Case Number: BC611942 Hearing Date: March 20, 2018 Dept: 92

DAVE FELKEL, ET AL.,

Plaintiff(s),

vs.

V&E MANAGEMENT, LLC, ET AL.,

Defendant(s).

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CASE NO: BC611942

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 92

1:30 p.m.

March 20, 2018

1. Background Facts

Plaintiffs, Dave and Robert Felkel filed this action against Defendants, V&E Management, LLC, et al. for damages arising out of the allegedly wrongful death of their mother, Jo Ann Houston. The essential facts relating to the matter are undisputed, and are as follows:

Decedent had been Dr. Lew’s patient for more than twenty years. Decedent became a resident at Co-Defendants’ facility on 3/03/15. On 3/09/15, at 8:30 a.m., she fell. On 3/10/15, at 8:45 p.m., she began to have diarrhea and was given Immodium. On 3/10/15, at 10:50 p.m., she was found unresponsive and was transferred to the ER. She had a do not resuscitate order, and died a few days later. Prior to her death, a CT was performed. The CT revealed a subdural hematoma.

2. Motion for Summary Judgment

At this time, Dr. Lew and his company, Lew Medical, move for summary judgment on the complaint, contending they complied with the standard of care at all times in connection with their care of Decedent, and nothing they did caused or contributed to Decedent’s death. Regarding negligence, Defendants submit a doctor’s declaration opining that they complied with the standard of care because they noted Decedent’s heightened fall risk and ordered her a bed with half rails prior to her 3/3/15 admission at Co-Defendants’ facility. Additionally, Defendants’ expert opines that the standard of care did not obligate them to do anything additional with respect to Decedent after she was noted to have fallen on 3/9/15 by Co-Defendants, because the fax sent to Defendants stated there was no injury noted and there was no request to have Defendants check the Decedent.

a. Evidentiary Objections

Plaintiffs submitted evidentiary objections with their opposition papers. The Court finds, as will be discussed further below, that there are triable issues of material fact concerning both breach of the standard of care and also causation. A ruling on the objections would not alter the outcome of the motion. The Court therefore declines to rule on the objections. CCP §437c(q).

b. Law Governing Summary Judgment in the Medical Malpractice Context

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id. A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

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. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’“ Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.

In order to establish that defendant’s negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm. “The law is well settled that in a personal injury action 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. [Citations.] 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 which 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.” Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.

c. Standard of Care

Dr. Cohen, Plaintiffs’ retained expert, in his opposition declaration, at ¶40, details various ways in which Defendants breached the standard of care. Any reply to the opposition was due on or before 3/15/18. The Court has not received a reply. The Court finds the Declaration of Cohen sufficient to raise triable issues of material fact concerning breach of the standard of care.

d. Causation

The Court finds ¶41 of Dr. Cohen’s declaration, submitted in opposition to the motion, is sufficient to raise a triable issue of material fact concerning causation.

e. Conclusion

For the foregoing reasons the motion for summary judgment is denied.