Case Number: BC618225 Hearing Date: January 17, 2018 Dept: J

Re: Juan Palma, etc., et al. v. Kaiser Foundation Health Plan, Inc., et al. (BC618225)

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES

Moving Party: Defendant Carlos Vigil, D.O.

Respondent: Plaintiffs Juan Palma, Guardian of Misty Blackmon, Personally, and the Estate of Misty Blackmon

POS: Moving OK; Opposing OK; Reply OK

In this action for medical malpractice, the complaint, filed 4/27/16, asserts causes of action against Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Kaiser Permanente Ontario Medical Center, Shirin Badrtalei-Shah, D.O., San Antonio Regional Hospital (“SARH”), Lew B. Disney, M.D., Carlos Vigil, D.O. and Does 1-100 for:

Medical Professional Negligence
Non-MICRA Negligence
Breach of Fiduciary Duty
Loss of Consortium

On 7/13/17, this action was transferred from the personal injury hub (Department 93) to this department. On 12/1/17, SARH filed its cross-complaint, asserting causes of action against Cross-Defendants Aviation West Charters, LLC, dba Angel Medflight World Wide Air Ambulance and Roes 1-100 for:

Equitable Indemnity
Comparative Indemnity
Declaratory Relief

The Final Status Conference is set for 5/29/18. A jury trial is set for 6/5/18.

Defendant Carlos Vigil D.O. (“defendant”) moves the court for an order, per CCP § 437c, granting him summary judgment in his favor against Plaintiffs Juan Palma’s, Guardian of Misty Blackmon, Personally, and the Estate of Misty Blackmon’s (“plaintiffs”) complaint; in the alternative, defendant seeks summary adjudication as follows:

1. There is no triable issue of material fact as to the first cause of action (i.e., for Medical Malpractice), as defendant conformed to the applicable standard of care and did not engage in any substandard act or omission that, to a reasonable medical probability, caused or contributed to any medical condition experienced by Plaintiff Misty Blackmon; and

2. There is no triable issue of material fact as to the fourth cause of action (i.e., for Loss of Consortium), as defendant conformed to the applicable standard of care and did not engage in any substandard act or omission that, to a reasonable medical probability, caused or contributed to any medical condition experienced by Plaintiff Misty Blackmon.

CALIFORNIA RULES OF COURT (“CRC”) RULE 3.1350(b) NON-COMPLIANCE:

As a preliminary matter, this instant motion is treated as one for summary judgment only, as defendant has not complied with CRC Rule 3.1350(b); this states, in pertinent part, that, “[i]f made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”

Defendant has failed to set forth any issues for summary adjudication in its separate statement.

DEFENDANT’S EVIDENTIARY OBJECTIONS:

(NOTE: After searching, the court located the evidentiary objections which were contained within the Reply document, and found the reply memorandum of points and authorities in the document entitled “Evidentiary Objections.”)

Declaration of Phuoc V. Le, M.D.:

Counsel for defendant fails to “Quote or set forth the objectionable statement or material” as required by California Rules of Court, Rule 3.1354(b). The objections are all overruled.

REQUEST FOR JUDICIAL NOTICE:

Defendant’s request for judicial notice of plaintiffs’ complaint is granted.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2).

Plaintiffs have asserted their first and fourth causes of action (i.e., for Professional Medical Negligence and Loss of Consortium, respectively) against defendant.

“’The elements of a cause of action for professional negligence are, of course, well defined. These ingredients are: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence (Budd v. Nixen (1971) 6 Cal.3d 195, 200…; Chavez v. Carter (1967) 256 Cal.App.2d 577, 579…; Ishmael v. Millington (1966) 241 Cal.App.2d 520, 523…; Modica v. Crist (1954) 129 Cal.App.2d 144, 146…). When these elements coexist, they constitute actionable negligence.” Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 611-612 (emphasis theirs).

“’”The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts.’ [Citation.]’ (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071). Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. (Landeros v. Flood (1976) 17 Cal.3d 399, 410; Cobbs v. Grant (1972) 8 Cal.3d 229, 236; Vandi, supra, 7 Cal.App.4th at p. 1071).” Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.

Additionally, “causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.” Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402. Expert testimony “can enable a plaintiff’s action to go to the jury only if it establishes a reasonably probable causal connection between an act and a present injury.” Id. at 403. “The issue of proximate cause ordinarily presents a question of fact. However, it becomes a question of law when the facts of the case permit only one reasonable conclusion.” Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.

Defendant presents the expert declaration of board-certified internist, pulmonologist and intensivist Andrew Wachtel, M.D. (“Wachtel”) in support of his motion. Wachtel sets forth his expert qualifications, indicates he has reviewed Misty Blackmon’s (“Blackmon”) medical records from Kaiser Permanente and San Antonio Regional Hospital (“SARH”), details the care and treatment rendered to Blackmon, and concludes that it is his expert medical opinion that, to a reasonable degree of medical probability, defendant conformed to the applicable standard of care required of a hospitalist/internist and that at no time did defendant provide medical care and services below the applicable standard of care to Blackmon. (Wachtel Decl., ¶¶ 57 & 58). Wachtel opines that defendant met the applicable standard of care when he gave the telephone order for Blackmon’s admission at 11:37 p.m. on 5/12/15 and gave admitting orders, including appropriate antibiotics and appropriate lab tests in preparation for surgery. (Id., ¶ 60). Wachtel notes that emergency physician Steven Ernst, M.D. (“Ernst”) had initially ordered a neurosurgery consultation at about 11:17 p.m. on 5/12/15 and that Ernst had spoken with defendant at about 11:24 p.m. and advised him that the neurosurgeon had already been called. (Id.). Wachtel opines that the applicable standard of care did not require defendant to examine Blackmon while he waited for the neurosurgeon to examine Blackmon and recommend a plan of treatment. (Id.). Wachtel opines that defendant met the applicable standard of care when he placed Blackmon on antibiotics in preparation for surgery and deferred to the neurosurgeon for the scheduling of Blackmon’s surgery. (Id., ¶ 61). He further opines that, after neurosurgeon Lew Disney, M.D. saw Blackmon and determined that Blackmon needed emergency surgery, defendant met the applicable standard of care by ordering that Blackmon’s antibiotic therapy be continued and that Blackmon have respiratory therapy and lab tests in preparation for therapy. (Id., ¶¶ 62 & 63).

Wechtel opines that defendant met the applicable standard of care on 5/13/15 by transferring Blackmon to ICU after Blackmon was in respiratory distress. (Id., ¶ 65). He opines that on 5/15/15, defendant met the standard of care and appropriately ordered labs and had Blackmon continue antibiotic therapy. (Id., ¶ 66). Wechtel opines that defendant met the applicable standard of care on 5/18/15 by discussing Blackmon’s possible transfer to a tertiary center at U.C. Irvine with SARH management, and that he appropriately completed the certification for transfer to Steven Leven, M.D. at U.C. Irvine because facilities were not available at SARH. (Id., ¶¶ 67 & 68). He opines that, to a reasonable degree of medical probability, the medical care and testament of Blackmon by defendant did not cause Blackmon any injury or damage and that there is nothing defendant did or failed to do that caused or contributed to any injury suffered by Blackmon. (Id., ¶¶ 69 & 70).

Plaintiffs, however, have met their burden to raise a triable issue of material fact by submitting a competing expert declaration from board-certified internist Phuoc V. Le, M.D., M.P.H., DTM&H (“Le”), who opines that that defendant’s care to Blackmon fell below the standard of care for a hospitalist. Specifically, Le opines that defendant breached the standard of care by failing to conduct an in-person examination of Blackmon immediately after Binh Lieng, R.N. (“Lieng”) reported the following at 1:22 a.m. on 5/13/15: (a) Blackmon’s inability to move bilateral lower extremities, (b) a decrease in sensation in bilateral lower extremities, (c) Blackmon’s inability to discern touching two fingers from touching five fingers, (d) a heart rate of 122 and (e) a request to upgrade Blackmon’s level of care. (Le Decl., ¶ 11). Le opines that even if Blackmon was hemodynamically stable at the time she was admitted at approximately 11:37 p.m. on 5/12/15, she was no longer hemodynamically stable at 1:22 a.m. on 5/13/15, when the above conditions were reported. (Id., ¶ 13). He attests that the fact that defendant was waiting for a neurosurgeon to examine Blackmon at the time Lieng contacted him at approximately 1:22 a.m. does not absolve defendant of liability because it is the standard of care for a hospitalist to examine a patient if she later becomes hemodynamically unstable, regardless of her condition at the time of her admission. (Id.). Le believes, based on reasonable medical probability, that if Blackmon had been assessed by defendant or upgraded to a higher level of care at 1:22 a.m. on 5/13/15, she would have walked out of the hospital. (Id., ¶ 14). Le concludes, based on reasonable medical probability, that the failures described in his declaration caused or contributed to Blackmon’s quadriplegia. (Id., ¶ 15).

The evidence submitted by plaintiffs raises triable issues of material fact. Accordingly, defendant’s motion for summary judgment is denied.