Case Number: BC523424 Hearing Date: August 04, 2015 Dept: S27
Motion for Summary Judgment by Dr. Campisi

SUMMARY OF FACTS
Background
This is an elder abuse, professional negligence, and wrongful death case, brought by decedent, Rogelio Capili’s successor-in-interest, Marilou Capili, and individually by Marilou Capili and Hainjie Capili (collectively, “Plaintiffs”) against defendants, Providence Little Company of Mary Subacute Care Center (“SACC”), Providence Health System (“PHS”), David J. Campisi, MD. (“Dr. Campisi”) (collectively, “Defendants”) and DOES 1 through 40. The First Amended Complaint (“FAC”), filed on June 12, 2015, is the operative complaint.

Plaintiffs allege that Rogelio Capili (“Decedent”) was admitted to SACC on February 6, 2013, when he was transferred from Torrance Memorial Hospital for ventilator care. (FAC, Paragraph 17) Plaintiffs allege that while Decedent was at SACC, and under the care of Dr. Campisi, a Gastric Tube (G-Tube) was improperly inserted, causing it to leak and causing an infection. (FAC, Paragraph 19) Plaintiffs allege that Defendants exacerbated the condition by feeding Decedent through the G-Tube, knowing that it was improperly placed. (Id.) Defendants left Decedent in that condition for three days before transferring him to the hospital. By the time Decedent was transferred to Little Company of Mary Hospital, he was in septic shock from the G-Tube infection, had peritonitis, and died on July 5, 2013, as a result of the sepsis. (Ibid.)

Procedural History
On November 20, 2014, the Court sustained without leave to amend Dr. Campisi’s demurrer to the first, fourth, and fifth causes of action in the original Complaint, and struck Plaintiffs’ request for punitive damages and heightened remedies from the Complaint. Therefore, the only remaining cause of action against Dr. Campisi is the second cause of action of the FAC for negligence.

MOTION FOR SUMMARY JUDGMENT
Dr. Campisi now moves for summary judgment as to the FAC’s second cause of action for negligence on the following grounds: (1) Plaintiffs’ cause of action for Medical Negligence/Wrongful Death has no merit and fails as a matter of law because Dr. Campisi complied with the standard of care at all times with regards to his care and treatment of Decedent; and (2) Plaintiff’s cause of action for Medical Negligence/Wrongful Death has no merit and fails as a matter of law because to a reasonable degree of medical probability, nothing Dr. Campisi did and/or did not do caused Plaintiffs or Decedent any harm or injury.

REQUEST FOR JUDICIAL NOTICE
The Court grants Dr. Campisi’s request for judicial notice of: (1) the Complaint in this action (Def. Exhibit A); (2) Stipulation by all Parties re: filing of FAC (Def. Exhibit K); (3) the FAC in the instant action; and (4) the Court’s Order re: Dr. Campisi’s Demurrer and Motion to Strike (Def. Exhibit L). (Evidence Code section 452, 453)

LEGAL AUTHORITY
The elements of a medical malpractice are: (1) duty of care owed plaintiff to use skill, prudence and diligence as other members of profession commonly possess and exercise; (2) breach of that duty; (3) causation; and (4) damage. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077)

The requisite standard of care, in a medical malpractice action, is determined by that applicable standard of care then existing in a particular professional community. A healthcare provider is only required to exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by a member of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36; Landeros v. Flood (1976) 17 Cal.3d 399, 408)

ANALYSIS
Breach
Dr. Campisi has offered sufficient evidence, through Dr. Brown’s expert testimony, that his care and treatment of Decedent did not fall below the standard of care. (Declaration of Harvey Brown, M.D. (“Brown Declaration,” Paragraph 5(a)) Dr. Brown states that Dr. Campisi properly followed and treated Decedent from the time of his admission to SACC in February 2013 until his last discharge on June 29, 2013, issued proper and timely orders, ordered the use of an NGT until KUB could confirm placement of the G-Tube, properly ordered IV bolus and continued monitoring Decedent when he was informed of Decedent’s low blood pressure, ordered cleaning, packing, ointment and monitoring of the G-Tube site when it was leaking, and promptly ordered Decedent’s transfer to a hospital when Decedent’s family reversed the DNR/do not transfer order. Dr. Campisi met with Decedent’s family several times, where he discussed Decedent’s grim prognosis that he was already on life support, his heart failure was worse, and that there was a no likelihood that Decedent would live outside of the hospital.

The Court finds that Dr. Campisi’s proffered evidence supports the argument that his care and treatment of Decedent did not fall below the standard of care.

The burden now shifts to Plaintiffs to show triable issues of material fact.

Plaintiffs proffer the declaration of their expert witness Dr. Schapira to show triable issues of material fact as to the breach element. Dr. Schapira reviewed Decedent’s medical records and opines that Dr. Campisi breached the standard of care in: (1) managing Decedent’s congestive heart failure; (2) addressing Decedent’s hydration, which caused him to go into irreversible renal failure; and (3) managing Decedent’s G-Tube leakage. (Separate Statement of Undisputed Facts No. 25-26, 32-33, 40, 50, 55, 62-64) Dr. Schapira references evidence in Decedent’s medical records that shows conduct by Dr. Campisi, such as not ordering certain tests, monitoring Decedent’s hydration levels, and failing to obtain a cardiologist consult that may fall below the standard of care.

There is a “battle of the experts” based on documentation in Decedent’s medical records. This conflict creates triable issues of material fact as to whether Dr. Campisi breached the standard of care. The Court finds that Plaintiffs have carried their burden, and Dr. Campisi has not negated the essential element of breach.

Causation
Dr. Campisi has proffered sufficient evidence that Dr. Campisi’s conduct in the care and treatment of Decedent was not the proximate cause of Decedent’s injury. (Brown Declaration, Paragraph 5(b)) When Decedent was first admitted to SACC, he suffered from a number of comorbidities, including advanced Parkinson’s disease, dementia, encephalopathy, depression, cardiomyopathy, artrial fibrillation, DVT on right upper extremity, pneumonia, recurring UTI’s, acute renal failure, CHF, and was ventilator/tracheotomy dependent due to respiratory failure. Decedent’s prognosis was poor, and he ultimately expired as a result of septic shock with pneumonia and multiple pathogenic organisms with drug resistance. Dr. Brown opined that to a reasonable degree of medical probability, no act or omission by Dr. Campisi caused any harm to Decedent.

The Court finds that Dr. Campisi’s proffered evidence supports the argument that his care and treatment of Decedent was not the proximate cause of Decedent’s harm.

The burden shifts to Plaintiffs to show triable issues of material fact.

Dr. Schapira opines that Dr. Campisi’s failure to manage Decedent’s congestive heart failure and ongoing dehydration caused him to develop acute renal failure, resulting in his immediate death. (Separate Statement of Undisputed Facts No. 65-68) This is sufficient evidence to create a triable issue of material fact. The Court finds that Plaintiffs have carried their burden, and Dr. Campisi has failed to negate the essential element of causation.
RULING
On the evidence presented, this case cannot be finally determined as a matter of law and must be presented to the trier of fact.

Summary Judgment is denied because there are triable issues of material fact as to whether Dr. Campisi’s conduct in treating Decedent breached the standard of care and whether the alleged breaches were the proximate cause of Decedent’s injury and death.

Motion for Summary Judgment by Providence Health Systems – Southern California dba Providence Little Company of Mary Subacute Care Center (“SACC”)

FIRST AMENDED COMPLAINT
The FAC (filed on June 12, 2015) alleges six causes of action:
(1) Elder Abuse, Cal. Welf. & Inst. Code sections 15600, et seq.;
(2) Negligence;
(3) Violation of Patient’s Bill of Rights;
(4) Willful Misconduct;
(5) Negligent Infliction of Emotional Distress; and
(6) Wrongful death, Code of Civil Procedure section 377.60.

PROCEDURAL HISTORY
On November 20, 2014, the Court overruled Providence Health Systems – Southern California dba Providence Little Company of Mary Subacute Care Center’s (“SACC”) demurrer to the first, fourth and fifth causes of action in the original Complaint.

SACC now moves for summary judgment and/or summary adjudication as to all six causes of action in the FAC.

RULE VIOLATION
California Rules of Court, Rule 3.1113(d) limits the length of the opening brief on a motion for summary judgment to 20 pages.

“A party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum. The application must state reasons why the argument cannot be made within the stated limit.” (CRC Rule 3.1113(e))

“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (CRC Rule 3.1113(g); see also CRC Rule 3.1300(d) (judges have discretion to consider late filed papers, and minutes or orders must indicate such decisions))

SACC’s memorandum is 40 pages long – twice the allowed length. SACC did not request leave of the court to file a longer memorandum. The Court disregards SACC’s Preliminary Statement and Statement of Facts, which are 16 pages long, and only considers the remainder of the opening brief.

ANALYSIS

Cause of Action 1: Elder Abuse
The Court will issue a ruling as to this cause of action after considering oral argument by counsel on August 4, 2015.
Cause of Action 2: Negligence
The elements of a medical malpractice cause of action are: (1) duty of care owed plaintiff to use skill, prudence and diligence as other members of profession commonly possess and exercise; (2) breach of that duty; (3) causation; and (4) damage. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077)

SACC offers evidence that they did not breach the standard of care and were not the proximate cause of Decedent’s injuries and/or death. (Stein Decl., Paragraph 46; Varca Decl., Paragraphs 46, 61-63) SACC also offers evidence that SACC’s conduct in the case and treatment of Decedent was not the proximate cause of his injuries and/or death. (Stein Decl., Paragraphs 47-48)

Plaintiffs proffer evidence that SACC breached the standard of care by: (1) failing to provide Decedent with sufficient water and G-Tube feeding in accordance to physician’s orders to maintain his hydration causing him to become dehydrated; (2) failing to provide him with the ordered amount of G-Tube feeding to maintain his nutrition, and that failure caused Decedent to become severely dehydrated and decreased renal function; (3) failing to timely replace Decedent’s feeding bad; (4) not replacing Decedent’s G-Tube with the same tube size; (5) failing to notify Dr. Campisi of the severity of the G-Tube leakage and bleeding; and (6) failing to transfer Decedent to an acute care facility for evaluation of the G-Tube; and (7) not providing Decedent with good personal hygiene, as he was left in a soiled gown and not cleaned for hours despite numerous requests from Mr. Malinis and “[t]he nurse’s comment that she had three more patients to see before she goes home and handing the gown to Mr. Malinis to change Decedent shows that the facility was not sufficiently staffed to care for the needs of its residents.” (Hackett Decl., Paragraph 9)

This evidence raises triable issues of material fact as to whether SACC’s care and treatment of Decedent fell below the standard of care, and if that breach of the standard of care was the proximate cause of Decedent’s injuries.

Cause of Action 3: Violation of Patient’s Bill of Rights
SACC contends that this cause of action fails because Plaintiffs have failed to plead it with particularity, Plaintiffs’ discovery responses are boilerplate, and any wrongdoing on SACC’s part was disproven by Dr. Stein and Nurse Varca.

Plaintiffs offer evidence that SACC failed to provide Decedent with sufficient G-Tube feedings and failed to properly staff the facility to meet the needs of its patients. (See, generally, Hackett Decl.)

This evidence raises triable issues of material fact as to whether SACC violated Decedent’s rights.

Cause of Action 4: Willful Misconduct
The Court will issue a ruling as to this cause of action after considering oral argument by counsel on August 4, 2015.
Cause of Action 5: Negligent Infliction of Emotional Distress
To prove a claim for negligent infliction of emotional distress, Plaintiff must offer facts showing the following elements: (1) legal duty to use due care; (2) breach of such legal duty; (3) damage or injury; and (4) cause of the resulting damage or injury. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129) Ra v. Sup. Ct. (2007) 154 Cal.App.4th 142, 148-49 held that bystanders must be closely related to the victim, have been present at the scene and contemporaneously aware of injuring, and have suffered serious emotional distress.

SACC argues that the NIED claim fails because Plaintiffs did not have contemporaneous awareness between any injury-producing event, the injury to the direct victim, and the bystanders’ awareness of the injury-event. Laypersons cannot perceive medical negligence, and no medical negligence occurred in this case.

Plaintiff’s proffer evidence that Hainjie Capili, Decedent’s son, was present and aware that SACC’s care and treatment of his father was causing injury to Decedent because he observed his father in distress and bleeding from the G-Tube site. He saw Decedent lying on the bed sheets soaked in blood, and when he pulled the sheet aside, saw his father’s hospital gown soaked with blood.

This raises triable issues of material fact as to the issue of Plaintiffs’ contemporaneous awareness.

Cause of Action 6: Wrongful Death
To prove a cause of action for wrongful death, Plaintiff must offer evidence showing the following elements: (1) wrongful act or neglect on the part of one or more persons; and (2) causing the death of another. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404, citing Code of Civil Procedure section 377.60)

SACC offers evidence that they did not breach the standard of care and were not the proximate cause of Decedent’s injuries and/or death. Plaintiffs have proffered evidence that raises triable issues of material fact as to whether SACC’s care and treatment of Decedent fell below the standard of care and if the breaches were the proximate cause of Decedent’s injuries and/or death.

RULING
SACC’s motion for summary judgment is denied. SACC’s motion for summary adjudication will be taken under submission.