ALBERTA HENDERSON VS DIGNITY HEALTH ET AL

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Having considered the moving and non-opposing papers, the Court rules as follows. opposing papers were filed.

BACKGROUND

On May 24, 2017, Plaintiff Alberta Henderson, by and through her guardian ad litem Kathy Houston, (“Plaintiff”) filed a complaint against Defendants Dignity Health, California Medical Center-Los Angeles, Harry B. Kram, M.D., Janis Watchen Dossen-Jones, M.D., Gregory F. Bayhan, C.R.N.A. alleges medical malpractice for a deficient tracheostomy and an endotracheal intubation that occurred on March 1, 2017.

On February 7, 2019, Plaintiff Alberta Henderson filed amendments to her complaint renaming Doe 1 as Defendant Rodney Cheng, M.D. and Doe 101 as Defendant EMCARE, Inc.

On November 25, 2019, Defendant Janis Watchen Dossen-Jones, M.D. filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

On December 19, 2019, the Court dismissed Defendant EmCare, Inc. with prejudice.

Trial is set for May 8, 2020.

PARTY’S REQUEST

Defendant Janis Watchen Dossen-Jones, M.D. (“Moving Defendant”) asks the Court to enter summary judgment against Plaintiff and in Defendant’s favor based on an expert’s opinion that Moving Defendant complied with her standard of care and did not cause Plaintiff’s harm.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment “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 . . . cannot be established.”  (Code Civ. Proc., § 437c(p)(2).)  “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

The elements of medical malpractice 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) 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.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 (citations omitted).)  “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at p. 467.)

Thus, in a medical malpractice case, “[w]hen 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 (citations omitted).)  An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)

Moving Defendant submits the declaration of anesthesiologist Kevin P. Becker, M.D. in support of Moving Defendant’s motion for summary judgment.  Dr. Becker provided his qualifications.  (Becker Decl., ¶ 2-3, Exh. A.)  Dr. Becker stated he reviewed Plaintiff’s documents from California Hospital Medical Center, the complaint, and the depositions from Moving Defendant, Harry Kram, M.D., Gregory F. Bayhan, CRNA, and Kathy Houston.  (Becker Decl., ¶ 4.)  Dr. Becker recited the relevant medical facts.  (Becker Decl., ¶¶ 5-18.) Dr. Becker found Moving Defendant’s treatment provided to Plaintiff was within the applicable standard of care.  (Becker Decl., ¶ 19.)  

Mr. Bayhan, CRNA, recognized Plaintiff’s ventilation was declining and either Mr. Bayhan or Dr. Kram properly called for help.  (Becker Decl., ¶ 20.)  Moving Defendant and another CRNA answered the call for help.  (Ibid.)  

Dr. Becker declared there are three ways that Plaintiff’s airway could have become obstructed during the tracheostomy procedure: (1) physiologic obstruction, (2) mechanical obstruction, or (3) a physical obstruction.  (Becker Decl., ¶ 21.)  A physiologic obstruction occurs when the small airways become constricted due to asthma or mucus.  (Ibid.)  A physical obstruction occurs when the breathing tube is blocked with gauze, plastic, or a similar material.  (Ibid.)  A mechanical obstruction occurs when the breathing tube gets clogged with bodily fluids.  (Ibid.)  Moving Defendant orchestrated the handling of Plaintiff’s declining ventilation.  (Ibid.)  CPR was not delayed, but rather started as soon as Moving Defendant recognized Plaintiff had no palpable pulse.  (Becker Decl., ¶ 22.)  The prompt administration of CPR was within the applicable standard of care.  (Ibid.)

The Court finds Dr. Becker’s declaration is sufficient.  Moving Defendant’s involvement in Plaintiff’s treatment was minimal.  Moving Defendant administered treatment to Plaintiff after being alerted to Plaintiff’s declining ventilation.  Dr. Becker’s declaration shows Moving Defendant acted within the standard of care when Moving Defendant managed the administration of CPR on Plaintiff.  The burden shifts to Plaintiff.  Plaintiff has submitted a notice of non-opposition to the motion.  As such, summary judgment is properly granted.

CONCLUSION

The motion is GRANTED.

Moving Defendant is ordered to give notice of this ruling.

Petition to Approve a Compromise for a Person with a Disability

Having considered the petitioning papers, the Court rules as follows.  No opposing papers were filed.

BACKGROUND

On May 24, 2017, Plaintiff Alberta Henderson, by and through her guardian ad litem Kathy Houston, filed a complaint against Defendants Dignity Health, California Medical Center-Los Angeles, Harry B. Kram, M.D., Janis Watchen Dossen-Jones, M.D., Gregory F. Bayhan, C.R.N.A. alleging medical malpractice for deficient tracheostomy and endotracheal intubation that occurred on March 1, 2017.

On February 7, 2019, Plaintiff Alberta Henderson filed amendments to her complaint renaming Doe 1 as Defendant Rodney Cheng, M.D. and Doe 101 as Defendant EMCARE, Inc.

On November 5, 2019, Petitioner Kathy Houston filed a petition to approve a compromise of pending action for Plaintiff Alberta Henderson.

On November 8, 2019, the Court continued the hearing on the petition to approve a compromise of pending action to December 18, 2019 for the Probate Department may review the proposed special needs trust.

On December 19, 2019, the Court dismissed Defendant EmCare, Inc. with prejudice.

On January 17, 2020, Petitioner Kathy Houston filed a notice of continuance of the petition to approve compromise of pending action for Plaintiff Alberta Henderson conveying the new hearing date to be February 14, 2020.

Trial is set for May 8, 2020.

PARTY’S REQUEST

Petitioner Kathy Houston (“Petitioner”) asks the Court to approve a petition to approve a compromise of pending action for Plaintiff Alberta Henderson (“Claimant”).

LEGAL STANDARD

Pursuant to California Rules of Court, Rule 7.952(a), Petitioner and Claimant are required to attend the hearing on the petition.  However, the Court finds that Petitioner’s and Claimant’s attendance is not required due to Claimant’s age and the settlement amount.

DISCUSSION

The Court finds the hearing on the petition needs to be continued.  The Probate Department has been in contact with Petitioner’s counsel in asking for the documents relevant to consider the appropriateness of the requested special needs trust to be filed.  On February 5, 2020, Petitioner’s counsel filed supplemental documents.  

At first blush, the supplemental documents are insufficient for two reasons.  First, the document alleged to be the Pooled Master Trust Serving The Needs Of Persons With Disabilities In The Greater Los Angeles Area is not declared to be a true and correct copy under penalty of perjury.  Second, Petitioner’s counsel has not filed the documents joining the pooled trusts, which are necessary in determining whether the pooled trust is proper.

The Probate Department necessitates additional time to review the supplemental documents filed and further supplemental documents that must be filed in order to fix the above issues.

CONCLUSION

The petition to approve a compromise of pending action for Claimant filed on November 5, 2019 is CONTINUED to March 23, 2019 at 1:30 p.m. in Department 28 at Spring Street Courthouse located at 312 North Spring Street, Los Angeles, California 90012.

Petitioner is ordered to file supplemental documents remedying the above stated issues by 5:00 p.m. on February 24, 2020.

Petitioner is ordered to give notice of this ruling.

Petition to Approve a Compromise for a Person with a Disability

Having considered the petitioning papers, the Court rules as follows.  No opposing papers were filed.

BACKGROUND

On May 24, 2017, Plaintiff Alberta Henderson, by and through her guardian ad litem Kathy Houston, filed a complaint against Defendants Dignity Health, California Medical Center-Los Angeles, Harry B. Kram, M.D., Janis Watchen Dossen-Jones, M.D., Gregory F. Bayhan, C.R.N.A. alleging medical malpractice for deficient tracheostomy and endotracheal intubation that occurred on March 1, 2017.

On February 7, 2019, Plaintiff filed amendments to her complaint renaming Doe 1 as Defendant Rodney Cheng, M.D. and Doe 101 as Defendant EMCARE, Inc.

On May 5, 2019, Petitioner Kathy Houston filed a petition to approve a compromise of pending action for Plaintiff Alberta Henderson.

Trial is set for May 8, 2020.

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PARTY’S REQUEST

Petitioner Kathy Houston (“Petitioner”) asks the Court to approve a petition to approve a compromise of pending action for Plaintiff Alberta Henderson (“Claimant”).

LEGAL STANDARD

Pursuant to California Rules of Court, Rule 7.952(a), Petitioner and Claimant are required to attend the hearing on the petition.  However, the Court finds that Petitioner’s and Claimant’s attendance is not required due to Claimant’s age and the settlement amount.

DISCUSSION

The Court finds the petition cannot be approved for ___ reasons.

First, the calculation in paragraph 11b cannot be reconciled with the gross settlement of $1,000,000.  More specifically, paragraph 11b shows Claimant is to receive a gross settlement of $500,000 from Defendant Dignity Health dba California Hospital Medical Center and $750,000 from Defendant Gregory F. Bayhan, C.R.N.A.  This provides for an unaccounted for $250,000.  Paragraph 11c suggests that this missing $250,000 is to be distributed to Claimant’s children.  However, the petition, as currently drafted, provides an ambiguity that can be clarified through filing an amended petition.

Second, the figures in paragraph 13a cannot be reconciled with the Medi-Cal lien that is supposed to be paid with Claimant’s gross settlement.  Paragraph 13a states Claimant has no medical expenses and none of the gross settlement is to be paid for outstanding medical expenses or out-of-pocket, co-payments, or deductible payments.  Yet, paragraph 13b(4) suggests otherwise.  Paragraph 13b(4) shows a maximum of $426,151.22 is to be paid to Medi-Cal.  As such, Claimant and the Court are left to guess as to whether a Medi-Cal bill is to be paid with Claimant’s gross settlement.

Third, it is unclear whether Medi-Cal has agreed to accept reimbursement at a lower amount for its lien rights.  Paragraph 13b(4)(c) is checked, indicating a settlement has been reached with Medi-Cal to satisfy its lien for a lower amount than originally charged.  However, Petitioner states the settlement amount is unknown.  Petitioner does not provide the demand letter offering to settle the Medi-Cal lien for a lower amount than originally charged.  Accordingly, the Court cannot ascertain what the Medi-Cal lien is.

Fourth, Petitioner has failed to lodge Attachments 12, 13b(4), and 19b(4).

CONCLUSION

The petition to approve a compromise of pending action for Claimant filed on May 5, 2019 is DENIED.

Petitioner is ordered to give notice of this ruling.

Motion to Compel Responses to Special Interrogatories (Set One)

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On May 24, 2017, Plaintiff Alberta Henderson, by and through her guardian ad litem Kathy Houston, (“Plaintiff”) filed a complaint against Defendants Dignity Health, California Medical Center-Los Angeles, Harry B. Kram, M.D., Janis Watchen Dossen-Jones, M.D., Gregory F. Bayhan, C.R.N.A. alleging medical malpractice for deficient tracheostomy and endotracheal intubation that occurred on March 1, 2017.

On February 7, 2019, Plaintiff filed amendments to her complaint renaming Doe 1 as Defendant Rodney Cheng, M.D. and Doe 101 as Defendant EMCARE, Inc.

On November 4, 2019, Defendant EMCARE, Inc. filed a motion to compel Plaintiff’s responses to Special Interrogatories (Set One) pursuant to California Code of Civil Procedure section 2030.290.

Trial is set for April 10, 2020.

PARTY’S REQUESTS

Defendant EMCARE, Inc. (“Moving Defendant”) asks the Court to order Plaintiff to provide verified responses without objections to Special Interrogatories (Set One) within 10 days from this ruling based on Plaintiff’s failure to provide timely responses.

LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc. § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process.  (Code of Civ. Proc. § 2023.010.)

Sanctions are mandatory in connection with a motion to compel responses to interrogatories against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc. §§ 2030.290, subd. (c).)

DISCUSSION

On April 18, 2019, Moving Defendant served Special Interrogatories (Set One) on Plaintiff by U.S. mail.  (Wood Decl., ¶ 4, Exh. A.)  Moving Defendant granted two extensions for Plaintiff to provide the outstanding discovery response to Special Interrogatories (Set One), resulting in an ultimate deadline of October 29, 2019.  (Wood Decl., ¶¶ 5-6, Exh. B-C.) Defendant has not received Plaintiff’s outstanding responses to Special Interrogatories (Set One) as of the time Richard A. Wood signed his declaration on November 4, 2019. Wood Decl., ¶¶ 8-9.)

The Court finds Special Interrogatories (Set One) was properly served on Plaintiff and Plaintiff failed to serve timely responses.  As such, the motion is properly granted.  There is no evidence Plaintiff acted with a substantial justification.  However, Moving Defendant has not requested sanctions and, thus, Plaintiff has not received adequate notice of the possibility of an imposition of sanctions.  Thus, an imposition of sanctions would be unjust.

CONCLUSION

The motion is GRANTED.

Plaintiff is ordered to serve verified responses without objections to Moving Defendant’s Special Interrogatories (Set One) within 20 days of this ruling.

Moving Defendant is ordered to give notice of this ruling.