This case was last updated from Los Angeles County Superior Courts on 10/21/2022 at 06:20:33 (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 Judges overseeing this case are KRISTIN S. ESCALANTE and MARK A. BORENSTEIN. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3449

  • Filing Date:

    08/23/2017

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

KRISTIN S. ESCALANTE

MARK A. BORENSTEIN

 

Party Details

Plaintiff

MITCHELL KATHRYN M.

Defendants

KAISER FOUNDATION HEALTH PLAN INC

PRECIADO MD GEORGE

Attorney/Law Firm Details

Plaintiff Attorney

SAHELIAN ARA ESQ.

Defendant Attorney

MEADOWS BRIAN M. ESQ.

 

Court Documents

Separate Statement

9/11/2019: Separate Statement

Notice - NOTICE EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

9/11/2019: Notice - NOTICE EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Motion for Summary Judgment

9/11/2019: Motion for Summary Judgment

Declaration - DECLARATION DECLARATION OF JASON M. CUELLAR, M.D., PHD. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

11/21/2019: Declaration - DECLARATION DECLARATION OF JASON M. CUELLAR, M.D., PHD. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION DECLAARATION OF ARA SAHELIAN, ESQ. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

11/21/2019: Declaration - DECLARATION DECLAARATION OF ARA SAHELIAN, ESQ. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Memorandum - MEMORANDUM MEMORANDUM TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

11/21/2019: Memorandum - MEMORANDUM MEMORANDUM TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION PLAINTIFFS SEPERATE STATMENT OF CONTROVERTED FACTS IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

11/21/2019: Declaration - DECLARATION PLAINTIFFS SEPERATE STATMENT OF CONTROVERTED FACTS IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (COURT ORDER)

11/25/2019: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/25/2019

11/25/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/25/2019

Declaration - DECLARATION OF JASON M. CUELLAR, M.D., PHD. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

12/2/2019: Declaration - DECLARATION OF JASON M. CUELLAR, M.D., PHD. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Reply - REPLY REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

12/3/2019: Reply - REPLY REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Objection - OBJECTION EVIDENTIARY OBJECTIONS TO DECLARATIONS OF JASON CUELLAR, M.D. AND ARA SAHELIAN

12/3/2019: Objection - OBJECTION EVIDENTIARY OBJECTIONS TO DECLARATIONS OF JASON CUELLAR, M.D. AND ARA SAHELIAN

Notice - NOTICE NOTICE OF CONTINUANCE OF HEARING

12/3/2019: Notice - NOTICE NOTICE OF CONTINUANCE OF HEARING

Minute Order - MINUTE ORDER (HEARING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR IN THE ...)

12/13/2019: Minute Order - MINUTE ORDER (HEARING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR IN THE ...)

Request for Dismissal

1/14/2020: Request for Dismissal

Request for Dismissal

1/15/2020: Request for Dismissal

Notice - NOTICE NOTICE OF TAKING MOTION FOR SUMMARY JUDGMENT OFF CALENDAR

1/15/2020: Notice - NOTICE NOTICE OF TAKING MOTION FOR SUMMARY JUDGMENT OFF CALENDAR

Notice of Posting of Jury Fees

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

19 More Documents Available

 

Docket Entries

  • 08/24/2020
  • Docketat 08:30 AM in Department 29, Kristin S. Escalante, Presiding; Order to Show Cause Re: Dismissal - Not Held - Vacated by Court

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  • 02/21/2020
  • Docketat 08:30 AM in Department 29, Kristin S. Escalante, Presiding; Jury Trial - Not Held - Vacated by Court

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  • 02/07/2020
  • Docketat 10:00 AM in Department 29, Kristin S. Escalante, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 01/22/2020
  • Docketat 1:30 PM in Department 29, Kristin S. Escalante, Presiding; Hearing on Motion for Summary Judgment (or In The Alternative, Summary Adjudication Of Issues, Filed by Defendants) - Not Held - Taken Off Calendar by Party

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  • 01/15/2020
  • DocketRequest for Dismissal; Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 01/15/2020
  • DocketNotice (Notice of Taking Motion for Summary Judgment Off Calendar); Filed by KAISER FOUNDATION HEALTH PLAN, INC (Defendant)

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  • 01/14/2020
  • DocketRequest for Dismissal; Filed by KATHRYN M. MITCHELL (Plaintiff)

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  • 12/13/2019
  • Docketat 1:30 PM in Department 2, Mark A. Borenstein, Presiding; Hearing on Motion for Summary Judgment (or In The Alternative, Summary Adjudication Of Issues, Filed by Defendants) - Held - Continued

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  • 12/13/2019
  • DocketMinute Order ( (Hearing on Defendants' Motion for Summary Judgment or In The ...)); Filed by Clerk

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  • 12/05/2019
  • Docketat 1:30 PM in Department 2, Mark A. Borenstein, Presiding; Hearing on Motion for Summary Judgment - Not Held - Continued - Court's Motion

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29 More Docket Entries
  • 06/07/2018
  • DocketSUMMONS

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

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

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

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

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

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

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

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

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

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Tentative Rulings

Case Number: ****3449    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: ****3449    Hearing Date: December 05, 2019    Dept: 2

****3449 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.



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