursing staff reported” to Dr. Grant, Dr. Booth or Hydock. However, the evidence shows the providers were aware of these complained-of symptoms:

(1) Albright’s complaint of “ ‘acute numbness to bilateral lower extremities’ ” on the night of March 19 when he was transferred from the post-anesthesia care unit to a hospital bed. However, Hydock examined Albright the next morning and was “informed of his issues [with] pain control” and “occasional numbness.”

(2) Albright’s complaint his feet were numb and tingling during the morning physical therapy session on March 20. However, Hydock testified he was aware of the numbness and tingling in Albright’s lower legs, as well as some numbness in his feet. He also testified he reviewed the physical therapist’s notes.

(3) Albright’s complaint of not being able to feel or move his legs during the afternoon physical therapy session on March 20, and the physical therapist’s note of decreased proprioception. Despite Albright’s complaint of not being able to feel or move his legs, he was able to walk during that session. And while Hydock was not specifically made aware of the proprioception, he testified he reviewed the physical therapy notes. Albright points out the physical therapist’s notes state she informed the nurse of his “mobility status.” Hydock’s own progress notes, however, show he was aware of Albright’s “mobility” status.

(4) Albright’s complaint of a burning sensation on the tip of his penis as well as his right buttocks during the night of March 20 and day of March 21. However, Hydock’s notes show he was aware of intermittent burning sensations. And while he was not specifically made aware of the burning at the tip of Albright’s penis, he testified that would not have made a difference and he would simply have had the nurses continue to monitor the situation.

(5) Albright’s complaint of burning in his lower extremities and decreased sensation in his feet during the morning physical therapy session on March 21. However, Hydock was aware of the intermittent burning, reviewed the physical therapy notes, and had ordered medication to address the burning earlier that morning.

(6) Albright’s complaint that he felt like his knees were not working and of a burning sensation during the afternoon physical therapy session of March 21, and the therapist’s note of decreased proprioception. However, Hydock reviewed the physical therapy notes, and he was aware of intermittent burning sensations and ordered medication to address it.

Navellier, in turn, opined the nurses informed Hydock “each time there was a significant change in his condition,” including when he continued to have significant pain despite medication intervention, when he experienced urinary retention, and when he first experienced lack of sensation in his groin.

While Albright seems to suggest the lack of sensation in his groin had been ongoing, as evidenced by his earlier complaint of a burning sensation on March 20, no evidence supports this. The medical records reflect that Albright voiced two different complaints, at different times. Albright, himself, stated he was unable to say how long he lacked sensation in his groin, and when he complained about this symptom, the nurse promptly notified Hydock. Albright also claims that Navellier’s statement that he could “ ‘at all times . . . move his lower extremities and wiggle his toes,’ ” was contrary to the evidence, because he had complained to the physical therapist he “ ‘felt like my knees aren’t working,’ ” and the therapist had noted decreased proprioception. There is no contradiction. Albright was able to move during physical therapy, walking further each session. Finally, Albright claims he was “left to rapidly deteriorate in just a span of 3 days” and that his providers were “aware of some but not the most critical symptoms.” (Underscoring omitted.) This is another sweeping generalization. Other than the six specific complaints he has identified as the shortcomings in communication that led to the need for hematoma surgery, Albright identifies no evidence supporting this claim.

Albright cites Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1308 (Espinosa), as analogous and requiring reversal. There, when the plaintiff’s mother was 40 weeks pregnant, her obstetrician performed a test to check the baby’s well-being. The test showed deceleration of the fetal heart rate. (Id. at p. 1308.) Another test, given that same day, continued to show a drop in fetal heart rate. According to the plaintiff’s expert, the child should have been delivered at that point, given the test results and length of the pregnancy. (Id. at pp. 1308–1309.) The hospital nurses, however, failed to either recognize or understand the recorded deceleration, removed the heart rate monitor, and allowed the mother to go home without reporting the continued decelerations to the doctor. (Id. at p. 1309.) The plaintiff sustained brain damage due to the alleged negligence of the hospital and delivering obstetrician. (Id. at p. 1310.) After a jury trial, the trial court ruled the plaintiffs’ expert had not sufficiently established causation and granted a nonsuit. (Id. at p. 1312.)

The Court of Appeal reversed, concluding the evidence showed multiple causes for the plaintiff’s injury, including the nursing staff’s conduct. “[T]here was substandard monitoring which failed to recognize and promptly respond to fetal distress, and although plaintiff should have been delivered when those signs occurred, that delivery was delayed. There was further expert testimony that the events which occurred during the period of delay were a substantial factor and contributing cause to plaintiff’s brain damage.” (Espinosa, supra, 31 Cal.App.4th at pp. 1315, 1322.)

Here, in contrast, the evidence showed the medical providers, and specifically Hydock, were either aware of the symptomology Albright complains was not communicated by the nurses, or if not, that a report thereof would not have made a difference in the providers’ orders.

Separate Statement

Albright also contends ValleyCare did not comply with the separate statement requirement because its statement was “devoid of any actual facts and instead is replete with legal conclusions under the guise of facts.” (Underlining omitted.) He maintains these asserted defects “further establish that ValleyCare did not present competent evidence to meet its initial burden on summary judgment.”

In particular, Albright singles out fact No. 24—“No act or omission attributable caused or contributed to plaintiff’s claimed injuries”—as conclusory, and points to the trial court’s order granting summary judgment in contending ValleyCare’s separate statement was noncompliant. In its order, the court expressed dissatisfaction with the evidence ValleyCare cited as supporting fact No. 24, complaining ValleyCare had submitted “[]well over 50 pages of documents, most of them handwritten medical records that are barely legible[] . . . [that] do not even appear relevant to that issue,” and that ValleyCare had provided “no explanation in its Separate Statement or opening brief (at pages 9-10) of how most of the cited evidence supports Fact No. 24.”

The summary judgment statute provides that a motion “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (Code Civ. Proc., § 437c, subd. (b).)

Thus, as Albright acknowledges, the trial court had discretion to overlook ValleyCare’s failure to identify with particularity those pages of its submission that bore directly on the issue of causation. At oral argument, counsel for ValleyCare identified exactly what evidence supported its position on causation, and Albright had an opportunity, and fully availed himself of such, to argue that that evidence was insufficient and there were triable issues as to this element of his claim. Accordingly, the trial court was well apprised of the relevant evidence, and issued an order duly explaining the basis of its grant of summary judgment. We therefore cannot say the trial court abused its discretion in considering ValleyCare’s separate statement.

DISPOSITION

The summary judgment is affirmed. Costs on appeal to respondent.

 

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Banke, J.

We concur:

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Humes, P.J.

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Sanchez, J.

A151411, Albright v. ValleyCare Medical Center et al.