Case Number: BC477556    Hearing Date: November 07, 2014    Dept: NCG

REQUEST FOR ORDER VACATING ORDER FOR UNDERTAKING

TENTATIVE RULING (11-7-14)
#2 (part 1 of 2)
BC 477556
LO v. METHODIST HOSPITAL OF SOUTHERN CALIFORNIA

Plaintiff Kiki Lo’s Motion for Order Vacating July 13, 2013 Order for Undertaking

TENTATIVE:
Plaintiff Kiki Lo’s request for order vacating or modifying order for posting of bond is DENIED. Bond ordered posted by plaintiffs and each of them on July 25, 2013 in the sum of $45,000 to be posted on or before November 21, 2014, or this action will be dismissed.

FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiffs, the husband and adult children of decedent Chi-Fun Lo, bring this wrongful death action against defendants Methodist Hospital and Dr. Michael W. Yeh, alleging that on December 4, 2010, decedent presented to Dr. Yeh at the Methodist Hospital emergency room with hypotension, but defendants, instead of treating her for hypotension, administered to her a fatal dose of medication for hypertension, which essentially stopped her heart and caused her death.

The file shows that defendant Methodist Hospital brought a motion for an order that plaintiffs post an undertaking to secure costs pursuant to CCP section 1030, which was heard on July 25, 2013, Judge Jessner presiding. The motion was granted and plaintiffs and each of them were ordered to post bond of $45,000 within 45 days. No bond has yet been posted.

ANALYSIS:
Moving party argues that the only remaining plaintiff Kiki Lo, as personal representative of the Estate of Chin-Fun Lo, has evidently since the bond was ordered moved back to Arcadia so is now a resident of California.

The motion for bond was granted pursuant to CCP § 1030, under which the court may require a plaintiff residing out of this state to post an undertaking to secure and award of costs and attorneys’ fees which may be awarded in the action.

Under CCP § 1030:
“(c) If the court, after hearing, determines that the grounds for the motion have been established, the court shall order that the plaintiff file the undertaking in an amount specified in the court’s order as security for costs and attorney’s fees.

(d) The plaintiff shall file the undertaking not later than 30 days after service of the court’s order requiring it or within a greater time allowed by the court. If the plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action or special proceeding shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.”

Here, as argued in the opposition, the moving papers point to no provision in the statute under which the court may reconsider its order if circumstances change and a party reestablishes residency in this state. This is an improper and untimely motion for reconsideration of the court’s previous order. The bond should have long ago been posted. This type of reevaluation of the circumstances is not contemplated by the statute. Defendant is entitled to have costs secured for collection, has established the requisites for such an order, and this court does not appear to have authority to modify Judge Jessner’s previous order.

In addition, even if the court were to consider the merits of the motion, the showing that the party is now a California resident and so will be pursuable for costs at the close of this litigation is not strong. Plaintiff concedes that she maintains her Texas drivers’ license and identification, and has only signed a lease in Arcadia which expires in March of 2015, before this matter is likely to proceed to trial. The risk sought to be avoided here, that defendant will be left unable to collect costs from an out-of-state resident, remains possible, and the motion is denied.

MOTIONS FOR SUMMARY JUDGMENT (2)
(OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION)
[CCP § 437c]

TENTATIVE RULING (11/7/14)
#2 (part 2 of 2)
BC 477556
LO v. METHODIST HOSPITAL OF SOUTHERN CALIFORNIA

Defendant Michael Yeh, M.D., Ph.D.’s Motion for Summary Judgment or, In the Alternative, Summary Adjudication
Motion by Defendant Methodist Hospital of Southern California for Summary Judgment, or, in the Alternative, Summary Adjudication

Defendant Michael Yeh M.D., Ph.D’s motion for summary judgment is DENIED.
Motion for summary adjudication of the first cause of action for wrongful death is DENIED.
Plaintiff presents admissible expert testimony – – citing specific factual breaches of duty – – which raises triable issues of fact with respect to the claim of professional negligence by moving defendant, including whether Dr. Yeh’s conduct fell below the applicable standard of care, and whether his conduct was the medical cause of decedent’s alleged injuries and death. See Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; See Additional Facts 11, 13, 18, 24-25 and evidence cited].

Motion for summary adjudication of the second cause of action for battery is GRANTED, on the ground plaintiffs concede in the opposition that this cause of action is not being asserted against Dr. Yeh.

Request for continuance to conduct deposition of plaintiffs’ expert is DENIED.

Defendant Michael Yeh, M.D., Ph.D’s Objections to Plaintiff’s Evidence: Objection 13 is SUSTAINED. Objection 23 is sustained, only to the phrase beginning, “which he would not have done…” Objections are otherwise OVERRULED.

Defendant Methodist Hospital of Southern California’s Motion for Summary Judgment is DENIED.
Motion for summary adjudication of the first cause of action for wrongful death is DENIED.
Plaintiff presents admissible expert testimony – – citing specific factual breaches of duty – – which raises triable issues of fact with respect to the claim of professional negligence by moving defendant, including whether the acts or omissions of the nursing staff and employees of defendant Methodist Hospital fell below the applicable standard of care, and whether such conduct was the medical cause of decedent’s alleged injuries and death. See Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; See Additional Facts 8-13, 16, 18-20, and evidence cited].

Motion for summary adjudication of the second cause of action for battery is DENIED. Since the filing of the motion, plaintiff Kiki Lo has been appointed personal representative of decedent, with standing to pursue the medical battery/wrongful death claim as currently alleged. Plaintiff has submitted expert evidence which, if credited by the trier of fact, could support a finding that the procedures performed by defendant’s hospital staff fell outside the scope of decedent’s consent. [UMF No. 15, and evidence cited, Budoff Decl., para. 23].

BACKGROUND:

Moving Party: Defendant Glendale Adventist Medical Center
Responding Party: Plaintiff Norman Huberman

Causes of Action from Second Amended Complaint
1) Professional Negligence/Wrongful Death
2) Medical Battery / Wrongful Death

SUMMARY OF COMPLAINT:
Plaintiffs, the husband and adult children of decedent Chi-Fun Lo, bring this wrongful death action against defendants Methodist Hospital and Dr. Michael W. Yeh, alleging that on December 4, 2010, decedent presented to Dr. Yeh at the Methodist Hospital emergency room with hypotension, but defendants, instead of treating her for hypotension, administered to her a fatal dose of medication for hypertension, which essentially stopped her heart and caused her death.

ANALYSIS:
Defendant has the burden of proving that plaintiffs will be unable to establish one or more elements of their causes of action or that a complete defense exists. Here, defendants seek to prove that plaintiffs will be unable to establish breach of the standard of care, or medical causation in connection with their professional negligence wrongful death claim, and that in connection with their medical battery claim will be unable to establish conduct which legally qualifies as battery, or that plaintiffs have standing to pursue such a claim on the part of decedent.

First Cause of Action—Professional Negligence
“. . . medical causation can only be determined by expert medical testimony.
(Gin Non Louie v. Chinese Hospital Assn. (1967) 249 Cal.App.2d 774, 784; Stephenson v. Kaiser Foundation Hospitals (1962) 203 Cal.App.2d 631, 635.)
Salasguevera v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385.

Defendant Methodist Hospital basically concedes in the opposition that it will be defending against the wrongful death claim based on professional negligence. Briefly, while the hospital’s expert testifies that to a reasonable degree of medical probability the administration of the appropriate medication ordered by Dr. Yeh, Levophed, would not have resulted in any improved cardiac function in decedent, so the conduct of the hospital staff did not cause injury or cause or contribute to decedent’s death, the opposition presents a competing medical expert declaration which opines that the administration of the improper medication was below the standard of care, and to a reasonable degree of medical probability caused and contributed to decedent’s injuries and ultimate death. [UMF Nos. 62, 63, and evidence cited, Additional Facts Nos. 8-13, 16, 18-, 13, 18-20, and evidence cited].

It is held that “[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, 984 985.

The Second District holds that in a medical malpractice case, if a plaintiff’s expert declaration in opposing summary judgment sets forth specific factual breaches of duty, the defendant medical provider’s motion for summary judgment should be denied. Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.

The motion for summary adjudication as to this cause of action by Methodist Hospital is therefore denied.

Dr. Yeh does not concede the matter in his reply. However, the opposition here also provides expert testimony stating that Dr. Yeh failed to appropriately diagnose decedent upon admission, and then delayed in providing treatment, which was below the standard of care, and a cause of the patient’s injuries and death, to a reasonable degree of medical probability. [See Additional Facts Nos. 11, 13, 18, 24-25, and evidence cited].

Dr. Yeh’s reply argues that there is no foundation in the records for the opinion that there was a delay. However, there appear to be sufficient facts and documents supporting the time frame reported from the records, and the reasonableness of any purported delay would be a matter for expert opinion. In addition, there appear to be sufficient facts stated supporting the opinion concerning the initial failure to properly diagnose decedent, which alone could support medical negligence and causation arguments.

Dr. Yeh seeks a continuance of the hearing on the motion to conduct the deposition of plaintiff’s expert Dr. Budoff to explore whether there is a foundation for his opinion. The request is based on St. Mary Medical Center v. Superior Court (1996, 2nd Dist) 50 Cal.App.4th 1531.

In St. Mary Medical Center, the Second District found the trial court had abused its discretion in refusing to permit a limited deposition of an expert in a medical malpractice action who had submitted a declaration in opposition to a motion for summary judgment, notwithstanding that the expert had not yet been designated by any party.

The Second District noted in that case that the party seeking the deposition had raised “legitimate questions” regarding the foundation of the opinion, including concerns regarding the factual assumptions of the expert, and evidence that another expert who had reviewed the opinions had found them “untenable.” St. Mary, at 1540.

Here, it is not clear that there has been an error in the factual assumptions of the expert, and there is no competing expert testimony opining that the conclusions are lacking in foundation. The request for a continuance is tentatively denied. If the court finds it appropriate after argument, however, the matter might be continued for the conduct of a brief deposition of the expert limited to the foundation of the opinions stated in his declaration.

Second Cause of Action—Medical Battery/Wrongful Death
The offer of proof here is that Dr. Yeh ordered that Levephed be administered to the decedent, but that Methodist Hospital’s nurse, Roloando Escobar R.N., administered to decedent Nitroprussid that had been ordered for a different patient. The motion is granted in favor of Dr. Yeh as to this cause of action.

With respect to Methodist Hospital, to establish a claim for medical battery, the following elements must be established.

[ Name of plaintiff ] claims that [ name of defendant ] committed a medical battery. To establish this claim, [ name of plaintiff ] must prove all of the following:
1. [That [ name of defendant ] performed a medical procedure without [ name of plaintiff ]’s consent; [or]]

[That [ name of plaintiff ] consented to one medical procedure, but [ name of defendant ] performed a substantially different medical procedure;]

2. That [ name of plaintiff ] was harmed; and

3. That [ name of defendant ]’s conduct was a substantial factor in causing [ name of plaintiff ]’s harm.
CACI, 530A

The consent form signed by decedent states as follows:
“The undersigned consents to the procedures that may be performed during this hospitalization or on an outpatient basis, including emergency treatment or services, which may include, but are not limited to, laboratory procedures, x-ray examinations, medical or surgical treatment or procedures, anesthesia or hospital services rendered the patient under the general and special instructions of the patient’s physician or surgeon.”
[UMF No. 15, and evidence cited

Plaintiffs’ argument is that the express consent was to services rendered under the instructions of the physician, so that the administration of a medication not prescribed by the physician, and which was affirmatively contraindicated for this patient, exceeded the scope of decedent’s consent.

In Cobb v. Grant (1972) 8 Cal.3d 229, the California Supreme Court stated, “Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.” Cobb, at 239.

Plaintiff relies on Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, in which the court of appeal stated:
“In the absence of any definitive case law establishing whether operating on the wrong disk within inches of the correct disk is a ‘substantially different procedure,’ we conclude the matter is a factual question for a finder of fact to decide and at least in this instance, not one capable of being decided on demurrer.”
Kaplan, at 647.

Plaintiff’s expert here has submitted his opinion that Mrs. Lo did not consent to the wrongful administration of Nitroprusside, and that Nitroprusside could not have been considered a therapeutic medication for a patient who was hypotensive, so that no informed consent was obtained. [Budoff Decl., para. 23]. This appears to present an issue of fact to be resolved by the trier of fact, in the absence of definitive case law on the subject.

The case law cited on the issue which involved the administration of medication involved facts where a patient had consented to the administration of a particular drug to prevent infection during pregnancy, but not to induce labor. Freedman v. Superior Court (1989) 214 Cal.App.3d 734. The court of appeal found that while a claim of negligence and/or deceit could be stated against the physician, there could be no claim of battery based on lack of informed consent. This is a slightly different theory of liability than presented here, which does not involve a lack of informed consent or fraud in procuring consent, and involves the administration of an entirely different drug not ordered by the physician. There accordingly is no clear case law prohibiting the theory advanced by plaintiff, and the motion is denied and the matter left to the trier of fact.

Methodist also argues that plaintiffs lack standing to pursue the battery claim.

The motion submits evidence that in the SAC, four plaintiffs seek to bring the second cause of action, and that the only person allegedly touched was decedent Chi-fun Lo. [UMF Nos. 82, 83]. The argument is that the cause of action for battery is a survivor claim, and that the only plaintiff with standing to pursue such a claim would be plaintiff’s successor in interest, her husband, Cheng E. Lo.

It appears that since the motion was filed, decedent’s estate and her wrongful death beneficiaries have been deemed to be jointly represented by Kiki Lo, rather than Cheng E. Lo, so that to the extent the claim is a wrongful death claim, as set forth in the statute, plaintiff Kiki Lo is entitled to pursue it.

Under CCP section 377.60, a wrongful death cause of action “may be asserted by any of the following persons, or by the decedent’s personal representative on their behalf:” including a surviving spouse, children, or, “the persons…who would be entitled to the property of the decedent by intestate succession…”

Under CCP section 377.30, “a cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest…”

CCP section 377.11 provides:
“For purposes of this chapter, ‘decedent’s successor in interest’ means the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action…”

CCP section 377.10 defines ‘beneficiary of the decedent’s estate’ to mean:
“(a) if the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action…
(b) if the decedent dies without leaving a will, the sole person or all of the persons who succeed to a cause of action…under Sections 6401 and 6402 of the Probate Code….”

Sections 6401 and 6402 of the Probate Code govern intestate succession, providing for community property to a surviving spouse, and succession of property not passing to a surviving spouse to the issue of decedent, then to surviving parents, and only then to “the issue of parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent.” Section 6402(c).

Where a claim is brought by a successor in interest, a Statement is required to be filed to commence an action which provides specified information. See CCP section 377.32.

Methodist argues that the battery claim is not a wrongful death claim, but a survival claim, and that no person has been appointed pursuant to CCP §377.32(a) to act for decedent.

There is no authority cited under which medical battery must be exclusively pursued as a survival action. The case law relied upon involves Elder Abuse. However, there may be a valid argument that a medical battery claim is a claim personal to the decedent such that it must be pursued as a survival claim. Without clear legal authority limiting this claim to a survival theory, the motion is denied.