Case Number: EC057245    Hearing Date: August 01, 2014    Dept: NCB

Motion for Summary Judgment
Trial Setting Conference

Plaintiff Gianna Breliant’s daughter died or a heroine overdose in 2010. In this action Plaintiff claims that Defendants, who are three psychiatrists who, at varying times, treated her deceased daughter, provided medical treatment below the standard of care that was a substantial cause of her daughter’s death. There is a single cause of action for Wrongful Death through Medical Malpractice

This hearing concerns the motion of Defendants, Gary Chase, Stephen Marmer, and Eric Lifshitz, for summary judgment. The Plaintiff’s cause of action for medical malpractice contains the following required elements:
1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise;
2) a 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’s negligence.
Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1077.

Under CCP section 437c, the Defendants’ burden of proof is to demonstrate that the Plaintiff cannot establish an essential element of this cause of action or that the Defendants have an affirmative defense to this cause of action. The Defendants argue that they are entitled to summary judgment on the ground that the Plaintiff cannot establish the elements of breach of duty or causation.

The Defendants’ motion and the Plaintiff’s opposition rely upon the opinions of experts. The Defendants have the burden of production and the declaration of their expert has to be detailed and with foundation. Powell v. Kleinman (2007) 151 Cal. App. 4th 112, 125-126 (citing Kelley v. Trunk (1998) 66 Cal.App.4th 519). In contrast, the declaration of the Plaintiff’s expert in opposition to the Defendants’ summary judgment motion does not have to be detailed and is entitled to all favorable inferences. Powell, 151 Cal.App.4th at 125-126 (citing Hanson v. Grode (1999) 76 Cal. App. 4th 601). Accordingly, when considering the declarations of the parties’ experts, the Court liberally construes the declarations for the Plaintiff’s experts and resolves any doubts as to the propriety of granting the motion in favor of the Plaintiff. Powell, 151 Cal.App.4th at 125-126

1. Breach of Duty
Under California law, 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 the profession in similar circumstances. Landeros v. Flood (1976) 17 Cal. 3d 399, 408. Accordingly, a physician breaches a duty when the physician’s treatment of a patient falls below the standard of care displayed by other physicians in the community.
In addition, since the standard of care concerns the knowledge and skill of other physicians in the community, it is a matter peculiarly within the knowledge of experts. Id. at 410. In a malpractice action, expert opinions are required to establish whether a physician’s treatment fell below the standard of care, unless the conduct required by the particular circumstances is within the common knowledge of the layman. Id.

The Defendants’ motion relies upon opinions in the declaration of their expert, Richard Ruffalo, M.D., to demonstrate that the Defendants did not breach the standard of care. Dr. Ruffalo states that he is licensed to practice medicine in California, that he is an experienced pharmacologist and that he has training and expertise in the treatment of the abuse of substances, including heroin. There are, however, insufficient facts to demonstrate that Dr. Ruffalo is familiar with the applicable standard of care for the psychiatric care and treatment provided by psychiatrists to a patient who is a heroin user. Dr. Ruffalo states the following on the first page of his declaration (N.B., the first page is identified as page “2” in the bottom center and there is not page “1”):

1) he is board certified in Anesthesiology;
2) he did a residency in clinical pharmacology and therapeutics;
3) he was an assistant professor of clinical pharmacy and pharmacology and an assistant profession of medicine;
4) he was a consultant to the medical board;
5) he is qualified as an expert in clinical pharmacology and forensic toxicology; and
6) he is author of numerous articles and lectures in clinical pharmacology and toxicology.

There are no facts indicating that he has training, knowledge, or experience in the psychiatric treatment provided to Amy Breliant. There are no facts demonstrating that Dr. Ruffalo is familiar with the standard of care among providers of psychiatric treatment for addicts or those dependent on drugs.
Dr. Ruffalo offers the conclusion on page 2, at lines 25 to 26, that his expertise “likewise embraces knowledge and familiarity with treatment of addicts and those dependent on drugs”. Dr. Ruffalo offers no facts to support this conclusion, e.g., facts indicating that he has any training, knowledge, or experience with the psychiatric treatment or the standards of care for the providers of psychiatric treatment for addicts and those dependent on drugs.
As noted above, the Defendants have the burden of production and the declaration of their expert has to be detailed and with foundation. Powell v. Kleinman (2007) 151 Cal. App. 4th 112, 125-126. Since the declaration of Dr. Ruffalo lacks the detailed facts needed to establish that he is familiar with the standard of care among health care providers of psychiatric treatment for addicts and those dependent on drugs, Dr. Ruffalo does not provide an admissible opinion on whether the Defendants provided treatment within the standard of care.
Accordingly, the Court sustains the Plaintiff’s objection to Dr. Ruffalo’s opinions on the standard of care. Since the Defendants do not offer any admissible evidence regarding the standard of care, they do not meet their burden of proof on the element of breach of duty.

Even were the court to find that Defendant has submitted sufficient evidence on the standard of care, Plaintiff provides sufficient evidence in the form of the declaration of Dr. Brian Jacks.

Dr. Jacks states in paragraph 3 that he is licensed to practice medicine in California, that he did a residency in psychiatry, that he completed training in adult psychiatry, and that he is board certified in adult psychiatry. Dr. Jacks states in paragraph 5 that he is familiar with the standard of care for a physician who treats patients with psychiatric conditions. This is sufficient to demonstrate that Dr. Jacks can provide admissible opinions.
Unlike the Defendant’s expert, Dr. Ruffalo, who groups together the Defendants for his opinions, Dr. Jacks provides separate opinions regarding each Defendant.
In paragraph 19, Dr. Jacks offers the opinion that Gary Chase, M.D., did not provide treatment within the standard of care because he did not obtain a complete psychiatric history of Amy Breliant. In paragraphs 8 to 10, Dr. Jacks discusses the records of Gary Chase, M.D., and offers an opinion that they indicate that Dr. Chase did not perform a complete psychiatric evaluation of Amy Breliant at any time and that there is an “egregious” lack of information or careful follow-up regarding the medications he was giving to Amy Breliant.
In paragraphs 20 and 21, Dr. Jacks offers the opinion that the treatment provided by Eric Lifshitz, M.D., was below the standard of care because there is no evidence of a complete psychiatric history, Dr. Lifshitz was not evaluating Amy Breliant comprehensively, Dr. Lifshitz did not perform any drug testing to screen Amy Breliant for contraindications regarding the Suboxone therapy or for other drugs that Amy Breliant was taking to determine if there would be potential interactions. Further, Dr. Jacks notes in paragraph 21 that Dr. Lifshitz acted below the standard of care when Dr. Lifshitz indicated that there was no reason to drug test Amy Breliant because he found her so “candid”.
In paragraph 22, Dr. Jacks states that Dr. Marmer’s treatment was below the standard of care because he did not make progress notes regarding Amy Breliant’s treatment and that Dr. Marmer’s notes are not contemporaneous, but appear to have been drafted for this litigation. In paragraphs 13 to 15, Dr. Jacks discusses Dr. Marmer’s treatment and Dr. Marmer’s admission that he generally avoids the “restrictions” of the Diagnostic and Statistical Manual diagnoses that are used to diagnose mental disorders.
These opinions are sufficient to demonstrate that the Plaintiff has evidence that creates a question of fact whether each Defendant provided treatment within the standard of care to Amy Breliant.

Accordingly, the Defendant has not established that the Plaintiff cannot prove the essential element of breach of duty in her cause of action.

2. Causation
The Defendants rely upon the opinions of Dr. Ruffalo to meet their burden on causation. Although Dr. Ruffalo’s declaration does not qualify him to address the standard of care of psychiatrists, his declaration does establish him as an expert in the pharmacology, toxicology and treatment of drug abuse. Dr. Ruffalo has provided detailed facts demonstrating his experience in these areas as they relate to substance abuse and death from substance abuse.

Under California law, causation in a personal injury action must be proven within a reasonable medical probability based upon competent expert testimony. Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal. App. 3d 396, 402-403. Since there can be many possible causes, a cause 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. Id. Although juries are normally permitted to decide issues of causation without guidance from experts, the complicated etiology of some medical conditions, such as cancer, is beyond the experience of laypeople and can only be explained through expert testimony. Id.
Dr. Ruffalo provides an opinion that the cause of Amy Breliant’s death was her taking and succumbing to a lethal injection of heroin and not any wrongdoing of the Defendants (SSF 10). Dr. Ruffalo provides facts regarding the levels of free morphine and the presence of the 6-MAM metabolite in Amy Breliant’s blood to support his opinion that the there was a substantial amount of heroin in her blood. Further, Dr. Ruffalo states that the cause of action was heroin intoxication and that it killed Amy Breliant very quickly upon injunction. Dr. Ruffalo notes that Amy Breliant was found with the syringe in her hand to support his opinion that she lost consciousness, stopped breathing, and rapidly succumbed to the lethal dose of heroin she injected. Dr. Ruffalo offers the opinion that there was nothing the Defendants could have done to prevent Amy Breliant’s death.
This evidence demonstrates that the Defendants did not cause the wrongful death of Amy Breliant and is sufficient to meet their burden of proof with respect to the element of causation. Under CCP section 437c, the burden of producing evidence is shifted to the Plaintiff. .

The Plaintiff relies upon the opinion from Dr. Jacks. Dr. Jacks provides an opinion in paragraph 29 that in all reasonable medical probability, it is unlikely that Amy Breliant would have overdosed on drugs and died if she had proper psychiatric care and treatment. Dr. Jacks supports his opinion with statements in paragraph 27 that the failures of the Defendants to take a complete history, to make an accurate or complete diagnoses, to have a clear treatment plan, to coordinate care and communicate between themselves, to take blood tests, and to follow up for suicidal ideation on a regular basis for Amy Breliant, who was depressed, on antidepressants, and abusing drugs, contributed to Amy Breliant’s death to a reasonable degree of medical probability.
Further, Dr. Jacks offers the opinion that the unmonitored prescription of benzodiazepines by the Defendants and the synergistic effects of the benzodiazepines with heroin was also a significant, substantial factor in causing Amy Breliant’s death, to a reasonable degree of medical probability.

The Court has concern about this aspect of Dr. Jacks’ opinion under Sargon Enters., Inc. v. Univ of Southern Ca.(2012) 55 Cal.4th 747. As Defendant points out, his opinion suffers from being somewhat speculative in demonstrating that the Defendants’ breach of the duty of care was “a proximate causal connection between the negligent conduct and the resulting injury” and the presence of benzodiazepines in the deceased systems contributing to her death, where it is uncontroverted that no such evidence exists. Nevertheless, when considering the declarations of the parties’ experts, the Court liberally construes the declarations for the Plaintiff’s experts and resolves any doubts as to the propriety of granting the motion in favor of the Plaintiff. Powell, 151 Cal.App.4th at 125-126. Accordingly the Court finds that the declaration is sufficient to create a question of fact that should be resolved at trial. Summary Judgment is denied as Defendants have not established that there is no question of fact as to their liability.

3. Superseding Cause and Amy Breliant’s Use of Heroin
The Defendants attempt to raise an affirmative defense that Amy Breliant’s use of heroin was a superseding cause that absolves them of liability, i.e., that the defense of superseding cause bars the Plaintiff’s cause of action.
Under California law, the superseding cause defense applies when an independent event subsequently intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible. Chanda v. Federal Home Loans Corp. (2013) 215 Cal. App. 4th 746, 755 (italics added for emphasis). In the pending case, Amy Breliant was receiving treatment from the Defendants for the misuse of drugs. The Defendants offer no evidence that, while they were providing psychiatric treatment for the misuse of drugs, that they could not foresee that Amy Breliant would overdose on heroin.
Instead, if the treatment provided by one, some, or all of the Defendants is found to be a cause to a medical probability in causing Amy Breliant’s death through a drug overdose, then the trier-of-fact would use comparative negligence principles to apportion liability between the Defendants and Amy Breliant’s act of taking heroin. American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 590 (holding that a concurrent tortfeasor whose negligence is a proximate cause of an indivisible injury remains liable for the total amount of damages, diminished “in proportion to the amount of negligence attributable to the person recovering”).
Accordingly, the Defendants’ arguments about superseding cause and Amy Breliant’s use of heroin does not offer grounds to find that they have an affirmative defense that bars the Plaintiff’s claim.

Therefore, the Court denies the Defendants’ motion for summary judgment.