JENNIFER NUCKLES ET AL VS TORRANCE MEMORIAL MEDICAL CENTER E

Tentative Rulings

Case Number: BC648025    Hearing Date: October 24, 2019    Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT VIKTOR EYSSELEIN’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiffs Jennifer Nuckles, Bridget Schwartzott, Heather Himes, and Patricia Dragone, are the children of Jane Helen Cowan. Plaintiffs filed an action against defendant Viktor E. Eysselein, M.D. (“Defendant”) for medical negligence following Ms. Cowan’s death on January 29, 2016. Defendant moves for summary judgment on the grounds that there is no triable issue of fact respect to the standard of care provided in connection with Ms. Cowan’s medical care.

II. FACTUAL BACKGROUND

On December 18, 2015, decedent was a 72- year old woman who was admitted to Torrance Memorial Medical Center (““TMMC”) for an endoscopic retrograde cholangiopancreatogram (“ERCP”) to be performed by Dr. Eysselein. (UMF No. 2.) Ms. Cowan had had recurrent episodes of pancreatitis and had developed nausea and some pain. Before the ERCP, Ms. Cowan was note as having an elevated lipase of 9221 and amylase of 683. (UMF No. 3.) A prior Endoscopic Ultrasound (“EUS”) indicated she had some sludge in the bile duct, and the pancreatic duct was dilated to approximately 4 mm. (UMF No. 4.) After obtaining Ms. Cowan’s consent to perform the ERCP, Dr. Eysselein noted that he found a severe pancreatic sphincter stenosis which was the cause of her recurrent pancreatitis. (UMF No. 6.) During the ERCP procedure, a small perforation at the precut site occurred in the duodenal wall that caused retroperitoneal and subcutaneous air. Dr. Eysselein closed that small perforation and sealed it with a metal clip. (UMF No. 7.) Ms. Cowan initially did well after the ERCP, but later developed a pleural effusion, pneumothorax, and on December 21, 2015, she had a myocardial infarction. (UMF No. 10.) Dr. Eysselein examined her on December 23, 2015 and noted the metal clip placed during the ERCP had closed the small perforation successfully. (UMF No. 11.) There was no leak of air or contrast. (Id.) On January 7, 2016, Dr. Eysselein performed an ERCP and successfully placed a fully covered metal stent in the distal bile duct, which was partially obstructed. No leak was present and there was excellent bile drainage. (UMF No. 14.) On the evening of January 28, 2019, Ms. Cowan developed respiratory distress. (UMF No. 21.) By the morning of January 29, 2019, she was in severe respiratory distress. (Id.) She went into bradycardia and a Code Blue was called. (Id.) She was transferred to the ICU where a second Code Blue was called. (Id.) A third Code Blue occurred. (Id.) Her family instituted a DNR. (Id.) Comfort measures were taken, and she expired on January 29, 2016 at 10:37 AM. (Id.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. EVIDENTIARY OBJECTIONS

Defendant’s objection to the Declaration of John J. Nolan, III: Objection No. 1 is OVERRULED. Plaintiff’s counsel took the deposition and therefore has personal knowledge of what Defendant said. Plaintiff’s counsel’s declaration about Defendant’s statements is not inadmissible hearsay because Defendant is a party opponent, and prior oral statements of a party opponent are admissible.

Defendant’s objections to the Declaration of Hardeep M. Singh, M.D.: Objection Nos. 1-6 are OVERRULED for the reasons stated above.

V. DISCUSSION

In a medical malpractice action, a plaintiff must establish the following 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. [citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.) A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “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.3d 977, 984-985.)

Defendant submits the declaration of James Buxbaum, M.D. (“Dr. Buxbaum”), board certified in internal medicine and gastroenterology. (Declaration of James Buxbaum, M.D., ¶ 3.) Dr. Buxbaum opines Defendant complied with the standard of care in treating Plaintiff. (Buxbaum Decl., ¶ 9.) Specifically, Defendant complied with the standard of care during the December 18, 2015 ERCP procedure because it was properly indicated, a perforation is a known and recognized risk during an ERCP, and Defendant recognized the perforation immediately and appropriately managed it with the metal clip, all within the standard of care. Dr. Buxbaum also opines that Defendant complied with the standard of care during the January 7, 2015 ERCP procedure and appropriately recommended surgical therapy to address the reoccurring bile leak. (Buxbaum Decl., ¶ 9.) Nothing Defendant did or failed to do caused Ms. Cowan’s injuries. (Buxbaum Decl., ¶ 10.) Defendant met its initial burden of showing he did not breach the standard of care or cause Ms. Cowan’s injuries. The burden shifts to Plaintiffs to show a triable issue of fact exists.

Plaintiffs submit the declaration of Hardeep M. Singh, M.D. (“Dr. Singh”), board certified in gastroenterology. (Declaration of Hardeep M. Singh, ¶ 2.) Dr. Singh opines that Defendant caused a perforation in Ms. Cowan’s bile duct and should have immediately repaired it to avoid further insufflation of air. (Singh Decl., ¶ 24.) Dr. Singh also opines the standard of care required that the procedure be aborted so that no air or a very small amount of air was in the retroperitoneum. (Singh Decl., ¶ 25.) Dr. Singh also concludes that if Defendant had successfully closed the perforation early on and aborted the rest of the procedure, Ms. Cowan would have recovered, and that Defendant’s breach of the standard of care, to a reasonable degree of medical probability, was a substantial factor in causing the worsening of Ms. Cowan’s respiratory condition, myocardial infarction, sepsis, and death.

In reply, Defendant argues Dr. Singh’s opinion should be disregarded because he bases his opinion Plaintiff’s counsel’s declaration about the substance of Defendant’s testimony. Defendant contends Plaintiff’s counsel’s declaration is hearsay, unreliable, and lack foundation. As explained above, Plaintiff’s counsel was present at the deposition and therefore has personal knowledge of Defendant’s testimony, and the testimony is the prior statement of a party opponent and therefore not inadmissible hearsay. Defendant does not explain how Plaintiff’s counsel’s declaration is unreliable and did not identify any specific inaccurate description of Defendant’s testimony.

Plaintiffs have met their burden of showing by contrary expert opinion that a triable issue of fact exists as to whether Defendant breached the standard of care.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.

[TENTATIVE] ORDER RE: DEEFENDANT TORRANCE MEMORIAL MEDICAL CENTER’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiffs Jennifer Nuckles, Bridget Schwartzott, Heather Himes, and Patricia Dragone, are the children of Jane Helen Cowan. Plaintiffs filed an action against defendant Torrance Memorial Medical Center (“Defendant”) and Ms. Cowan’s physicians for medical negligence following Ms. Cowan’s the death on January 29, 2016. Defendant now moves for summary judgment on the grounds that there is no triable issue of fact respect to the standard of care provided in connection with Ms. Cowan’s medical care. The motion is unopposed.

II. FACTUAL BACKGROUND

Before being admitted on December 18, 2015, Ms. Cowan suffered multiple episodes of recurrent acute pancreatitis. (Defendant’s Undisputed Material Fact (UMF) No. 1.) Ms. Cowan's past medical and social history included chronic pancreatitis, pancreatic insufficiency, hypertension, arthritis, heavy smoking and alcohol usage between the ages of eighteen and forty of four to five drinks almost every day. (UMF No. 2.) Ms. Cowan was admitted to the Torrance Memorial Medical Center after undergoing an outpatient endoscopic retrograde cholangiopancreatography (“ERCP”) procedure. (UMF No. 17.) A pancreatic duct perforation with an air leak was noted, which was closed with a metal clip but Ms. Cowan required intubation for airway management and was subsequently admitted into the intensive care unit. (UMF No. 19-21.)

On January 29, 2016, Decedent became bracycardic and went into cardiopulmonary arrest. (UMF Nos. 29-30.) Attempts at resuscitation failed and Ms. Cowan expired on January 29, 2016. (UMF No. 31-32.) The death certificate lists chronic pancreatitis as Ms. Cowan’s cause of death. (UMF No. 33.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

In a medical malpractice action, a plaintiff must establish: “(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. [Citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.) A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “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.3d 977, 984-985.)

Defendant presents expert declarations of James D. Leo, M.D. and Michael Lekawa, M.D. that no treatment could have been provided that would have prevented Ms. Cowan’s death, and that Ms. Cowan’s death was not caused by any act or omission of Defendant or its employees.

Dr. Leo is a board-certified in emergency medicine, internal medicine, critical care medicine, and clinical lipdology. He opines that the care rendered to Ms. Cowan by the employees and agents of Defendant, including nursing staff, physical therapy staff, radiology technologists and other hospital employees, was commensurate with the degree of care and skill ordinarily exercised by hospital providers in the same or similar locality, in like cases, and at all times in the care and treatment of Ms. Cowan. (UMF No. 36.) Dr. Leo further opines that Ms. Cowan’s myocardial infarction was caused by hypoperfusion and hypoxia, which were unfortunate complications of the ERCP procedure. (UMF No. 40.) Ms. Cowan developed septic shock despite appropriate management by the infectious disease physicians and other specialists, and the sepsis was an unfortunate progression of the underlying condition. (UMF Nos. 41-42.) Furthermore, an accidental dislodgment of one of the drains occurred when one of Ms. Cowan’s daughters helped her to the bathroom, which did involve any fault of the nurses. (UMF No. 43.) There is no evidence that the nurses inappropriately pulled the drains. Ms. Cowan’s hypertension was appropriately managed by the nursing staff within the standard of care because there was no evidence of any transfusion error and the nursing management of the patient’s acute reaction complied with the standard of care. (UMF Nos. 46-47.)

Dr. Lekawa is board-certified in general surgery and surgical critical care. He is also the chief of the division of trauma, burns, crticial care, and acute care surgery at the University of California Irvine Medical Center and previously served as its director of trauma services and surgery clinics. Dr. Lekawa also opines that all care and treatment provided to Ms. Cowan by the employees and nursing staff of Defendant met the standard of care of treatment.

Based on the above expert opinions, Defendant has met its prima facie burden to show that it acted within the applicable standard of care in treating Ms. Cowan and that its employees or agents did not cause Ms. Cowan’s death. Because Plaintiff does not oppose this motion, there is no triable issue of material fact, and Defendant’s motion for summary judgment is GRANTED.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.