Case Name: Vega, et al. v. Doctors Medical Center, et al.

Case No.: 1-13-CV-244382

This case arises out of alleged medical malpractice. On April 9, 2012, Shelia Abasolo Vega (“Ms. Vega”) gave birth to Skylin Abasolo Vega (“Skylin”) at Doctors Medical Center of Modesto (“DMC”). (See Defendant’s Separate Statement of Undisputed Facts (“Def.’s UF”) No. 1.) Skylin was born premature (33-5/7 weeks) and was delivered by cesarean section. (Id.) Due to her premature birth, Skylin was admitted to the Neonatal Intensive Care Unit (“NICU”) at DMC. (Id.) Ms. Vega was discharged on April 13, 2012. (Def.’s UF No. 7.) On April 16, 2012, Dr. David Klain, Skylin’s neonatologist noted that Skylin’s stool contained mucus material and blood and he ordered a blood culture. (Def.’s UF No. 11.) The resulting culture indicated that Skylin had contracted salmonella. (Def.’s UF No. 12.) Skylin remain at DMC until April 24, 2012, and was thereafter transferred to Lucille Packard Children’s Hospital (“LPCH”) because she still had symptoms of blood in her stool after completing a full course of antibiotics. (Def.’s UF No. 15.) After completing a second course of antibiotics, Skylin was discharged from LPCH on May 3, 2012. (Def.’s UF No. 18.)

On July 2, 2013, Skylin and her mother (collectively “Plaintiffs”) filed an action against DMC, alleging that the hospital’s negligent medical treatment resulted in Skylin becoming infected with salmonella. Ms. Vega, on her own behalf, also sought damages for negligent infliction of emotional distress.

DMC now moves for summary judgment and/or summary adjudication. DMC argues that it is entitled to summary judgment because it met the applicable standard of care and because the undisputed facts show that it was Skylin’s family members—not the hospital—that were the source of the salmonella infection. Additionally, DMC moves for summary adjudication of Ms. Vega’s cause of action for negligent infliction of emotional distress.

In its notice of motion, DMC requests judicial notice of “all pleadings and records in the Court’s file in this action” pursuant to Evidence Code section 452. (Def.’s Notice of Mot. for Summ. J., at p. 2.) The request is improper for two reasons. First, requests for judicial notice made in connection with motions for summary judgment and summary adjudication must be contained in a separate document. (Cal. Rules of Court, rules 3.1113(l) and 3.1350(c).) Second, if the material sought to be noticed is part of the file in the court in which the matter is being heard, “the party must: (1) Specify in writing the part of the court file sought to be judicially noticed; and (2) Make arrangements with the clerk to have the file in the courtroom at the time of the hearing.” (Cal. Rules of Court, rule 3.1306(c).) DMC’s request for judicial notice does not comply with the California Rules of Court. It is therefore DENIED.

DMC moves for summary adjudication of Ms. Vega’s claim for negligent infliction of emotional distress. In order to recover on such a claim, the plaintiff must prove that she (1) is closely related to the injury victim, (2) was present at the scene of the injury-producing event at the time it occurred, and is then aware that it is causing injury to the victim, and (3) suffered serious emotional distress. (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.) Ms. Vega cannot show that she perceived the injury-producing event at the time it occurred. (See Bird v. Saenz (2002) 28 Cal.4^th 910, 916-917.) The motion for summary adjudication is therefore GRANTED.

Turning to DMC’s motion for summary judgment, the hospital argues (1) that it met the applicable standard of care and (2) that Plaintiffs cannot demonstrate causation.

Concerning the standard of care, “[w]hen a defendant moves for summary judgment and supports [its] motion with expert declarations that [its] conduct fell within the community standard of care, [it] is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 984-985.) Here there is conflicting expert evidence. In the declaration of neonatal nurse practitioner Anne E. Parker submitted by DMC, Ms. Parker opines that “DMC met the standard of care required of a health care provider in the care and treatment provided by the nursing staff to the plaintiff and the plaintiff’s mother.” (Parker Decl., ¶ 11.) Plaintiffs’ expert, Dr. Janine Maria Jason, disagrees. In her declaration, based upon the premise that salmonella infections rarely occur in infants less than 28 days old, Dr. Jason opines that, “[i]f proper standards are followed, it is virtually impossible for a [salmonella] infection to spread through a hospital nursery.” (Decl. of Dr. Jason in Support of Pl.s’ Opp. to Mot. for Summ. J., at p. 10.) This conflicting expert evidence is sufficient to establish a triable issue of material fact as to the standard of care.

As to causation, in general, the issue involves factual questions for the jury to decide, except in cases where the facts as to causation are undisputed.  (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Here, the facts are not undisputed. DMC’s expert, Dr. Daniel Benjamin Jr., offered the opinion that, “to a reasonable medical probability,” “Plaintiff acquired her Salmonella newport infection directly from [her] mother.” (Decl. of Dr. Benjamin in Support of Def.’s Mot. for Summ. J., ¶¶ 20-21.) Dr. Benjamin bases this opinion, in part, on the following assertions and facts: “Nosocomial [health-care acquired] infections occur all the time in NICU’s across [the] United States absent any negligence” (id., ¶ 18); “the most common event initiating [salmonella] infections in newborns is vertical transmission [to] the neonate from its mother” (id., ¶ 19); Plaintiff’s mother breast-fed Plaintiff in the NICU before Plaintiff began showing signs of a salmonella infection (id., ¶¶ 5, 20(c)); and that some of Plaintiff’s family members exhibited signs that they may be carriers of salmonella (id., ¶ 14).

Plaintiffs’ expert offers a conflicting opinion. According to Dr. Jason, it is more probable than not that the source of Skylin’s salmonella infection was hospital personnel rather than her mother or other family members. (Decl. of Dr. Jason, ¶ 12.) In reaching this conclusion, Dr. Jason disagreed with the underlying assertions and facts relied upon by DMC’s expert. For instance, Dr. Jason noted that salmonella infections rarely occur in infants less than 28 days old and, if proper standards are followed, “it is virtually impossible for [salmonella] to spread through a hospital nursery.” (Id., ¶ 13(b) and (p).) Dr. Jason disagreed with Dr. Benjamin that Skylin likely contracted the infection from her mother during birth, stating that “[i]t is extraordinarily unlikely in this case” because such transmission usually occurs during passage through the birth canal, but Skylin was delivered via C-section in this case. (Id., ¶ 13(j)(i)-(iii).) Concerning the contention that Ms. Vega may have transmitted the infection during breast feeding, Dr. Jason notes that, while some of the medical records indicate that Skylin was breast fed, others indicate that she was not. For instance the “intake/output” charts and the testimony of Dr. Klain, Skylin’s neonatologist both note that Skylin never received breast milk. Moreover, Ms. Vega herself testified during her deposition that she never fed Skylin. Finally, Dr. Jason takes issue with Dr. Benjamin’s interpretation of the medical records indicating that some of Skylin’s family members were symptomatic of salmonella. According to Dr. Jason, the records do not indicate that Skylin’s family members were symptomatic prior to her infection. Rather, Ms. Vega was expressing the concern that the family members may have received the infection from Skylin, not the other way around. (Id., ¶ 13(l).)

Based upon the above discussion, the Court finds that conflicting evidence exists concerning causation, giving rise to triable issues of fact, and precluding summary judgment. DMC’s motion for summary judgment is therefore DENIED.