Case Name: Ron Bunten, et al. v. Regional Medical Center of San Jose, et al.

Case No.: 18CV325712

Defendant Regional Medical Center of San Jose’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Factual and Procedural Background

On or about March 22, 2017, plaintiff Ron Bunten (“Bunten”) employed defendants Regional Medical Center of San Jose (“RMCSJ”), Minimally Invasive Surgical Solutions, Arash M. Padidar, M.D. (“Dr. Padidar”), Raul Guisado, M.D. (“Dr. Guisado”), Scott W. Benninghoven, M.D. (“Dr. Benninghoven”), and Physicians Medical Group of San Jose, Inc. to provide plaintiff Bunten with adequate and complete care and attention as well as with other necessary medical services. (Complaint, ¶15.) Defendants promised and undertook to care for, treat, and advise plaintiff faithfully, skillfully, and carefully. (Id.) Defendants, in their respective care and treatment, failed to exercise that degree of skill and care required of physicians and surgeons, nurses, nurse practitioners, medical technicians and/or assistants, in that said defendants negligently and carelessly, after a diagnosis of vertebral artery dissection, failed to administer IV heparin in a timely manner resulting in severe stroke. (Id.) Once plaintiff had declined neurologically there was a delay in diagnosing he was suffering from an embolic stroke with a corresponding delay in treatment resulting in severe and permanent neurological deficits. (Id.)

On March 28, 2018, plaintiff Bunten, through his guardian ad litem Debra J. Bunten, and plaintiff Cheryl Burgess (“Burgess”), Bunten’s wife, filed a complaint against defendants asserting causes of action for: (1) medical negligence; and (2) loss of consortium.

On May 2, 2018, defendant Dr. Guisado filed an answer to the plaintiffs’ complaint.

On May 9, 2018, defendant Dr. Benninghoven filed an answer to the plaintiffs’ complaint.

On May 17, 2018, defendants Minimally Invasive Surgical Solutions Medical Corporation (erroneously sued as Minimally Invasive Surgical Solutions; hereafter, MISSMC) and Dr. Padidar filed an answer to the plaintiffs’ complaint.

On May 23, 2018, plaintiffs amended their complaint to strike the name Physicians Medical Group of San Jose, Inc. from the complaint and replace it with San Jose Surgical Group (“SJSG”) and to strike the name Minimally Invasive Surgical Solutions from the complaint and replace it with MISSMC.

On June 21, 2018, defendants Dr. Benninghoven and SJSG filed an answer to the plaintiffs’ complaint.

On July 23, 2018, defendant RMCSJ filed its answer to the plaintiffs’ first amended complaint.

On April 23, 2019, plaintiffs dismissed, with prejudice, the complaint against defendants Dr. Padidar and MISSMC.

On July 25, 2019, defendant RMCSJ filed the motion now before the court, a motion for summary judgment/ adjudication of plaintiffs’ complaint.

On August 7, 2019, plaintiffs stipulated, among other things, to the dismissal of defendants Dr. Guisado, Dr. Benninghoven, and SJSG from the complaint with prejudice. The court issued an order to that effect.

Discussion

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

“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.)

The second cause of action by plaintiff Burgess 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 Burgess’s loss of consortium claim is, therefore, dependent upon plaintiff Bunten’s claim for medical negligence.

In moving for summary judgment, defendant RMCSJ attempts to establish that it did not cause plaintiff Bunten’s injuries. 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; emphasis original.)

In moving for summary judgment/ adjudication, defendant RMCSJ begins by proffering the following facts: Ronald Bunten presented to the Emergency Room at San Jose Regional via ambulance on March 22, 2017 at 7:03 am. Mr. Bunten fell to the ground at home due to a seizure and lost consciousness. He was alert and oriented on initial presentation in the ER, and complained of neck and left shoulder pain. Mr. Bunten was placed in c-spine precautions with collar.

A CT of the head and cervical spine was completed at approximately 7:20 a.m. and demonstrated a C7 cervical fracture.

Dr. Benninghoven, trauma surgeon, Dr. Yeh, neurosurgeon, and Dr. Guisado, neurologist, were consulted within twenty minutes of the CT being completed.

Dr. Guisado noted equal movements of all four extremities and no sensory loss. He ordered Keppra to manage the seizures.

A CT Angio was completed at approximately 9:20 a.m.

At 11:15 am, Neuro-Interventional Radiology, Adrianna Gutierrez PA, working under Dr. Padidar, noted a vertebral artery dissection with question of possible thrombus on the CT. Ms. Gutierrez recommended IV heparin.

Dr. Yeh documented at noon that if Mr. Bunten has a clot, anticoagulation therapy may be warranted. However, he requested a “better imaging study like an MRI of his head to make sure there is no sort of contusion or injury to his brain that would preclude him from having anticoagulation therapy.”

An MRI was completed and the findings dictated at 1:19 pm stated “no acute intracranial findings.”

At 1:53 pm, Ms. Gutierrez ordered stat a heparin bolus to be followed by a heparin drip. Pharmacy completed verification of this order at 2:51 pm.

At this same time, at approximately 3:00 pm, Mr. Bunten was transferred to the ICU. He complained of nausea and vomited. Due to the c-spine precautions in place, including a collar, cleaning the area and changing linens was a complex task that took significant time to complete.

At 4:00 pm, Mr. Bunten was still being cleaned from vomiting, when he vomited again profusely. He then began seizing with Nurse Gabriel Sarmiento at bedside. Nurse Sarmiento noted protecting his airway during the seizure. He called for Ativan and assistance. Dr. Benninghoven was called to the bedside, ordered Ativan and Nurse Sarmiento administered the dose. The seizure subsided after the second dose of Ativan. Mr. Bunten was immediately intubated by anesthesia and neurology was paged to bedside.

Mr. Bunten was given propofol per Dr. Guisado’s order, cleaned and an EEG was ordered. The EEG confirmed ongoing seizure activity.

At 6:00 pm, Nurse Sarmiento scanned the heparin bolus via IV and the heparin drip in to the electronic record system.

Hourly neurologic checks were completed throughout the night on Mr. Bunten. Several nurses documented he withdrew to painful stimuli, but no other movement noted. Due to his ongoing seizure activity, the propofol was not turned off until the next morning.

In the 8:00 am neurological assessment, Nurse Shelby Key RN noted trace reflexes in all four extremities and that he withdrew to painful stimuli. At approximately 8:14 am, Nurse Key turned off the propofol.

The 9:00 am neurologic assessment demonstrated no reflexes in the upper extremities and Mr. Bunten did not withdraw to pain, which was a change from the prior neurologic assessments.

At 9:24 am, Ms. Gutierrez noted in her physical exam that Mr. Bunten was able to open his eyes spontaneously, but they did not track nor was he able to follow commands. His gaze was fixed at the midline. Ms. Gutierrez noted after an MRI/MRA of the brain, the findings of a large pons infarct with left vertebral extensive occlusion. She stated Mr. Bunten likely had locked-in syndrome and his prognosis for functional recovery was poor. Mr. Bunten was discharged on March 29, 2017 with a diagnosis of locked-in syndrome.

In support of its motion for summary judgment/ adjudication, defendant RMCSJ offers the opinion/declaration of Jerome Barakos, M.D. (“Dr. Barakos”), an expert in the field of radiology and neuroradiology. It is Dr. Barakos’s expert opinion, based upon a review of the medical records in this case, that Bunten’s CT imaging demonstrates multiple clots at the site of the vertebral artery dissection, including a large clot sitting in the basilar artery at the juncture of the brainstem; the MRI demonstrates an infarct/stroke in the pons (upper section of the brainstem). The site of the stroke is in line with the location of the large clot seen in the prior day’s CT imaging. It is Dr. Barakos’s opinion, to a reasonable degree of medical probability, that the cause of Mr. Bunten’s stroke was the existing large clot seen on the CT imaging taken on the morning of admission the day prior, March 22, 2017. Further, based on Dr. Barakos’s education, training and experience, the anticoagulation medication, Heparin, does not eliminate existing clots; Heparin only prevents future clots from forming. Therefore, based on his review of the medical records and imaging, his education training and experience, to a reasonable degree of medical probability, it is Dr. Barakos’s medical opinion the care and treatment at RMCSJ did not cause or contribute to Mr. Bunten’s stroke as administration of Heparin would not have eliminated the existing clot, nor prevented the clot from travelling up the brainstem, causing Mr. Bunten’s stroke.

In opposition, plaintiffs submit the declaration of their own expert, Todd E. Lempert, M.D. (“Dr. Lempert”), an expert in the field of radiology and neuroradiology, who opines precisely the opposite from Dr. Barakos. To a reasonable degree of medical probability, had plaintiff Bunten received state heparin therapy as ordered, it is highly unlikely he would have suffered a posterior circulation stroke. It is Dr. Lempert’s experience in treating many patients over the years for both vertebral artery and carotid artery dissections, that when anticoagulation therapy is started immediately with heparin, the risk of stroke is significantly reduced. The medical literature further confirms that the risk of stroke in this setting is reduced to below 5% when patients are treated with an anticoagulant and go on to have an excellent prognosis. To a reasonable degree of medical probability, the failure of the employees of RMCSJ to comply with the accepted standard of care in the stat administration of heparin therapy to Bunten was a substantial factor in causing his stroke.

The expert opinions submitted by the parties are in conflict. This amounts to a triable issue of material fact as to whether defendant RMCSJ caused plaintiff Bunten’s injuries. Accordingly, defendant RMCSJ’s motion for summary judgment, or in the alternative, summary adjudication is DENIED.