Case Number: BC642187 Hearing Date: October 16, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR THE ALTERNATIVE, SUMMARY ADJUDICATION; MOTION DENIED

I. INTRODUCTION

On November 29, 2016, Plaintiffs Mallory Weldon (“Ms. Weldon”) and Justin Weldon (“Mr. Weldon”) (collectively, “Plaintiffs”) filed this action against Defendants Regents University of California (“UC Regents”) and Erica Oberman, M.D. (“Dr. Oberman”) (collectively, “Defendants”) for general negligence relating to the care and treatment provided to Ms. Weldon from May to December 2015.

On May 21, 2015, Ms. Weldon presented to UCLA Medical Center OB/GYN clinic and was seen by Dr. Oberman, who followed Ms. Weldon through her pregnancy. (Undisputed Material Fact “UMF” No. 9.) On December 3, 2015, a growth ultrasound was performed and the results caused some concern regarding bone growth. (UMF No. 44.) A repeat ultrasound was performed on December 4, 2015 by a maternal fetal medicine specialist. It was suspicious for skeletal dysplasia with intrauterine growth restriction. (UMF No. 51.) At this time, the baby was determined to be viable with no medical indication for termination. Therefore, Defendants did not offer the patient the option of termination. Ms. Weldon obtained a late-term abortion in New Mexico on December 9, 2015. (UMF No. 55.)

Plaintiffs argue Defendants are liable for malpractice and for negligent infliction of emotional distress. Defendants move for summary judgment, or in the alternative, summary adjudication.

II. 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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[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 of 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.)

“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 of 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.)

III. DISCUSSION

In the Complaint, Ms. Weldon generally alleged Defendants were negligent with respect to the necessary knowledge and skill to properly conduct her treatment. Mr. Weldon alleged he accompanied his wife to her appointments and that they negligently inflicted emotional distress on him “by committing malpractice in the treatment and care in his presence of his wife.”

In responses to written discovery requests, Plaintiffs clarified their contentions and stated “Defendants failed to act within the standard of care concerning the reading and interpretation of the 20-week scan of Plaintiff Mallory Weldon’s pregnancy. Defendants failed to order and perform the proper tests to advise plaintiffs that their fetal child was likely to develop Skeletal Dysplasia.” (UMF No. 2.)

Defendants move for summary judgment on grounds they complied with the standard of care at all times. In the alternative, they move for summary adjudication on the following issues:

(1) Dr. Oberman did not breach the standard of care in the treatment of Ms. Weldon;

(2) The health care providers at UCLA Medical Center did not breach the standard of care in the treatment of Ms. Weldon;

(3) Dr. Oberman did not breach the standard of care in the treatment of Ms. Weldon and thereby cause injury to Mr. Weldon;

(4) The health care providers at UCLA Medical Center did not breach the standard of care in the treatment of Ms. Weldon and thereby cause injury to Mr. Weldon;

(5) Dr. Oberman owed no duty to Mr. Weldon upon which he could recover emotional distress damages on a direct victim or bystander theory; and

(6) The health care providers at UCLA Medical Center owed no duty to Mr. Weldon upon which he could recover emotional distress damages on a direct victim or bystander theory.

Medical Malpractice Claim

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.)

Defendants submit the declaration of Michael Nageotte, M.D. (“Dr. Nageotte”), board certified in Obstetrics and Gynecology and Maternal Fetal Medicine. (Declaration of Michael Nageotte, M.D., ¶ 1.) Based on his education and experience, Dr. Nageotte is familiar with the standard of care for both general obstetrics and perinatology for hospitals and clinics providing such services. (Nageotte Decl., ¶ 1.) Dr. Nageotte reviewed Ms. Weldon’s medical records and reviewed the ultrasound images that were done on May 21, 2015, June 25, 2015, August 6, 2015, and December 3, 2015. (Nageotte Decl., ¶ 4.) Based on his review, background, training, and experience, Dr. Nageotte opines that there are multiple different forms of skeletal dysplasias that result from hundreds of different specific gene abnormalities and are manifested by various disturbances of bone development and growth. (Nageotte Decl., ¶ 5.) Dr. Nageotte states that suspicion for certain specific types of skeletal dysplasias may result from a prenatal ultrasound, but that this most commonly occurs only with an ultrasound performed late in the pregnancy and commonly following normal fetal ultrasounds earlier in the pregnancy. (Nageotte Decl., ¶ 5.)

Dr. Nageotte reviewed Ms. Weldon’s ultrasounds and found the measurements to be consistent with the gestation ages at each stage. Therefore, there was no need to order further follow-up ultrasounds. (Nageotte Decl., ¶¶ 11, 12.) Dr. Nageotte opines that the August 6, 2015 ultrasound was normal, that there were no discrepancies in the fetal measurements significant enough to raise a suspicion of an abnormality or to recommend further testing, and that Defendants acted within the standard of care. (Nageotte Decl., ¶¶ 15, 16.)

Regarding the December 3, 2015 ultrasound, Dr. Nageotte opines skeletal dysplasia could not have been diagnosed from the scan, but that the femur length was concerning enough that it was within the standard of care for Dr. Oberan to recommend a follow-up ultrasound. The follow-up ultrasound was performed the next day, within the standard of care. (Nageotte Decl., ¶¶ 17, 18.) Dr. Nageotte opines that only knowledge of the specific type of skeletal dysplasia was present would have resulted in an earlier diagnosis. However, all tests and ultrasounds prior to the December 3 ultrasound were normal, and Defendants acted within the standard of care when they did and did not order follow-up ultrasounds. (Nageotte Decl., ¶ 18.) Further, it was within the standard of care to not offer termination of the pregnancy, as the fetus was viable and there was no medical need. (Nageotte Decl., ¶ 19.)

Defendants have met their initial burden of showing they complied with the standard of care in treating Ms. Weldon during her pregnancy and diagnosing skeletal dysplasia at the time they did. The burden shifts to Plaintiff to show by contrary expert declaration that a triable issue of fact exists.

Plaintiff submits the declaration of Marshall L. Kadner (“Dr. Kadner”), who is board certified in Obstetrics and Gynecology and familiar with the standard of care for physicians practicing obstetrics and perinatology in California when treating patients such as Ms. Weldon. (Declaration of Marshall L. Kadner, ¶ 1.) Dr. Kadner reviewed Ms. Weldon’s medical records and based on this review, his background, training, and experience, opines that Defendants’ care fell below the standard of care in their performance, evaluation, and subsequent treatment of Ms. Weldon. (Kadner Decl., ¶ 3.) Dr. Kadner opines that skeletal dysplasia can be seen much earlier than even 18 weeks. He states that even at the 18-week ultrasound, there was a substantial discrepancy between the fetal measurements of the abdomen and head such that the standard of care required a follow-up ultrasound in two weeks. Dr. Kadner states that had Defendants performed an ultrasound at or around 20 weeks they would have realized there was a substantial risk of skeletal dysplasia. (Kadner Decl., ¶ 6.) Further, he states that genetic testing is not the issue, as opined by Dr. Nageotte. Rather, Defendants fell below the standard of care in performing ultrasounds, interpreting them, and ordering follow-up ultrasounds. (Kadner Decl., ¶ 6.)

Ultimately, Dr. Kadner states Defendants fell below the standard of care in failing to order a 20-week ultrasound after viewing the fetal measurements of the 18-week ultrasound, which showed abnormal abdominal circumference, femur length, and humerus length. This failure to order a 20-week ultrasound led to delayed diagnosis of the skeletal dysplasia until the fetus was viable and Ms. Weldon had to travel to New Mexico to obtain a late-term abortion. (Kadner Decl., ¶ 23.)

Plaintiff has met her burden of showing a triable issue of material fact exists as to whether Defendants breached the standard of care. Summary adjudication as to the medical malpractice claim is DENIED.

Negligent Infliction of Emotional Distress

“The negligent causing of emotional distress is not an independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.) Whether a defendant owes a duty of care is a question of law and depends on the foreseeability of risk and a weighing of policy considerations. (Ibid.) “[A]ny decision regarding liability to relatives can be tested using the traditional seven factors bearing on the existence of duty set forth in Rowland v. Christian (1968) 69 Cal.2d 108.” (Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 915.) Negligent infliction of emotional distress is typically analyzed by either the “bystander” theory or the “direct victim” theory. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.)

Under a direct victim theory, a duty is owed “directly to the plaintiff ‘that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ [Citation.]” (Spates, supra, 114 Cal.App.4th at p. 213.) In these cases, the “well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case” (Burgess, supra, 2 Cal.4th at p. 1073), and “negligence which was ‘directed at’ the relative as well as the injured party” (Steven F., supra, 112 Cal.App.4th at p. 912).

Under the bystander theory, a defendant owes a duty of care where a plaintiff “(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.) The bystander theory is applied where “a plaintiff seeks to recover damages as a percipient witness to the injury of another.” (Burgess, supra, 2 Cal.4th at p. 1072.)

Defendants argue that under any theory, Mr. Weldon cannot prove Defendants owed or breached a duty to him. Defendants acknowledge that Molien v. Kaiser Foundation Hospital (1980) 27 Cal.3d 916 (Molien) and Andelon v. Superior Court (1984) 162 Cal.App.3d 600 (Andelon) impose a duty on health care providers to third parties.

For instance, in Molien, a husband brought an action against a hospital and a doctor for emotional distress as a result of their incorrect diagnosis and treatment of his wife for syphilis. (Molien, supra, 27 Cal.3d at p. 919.) The California Supreme Court held that plaintiff was a direct victim of the alleged negligent diagnosis because the resulting damage to plaintiff was reasonably foreseeable—i.e., both husband and wife experienced anxiety, suspicion, and hostility when confronted with what they believed was reliable medical evidence of infidelity. (Id. at pp. 920, 923.)

Similarly, in Andelon, both parents of a child brought a medical malpractice action against a doctor, alleging that the failure to diagnose Down syndrome during prenatal care to the mother resulted in an unwanted birth. (Andelon, supra, 162 Cal.App.3d at p. 604.) The court held that even though neither parent learned of the baby’s Down syndrome by perceiving it during the event of birth—in other words, there was no contemporaneous perception of the birth and the genetic defect—they were both direct victims of the malpractice alleged. (at p. 611.) In addressing Mr. Andalon’s injury specifically, the court stated:

Mr. Andalon’s interest in the receipt of information and advice on [Down syndrome] mirrors [Mrs. Andalon’s]. His injury is not merely derivative of Mrs. Andalon’s injury but flows from his role as a participant in the reproductive life of the marital couple and its lawful choices. The burdens of parental responsibility fall directly upon his shoulders. The tort duty arising from the contract, between defendant and Mrs. Andalon, runs to him, not merely because of the foreseeability of emotional harm to him, but because of the nexus between his significant interests and the ‘end and aim’ of the contractual relationship. He is manifestly a direct beneficiary of tort-duty imposed by virtue of the doctor-patient relationship.

(Ibid.) The court also held that “[t]he duty to Mr. Andalon arose out of the doctor-patient relationship with Mrs. Andalon.” (Id. at p. 612.) In reaching its conclusion, the court in Andelon relied, in part, on Molien. (Id. at pp. 610-611.)

Defendants argue that Andelon and Molien are not sound law because they deviate from the “bystander” and “direct victim” theories articulated in Dillon v. Legg (1968) 68 Cal.2d 728, establishing when a plaintiff may recover for emotional distress based on injury to another. In Dillon, a parent who witnessed the negligent infliction of death or injury on her child could recover for the resulting emotional trauma. (Id. at p. 740.)

However, both Andelon and Molien remain good law with sound reasoning. This is especially true in light of Ochoa v. Superior Court (1985) 39 Cal.3d 159, where the California Supreme Court expressed its disfavor of a narrow reading of Dillon that limited emotional distress claims only to cases where a “sudden occurrence” resulted in injury that was immediately perceived by a third person. (Id. at p. 168.) The Court stated that “cases allowing recovery have done so by applying the Dillon criteria with some degree of flexibility” and “[i]t is important to remember that the factors set forth in Dillon were merely guidelines to be used in assessing whether the plaintiff was a foreseeable victim of the defendant’s negligence.” (Id. at p. 170.)

Therefore, even if Andelon and Molien can be viewed as deviations from Dillon, it is clear that such flexibility is approved. In discussing Molien, the Court noted the misdiagnosis was “by its very nature, directed at both the wife and the husband.” (Id. at p. 172.)

Based on the above caselaw, Defendants have not met their initial burden of showing Mr. Weldon cannot recover for infliction of emotional distress. Any misdiagnosis of their child’s skeletal dysplasia was necessarily directed at both Ms. and Mr. Weldon, as the “burdens of parental responsibility” fell equally on their shoulders (Andelon, supra, 162 Cal.App.3d at p. 611), and a fact finder could reasonably decide any emotional distress relating from the misdiagnosis and subsequent late-term abortion was foreseeable.

Therefore, summary adjudication as to the causes of action by Mr. Weldon are DENIED. There are triable issues as to whether a duty owed to Mr. Weldon, arising out of the doctor-patient relationship with Ms. Weldon and as a direct victim to the alleged malpractice, was breached.

IV. CONCLUSION

In light of the foregoing, the Motion for summary judgment, or in the alternative, summary adjudication is DENIED in its entirety.

Moving party to give notice.