2012-00134721-CU-MM

Aletha Kehler vs. Dignity Health Medical Foundation

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: McPherson, Dennis P.

Defendant Dignity Health dba Mercy San Juan Medical Center’s Motion for Summary
Judgment/Summary Adjudication is unopposed and is granted.

Plaintiff alleges a claim for medical malpractice arising out of the care and treatment of
plaintiff Aletha Kehler at Mercy San Juan Medical Center. Dr. Zielinsky performed a
hysteroscopy with polypectomy on plaintiff in an outpatient procedure on January 17,
2012. Plaintiff returned to the emergency room on January 21, 2012 with a working
diagnosis of septic abdomen and underwent an exploratory laparotomy. Plaintiff’s
infection was due to a perforation of the uterus and large intestine. All decisions made
in her treatment were made by physicians and not nursing staff. Plaintiff remained in
the hospital until February 8, 2012. Defendant has presented admissible evidence that the care and treatment of plaintiff
by their nursing staff did not fall below the standard of care and did not cause her
injuries. Defendant has also established that Defendant Ronald T. Zielinsky, M.D. was
neither an actual nor an ostensible agent of Mercy San Juan Medical Center, such that
no vicarious liability can attach to moving defendant based on the acts of Dr. Zielinsky.
The nursing staff was not involved in any ancillary surgical nursing at the time of the
surgery on January 17, 2012. (Declaration of Barry N. Gardiner M.D., Declaration of
McPherson, Ex. G) Because plaintiff’s claims for malpractice fail, so does the loss of
consortium claim.

Once the moving party has met its burden, the burden shifts to the opposing party to
show that a material factual issue exists as to the cause of action alleged or a defense
to it. CCP 437c(p). (see generally Bush v. Parents Without Partners (1993) 17 Cal.
App. 4th 322, 326-327; Planned Parenthood v. City of Santa Maria (1993) 16 Cal. App.
4th 685, 690.)

Plaintiffs have failed to file any opposition. Therefore the facts remain undisputed and
defendant is entitled to summary judgment.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.