Case Number: LC097447 Hearing Date: June 05, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

OSCAR DE LA ROSA, ET AL.,
Plaintiff(s),
vs.

SIERRA MOUNTAIN MEDICAL CORPORATION, ET AL.,

Defendant(s). )
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) CASE NO: LC097447

[TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUGDMENT

Dept. 92
1:30 p.m. — #38
June 5, 2014

Defendant, Sierra Mountain Medical Corporation’s Motion for Summary Judgment is Granted. Defendant, Daniel Rose, M.D.’s Motion for Summary Judgment is Granted.

1. Background Facts
Plaintiffs, Oscar de la Rosa and Roberta Solano Morales, the parents and surviving heirs of David Damian de la Rosa, filed this action against Defendants, Sierra Mountain Medical Corporation (“Sierra”), Valley Presbyterian Hospital, and Daniel Rose, M.D. for medical malpractice/wrongful death arising out of the death of their son.

2. Matters on Calendar Today
At this time, there are two motions for summary judgment on calendar – one by Defendant, Sierra, and the other by Defendant, Rose.

3. Defendant, Sierra’s Motion for Summary Judgment
Defendant, Sierra moves for summary judgment, contending its care and treatment of Decedent complied with the standard of care at all times and nothing it did caused or contributed to Decedent’s death. Defendant supports its motion with the Declarations of Kimberly Ann Ludlow, M.D. and David J. Lang, M.D. Both Ludlow and Lang set forth their expert qualifications, detail the records they reviewed, and set forth the details of Decedent’s care and treatment. Ludlow opines that Sierra’s care and treatment of Decedent complied with the standard of care at all times. Ludlow and Lang both opine that nothing Sierra did caused or contributed to Decedent’s death.

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id. A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘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.App.3d 977, 984-985.

Plaintiffs appear to concede that Sierra met its moving burden to show it is entitled to judgment as a matter of law. Plaintiffs take issue with the format of certain facts set forth in the moving separate statement, but do not object to the testimony of Ludlow or Lang, and do not contend the testimony is insufficient to meet the moving burden. The burden therefore shifts to Plaintiffs to raise triable issues of material fact concerning both breach of the standard of care and also causation.

Of note, Plaintiffs filed only one opposition, which is directed at Sierra’s motion and also at Rose’s motion, which will be discussed below. Sierra argues this was not proper. Plaintiffs did, however, file separate statements in response to Sierra’s and Rose’s motion. The evidence submitted in connection with the two motions is substantially the same, and the Court was able to meaningfully review the opposition despite the fact that it was filed jointly. The Court is considering the matter on its merits.

Plaintiffs support their opposition with the Declaration of Joel Sarachek, M.D. Sarachek sets forth his expert qualifications, declares he was asked to review and analyze the care and treatment rendered to Decedent by Sierra’s personnel and by Rose, sets forth the facts relating to Decedent’s care and treatment, and opines that Defendants breached the standard of care in several ways, and details how those breaches caused or contributed to Decedent’s death.

Sierra did not file formal objections to Sarachek’s declaration. Sierra’s entire reply, however, is devoted to the contention that Sarachek’s declaration is deficient in numerous regards. Defendants contend the Declaration of Sarachek is deficient because:
• It does not comply with Garibay v. Hemmat (2008) 161 Cal.App.4th 735;
• Sarachek fails to opine that, to a reasonable degree of medical certainty, the care and treatment of Decedent caused or contributed to his death.

Sierra’s first contention is that the Declaration of Sarachek does not comply with Garibay. In Garibay, the court essentially held that medical records are hearsay, but that they fall under the business records exception to the hearsay rule. The court held that an expert can rely on the medical records to reach his opinion, but must submit a copy of those records to the trier of fact. Notably, it was the moving party in Garibay who failed to submit a copy of the records, and therefore the court held that the moving party failed to meet its moving burden to establish it was entitled to judgment as a matter of law. The question becomes more difficult when it is the opposing party who fails to provide a copy of the records, especially where, as here, the moving party has already provided the records, so they are before the court for review.

In this case, Plaintiffs’ expert not only fails to attach the records upon which he relies, he fails to even specify which records he relied upon. Sarachek declares, “I was asked to review and analyze the medical care and treatment rendered to the decedent, David Damian de la Rosa…” Sarachek fails entirely, however, to state how he went about reviewing and analyzing the medical care and treatment of Decedent.

Additionally, the Court agrees with Sierra concerning the causation issue. Saracheck declares, in this regard:
13. I believe the standard of care was breached in the following respects: First, the means of weighing the baby was substandard. This undoubtedly contributed to the failure to diagnose dehydration. Second, this baby’s respirations were not accurately chartered on the second visit. Third, the supervising physician, Dr. Rose, did not compare the records of the two visits for significant interval changes in the baby’s vitals and symptoms. Fourth, the significance of the changes in the infant’s condition between February 27th and March 1st visits was missed. The development of a cough and ronchi (if noted together with his other vitals properly measured) should, as a matter of the standard of care, have led to a referral to an Emergency Room where he could have been given I.V. fluids and I.V. antibiotics, which likely would have saved his life.

As Sierra correctly notes in reply, the standard for raising a triable issue of material fact is that the care and treatment must have, to a reasonable degree of medical certainty, caused or contributed to the injury claimed. See Morgenroth v. Pacific Medical Center (1976) 54 Cal.App.3d 521, 533. Sarachek meets the reasonable degree of medical certainty standard in declaring that the failure to properly weigh Decedent “undoubtedly” contributed to the failure to diagnose dehydration; he fails, however, to declares that failure to diagnose dehydration caused or contributed to Decedent’s ultimate death. Sarachek’s final conclusion is that Sierra should have sent Decedent to the emergency room, which “likely” would have saved his life. Declaring that something is “likely” is not the same as declaring that, to a reasonable degree of medical certainty, that thing would have happened.

Plaintiffs failed to meet their burden to raise a triable issue of material fact, and therefore the summary judgment motion is granted.

4. Defendant, Rose’s Motion for Summary Judgment
The analysis of Rose’s motion is substantially the same as the analysis set forth in connection with Sierra’s motion. Rose’s motion is likewise granted for the reasons stated above.

Dated this 5th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court