Case Number: BC662741 Hearing Date: February 18, 2020 Dept: 28

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Having considered the moving and non-opposing papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On May 24, 2017, Plaintiff Alberta Henderson, by and through her guardian ad litem Kathy Houston, (“Plaintiff”) filed a complaint against Defendants Dignity Health, California Medical Center-Los Angeles, Harry B. Kram, M.D., Janis Watchen Dossen-Jones, M.D., Gregory F. Bayhan, C.R.N.A. The complaint alleges medical malpractice for a deficient tracheostomy and an endotracheal intubation that occurred on March 1, 2017.

On February 7, 2019, Plaintiff Alberta Henderson filed amendments to her complaint renaming Doe 1 as Defendant Rodney Cheng, M.D. and Doe 101 as Defendant EMCARE, Inc.

On November 25, 2019, Defendant Janis Watchen Dossen-Jones, M.D. filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

On December 19, 2019, the Court dismissed Defendant EmCare, Inc. with prejudice.

Trial is set for May 8, 2020.

PARTY’S REQUEST

Defendant Janis Watchen Dossen-Jones, M.D. (“Moving Defendant”) asks the Court to enter summary judgment against Plaintiff and in Defendant’s favor based on an expert’s opinion that Moving Defendant complied with her standard of care and did not cause Plaintiff’s harm.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 “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.” (Code Civ. Proc., § 437c(p)(2).) “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.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

The elements of medical malpractice are: “(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.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 (citations omitted).) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at p. 467.)

Thus, in a medical malpractice case, “[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 (citations omitted).) An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)

Moving Defendant submits the declaration of anesthesiologist Kevin P. Becker, M.D. in support of Moving Defendant’s motion for summary judgment. Dr. Becker provided his qualifications. (Becker Decl., ¶ 2-3, Exh. A.) Dr. Becker stated he reviewed Plaintiff’s documents from California Hospital Medical Center, the complaint, and the depositions from Moving Defendant, Harry Kram, M.D., Gregory F. Bayhan, CRNA, and Kathy Houston. (Becker Decl., ¶ 4.) Dr. Becker recited the relevant medical facts. (Becker Decl., ¶¶ 5-18.) Dr. Becker found Moving Defendant’s treatment provided to Plaintiff was within the applicable standard of care. (Becker Decl., ¶ 19.)

Mr. Bayhan, CRNA, recognized Plaintiff’s ventilation was declining and either Mr. Bayhan or Dr. Kram properly called for help. (Becker Decl., ¶ 20.) Moving Defendant and another CRNA answered the call for help. (Ibid.)

Dr. Becker declared there are three ways that Plaintiff’s airway could have become obstructed during the tracheostomy procedure: (1) physiologic obstruction, (2) mechanical obstruction, or (3) a physical obstruction. (Becker Decl., ¶ 21.) A physiologic obstruction occurs when the small airways become constricted due to asthma or mucus. (Ibid.) A physical obstruction occurs when the breathing tube is blocked with gauze, plastic, or a similar material. (Ibid.) A mechanical obstruction occurs when the breathing tube gets clogged with bodily fluids. (Ibid.) Moving Defendant orchestrated the handling of Plaintiff’s declining ventilation. (Ibid.) CPR was not delayed, but rather started as soon as Moving Defendant recognized Plaintiff had no palpable pulse. (Becker Decl., ¶ 22.) The prompt administration of CPR was within the applicable standard of care. (Ibid.)

The Court finds Dr. Becker’s declaration is sufficient. Moving Defendant’s involvement in Plaintiff’s treatment was minimal. Moving Defendant administered treatment to Plaintiff after being alerted to Plaintiff’s declining ventilation. Dr. Becker’s declaration shows Moving Defendant acted within the standard of care when Moving Defendant managed the administration of CPR on Plaintiff. The burden shifts to Plaintiff. Plaintiff has submitted a notice of non-opposition to the motion. As such, summary judgment is properly granted.

CONCLUSION

The motion is GRANTED.

Moving Defendant is ordered to give notice of this ruling.