Case Name: Olivia Pan, et al. v. Good Samaritan Hospital, et al.

Case No.: 18CV328817

Defendant Good Samaritan Hospital’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Factual and Procedural Background

Plaintiff Yue Meng Wu (“Wu”) was a patient of defendants Good Samaritan Hospital (“Hospital”), Margaret Chu, M.D. (“Dr. Chu”), and Margaret Chu, M.D., Inc. (“Dr. Chu Inc.”) in connection with prenatal and obstetrical care, perinatal, delivery, and post-natal care concerning a pregnancy which delivered on August 16, 2017. (Complaint, ¶10.) Defendants were negligent, careless, and unskillful in their management of the prenatal, labor, delivery, postnatal phase, including but not limited to the examination, ultrasound evaluations, diagnosis, care and treatment of plaintiff Wu. (Complaint, ¶12.) As a result of defendants’ negligence, plaintiff Wu and plaintiff Wu’s daughter, plaintiff Olivia Pan (“Pan”), was injured. (Complaint, ¶¶14 and 19.) As a result of defendants’ negligence, plaintiff Junjie Pan has and will continue to be deprived of the consortium of his wife, plaintiff Wu. (Complaint, ¶22.)

On May 24, 2018, plaintiffs Pan, Wu, and Junjie Pan filed a complaint against defendants asserting causes of action for:

(1) Negligence [by plaintiff Wu against defendants]
(2)
(3) Negligence [by plaintiff Pan against defendants]
(4)
(5) Loss of Consortium [by plaintiff Junjie Pan against defendants]
(6)

On August 13, 2018, defendants Dr. Chu and Dr. Chu Inc. filed an answer to the plaintiffs’ complaint.

On August 16, 2018, defendant Hospital filed an answer to the plaintiffs’ complaint.

On March 26, 2019, defendant Hospital filed the motion now before the court, a motion for summary judgment/adjudication of the plaintiffs’ complaint.

I. Defendant Hospital’s motion for summary judgment/adjudication is DENIED.
II.

The first and second causes of action asserted against defendant Hospital are by plaintiffs Wu and Pan for medical malpractice. The third cause of action by plaintiff Junjie Pan is for loss of consortium. “While the losses for which damages are sought in a consortium action may properly be characterized as ‘separate and distinct’ from the losses to the physically injured spouse [Citation.], the former are unquestionably dependent, legally as well as causally, on the latter. One spouse cannot have a loss of consortium claim without a prior disabling injury to the other spouse.” (Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 999; see also Danieley v. Goldmine Ski Associates (1990) 218 Cal.App.3d 111, 119.) Plaintiff Junjie Pan’s loss of consortium claim is, therefore, dependent upon plaintiff Wu’s claim.

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 (Ladd).) Medical negligence is still negligence.

With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional “circumstances” relevant to an overall assessment of what constitutes “ordinary prudence” in a particular situation. Thus, the standard for professionals is articulated in terms of exercising “the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing ….” [Citation.]

(CACI, No. 500; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 – 998.)

In moving for summary judgment, defendant Hospital attempts to establish that it either did not breach its legal duty or did not cause plaintiffs Wu and Pan’s injuries.

The standard of care in malpractice cases is also well known. With unimportant variations in phrasing, we have consistently held that a physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.

(Landeros v. Flood (1976) 17 Cal.3d 399, 408; see also CACI, No. 501; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.)

Similarly, “a nurse’s conduct must not be measured by the standard of care required of a physician or surgeon, but by that of other nurses in the same or similar locality and under similar circumstances.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969.)

Ordinarily, the standard of care required of a doctor, and whether he exercised such care, can be established only by the testimony of experts in the field. [Citation.] But to that rule there is an exception that is as well settled as the rule itself, and that is where ‘negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge, expert testimony is not required since scientific enlightenment is not essential for the determination of an obvious fact.’ [Citation.]

(Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6; see also CACI, No. 501; see also Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215—“The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen.”) The same is true for nurses. “[E]xpert opinion testimony is required to prove that a defendant nurse did not meet the standard of care and therefore was negligent, ‘except in cases where the negligence is obvious to laymen.’ ” (Massey v. Mercy Med. Ctr. Redding (2009) 180 Cal.App.4th 690, 694–695.)

Ordinarily, if a plaintiff seeks to hold a hospital or a physician liable for a breach of a duty as to the medical care and treatment of a patient, the courts refuse to give a res ipsa loquitur instruction unless the plaintiff has produced some expert testimony [footnote] which supports an inference of negligence from the fact of the accident itself. [Citations and footnote omitted.] The reason for this requirement appears from the following statement: “The law demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient. … Ordinarily, a doctor’s failure to possess or exercise the requisite learning or skill can be established only by the testimony of experts.” [Citation omitted.]

(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 428 – 429; see also Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305 (Johnson)—“Because the standard of care in a medical malpractice case is a matter ‘peculiarly within the knowledge of experts’ [Citation], expert testimony is required to ‘prove or disprove that the defendant performed in accordance with the standard prevailing of care’ unless the negligence is obvious to a layperson.’ [Citation.])

Similarly, causation in a medical malpractice case requires expert testimony. “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances that can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [¶] Thus, proffering an expert opinion that there is some theoretical possibility the negligent act could have been a cause-in-fact of a particular injury is insufficient to establish causation. Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2004) 114 Cal.App.4th 1108, 1117 – 1118; internal citations and punctuation omitted.)

In moving for summary judgment, defendant Hospital begins by proffering its version of the facts. According to the Hospital records, on August 15, 2017 plaintiff Wu was admitted to Hospital for labor induction. At the time she was a 30 year old native of China who was a private pay patient. This was her first pregnancy and on the date of admission, she was postdates (41 weeks). Her attending Obstetrician was Dr. Chu. Wu did not speak English. The plan at admission was to induct labor starting with Cervidil for cervical ripening.

On admission, the patient was placed on an external fetal monitor. Over the next hour the fetal monitor displayed a Category I tracing, with a fetal baseline in the 130’s, moderate variability, and accelerations. The contraction pattern was irregular. At 0947, the nurse placed the Cervidil. Over the next several hours, the EFM strip continued as a Category I tracing, with irregular contractions.

At around 1315, the contraction pattern started to become more frequent, with contractions occurring every 1 – 3 minutes. Over the next 30 minutes, it became apparent that the contractions were occurring too frequently, (tachysystole) and the EFM strip advanced to a Category II tracing with some variable decelerations present. At 1415 the Cervidil was removed by the RN and the patient’s cervical exam was 3cm, 60% effaced and the fetal vertex was at minus 3 station. The patient was medicated with Fentanyl for pain and given an IV bolus and oxygen. The variable decelerations resolved. Dr. Chu was notified of these changes, and gave the nurse an order to start Pitocin augmentation if Wu’s contractions started to space out.

By 1530, Wu’s contraction pattern was regular, with contractions coming every 2 – 3 minutes with a total of 4 contractions in a given 10 minute period of time. The fetal heart rate pattern was once again a Category I tracing. By 1700, the contraction pattern appeared to be more irregular, so Pitocin was started at 2mU/min. Over the next 30 minutes the contractions started coming frequently, with greater than 5 contractions over a 10 minute period. This is indicative of tachysystole and at 1725 the nurse, using her judgment and following hospital protocol, discontinued the Pitocin augmentation. The fetal heart rate tracing continued primarily as a Category I tracing, with some intermittent periods of a Category II tracing.

The nurse notified Dr. Chu at 1745 and reported on the patient’s labor progress. Dr. Chu indicated that she would be in evaluating the patient when she finished up with her scheduled patients. The nurse documented that she updated the patient on the plan of care, and answered questions using a phone interpreter. At 2020, Dr. Chu called in to check on her patient’s status. She indicated that she would be in soon to evaluate the patient and consider augmentation orders. The fetal heart rate remained a Category I tracing. Dr. Chu was at the bedside at 2147, and after evaluating the patient, she did a cervical exam and proceeded to rupture the membranes. At this time, she placed an intrauterine pressure catheter (IUPC) to more accurately measure the frequency and strength of the contractions. The nurse documented the exam at 2cm, 90% effaced and minus 2 station. The amniotic fluid was clear.

Following the AROM, the frequency of contractions was 1 – 3 min apart, lasting 80 – 90 seconds. At 2220, Wu was medicated for pain with fentanyl, and at 2256 she requested an epidural. Anesthesia was notified at 2259, and was at the bedside at 2329. The placement and dose of the epidural was completed by 2236. The fetal heart rate tracing was primarily a Category I tracing, with periods of Category II.

Following the epidural, the fetal heart rate tracing was a Category II, with a baseline in the 130’s moderate variability, and occasional early and mild variable decelerations. The nurse placed a Foley catheter and checked the cervix. The exam was noted to be 4cm, 100% effacement, minus 1 station. The strip remained a Category I/II tracing, with some accelerations, occasional early and variable decelerations, moderate variability and a baseline in the 130’s. Changes in the tracing, such as minimal variability and decelerations prompted the nurse to reposition the patient, and using oxygen, which are appropriate measures for the standard of care.

Over the next several hours the patient continued to labor. Wu’s temperature at 0154 was 99.2 orally. The fetal heart rate tracing remained primarily a Category I tracing, with intermittent periods of Category II, and contractions anywhere from 2 – 5 minutes apart. At 0329, the nurse restarted the Pitocin augmentation at 2mU/min. At 0408 the Pitocin was increased to 6mU/min. At 0416, Dr. Chu was noted to be at the bedside when she reviewed the fetal heart tracing. The cervical exam was noted to be 7cm, 100% effaced, minus 1 station with bloody show present.

At 0431, a variable deceleration occurred. The nurse discontinued the Pitocin and documented that the criteria for ongoing Pitocin had not been met. Turning off the Pitocin at this point was consistent with their policies and procedures and within the standard of care. Dr. Chu was notified and the patient was given an IV bolus. By 0500 the contractions frequency was 2 – 6 min apart, and the fetal heart rate was primarily a Category I tracing with intermittent periods of Category II, with a baseline of 145, moderate variability, accelerations present, and occasional variable decelerations. Pitocin was restarted at 2 mU/min. At 0513 a cervical exam was performed by the nurse and the patient was 8cm, 100% effaced at 0 station. At 0618, the patient complained of rectal pressure and another cervical exam was performed. At 0628 the patient was 9cm, 100% effaced and the fetal vertex was at 1 station. The patient’s temperature was taken and was 98.7 orally. Dr. Chu was notified at 0645 that the patient had an anterior rim. The nurse tried a trial push but the rim was not reduced and there was not decent of the fetal head. Dr. Chu called in at 0756 to check on the patient’s status and to notify the nurses that she would be in a c/s and would call when done. She asked the nurses to not have the patient push (when complete) until they heard from her. Passive second stage of labor allows for the contractions to bring the baby down to a lower station, and might save the patient from pushing to exhaustion.

At 0830, Wu’s temperature again was checked and it was 100.0 orally. The nurse noted that the strip was a Category II tracing with a baseline of 155, moderate variability, occasional accelerations, and variable decelerations. Her contractions were every 2 – 4 minutes, lasting 50 – 60 seconds. The nurse gave a 500cc IV fluid bolus for the increase in Wu’s temperature. At this time, the baby was tolerating the labor pattern. At 0940, Dr. Chu called in and was notified that the patient had been completely dilated since 0910. She was on her way in and she instructed the nurse that she would call when she wanted the nurse to start pushing with the patient. The fetal tracing was a Category I tracing at this time.

Dr. Chu called back at 1006. She indicated she was on her way to Good Samaritan Hospital, and to go ahead and have the mom start pushing with contractions. At 1019 the nurse documented that she tried to start pushing with the mom, but the mom could not understand her instructions due to the language barrier. The plan was to wait for Dr. Chu’s arrival so she could explain pushing to the mom in Chinese. At 1022 the patient was noted to have a temperature of 102.9.

Dr. Chu arrived at 1025 and was notified of the patient’s temperature. She ordered antibiotics which were started at 1044. The charge nurse and the NICU were also notified of the temperature and the patient was to receive antibiotics and Tylenol. The NICU team would be present for the delivery because of the elevated temperature. The nurse noted that the fetal tracing was a Category II tracing with a baseline of 175, moderate variability and variable decelerations. Uterine contractions were every 2 – 4 minutes, lasting 70 – 140 seconds. Pushing started at 1030. Dr. Chu left the bedside at 1050 and the nurse continued pushing with the patient. Dr. Chu returned to the bedside at 1114 to review the strip and the pushing progress. At 1118 a second antibiotic was added. Wu’s temperature remained elevated at 102.8. Dr. Chu noted that several different position changes were tried to facilitate delivery including pushing on her side, and trying the squat bar. At 1140 the anesthesiologist was notified to turn down the epidural rate so the patient might have more feeling when pushing. At 1149, Dr. Chu left the bedside.

At 1225 Dr. Chu returned to the bedside. In her note she stated that Wu was getting tired and that there were more variable and late decelerations noted on the fetal monitor strip. She stated that the fetal head was at plus 5 station with 2 – 3 cm of the fetal head visible at the introits. She decided that she would do a vacuum assisted delivery, and after explaining the procedure, risks and benefits to Wu, she obtained consent to proceed. This decision is entirely within the province of the doctor and not within the scope of practice of the nurse. From a nursing perspective, this plan of action would have seemed reasonable under the circumstances. The NICU team was asked to come to the bedside for delivery, and a second nurse also came to the bedside to assist with the delivery.

The vacuum device was used three times by Dr. Chu. This is a device that is attached to a hand pump, with a soft cup that is applied to the fetal head, and used to try to help deliver the baby. The process is that the doctor applies the cup to the fetal head, then the nurse uses the pump to get to a designated degree of pressure when a contraction is starting, and then the doctor pulls with the contraction. In this case, each time Dr. Chu used the vacuum there was a “pop-off” of the cup, meaning it lost suction and came off the fetal head. The maximum number of attempts with a vacuum device is supposed to be three pulls, and that is what happened in this case.

Just prior to the first vacuum attempt, at 1240, the fetal heart rate dropped into the 70’s. Dr. Chu was at the bedside and would have been aware of the heart rate. At 1247, the heart rate was still in the 70’s and the vacuum assist was no longer an option for delivery. The nurse verbalized that the heart rate had been in the 70’s for 7 minutes. At 1249, Dr. Chu was reviewing the strip and again the nurse verbalized the heart rate had been in the 70’s for 9 minutes. At that point, Dr. Chu decided to take Wu back to the OR for a caesarean section delivery. In her note, Dr. Chu said she gently pushed the fetal head back into the pelvis and they left for the operating room at 1251.

According to the records, once they were in the operating room Dr. Chu ordered a full abdominal prep, and the placement of a Foley catheter, and then did a full time-out, before proceeding with the surgery. The records reflect incision time was 1302, and the delivery time was noted as 1305.

At birth the baby was depressed, and needed to be resuscitated by the NICU team.

In support of its motion for summary judgment, defendant Hospital offers the opinion/declaration of Kathleen M. Walsh, R.N.C., BSN (“Walsh”). It is Walsh’s professional opinion, based upon her training and over 20 years of experience, that there were no negligent acts or omissions on the part of the nursing staff/ employees of Hospital who participated in the care of plaintiff Wu, leading to the delivery of plaintiff Pan. From her review, it is Walsh’s opinion that the nurses at all times acted appropriately in their management of the patient, and there was no time when they were required to utilize the chain of command to question Dr. Chu’s action. It is also Walsh’s opinion that the nurses caring for plaintiff Wu reasonably complied with all orders by Dr. Chu, and with the applicable hospital policies and procedures. There were no breaches of the standard of care by the nursing staff which led to any injury or harm to plaintiff Wu or her daughter plaintiff Pan. It is also Walsh’s opinion that it is not reasonably probable that utilizing the chain of command would have resulted in the baby being born any sooner.

In opposition, plaintiffs submit the declaration of their own expert, Michelle L. Murray, RNC-OB, Ph.D. (“Dr. Murray”), who opines precisely the opposite from Walsh. The expert opinions submitted by the parties are in conflict. This amounts to a triable issue of material fact as to whether defendant Hospital breached the standard of care and/or caused plaintiffs Wu and Pan’s injuries. Accordingly, defendant Hospital’s motion for summary judgment, or in the alternative, summary adjudication is DENIED.

Since there is a triable issue of material fact with regard to whether defendant Hospital breached the standard of care and/or caused plaintiffs’ injuries, the court need not reach defendant Hospital’s additional argument that, as a matter of law, there was no ostensible agency relationship between defendant Hospital and defendants Dr. Chu and/or Dr. Chu Inc.