Michael Ramos vs. Kindred Hospital

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

Filed By: Johnson, Brian D.

Defendants Dr. Kashyup and Dr. Atray’s Motion for Summary Adjudication/ Summary
Judgment on the 4th amended complaint is granted.

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
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(2005) 35 Cal.4 1094, 1107.

Because the Court is reconsidering the ruling in part on its own motion, the Court is
continuing this matter for further briefing pursuant to Le Francois v Goel [if the court
reconsiders on its own motion, under due process considerations the parties should be
given opportunity to submit additional briefing on the motion]. The matter is being
continued to December 4, 2013. On or before November 19, plaintiffs may file and
serve a supplemental brief addressing this proposed tentative ruling on the renewal
motion for summary judgment. On or before November 26, defendants may file and
serve a responsive supplemental brief.

Defendant’s Request for Judicial Notice is granted.

Evidentiary Objections

Plaintiffs’ evidentiary objections are overruled.

Defendants’ Evidentiary Objections

Declaration of Segovia and Supplemental Declaration of 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
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(2005) 35 Cal.4 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
her death, and that they had no duty or authority to transfer decedent to another
hospital.

Moving defendants move for summary judgment on the claims for elder abuse and
medical malpractice brought by plaintiffs Rosalie Vasquez, Larry Ramos Grassi, Gloria
Anaya, Patsy Ramos and Debbie Meza on the additional ground they did not comply
with CCP 377.32 and are therefore not successors in interest entitled to bring these
claims.

Defendants filed a motion for summary judgment/adjudication that was denied on
November 16, 2012. The Court found that the evidence submitted by plaintiff
(Declaration of Segovia, a non-MD Respiratory Therapist) raised an issue of fact on
the standard of care of a medical doctor with a specialty in nephrology (kidney issues.)
In addition, due to the manner in which the separate statement was drafted, the Court
did not rule on all of the issues upon which the motion for summary judgment was
based.

Defendants support this renewed motion with Declarations from George A. Kaysen,
M.D. and John Luce, M.D. These expert declarations opine that no act or omission of
defendants caused or contributed to decedent’s decline or death or fell below the
standard of care. The declarations offer a detailed explanation of the health problems
suffered by decedent and of her grave medical condition that her family was unwilling
to accept. The expert physicians explain that the moving defendants, as consulting
nephrologists, rather than the primary care physicians, had no duty or power to
transfer the patient to another facility. The declarations opine that defendants acted
within the standard of care and did not mismanage the decedent’s fluid levels, but
rather were required to administer fluid to keep decedent alive due to her low
intravascular volume. The administration of diuretics as requested by decedent’s
family would have deteriorated her renal function. Moving defendants cannot be liable
on an elder abuse or wrongful death claim if they did not violate the standard of care.
Moreover, as to the elder abuse claim, defendants, as consulting nephrologists, were
not care custodians responsible for decedent’s basic needs. (Declarations of Kaysen,
M.D. and Luce M.D.)

The moving parties bear the burden of persuasion that there is no triable issue of
material fact and that they are entitled to judgment as a matter of law. (Aguilar v.
Atlantic Richfield Co . (2001) 25 Cal.4th 826, 850. A party moving for summary
judgment meets this burden by presenting evidence demonstrating that one or more
elements of the plaintiffs’ cause of action cannot be established or that there is a
complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar , supra,
25 Cal.4th 826, 849-850, 853-854.) Once the defendants make this showing, the
burden shifts to the plaintiffs to show that a triable issue of material fact exists with
regard to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); see
Aguilar , at p. 850.)

Moving defendants contend, and this Court agrees, that this is not an improper renewal motion for summary judgment because in this motion defendant is addressing
a new theory of liability, whether defendant breached a duty to transfer the patient.
The Court notes that this theory was raised in the earlier opposition and reply, however
the duty to transfer issue had not been raised in the moving papers and therefore the
Court declined to consider the Supplemental Kaysen expert declaration first submitted
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 an 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. Both grounds require
expert opinion. The Court has reconsidered its prior ruling finding that Segovia’s
declaration raised an issue of fact on the standard of care and now rules that the
declaration is inadmissible for that purpose.

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).

The Court has inherent power to reconsider its own interim orders so it may correct its
th
own errors. Le Francois v Goel (2005) 35 Cal.4 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
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Barthold (2008) 158 Cal.App.4 1301, 1308. See Rutter Group, Weil & Brown, Civil
Procedure Before Trial, section 9:327 et seq.

In an 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.