Michael Ramos vs. Kindred Hospital
Nature of Proceeding:
Filed By:
Motion for Reconsideration
Humphrey, Kathleen

Defendant Kindred Hospital’s (“KHS”) Motion for Reconsideration is granted.

After reconsidering the prior order, KHS’ Motion for Summary Judgment/Adjudication of the wrongful death, elder abuse, and professional negligence causes of action is granted.

Defendant moved for summary judgment of the entire complaint, but the separate statement only addresses the above causes of action.

The motion for summary judgment is denied on the ground it appears other causes of action remain against KHS.

KHS filed a motion for summary judgment or summary adjudication on July 10, 2013, 2013, which was heard by the Court on October 11, 2013. (Humphrey Decl., para. 2, Ex. A.) In support of its motion, KHS submitted the declaration of John Luce, M.D. that opined KHS did not violate the standard of care in treating Decedent, who died of natural causes. (Id. at para.12, Ex. B.) In opposing the motion, Plaintiffs submitted a purported expert declaration of Mr. Segovia, a respiratory therapist licensed in Nevada and Arizona. (Id. at para.3, Ex. C.) The Court denied KHS’ motion for summary judgment or summary adjudication in an order dated November 5, 2013 (“MSJ Order”). Over KHS’ objection, the Court admitted Mr. Segovia’s declaration into evidence and concluded that the declaration was sufficient to create a triable issue of fact whether KHS’ treatment of Decedent fell below the standard of care. (Id.) The Court stated:

“This Court previously addressed the admissibility of Mr. Segovia’s declaration in its ruling on Defendants Dr. Kashya’s and Dr. Atray’s Motion for Summary Judgment. As the Court previously concluded, Mr. Segovia has shown sufficient expertise to support an opinion that the standard of care required Defendants to transfer Decedent to a facility that could insert an arterial line to treat her blood gas levels. Similarly, he claims sufficient expertise to support an assertion that rehabilitation facilities such as Kindred Hospital lack sufficient resources to treat patients with more than a seven-pound weight gain from fluids, and that Defendant should have transferred her to another facility once Decedent’s weight gain exceeded this figure. . . . The Court also does not perceive that Mr.Segovia’s declaration is inconsistent with his previous declaration, which,according to Defendant, “directed 100% criticisms against Drs. Kashyap and Atray.” As discussed above [in the order]. Plaintiffs have demonstrated a triable issue of material fact as to whether Defendant may be liable for the conduct of these physicians. (Id at Ex.4, p. 3.)”

The Court’s tentative ruling of November 5, 2013 on the renewal motion brought by Pursuant to CCP 437c(f)(2), a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. The court finds that this is a proper renewal motion. In addition, the Court has reconsidered its prior ruling on its own motion under Le Francois v Goel (2005) 35 Cal.4th 1094, 1107. A trial court has inherent power to reconsider its prior interim orders, either on its own motion or on motion of a party. Remsen v. Lavacot (2001) 87 Cal.App.4th 421 [which found that whether the court acted sua sponte or in response to a litigant’s motion “to be a distinction without a difference. Whether the trial judge has an unprovoked flash of understanding in the middle of the night or is prompted to rethink an issue by the stimulus of a motion is ‘constitutionally immaterial’ to the limitation on the power of the Legislature to regulate the judiciary.” ( Id. at p. 427.)]

Defendants’ Request for Judicial Notice and Supplemental Request for Judicial Notice are granted.

Plaintiffs’ supplemental request for judicial notice is denied as it goes beyond the supplemental briefing within the scope of the reconsideration.

Evidentiary Objections filed before November 5, 2013 hearing

Plaintiffs’ evidentiary objections are overruled.

Defendants’ Evidentiary Objections

Declaration of Richard Segovia and Supplemental Declaration of Richard Segovia :
Sustained.

Declaration of Lawrence Ramos and Supplemental Declaration of Lawrence Ramos:
Sustained.

Declaration of Michael Ramos and Exhibit F and Photographic Exhibits 1-6:
Sustained.

Defendants bring a renewed motion for summary judgment under CCP 437c(f).

Pursuant to CCP 437c(f)(2), a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. The court finds that this is a proper renewal motion. In addition, the Court has reconsidered its prior ruling on its own motion under Le Francois v Goel (2005) 35 Cal.4 th 1094, 1107.

Plaintiffs allege claims for medical malpractice, wrongful death, and elder abuse arising out of the death of Stella Ramos who had been transferred to Kindred Hospital for rehabilitation. Plaintiffs allege Dr. Atray and Dr. Kashyap cared for plaintiff from May 20, 2010 to July 11, 2010. Plaintiffs allege that the doctors were negligent in that they mismanaged her fluid levels and failed to transfer her to Mercy Hospital or another facility.

Moving defendants seek summary adjudication on the ground that their treatment and care of decedent fell within the standard of care, that their actions were not a cause of with the Reply.

The Court grants the motion on the ground that the defendants, as the non-primary care physicians and consulting nephrologists, did not have the duty nor authority to transfer decedent to a hospital that plaintiffs believe was better equipped to handle her condition, and therefore cannot be liable for the breach of duty to do so. Plaintiffs have offered no admissible expert evidence on this issue to raise a material issue of fact.

The Court grants the motion on the additional grounds that plaintiffs cannot establish that the acts of moving parties caused decedent’s death and on the ground that moving defendants did not fall below the standard of care in the care and treatment of decedent. Both grounds require relevant expert opinion. The Court has reconsidered its prior ruling finding that Richard Segovia’s declaration raised an issue of fact on the standard of care, and now rules that the declaration is inadmissible for that purpose as well as the issues of duty to transfer and causation.

The qualification of an expert witness is a question for the sound discretion of the trial court and its ruling will not be disturbed upon appeal unless a clear abuse of it is shown. [citations] Sinz v Owens (1949) 33 Cal 2d 749, 755. The Court now rules that the Segovia declaration is inadmissible on the standard of care/causations issue because he is not qualified as an expert to testify as to the standard of care and causation regarding the actions of the defendants who are medical doctors with a specialty in nephrology (kidneys).

As noted, the Court has inherent power to reconsider its own interim orders so it may correct its own errors. Le Francois v Goel (2005) 35 Cal.4 th 1094, 1107. The Court must act on its own motion, either sua sponte or in response to a party’s request. Id. at 1108. The Court may correct its error by way of an improperly filed CCP 1008 motion. Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1308. See Rutter Group, Weil & Brown, Civil Procedure Before Trial, section 9:327 et seq.

In a malpractice case, a qualified doctor may testify as to what type of diagnosis or treatment of an injury or illness is in accord with the prevailing standards of good medical practice in the locality. See Sinz v Owens (1949) 33 Cal.2d 749, 753; 1 California Evidence 5th Ed, Hogan, Opinion Evidence, §47, page 671. Although the law has become more relaxed since 1949 in terms of what specialty the expert doctor must be, what location he or she must practice in, or whether that doctor must have substantial experience occupationally in the same field, the Court is now persuaded that only a medical doctor may qualify as an expert to present evidence to rebut the evidence submitted by the defendants. A respiratory therapist who is not licensed in the State of California and who can only treat patients under the supervision of a pulmonologist is simply not qualified as an expert to opine on the treatment provided by a medical doctor who specialized in nephrology (kidneys). Therefore, since there is no expert evidence to support the plaintiff’s claims, it remains undisputed that the defendant’s actions were within the standard of care and did not cause the decedent’s death. Landeros v Flood (1976) 17 Cal.3d 399, 409.

1st cause of action Elder Abuse

: Summary Adjudication is granted.

Defendants have established that their care and treatment fell within the standard of care and that they were not the care custodians of the decedent, only consulting nephrologists. Plaintiffs have presented no expert evidence that the actions of moving defendants fell below the standard of care, caused decedent’s death, or constitute custodial care.In addition, the claims of plaintiff’s Rosalie Vasquez, Larry Ramos Grassi, Gloria Anaya, Patsy Ramos and Debbie Meza, are dismissed on the additional ground they did not comply with CCP 377.32 and are therefore not successors in interest entitled to bring these claims.

2nd cause of action Medical Malpractice

: Summary Adjudication is granted.

Defendants have established that their care and treatment fell within the standard of care and that they were not the care custodians of the decedent, only consulting nephrologists. Plaintiffs have presented no expert evidence that the actions of moving defendants fell below the standard of care or caused decedent’s death.In addition, the claims of plaintiff’s Rosalie Vasquez, Larry Ramos Grassi, Gloria Anaya, Patsy Ramos and Debbie Meza, are dismissed on the additional ground they did not comply with CCP 377.32 and are therefore not successors in interest entitled to bring these claims.

3rd and 4th causes of action (not against moving parties)

5th cause of action Wrongful death

: Summary Adjudication is granted.

Defendants have established that their care and treatment fell within the standard of care and that they were not the care custodians of the decedent, only consulting nephrologists.

Plaintiffs have presented no expert evidence that the actions of moving defendants fell below the standard of care or caused decedent’s death.

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