Case Number: BC585169 Hearing Date: February 08, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S AMN HEALTHCARE (DOE 3)’S MOTION FOR SUMMARY JUDGMENT; GRANTED

I. INTRODUCTION

On June 15, 2015, Plaintiff Emily Robles (“Plaintiff”), a minor, by and through her Guardian Ad Litem, Maria Arredondo (“Arredondo”) filed this action for professional negligence arising out of her August 16, 2012 birth. AMN Healthcare (DOE 3) (“Defendant”) moves for summary judgment on grounds its nurse, Annette Lewis, RN, fully complied with the standard of care in her care and treatment of Plaintiff and no act or failure by Defendant was a substantial factor in causing or contributing to Plaintiff’s alleged injuries. Plaintiff filed no opposition to this Motion.

II. FACTUAL BACKGROUND

On August 15, 2012, Arredondo presented to Foothill Presbyterian for induction of labor for a past due date. Approximately one hour later, Annette Lewis, RN (“Nurse Lewis”) arrived for the 7:00 p.m. to 7:00 a.m. shift. At 2250, Nurse Lewis noted a three minute deceleration from the fetal heart monitoring strip. Arredondo stated she was moving around. Nurse Lewis repositioned the intrauterine pressure catheter and electronic fetal monitor and it resumed baseline at 145 BPM. Throughtout the morning, Nurse Lewis noted variable decelerations and position changes, as Arredondo was noted to be moving in bed. Nurse Lewis instructed Arredondo to move from her right and left sides while noting variable decelerations. She administered fluid bolus and oxygen by mask. When Nurse Lewis ended her shift, Arredondo’s membranes were intact and she was noted to be 9 cm dilated. At 8:15 a.m., Arredondo’s membranes were ruptured and meconium was noted. At 11:13, she delievered Plaintiff and meconium stained fluid was noted.

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

In a medical malpractice action, a plaintiff must establish the following elements: “(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. [citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “When 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.3d 977, 984-985.)

Defendant submits the declaration of Susan Faron, MN, RNC-OB, CNS (“Nurse Faron”), who is a Registered Nurse who currently works as the perinatal clinical nurse specialist at Sharp Mary Birch Hospital for Women and Newborns. (Declaration of Susan Faron, MN, RNC-OB, CNS, ¶ 2.) Nurse Faron has lectured on numerous obstetrical topics for biannual labor and delivery nursing and was the obstetrical clinical rotation instructor for San Diego City College nursing program. (Faron Decl., ¶ 2.) Nurse Faron is familiar with the standard of care for labor and delivery nurses in Southern California for the management of patients such as Arredondo. (Faron Decl., ¶ 3.) Nurse Faron reviewed Arredondo and Plaintiff’s medical records and the fetal monitoring strips pertaining to Plaintiff. (Faron Decl., ¶ 4.) Based on this review, her background, training, and experience, Nurse Faron opines that the care and treatment rendered by Nurse Lewis was, at all times, within the standard of care. (Faron Decl., ¶ 22.) Nurse Faron opines that it was within the standard of care to monitor the fetal heart monitoring strips, the intrauterine pressure catheter, and the electronic fetal monitor; to monitor the decelerations form the fetal monitoring strips; to start IV solution at 125 ml per hour; to reposition Arredondo to her right side to maintain fetal heart rate; to reposition Arredondo to her left side to ensure adequate blood flow to the fetus; to monitor and note variable decelerations; and to administer oxygen via mask at 8 liters per minute. (Faron Decl., ¶¶ 22a-f.) When Arredondo was seen by Dr. Jeffrey Lee at 8:15 a.m., her fetal heart rate strip showed Category 1 tracing, meaning Plaintiff had normal oxygenation status, further indicating that Nurse Lewis complied with the standard of care. (Faron Decl., ¶ 23.) Nurse Faron opines that nothing Nurse Lewis did or failed to do was a substantial factor in causing Plaintiff’s alleged injuries.

Defendant has met its initial burden of showing, by expert declaration, that it complied with the standard of care and did not cause or contribute to Plaintiff’s injuries. The burden shifts to Plaintiff to show, by contrary expert declaration, that a triable issue of fact exists. As Plaintiff failed to file an opposition, she has failed to meet her burden.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.