2011-00104230-CU-MM

Michael Ramos vs. Kindred Hospital

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Humphrey, Kathleen

Defendant THC Orange County, Inc. dba Kindred Hospital-Sacramento’s (“Kindred
Hospital) Motion for Summary Judgment, or in the alterative, Summary Adjudication, is
ruled upon as follows.

Plaintiffs’ objections to evidence are overruled.

This is an elder abuse/wrongful death case arising out of the treatment and death of
Stella Ramos. Before Ms. Ramos was admitted to Defendant Kindred Hospital, she
was treated elsewhere for serious conditions. Ms. Ramos died approximately 50 days
after she was admitted to Kindred Hospital. In the operative complaint, Ms. Ramos,
through her husband and successor-in-interest, as well as other surviving family
members, have pled causes of action against Defendants for wrongful death, statutory
elder abuse and medical malpractice. Plaintiffs allege that Defendants committed multiple legal wrongs, including by administering excessive intravenous fluids, and
refusing to transfer Ms. Ramos to another medical facility.

Defendant Kindred Hospital moves for summary judgment and/or adjudication of the
first cause of action for elder abuse and the fifth cause of action for wrongful death.
Defendant argues that the physicians who treated Ms. Ramos are all independent
contractors and are not agents or employees of Defendant Kindred Hospital.
Defendant also contends that the evidence indicates that no medical negligence or
neglect occurred in Ms. Ramos’s treatment, and that she died of natural causes.

Wrongful Death

In support of its motion for summary adjudication of the wrongful death cause of
action, Defendant argues that the physicians who provided medical care to Ms. Ramos
– Rohit Kashyap, M.D., Naveen Kumar Atray, M.D., Tet Toe, M.D., and Singh Bal, M.D.
– were not employees or agents of Defendant but were independent contractors.
Defendant presents the Admission Agreement for Ms. Ramos, signed by Lawrence
Ramos, which states: “My medical team may include physicians or groups of
physicians…and other providers of health care services. I understand these providers
are independent contractors and not employees or agents of the hospital. Kindred is
not responsible for their actions.” (Def. Ex. A, RamosS-KHS-00799.) Defendant also
presents evidence that although Plaintiffs allege that Ms. Ramos was administered too
much fluid intravenously and was not allowed to transfer to another facility, those
actions were medical decisions by the independent contractor physicians, not
Defendant. (Def. Ex. A, RamosS-KHS-00175, 00177, 00362, 00826-827.)

Defendant also presents the declaration of expert witness John Luce, M.D. Dr. Luce
states that upon her admission to Kindred Hospital from Stanford Hospital on May 20,
2010, Ms. Ramos was 81 years old and noted to suffer from a number of health
issues, including but not limited to acute and chronic respiratory failure, septic shock,
chronic obstructive pulmonary disease, end-stage renal disease, diabetes, congestive
heart failure, hypertension, pacemaker placement, chronic stomach ulcer with
gastrointestinal bleeding and Parkinson’s disease. (Def. Ex. F (Luce Decl.) ¶¶10, 17.)
Dr. Luce opines that Ms. Ramos “died of natural causes, despite every effort of KHS
and the Defendant Physicians to prolong her life.” (Def. Ex. F (Luce Decl.) ¶34.) Dr.
Luce opines that none of Defendant’s staff caused Ms. Ramos to suffer any injury or
wrongful death, and the staff “did nothing that fell below the standard of care in
providing treatment to Ramos, including regularly and [sic] changing Ramos’
bedsheets which inevitably quickly became wet again given Ramos’ extreme medical
condition.” (Def. Ex. F (Luce Decl.) ¶¶34-35.) Dr. Luce also opines that “Ramos’
edema or excess fluid was not due to the failure of the Defendant physicians to take
any necessary action to maintain a proper fluid level, but due to Ramos [sic] multiple
organ failure, including kidney failure.” (Def. Ex. F (Luce Decl.) ¶37.)

Defendant’s showing is sufficient to shift to Plaintiffs the burden of demonstrating the
existence of a triable issue of material fact (see generally Bush v. Parents Without
Partners (1993) 17 Cal. App. 4th 322, 326-327; Planned Parenthood v. City of Santa
Maria (1993) 16 Cal. App. 4th 685, 690.). Once the defendant makes this showing, the
burden shifts to the plaintiff to show that a triable issue of material fact exists with
regard to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); see
Aguilar v Atlantic Richfield (2001) 25 Cal.4th 826, 850.) Material facts are those that
relate to the issues in the case as framed by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67. In ruling on the motion, the court must
consider the evidence and inferences reasonably drawn from the evidence in the light
most favorable to the party opposing the motion. (Aguilar , supra, at p.843.)

In opposition, Plaintiffs dispute that Defendant was not responsible for the conduct of
the physicians who cared for Ms. Ramos. Plaintiffs present a document that appears
on Defendant’s website titled “Frequently Asked Questions for Physicians.” (Plf. Ex.
O.) This document states “There are several types of physician opportunities available
at Kindred”, “Independent” and “Employment.” (Id.) Under the heading “Independent,”
the document states “Volunteer physicians attend or consult at facilities where
privileged (applications available at each hospital)”. (Id.) Under the heading
“Employment”, the document states “Physicians are employed by Kindred.” (Id.)
Defendant did not object to the admission of this document as evidence. (See Wegner,
Fairbank, Epstein & Chernow, CAL. PRAC. GUIDE: CIVIL TRIALS & EVIDENCE (The
Rutter Group 2012) 8:359.6 (“When a party places material (or authorizes it to be
placed) in its Web site, it makes an ‘admission’ of whatever the material says…The fact
that it is on the party’s Web site makes it self-authenticating (as an admission), at least
prima facie.”).)

Defendant also presents the declaration of Lawrence Ramos, who states that when he
signed the Kindred Hospital Admission Agreement, a Stanford nurse told him that the
clause excusing Kindred from liability for physicians’ conduct would only apply if Ms.
Ramos chose her own personal doctor, rather than remaining in the care of Kindred
Hospital doctors. (Def. Ex. EEE (Lawrence Ramos Decl.) 3:14-21.)

This showing is sufficient to demonstrate a triable issue of material fact as to whether
the physicians who treated Ms. Ramos were the agents or employees of Defendant.
Defendant appears to concede this point on reply, as it does not address the issue of
agency or Plaintiff’s evidence presented in opposition.

Plaintiffs also present evidence that Defendant’s care and treatment of Ms. Ramos fell
below the standard of care. Plaintiffs present the declaration of Richard Segovia, a
respiratory therapist licensed in the states of Nevada and California. (Plf. Ex. A.) Mr.
Segovia opines that “Kindred Hospital was negligent by allowing decedent Stella
Ramos to aspirate acid gastric contents into her lungs all night.” (Id. 13:18-20.) Mr.
Segovia also opines that the treating physicians failed to “maintain fluid balance,” and
that “fluid overload caused decedent severe respiratory distress and decreased lung
compliance.” (Id. at 14:1-14.) Additionally, Mr. Segovia states that “While decedent
was at Kindred Hospital, Dr. Atray, Dr. Kashyap, Dr. Toe, and Dr. Bal withheld the
necessary care to maintain patient’s fluid balance causing fluid overload resulting in
unnecessary pain and suffering to patient.” (Id. at 17:24-26.) Mr. Segovia opines that
these Defendants’ “refusal to allow patient to be transferred to the hospital where and
[sic] Arterial Line could have been inserted in patient to monitor the necessary ABG
readings and avoiding unnecessary pain and suffering. Arterial lines are not allowed to
be inserted at Kindred Rehab.” (Id. at 1-4.)

Defendant argues that the Court should reject Mr. Segovia’s declaration as an
unqualified expert declaration. Defendant argues that Mr. Segovia is not a medical
doctor and that his training is insufficient to qualify him to opine on the standard of care
in this case. However, this Court previously addressed the admissibility of Mr.
Segovia’s declaration in its ruling on Defendants Dr. Kashyap’s and Dr. Atray’s Motion
for Summary Judgment. As the Court previously concluded, Mr. Segovia has shown
sufficient expertise to support an opinion that the standard of care required Defendants
to transfer Decedent to a facility that could insert an arterial line to treat her blood gas
levels. Similarly, he claims sufficient expertise to support an assertion that
rehabilitation facilities such as Kindred Hospital lack sufficient resources to treat
patients with more than a seven-pound weight gain from fluids, and that Defendant
should have transferred her to another facility once Decedent’s weight gain exceeded
this figure. The Court has also previously addressed Defendant’s arguments that Mr.
Segovia is one of the Plaintiff’s cousins, is not licensed in California, and that his
practice is limited to respiratory and pulmonary care while under a doctor’s
supervision. These considerations are relevant to the evidentiary weight to be afforded
Mr. Segovia’s declaration, however, and do not require the evidence to be excluded.
This Court cannot weigh evidence on a summary judgment motion, (Sandell v. Taylor-
Listug, Inc. (2010) 188 Cal.App.4th 297, 319), and instead must leave that task to the
trier of fact.

The Court also does not perceive that Mr. Segovia’s declaration is inconsistent with his
previous declaration, which, according to Defendant, “directed 100% criticism against
Drs. Kashyap and Atray.” As discussed above, Plaintiffs have demonstrated a triable
issue of material fact as to whether Defendant may be liable for the conduct of these
physicians.

Plaintiffs have presented sufficient evidence to demonstrate a triable issue of material
fact as to whether Defendant’s negligence resulted in Ms. Ramos’ wrongful death, the
motion for summary adjudication of this cause of action is denied.

Elder Abuse

Defendant relies upon the same material facts in support of its motion for summary
adjudication of the cause of action for elder abuse as it did in support of the motion for
summary adjudication of the wrongful death claim. As discussed above, Plaintiffs have
demonstrated the existence of triable issues of material facts as to the wrongful death
claim.

The facts enumerated in a moving separate statement have a due-process dimension
in that they define for the opposing party the facts which, if disputed with admissible
evidence, result in the motion being denied. (Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 252 [citing Weil & Brown, Civ. Proc. Before Trial, (Rutter 2011)
Ch.10:95.1].) (178 Cal.App.4th at 252 [citation omitted].) In reliance on the discrete
universe of facts in the moving separate statement, a party opposing a summary
judgment motion is entitled to stop working on its opposition once (s)he has produced
admissible evidence demonstrating that a single fact presents a triable issue. Thus,
the Fourth Appellate District Court of Appeal recently observed:

“Where a remedy as drastic as summary judgment is involved, due process requires a
party be fully advised of the issues to be addressed and be given adequate notice of
what facts it must rebut in order to prevail.” (Eriksson v. Nunnink (2011) 191
Cal.App.4th 826, 849 [citation omitted].)

Hence, a party moving for summary judgment may not signal to its adversary that the
motion can be defeated with evidence that a fact in the moving separate statement
presents a triable issue, on the one hand, and then make the contradictory argument
that the disputed fact is not truly material, on the other. The fact is that if moving party had submitted a different separate statement, the opposing party might have submitted
different evidence with the Opposition. As observed by the 3rd DCA, “The due process
aspect of the separate statement requirement is self evident-to inform the opposing
party of the evidence to be disputed to defeat the motion.” Hawkins v. Wilton (2006)
144 Cal. App. 4th 936, 946.

Under these principles, because Plaintiffs demonstrated that triable issues of material
fact exist as to the wrongful death claim, and because Defendant relies on the same
material facts in its challenge to the elder abuse cause of action, the motion for
summary adjudication of the elder abuse cause of action must be denied.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312 and CCP §437c(g).