2012-00548823
MOTION FOR SUMMARY JUDGMENT

DEFENDANT HOAG MEMORIAL HOSPITAL’s MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION IS GRANTED.

A Defendant moving for summary judgment/ summary adjudication bears an initial burden of producing admissible evidence sufficient to show that the action has no merit; i.e. that, as to each cause of action, one or more elements cannot be established or there is a complete defense. CCP § 437c(a), (p)(2). Once he meets that burden, the burden shifts to the plaintiff to produce admissible evidence showing the existence of a triable issue as to the cause of action. Id.; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.

The elements of professional negligence are: (1) the duty to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) 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 negligence. Galvez v. Frields, 88 Cal. App. 4th 1410, 1420 (2001).

Unless the issues are simple and obvious to layman, both the element of standard of care and causation in a medical malpractice case, must be proven through expert testimony. See Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 983-984; Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385. In addition, causation must be proven within a reasonable medical probability in a medical malpractice case, which is distinct from a mere possibility of causation. Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1572.

Finally, “[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.” Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of Univ. of California (1989) 215 Cal.App.3d 977, 984-985.

Here, Defendant Hoag Memorial Hospital has met its initial burden of producing evidence to show that Plaintiff’s case does not have merit. The undisputed facts appear to be as follows: (1) Plaintiff Borgeson’s son, Tristen, was born severely premature and weighed 585 grams (approximately 1.3 pounds) and measured 30 centimeters long (approximately 11.8 inches) at birth; (2) Tristen’s growth parameters were less than one-third percentile at birth, (3) he suffered several conditions at and after birth, including respiratory distress and severe congenital heart disease; (4) shortly after birth, he suffered a severe pulmonary hemorrhage and his condition deteriorated progressively requiring CPR, intubation, and multiple doses of IV epinephrine before he was propounded dead two days later; (4) the “Fetal Demise” Autopsy Report performed on his remains noted inter alia that Tristen had suffered from severely restricted intrauterine growth, severe congenital heart disease, and other factors; (5) the autopsy report concluded there were also maternal and placental factors including Ms. Borgeson’s positive screen for Alpho Feto Protein (suggesting birth defects), the placental weight was below the 10th percentile for gestational age, decreased uteroplacental blood flow, and other factors. (See Plff’s Resp. to UMFs 3A to 9A).
To support the motion, Defendant presents the declaration of Dr. Alkalay, an expert witness. He reviewed the medical records of Tristen and Plaintiff Borgeson. Dr. Alkalay has concluded that Defendant’s staff rendered treatment that was in accordance with the prevailing standard of practice and that no aspect of the care they rendered caused or contributed to Tristen’s condition or to his demise. “[T]o a reasonable degree of medical probability”, he has concluded that Tristen’s death was not preventable, no matter what therapies were administered, because of the severe conditions that Tristen suffered from. (Alkalay Decl. ¶11-15)

Through the declaration, Defendant has met its burden of producing evidence to show that the case lacks merit. Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of Univ. of California (1989) 215 Cal.App.3d 977, 984-985.

The burden then shifted to Plaintiff to demonstrate a triable issue of fact exists. To support her burden, Plaintiff offers her declaration, and no declaration from a physician. Plaintiff testifies that she is a nurse and that: (1) Tristen was born prematurely and could not breathe on his own (Borgeson Decl. ¶14), (2) Defendant’s staff erred in administering him Cervanta or Cerfactin, a drug that aids in breathing, as this is “a dangerous drug” that causes bleeding, (Borgeson Decl. ¶ 16); (3) a breathing tube was inserted in Tristen, but it “mysteriously” came out, (4) the staff did not reinsert the breathing tube, and instead delivered oxygen to Tristen with an oxygen mask, aka CPAP (Continuous Positive Airway Pressure); (4) the lack of intubation (breathing tube), the use of Cervanta, the use of the CPAP mask, and the lack of skin-to-skin contact with his mother, created stress for Tristen and this caused the pulmonary hemorrhage and Tristen’s demise (Plffs. Resp. to UMF 7A – 9A and 11A, Borgeson Decl. ¶ 16- 34); (5) further, Defendant’s staff tried 8 times in a row to insert a catheter /IV line in Tristen, a violation of hospital policy, and this also caused stress to him and caused his demise and death. (Id.)

The first issue is whether Plaintiff is qualified to offer an opinion regarding the cause of Tristen’s death, and if the Court should admit her testimony on this point over Defendant’s objections. See Evid. Code § 720(a) (“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.”).
Here, the Court concludes that Plaintiff has not laid a foundation to offer medical opinions on causation issues in this case. As noted, causation in a medical malpractice case must be proven through expert medical testimony. See Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 983-984; Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385. Further, causation must be proven within a reasonable medical probability. Raising mere possibilities is not enough. Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1572; Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498.

Plaintiff Borgeson has not described her education or training in diagnosing and/or rendering medical decisions for treatment of pulmonary hemorrhages or severe respiratory distress in newborns with Tristen’s conditions. She does not describe her education or training in prescribing Cervanta, in rendering treatment decisions regarding intubation, or the use of CPAP. Plaintiff testifies that she is a trained nurse with many years of experience in neonatal intensive care and medical surgery, but this does not show that she is qualified to render a medical opinion regarding what caused a pulmonary hemorrhage, regarding the effects of intubation vs. CPAP in causing an apparent pulmonary hemorrhage, regarding the use of Cervanta in causing the same, or that multiple attempts to insert an IV line were to a degree of reasonable medical probability, the substantial cause of death in this case.

In short, the declaration does not present a foundation for an opinion on medical causation.

Even if the Court considered the testimony, it does not appear sufficient to raise a triable issue regarding these matters. “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case….” Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403. The Plaintiff must show the Defendant’s wrongful act was not just a factor but a substantial factor in bringing about the death. Bromme, 5 Cal.App.4th 1487, 1498-99; see also Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 702.

Plaintiff’s testimony does not venture beyond the realm of raising a possibility about causation. For example, in the reply papers, Dr. Alkalay notes that her opinion about the drug Cervanta is not accepted in the medical community, and this drug is routinely administered to help premature newborns breathe and is not considered dangerous by prevailing medical standards. (Alkalay Reply Decl. ¶7(a)) He also states that the use of this drug, the use of a CPAP mask, and multiple attempts at placing the IV line had no effect on Tristen’s ultimate expiration, and were not the cause of death. (Alkalay Reply Decl. ¶7, 8).

Accordingly, if the Court were to consider Plaintiff’s testimony, there is still no triable issue of fact regarding causation. There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845. Ambiguous evidence is not sufficient. Id. at 846. Evidence that gives rise to no more than speculation cannot be regarded as substantial or sufficient to raise a triable issue. Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1271 (citation omitted). See also Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524 (an opinion given without sufficient reason and explanation is insufficient); accord Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1310.

Significantly, Plaintiff does not testify that the events described in her declaration were to a reasonable degree of medical probability a substantial factor in causing the death of Tristen. While criticism is raised of Defendant’s staff and alleged errors, Plaintiff stops short of presenting a medical opinion that these events were a substantial medical cause of the death of Tristen. See Borgeson Decl. ¶ 34. This is a fatal omission. Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1572 (“The fatal flaw with defendants’ argument is that there was no expert testimony regarding the element of causation. While defendants’ experts were critical of Dr. Dahlgren’s treatment and discussed the dangers and risks associated with it, they did not actually offer an expert opinion that it was a substantial factor in causing plaintiff’s injuries within a reasonable medical probability.”).

For the foregoing reasons, the Court GRANTS the motion for summary judgment of Defendant Hoag Memorial Hospital against Plaintiff Borgeson.

The Court overrules the evidentiary objections of Defendant.

The Court has previously granted the instant motion inasmuch as it is directed against Plaintiff Scineaux because he failed to meet his burden of producing declarations or evidence to oppose this motion. (See Min. Order 4/10/14, p. 2). The Court maintains this ruling and will grant summary judgment in favor of Defendant Hoag Memorial Hospital against Plaintiff Charles Scineaux also.

Defendant shall give notice of this ruling.