Case Number: BC582882 Hearing Date: March 05, 2018 Dept: J

Re: Elijah Santy, etc., et al. v. Pomona Valley Hospital Medical Center, et al. (BC582882)

(1) MOTION FOR SUMMARY JUDGMENT; (2) MOTION FOR SUMMARY JUDGMENT/ADJUDICATION ON ISSUE OF DUTY

Moving Parties: (1) Defendant David D. Choi, M.D.; (2) Defendant Pomona Valley Hospital Medical Center

Respondents: (1) and (2) Plaintiffs Elijah Santy, a minor, by and through his Guardian Ad Litem, Tina Asencio, and Tina Asencio

POS: (1) and (2) Moving OK; Opposing OK; Replies OK

In this medical malpractice action, on 5/22/15, plaintiffs filed their complaint, asserting causes of action therein against Defendants Pomona Valley Hospital Medical Center, Stephanie J. Cropper, M.D. (“Cropper”), Femcare Medical Associates of Inland Valley, Inc., APC (“Femcare”), David D. Choi, M.D. and DOES 1-100 for negligence.

On 12/2/16, this action was transferred from the personal injury hub (Department 91) to this court. On 1/4/18, plaintiffs dismissed Cropper and Femcare, with prejudice. The Final Status Conference is set for 9/14/18. A jury trial is set for 9/25/18.

(1) MOTION FOR SUMMARY JUDGMENT (DAVID D. CHOI, M.D.):

Defendant David D. Choi, M.D. (“Choi”) moves the court for an order, per CCP § 437c, granting summary judgment in his favor and against Plaintiffs, Elijah Santy, a minor, by and through his Guardian Ad Litem, Tina Asencio, and Tina Asencio (“plaintiffs”).

CALIFORNIA RULES OF COURT (“CRC”) RULE 3.1350(d)(3):

Plaintiffs allege that Choi’s separate statement does not comply with CRC Rule 3.1350(d)(3) (i.e., “[t]he separate statement must be in the two-column format specified in (h). The statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers”).

Choi’s separate statement exclusively references particular excerpts of his medical expert, Michael Frields, M.D. (“Frields”) as supporting evidence; however, Frield’s declaration, in turn, fails to cite to any specific pages of deposition testimony and/or plaintiffs’ medical records.

“[T]he court’s power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary, not mandatory.” Truong v. Glasser (2009) 181 Cal.App.4th 102, 118. The court determines that, while it would have been more helpful to the court and to opposing counsel for Choi to have identified particular pages of Exhibit “A” relied on in support of each separate statement, his failure to do so was not so prejudicial as to warrant a denial of the motion on this basis.

EVIDENTIARY OBJECTIONS:

Plaintiffs’ evidentiary objections are ruled on as follows: Overruled as to No. 1-18. No. 19 and 20 are overruled as they misquote ¶¶ 7 and 8 of the Frields declaration. The court declines to rule on No. 21-23 as the Freilds declaration is only 8 paragraphs long.

The objections contained in plaintiffs’ response to Choi’s separate statement are disregarded. “[A] separate statement is not evidence; it refers to evidence submitted in support of or opposition to a summary judgment motion.” Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4 (emphasis theirs). The only proper response to an Undisputed Fact is to “unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’” CRC Rule 3.1350(f)(2).

“’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.

Choi contends that he met the standard of care in the care and treatment of Tina Asencio (“Asencio”) and her fetus and that no act or omission by him caused or contributed to injury to either plaintiff. Choi presents the expert declaration of Frields in support of his motion. Frields sets forth his expert qualifications and indicates he has reviewed Asencio’s medical records from (1) Pomona Valley Hospital Medical Center, including fetal monitoring strips, Sweet Success diabetic pregnancy data, and San Gabriel Valley Perinatal Medical Group records; (2) Claremont Medical Group and (3) Bhupinder Nakai, M.D., Elijah Santy’s (“Santy”) medical records from (1) Pomona Valley Hospital Medical Center; (2) Children’s Hospital Orange County; (3) Sarasa Kumar, M.D.; (4) Care Essentials Home Health; (5) Life Care Solutions; (6) Casa Colina Hospital; (7) California Children’s Services, San Bernardino—Montclair MTU and (8) Oso Home Care, Inc., the deposition transcripts of (1) Asencio, Volumes I and II; (2) Jennifer Kelley, R.N. (“Kelley”) and (3) Choi and plaintiffs’ complaint. Frields sets forth the care and treatment rendered to Asencio and her fetus, and concludes that it is his opinion that the care and treatment rendered to Asencio and her fetus by Choi complied with the standard of care in the community and that, to a reasonable degree of medical probability, nothing Choi did or failed to do caused to contributed to injury of either plaintiff. (Frields Decl., ¶¶ 5 & 8).

More specifically, Frields states that hospital nurses called covering Femcare Ob/Gyn Dr. Cropper (“Cropper”) and Choi, the in-house Ob/Gyn at 12:51 a.m. on 5/26/14, that Choi was at Asencio’s bedside by 12:53 a.m., that Choi promptly checked on Asencio, that Choi had not treated Asencio before and that he had no knowledge of her condition or presence in the hospital, (Id., ¶ 6). Frields opines that Choi timely ordered Asencio transferred to the operating room at approximately 12:57 a.m. (Id., ¶ 7). Asencio arrived at the operating room at approximately 1:00 a.m. (Id.). Frields notes that at 1:01 a.m., the fetal heart rate went up to 170 bpm and then went back down. (Id.). He opines that it was within the standard of care for Choi to watch the fetal heart rate to see if it went back up again. (Id.). He notes that the fetal heart rate again went up to 160/170 bpm at approximately 1:06 a.m., but that by that time Cropper was in the operating room and had resumed care of Asencio. (Id.).

Plaintiffs, however, have met their burden to raise a triable issue of material fact by submitting a competing expert declaration from Stephen Hebert, M.D. (“Hebert”). Hebert likewise sets forth his expert qualifications and indicates he has reviewed Asencio’s medical records from Pomona Valley Hospital Medical Center, including fetal monitoring strips, Sweet Success diabetic pregnancy data, San Gabriel Valley Perinatal Medical Group and Femcare Medical Associates, as well as Santy’s medical records from Pomona Valley Hospital Medical Center and Children’s Hospital of Orange County. (Id., ¶ 2). He also read the deposition transcripts of Kelley, Choi, Cropper, Cheryl Schleeter, R.N. and Jeannette Clermont, R.N. and reviewed various policies and procedures from Pomona Valley Hospital Medical Center. (Id., ¶ 2). Hebert opines that “[w]hen the nurses did finally call Dr. Cropper and Dr. Choi, Dr. Choi breached the standard of care in failing to immediately deliver the baby. He was noted to be at bedside by 0053, but despite the nursing report that the fetal heart rate had been down in the 60s for 4 minutes as of his arrival, he delayed another 4 minutes (0057) to order the patient moved to the OR where she arrived by (0100). When Ms. Asencio was in the OR, Dr. Choi breached the standard of care by failing to move immediately towards operative delivery. Dr. Choi also breached the standard of care to the extent he left the operating room before Dr. Cropper had arrived to assume care.” (Hebert Decl., ¶ 14). Hebert opines that the care and treatment rendered by Choi fell below the standard of care and that, to a reasonable medical probability, the negligent acts and omissions of Choi were a substantial factor in causing and/or contributing to the injuries suffered by plaintiffs “because the negligence of…Choi…caused significant delays in delivering Elijah Santy resulting in brain damage.” (Id., ¶ 15).

Accordingly, Choi’s motion for summary judgment is denied.

(2) MOTION FOR SUMMARY JUDGMENT/ADJUDICATION (POMONA VALLEY HOSPITAL MEDICAL CENTER):

Defendant Pomona Valley Hospital Medical Center (“defendant”) moves for an order, per CCP § 437c, granting summary judgment in its favor and against Plaintiffs, Elijah Santy, a minor, by and through his Guardian Ad Litem, Tina Asencio, and Tina Asencio (collectively, “plaintiffs”); in the alternative, defendant seeks summary adjudication as follows:

Issue #1: The first cause of action (i.e., for Negligence) fails, because the care and treatment rendered to Tina Asencio (“Asencio”) and her fetus by defendant and its employees, and by David D. Choi, M.D. (“Choi”), complied with the standard of care in the community and because nothing defendant, or its employees, or Choi did or failed to do caused or contributed to injury to Asencio or Elijah Santy (“Santy”);

Issue #2: Because Stephanie J. Cropper, M.D. (“Cropper”) is not an employee or agent or ostensible agent of defendant, defendant did not owe a duty to plaintiffs for Cropper’s alleged medical negligence.

CALIFORNIA RULES OF COURT (“CRC”) RULE 3.1350(d)(3):

Plaintiffs allege that defendant’s separate statement does not comply with CRC Rule 3.1350(d)(3), for the same reasons set forth above. The court elects to rule on the merits of the motion.

EVIDENTIARY OBJECTIONS:

Plaintiffs’ evidentiary objections are ruled on as follows:

Declaration of Michael Freilds, M.D.:

Overruled as to No. 1-23.

Declaration of Kenneth K. Nakamoto, M.D.:

Overruled as to No. 24-26.

Declaration of Marijana Kral:

Sustained as to No. 27.

Again, objections contained in plaintiffs’ response to Choi’s separate statement are disregarded. “[A] separate statement is not evidence; it refers to evidence submitted in support of or opposition to a summary judgment motion.” Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4 (emphasis theirs). The only proper response to an Undisputed Fact is to “unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’” CRC Rule 3.1350(f)(2).

Here, the parties have submitted competing expert declarations relative to the standard of care and causation. Michael Frields, M.D. (“Frields”) opines that the care and treatment rendered to Asencio and her fetus by defendant and its employees and David D. Choi, M.D. (“Choi”) complied with the standard of care in the community. (Frields Decl., ¶ 5). Frields states that on 5/23/14 it was confirmed that Asencio’s membranes had not ruptured, the Fern test was negative and the AFI was within normal limits, and that it was within the standard of care to not admit her to the hospital on that date. (Id., ¶ 6). Frields states with respect to the fetal monitoring strips on 5/25/14 that the tracing was a reactive Category I tracing with intermittent Category II tracings with moderate variability and that the nurses noted minimal variability a few times between 3:08 p.m. and 7:00 p.m., after which there was moderate variability. (Id., ¶ 7). He notes that at 12:48 a.m., the baby’s heart rate dropped to the 60s and a prolonged bradycardia began. (Id.) At 12:48 a.m., the nurses began intrauterine resuscitative measures and Asencio was placed on 10 liters of oxygen via a non-breather mark, and an IV bolus of lactated ringers was started. (Id.). He notes that nursing noted that Pitocin, which had been appropriately started at 6:39 p.m., was discontinued and that Asencio was changed to the right lateral position. (Id.). Frields opines that all of these measures were performed expeditiously and within the standard of care. Frields further believes that the nurses timely called Cropper and Choi at 12:51 a.m. and appropriately followed the order to transfer Asencio to the operating room. (Id., ¶ 8). He notes that Cropper arrived by 1:06 a.m. and resumed care of Asencio. (Id., ¶ 9). He notes that Cropper attempted to deliver the baby via vacuum assist, with two attempts at 1:07 a.m., and again at 1:10 a.m. before Cropper made the decision to perform a Cesarean section at 1:11 a.m. and ultimately delivered the baby at 1:18 a.m. (Id.). Frields believes that throughout labor, the nurses timely and appropriately followed physician orders, and timely and appropriately updated the physicians about the condition of Asencio and her fetus. (Id., ¶ 10). He opines that, to a reasonable degree of medical probability, nothing defendant or its employees, and Choi did or failed to do caused or contributed to plaintiffs’ injuries. (Id., ¶ 11).

Plaintiffs’ expert Stephen Hebert, M.D., however, opines that the care and treatment rendered to Asencio and her fetus by defendant and its employees and Choi on 5/25/14 and 5/26/14 fell below the standard of care in the community and was a substantial factor in causing plaintiffs’ injuries. (Hebert Decl., ¶ 13). Hebert states that the fetal heart tracings were Category II tracings for almost the entire 10 hours Asencio was in labor, but the nurses many times failed to correctly interpret the tracings, calling them Category I instead of Category II tracings, which was a breach of the standard of care. (Hebert Decl., ¶ 14). Hebert states that even when the nurses did identify the Category II tracings, they failed to notify a physician of the unresolving Category II tracings and failed to institute fetal intrauterine resuscitation interventions to try to correct the Category II pattern, both of which were breaches of the standard of care. (Id.). Hebert advises that the nurses failed to follow Cropper’s orders upon Asencio’s admission to notify her of unresolving Category II or III tracings and to institute fetal resuscitation measures in the event of Category II or III tracings, which was a breach of the standard of care. (Id.). Hebert also believes the nurses breached the standard of care by increasing Pitocin despite the unresolving Category II tracings, the minimal variability, and the variable and late decelerations. (Id.). He believes the nurses breached the standard of care by failing to notify Cropper of the change in cervical dilation to 9.5 c.m. at 2251 and that the patient was dilated to 10 c.m. and complete at 0005 were breaches of the standard of care.

Hebert opines that the tracings by 2330 showed persistent prolonged decelerations which, by 0030, were no longer returning to baseline, and that the standard of care at that time required the nurses to immediately stop the Pitocin, call Cropper back to the hospital and get Choi to bedside for a patient evaluation and imminent delivery. (Id.). He believes the nurses’ failure to call a physician to bedside at 0030 was a breach of the standard of care. (Id.). Hebert believes Choi breached the standard of care by failing to immediately deliver the baby, by failing to move immediately towards operative delivery and to the extent he left the operating room before Cropper arrived. (Id.). Hebert opines that the care and treatment rendered by defendant, its employees, and Choi fell below the standard of care and that the negligent acts and omissions of defendant, its employees, and Choi were a substantial factor in causing and/or contributing to the injuries suffered by plaintiffs, “because th[is] negligence…caused significant delays in delivering Elijah Santy resulting in brain damage.” (Id., ¶¶ 14 & 15).

There are also triable issues of fact relative to whether or not defendant owed a duty to plaintiffs for Cropper’s alleged medical negligence. “Whether a physician is an agent of a hospital for purposes of vicarious liability is a question or fact.” Ermoian v. Desert Hosp. (2007) 152 Cal.App.4th 475, 502 (citations omitted). However, the existence of an agency relationship becomes one of law “when the facts can be viewed in only one way.” Metropolitan Life Ins. Co. v. State Board of Equalization (1982) 32 Cal.3d 649, 658. Defendant notes it is entitled to summary adjudication of the issue of duty as it pertains to Cropper, on the basis that Cropper is not its employee or agent or ostensible agent. The Declaration of Kenneth K. Nakamoto, M.D., however is objectionable on the basis set forth above in the rulings made on plaintiffs’ evidentiary objections. Cropper herself, moreover, testified that she worked as an in-house Ob/Gyn at defendant, but could not recall if she was doing that in 2014. (Barr-Fernandez Decl., ¶ 5, Exhibit “5,” 10:16-12:5).

Accordingly, the motion is denied in its entirety.