This case was last updated from Los Angeles County Superior Courts on 06/06/2019 at 10:08:58 (UTC).

KATHRYN M MITCHELL VS KAISER FOUNDATION HEALTH PLAN INC

Case Summary

On 08/23/2017 KATHRYN M MITCHELL filed a Personal Injury - Medical Malpractice lawsuit against KAISER FOUNDATION HEALTH PLAN INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3449

  • Filing Date:

    08/23/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff and Petitioner

MITCHELL KATHRYN M.

Defendants and Respondents

KAISER FOUNDATION HEALTH PLAN INC

DOES 1 TO 100

PRECIADO MD GEORGE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

SAHELIAN ARA ESQ.

Defendant Attorney

MEADOWS BRIAN M

 

Court Documents

Notice of Posting of Jury Fees

1/8/2019: Notice of Posting of Jury Fees

Stipulation and Order

1/22/2019: Stipulation and Order

Proof of Service by Substituted Service

4/9/2019: Proof of Service by Substituted Service

Memorandum of Points & Authorities

4/9/2019: Memorandum of Points & Authorities

Motion to Continue Trial Date

4/9/2019: Motion to Continue Trial Date

Declaration

4/9/2019: Declaration

Declaration

4/9/2019: Declaration

Answer

4/24/2019: Answer

Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

5/7/2019: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

NOTICE OF ERRATA TO COMPLAINT

5/8/2018: NOTICE OF ERRATA TO COMPLAINT

NOTICE OF ERRATA TO COMPLAINT

5/15/2018: NOTICE OF ERRATA TO COMPLAINT

SUMMONS

6/7/2018: SUMMONS

ORDER PUBLICATION SUMMONS CITATION OR NOTICE OF HEARING

8/24/2017: ORDER PUBLICATION SUMMONS CITATION OR NOTICE OF HEARING

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

8/23/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

2 More Documents Available

 

Docket Entries

  • 05/20/2019
  • at 1:30 PM in Department 2, Georgina T. Rizk, Presiding; Hearing on Motion to Continue Trial - Not Held - Vacated by Court

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  • 05/07/2019
  • [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 04/24/2019
  • Answer; Filed by KAISER FOUNDATION HEALTH PLAN, INC (Defendant); George Preciado, MD (Defendant)

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  • 04/09/2019
  • Declaration (of Myra A. Firth in Support of Continuance of Currently Scheduled Trial Date); Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 04/09/2019
  • Motion to Continue Trial Date; Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 04/09/2019
  • Memorandum of Points & Authorities; Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 04/09/2019
  • Declaration (of Ara Sahelian, Esq. in Support of Stipulation to Continue Trial); Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 04/09/2019
  • Proof of Service by Substituted Service; Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 02/25/2019
  • at 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 02/06/2019
  • at 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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3 More Docket Entries
  • 06/07/2018
  • Summons; Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 05/15/2018
  • Notice; Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 05/15/2018
  • NOTICE OF ERRATA TO COMPLAINT

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  • 05/08/2018
  • NOTICE OF ERRATA TO COMPLAINT

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  • 05/08/2018
  • Notice; Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 08/24/2017
  • Order on Court Fee Waiver (Superior Court); Filed by Court

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  • 08/24/2017
  • ORDER PUBLICATION SUMMONS CITATION OR NOTICE OF HEARING

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  • 08/23/2017
  • Request to Waive Court Fees; Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 08/23/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 08/23/2017
  • Complaint; Filed by KATHRYN M. MITCHELL (Plaintiff)

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Tentative Rulings

Case Number: BC673449    Hearing Date: December 13, 2019    Dept: 2

Mitchell v. Kaiser Foundation Health Plan, Inc. et al.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues by Defendants Kaiser Foundation Health Plan, Inc. and George Preciado M.D. is GRANTED. All the papers submitted show that there is no triable issue as to any material fact and that moving parties are entitled to judgment as a matter of law. Cal. Code Civ. Proc. § 437c, subd. (c).

The court GRANTS the motion for summary adjudication in favor of Kaiser Foundation Health Plan, Inc. (“Kaiser”) as it is undisputed that Kaiser is a non-profit corporation that arranges for health care services for members. It does not provide health care services, nor does it render medical care or treatment. Plaintiff concedes this issue. See Plaintiff’s responses to Issue 3, UF 1. As such, adjudication of Issue 3 is GRANTED.

The Motion for Summary Judgment by Defendant George Preciado, M.D. is also GRANTED.

The complaint alleges that on 5/30/16 Dr. Preciado negligently treated Plaintiff in the emergency room for a comminuted fracture of Plaintiff’s right wrist sustained in a motor vehicle accident. Plaintiff alleges one cause of action for negligence. Dr. Preciado moves for summary judgment, claiming that the undisputed evidence establishes that his treatment complied with the applicable standard of care and that no negligent act or omission by Dr. Preciado caused or contributed to Plaintiff’s injuries.

To make out a claim for medical negligence, a plaintiff must establish the following elements: “(1) the duty of the professional use such skill, prudence, and diligence as other members of his [or her] profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607.

The required standard of care owed by a medical professional is a matter peculiarly within the knowledge of experts and can only be proved by expert testimony. Hanson at 606–607. The element of causation must also be proven with expert testimony. Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402.

Plaintiff’s claims here arise out of her treatment in the emergency room of Kaiser South Bay Medical Center. California Health & Safety Code § 1799.110, subd. (c) restricts the scope of expert testimony in such cases. That subdivision provides: “In any action for damages involving a claim of negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.” This provision applies only to expert testimony as to the relevant standard of care and not to other subjects, such as causation. Stokes v. Baker (2019) 35 Cal. App. 5th 946, 958 (acknowledging that the holding is inconsistent with the literal language of the statute, but holding that a literal interpretation would be contrary to legislative intent and would lead to absurd results).

Here, Dr. Preciado presents evidence sufficient to meet his initial burden as the moving party that he acted within the standard of care. This evidence includes the declaration of Raymond Ricci, M.D., a physician certified by the American Board of Emergency Medicine. Dr. Ricci has been a full-time staff physician in the department of emergency medicine at Hoag Memorial Hospital (a general acute care hospital emergency department) since 1988. As such, he has demonstrated “substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department,” and is competent to offer expert opinions pursuant to section 1799.110. Dr. Ricci states that based on his education, training and experience, he is familiar with the standard of care for emergency treatment of the type that Plaintiff received, and that Dr. Preciado’s care met the applicable standard. Among other things, Dr. Ricci concludes that Dr. Preciado appropriately examined the patient, reviewed the relevant imaging studies, and appropriately recommended a closed reduction and placement of a sugar tong split for the breaks in Plaintiff’s radius and ulna. Dr. Ricci further opines that Dr. Preciado acted with due care in performing the procedures and that the standard of care did not require consulting with an orthopedic surgeon. Dr. Ricci also concludes that Dr. Preciado acted appropriately in discharging the patient and recommending follow up care with a clinician within a couple of days without prescribing antibiotics. This evidence is sufficient to meet Defendant’s initial burden that Dr. Preciado did not meet the relevant standard of care.

Dr. Preciado also presents a declaration of Dr. Kenneth Sabbag, an orthopedic surgeon with experience in orthopedic trauma. The declaration does not reflect that Dr. Sabbag has substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department, and thus Dr. Sabbag is not competent to offer opinions as to the relevant standard of care. Given that the declaration of Dr. Ricci is sufficient to shift the burden, the Court need not consider the Sabbag declaration, and need not determine whether and to what extent Dr. Sabbag’s opinons bear on the standard of care as opposed to other issues.

As Dr. Ricci’s declaration is sufficient to meet Defendant’s initial burden to show that the standard of care has been met, the burden shifts to Plaintiff to present controverting evidence sufficient to raise a triable issue that Dr. Preciado failed to meet the applicable standard of care. Plaintiff presented the declaration of Dr. Jason M. Cuellar, a board certified orthopedic surgeon. Defendants object to the admission of this declaration under section 1799.110. The Court SUSTAINS the objection to the extent Dr. Cuellar opines on whether Dr. Preciado met the standard of care, including opinions offered in paragraphs 11, 12, 14, and 15. While the declaration sets forth Dr. Cuellar’s impressive credentials, the declaration does not show that he has had “substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.” Dr. Cuellar states that he completed a residency in orthopedic surgery from 2009 to 2015 at New York University Hospital for Joint Diseases, where he received “extensive training in orthopedic trauma.” He then completed a fellowship in spinal surgery at Cedars-Sinai Medical Center in 2016 and currently serves as an Assistant Professor in the Department of Orthopedic Surgery at Cedars-Sinai Medical Center, where he currently practices. Dr. Cuellar does not state that during any portion of the last five years of that training and practice that he was “assigned to provide emergency medical coverage in a general acute care hospital emergency department.” Without that required foundation, Dr. Preciado’s objection must be sustained.

Dr. Cuellar’s declaration is the only expert opinion that Plaintiff has offered regarding the standard of care. Since the declaration is not admissible, Plaintiff cannot meet her burden to raise a triable issue. Summary judgment thus must be granted.

The Court does not rule on Defendants’ other objections to Plaintiff’s evidence because they are not material to the Court’s ruling.

Moving party is ordered to give notice.

Case Number: BC673449    Hearing Date: December 05, 2019    Dept: 2

BC673449 Mitchell v. Kaiser Foundation Health Plan

On the court’s own motion, the hearing on the Motion for Summary Judgment set for 12/5/19 is continued to 12/13/19 at 1:30 p.m. in Department SS-2. The due dates for the opposition and reply are based on the original hearing date.