2017-00211803-CU-MM

Leigh Burgess vs. Ruth Haskins, M.D.

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

Filed By: Ubaldi, Michael V.

Defendant Dignity Health, Inc. dba Mercy Hospital of Folsom’s (“Mercy”) motion for summary judgment is UNOPPOSED and is GRANTED.

This actions concerns alleged medical negligence relating to plaintiff Leigh

Burgess’ (“Ms. Burgess”) labor and delivery of her son, which occurred on February 6, 2016. Plaintiffs Ms. Burgess and Chris Burgess (collectively, “Plaintiffs”) filed their complaint on May 1, 2017, alleging causes of action for medical negligence (by Ms. Burgess) and loss of consortium (by Mr. Burgess).

Mercy now moves for summary judgment on the grounds that Plaintiffs cannot establish Mercy’s staff breached the applicable standard of care and the second cause of action for loss of consortium is dependent upon the first.

Summary Judgment Standard

In evaluating a motion for summary judgment the court engages in a three step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima

(1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, quoting C.C.P § 437c, subs. (p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, at 853-855.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (See Aguilar, supra, at 854-855 fn. 23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

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. (Code Civ. Proc. § 437c, subs. (p); see, generally Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, at 843.)

First Cause of Action for Medical Negligence

In a medical negligence action, Ms. Burgess must establish: “(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. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)

There is no dispute that in medical negligence cases expert testimony is the proper means to establish compliance vel non with applicable standard of care. (See, e.g., Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305 [in medical malpractice cases “expert testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care unless the negligence is obvious to a layperson”] [citation and internal quotation marks omitted].)

Mercy contends summary judgment should be granted because its staff did not breach the applicable standard of care. In support, Mercy has submitted the expert opinion of Andrew Lin, M.D. Dr. Lin is a California licensed doctor with over twenty years

specializing in various aspects of Obstetrics and Gynecology practice. (Declaration of Andrew Lin, M.D. (“Lin Decl.”) at ¶ 1, attached to the Declaration of Terilynn Dipenbrock (“Diepenbrock Decl.”), ¶ 7, Exh. F.) Dr. Lin is currently the Medical Director for the Center for Women’s Health at North Bay Healthcare Medical Center, Medical Director for OB/GYN Hospitalist Program at Sutter Solano Medical Center, and Chairman for the Department of OB/GYN at North Bay Healthcare Medical Center. (Lin Decl. at ¶ 5.) Dr. Lin has reviewed the medical records of Plaintiff and Mr. Burgess. (Lin Decl. at ¶ 7.)

Dr. Lin opines the care and treatment provided by Mercy’s nursing staff and employees was reasonable and within the standard of care at all times. (UMFs 13-17.) Specifically, Dr. Lin opines that Mercy’s nursing staff properly and accurately reflected Ms. Burgess’ status, sufficiently advising Dr. Haskins of her condition, and the records are well document and indicate the nursing staff and Dr. Haskins were appropriately responding to changes in Ms. Burgess’ condition. (UMF 15.) Dr. Lin opines Ms. Burgess was provided timely and proper attention through her stay and that the care provided was well within the appropriate standard of care. (UMFs 16, 17.) It is also Dr. Lin’s opinion that that the care and treatment provided by Mercy’s staff and employees was not a proximate cause of the medical allegations of which she complains. (UMFs 21-31.)

Mercy has also established by admissible evidence that Dr. Haskins is not an agent of employee of Mercy, and that Plaintiffs were informed of that fact prior to labor and delivery. (UMFs 33-44.)

Mercy’s showing is sufficient to shift to Plaintiffs the burden of demonstrating the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Having failed to oppose the motion, Plaintiff cannot meet his burden. As a result, Mercy is entitled to summary judgment and Mercy’s motion for summary adjudication of the first cause of action is GRANTED.

Second Cause of Action for Loss of Consortium

The second cause of action for loss of consortium is dependent upon Ms. Burgess prevailing against Mercy on the first cause of action for medical negligence. (Hahn v. Mirada (2007) 147 Cal.App.4th 740, 746.) As Ms. Burgess has failed to do so, Mercy’s motion for summary adjudication of the second cause of action is GRANTED.

Conclusion

Mercy’s motion for summary judgment is GRANTED