2013-00140581-CU-MM

Patricia Agheli vs. Patrick O’Malley, M.D

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

Filed By: McPherson, Dennis P.

Defendant Dignity Health dba Mercy Hospital of Folsom’s Motion for Summary
Judgment/and or Adjudication is unopposed and is granted.

Plaintiffs alleges that defendant’s nursing staff fell below the standard of care with
regard to the administration of medication and nutrition to plaintiff Patricia Agheli
during plaintiff’s three hospitalizations. Plaintiff alleges causes of action for medical
malpractice and loss of consortium.

Defendant’s expert Kathleen Kelley, R.N. opines that with the exception of the January
21, 2012 administration of Levaquin, the Dignity Health nurses timely assessed Mrs.
Agheli, appropriately documented their assessments and changes in her condition,
appropriately contacted the physicians as necessary, followed the physicians orders,
and exercised the requisite judgment of a nurse in caring for Mrs. Agheli’s conditions
and level of acuity during her hospitalizations from January 9 to the 30, from February
12 to the 26th and from March 29 to April 3, 2012. (See Plaintiff’s Mercy Hospital of Folsom records, attached as Exhibit H to
McPherson Decl.; see also Declaration of Katherine Kelly, RN, paragraphs 13
&14, attached as Exhibit G to McPherson Decl.)

Defendant further contends that no act of the nursing staff is a legal cause of plaintiff’s
injuries. Defendant has submitted evidence that the hospital surgical staff in no way
participated in causing or contributing to any alleged injury which occurred in the
course of the laparoscopic cholecystectomy procedure. To the extent Mrs. Agheli
alleges a hepatic duct was severed during the procedure, this type of injury was not
caused in any way by the participation of the hospital surgical staff in the course of the
procedure. (See Mrs. Agheli’s Mercy Hospital of Folsom records, pages 30-32, 1330-
1341, attached as Exhibit H to McPherson Decl.; see also Declaration of Steven
Patching, M.D., paragraph 6, attached as Exhibit F to McPherson Decl.; see also
Declaration of Katherine Kelly, Paragraph 9, attached as Exhibit G to McPherson Decl.

As to the administration of excessive medication, on January 21, 2012, Mrs. Agheli
was to receive 500 mg of Levaquin by IV but instead received 750 mg of Levaquin.
Defendant has presented admissible evidence that a medication deviation between
500 mg and 750 mg is clinically insignificant and did not cause any injury, deleterious
effect, change in care plan, or other untoward outcome with respect to Mrs. Agheli’s
care and treatment. (See Declaration of Steven Patching,M.D., paragraph 9, attached
as Exhibit F to McPherson Decl.

A defendant moving for summary judgment meets its burden of showing that the
plaintiffs cause of action has no merit by showing 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. CCP §437c(p) (2).] A defendant moving for summary judgment bears the
burden of persuasion that one or more elements of the plaintiffs 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 C4th 826, 850,quoting CCP §437c(p)(2)). A defendant
is not required to conclusively negate one or more elements of the plaintiffs cause of
action (Saelzer v. Advance, Group 400 (2001) 25 C4th 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 v Atlantic
Richfield Co., supra, 2 C4th at 853-855).

Defendant’s evidence is sufficient to meet its burden of proof. Once the moving party
meets this burden of production, the burden shifts to the opposing party to produce
admissible evidence demonstrating the existence of any triable issue of material fact. (
Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 849.) Plaintiff has failed to
provide any opposition or evidence that would raise an issue of fact as to the standard
of care or causation.

The motion for summary judgment/summary adjudication is granted.

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