This case was last updated from Los Angeles County Superior Courts on 11/05/2020 at 09:38:13 (UTC).

MAURO GASPAR CAMPOS ET AL VS LONG BEACH MEMORIAL CENTER ET A

Case Summary

On 05/01/2018 MAURO GASPAR CAMPOS filed a Personal Injury - Medical Malpractice lawsuit against LONG BEACH MEMORIAL CENTER ET A. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judges overseeing this case are STEPHEN I. GOORVITCH, MARK C. KIM and MICHAEL P. VICENCIA. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4049

  • Filing Date:

    05/01/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Governor George Deukmejian Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

STEPHEN I. GOORVITCH

MARK C. KIM

MICHAEL P. VICENCIA

 

Party Details

Plaintiffs and Petitioners

GUZMAN ZABDI GASPAR

CAMPOS MAURO GASPAR

Defendants and Respondents

O'BRIEN M.D. KEVIN

MILLER CHILDREN'S HOSPITAL LONG BEACH

PA M.D. SHUN

CITRUS VALLEY HEALTH PARTNERS INC.

MEMORIAL HEALTH SERVICES

CITRUS VALLEY MEDICAL CENTER

MEMORIALCARE MILLER CHILDREN'S AND WOMENS

LONG BEACH MEMORIAL MEDICAL CENTER

QUEEN OF THE VALLEY CAMPUS

CITRUS VALLEY MEDICAL CENTER DBA QUEEN OF THE VALLEY HOSPITAL

GILMAN RANDY K

CALIFORNIA EMERGENCY PHYSICIANS MEDICAL GROUP A CALIFORNIA GENERAL PARTNERSHIP DBA CEP AMERICA

CEP AMERICA-CALIFORNIA

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

HABASHY JOHN ESQ.

HABASHY JOHN REFAAT ESQ.

IKUTA BENJAMIN

Defendant and Respondent Attorneys

FRASER WATSON & CROUTCH

SINCLITICO & BURNS A PROF. LAW CORP.

MCKENNA ROBERT L. III. ESQ.

GOLDSTEIN STEVEN B.

GOLDSTEIN STEVEN BARRIE

BURNS HUGH ROBERT

MKRTCHYAN KARINE

MCKENNA ROBERT LOWELL III

 

Court Documents

Notice - NOTICE NOTICE OF CONTINUANCE OF TRIAL AND FINAL STATUS CONFERENCE DATES

4/14/2020: Notice - NOTICE NOTICE OF CONTINUANCE OF TRIAL AND FINAL STATUS CONFERENCE DATES

Amendment to Complaint (Fictitious/Incorrect Name)

3/3/2020: Amendment to Complaint (Fictitious/Incorrect Name)

Amendment to Complaint (Fictitious/Incorrect Name)

2/10/2020: Amendment to Complaint (Fictitious/Incorrect Name)

Notice - NOTICE NOTICE OF ENTRY OF ORDER

1/22/2020: Notice - NOTICE NOTICE OF ENTRY OF ORDER

Other - - TENTATIVE RULING AND FINAL ORDER

1/14/2020: Other - - TENTATIVE RULING AND FINAL ORDER

Answer

11/6/2019: Answer

Notice - NOTICE NOTICE OF ENTRY OF JUDGMENT RE O'BRIEN MOTION FOR SUMMARY JUDGMENT

10/18/2019: Notice - NOTICE NOTICE OF ENTRY OF JUDGMENT RE O'BRIEN MOTION FOR SUMMARY JUDGMENT

Other - - TENTATIVE RULING AND FINAL ORDER

10/15/2019: Other - - TENTATIVE RULING AND FINAL ORDER

Minute Order - MINUTE ORDER (COURT ORDER)

6/19/2019: Minute Order - MINUTE ORDER (COURT ORDER)

Separate Statement

5/31/2019: Separate Statement

Declaration - DECLARATION OF STEVEN B. GOLDSTEIN IN SUPPORT OF MOTION TO COMPEL

5/31/2019: Declaration - DECLARATION OF STEVEN B. GOLDSTEIN IN SUPPORT OF MOTION TO COMPEL

Separate Statement

5/31/2019: Separate Statement

Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (HEARING ON MOTION TO COMPEL PLAINTIFF MAURO GASPAR CAMPOS' FU...) OF 03/11/2019

3/11/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (HEARING ON MOTION TO COMPEL PLAINTIFF MAURO GASPAR CAMPOS' FU...) OF 03/11/2019

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL PLAINTIFF MAURO GASPAR CAMPOS' FU...)

3/11/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL PLAINTIFF MAURO GASPAR CAMPOS' FU...)

Opposition - Opposition Opposition Brief of Plaintiffs in Response to Motion to Compel

2/26/2019: Opposition - Opposition Opposition Brief of Plaintiffs in Response to Motion to Compel

DEFENDANT, SHUN PA, M.D.'S, ANSWER TO COMPLAINT

9/14/2018: DEFENDANT, SHUN PA, M.D.'S, ANSWER TO COMPLAINT

Proof of Service by 1st Class Mail -

6/14/2018: Proof of Service by 1st Class Mail -

PROOF OF SERVICE SUMMONS -

6/7/2018: PROOF OF SERVICE SUMMONS -

152 More Documents Available

 

Docket Entries

  • 05/03/2021
  • Hearing05/03/2021 at 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Jury Trial

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  • 04/29/2021
  • Hearing04/29/2021 at 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Final Status Conference

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  • 10/05/2020
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Final Status Conference - Not Held - Continued - Court's Motion

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  • 10/01/2020
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Jury Trial - Not Held - Continued - Court's Motion

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  • 07/30/2020
  • DocketNotice (Notice of Continuance of Trial and Final Status Conference Dates); Filed by Mauro Gaspar Campos (Plaintiff); Zabdi Gaspar Guzman (Plaintiff)

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  • 07/13/2020
  • Docketat 10:54 AM in Department S27, Mark C. Kim, Presiding; Court Order

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  • 07/13/2020
  • DocketCertificate of Mailing for ((Court Order) of 07/13/2020); Filed by Clerk

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  • 07/13/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 05/18/2020
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Jury Trial - Not Held - Continued - Court's Motion

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  • 05/14/2020
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Final Status Conference - Not Held - Continued - Court's Motion

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212 More Docket Entries
  • 06/07/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/07/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/07/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/07/2018
  • DocketProof of Service by 1st Class Mail

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  • 06/07/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/16/2018
  • DocketSummons

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  • 05/16/2018
  • DocketSummons; Filed by Mauro Gaspar Campos (Plaintiff); Zabdi Gaspar Guzman (Plaintiff)

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  • 05/01/2018
  • DocketComplaint; Filed by Mauro Gaspar Campos (Plaintiff); Zabdi Gaspar Guzman (Plaintiff)

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  • 05/01/2018
  • DocketComplaint

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  • 05/01/2018
  • DocketCivil Case Cover Sheet

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Tentative Rulings

Case Number: BC704049    Hearing Date: February 20, 2020    Dept: S27

TENTATIVE RULING: grant in part

BACKGROUND

This is a wrongful death action filed by Plaintiffs Mauro Gaspar Campos and Zabdi Gaspar Guzman (collectively “Plaintiffs”), alleging medical negligence in the care of treatment of their two-year-old daughter “Minor Child A,” later identified as Sarah Gaspar (“Decedent”), resulting in her death. Plaintiffs commenced a lawsuit against many defendant medical providers including Defendant Shun PA, M.D. (“Defendant”), who provided medical care to Plaintiffs’ daughter in the emergency department.

On May 1, 2018, Plaintiffs filed their complaint.[1]

On November 7, 2019, Defendant testified at his deposition. Plaintiffs’ counsel asked Defendant certain questions that Defendant upon instruction by his counsel did not answer.

On January 17, 2020, Plaintiffs filed this motion seeking to compel Defendant to answer certain questions that refused to answer at his deposition along with reasonable follow-up questions. Plaintiffs also seek $7,831.20 in monetary sanctions.

On February 5, 2020, Defendant opposed. Defendant argues that the questions were either (1) voluntarily withdrawn by Plaintiffs' counsel; (2) fully and completely answered by Defendant; (3) unintelligible and incapable of answering without clarification; (4) rhetorical questions not intended to elicit a response from Defendant; or (5) prohibited questions asking for a present day expert opinion of a party witness who has not been designated as an expert. Defendant also seeks $2,390.00 in monetary sanctions against Plaintiffs.

On February 11, 2020, Plaintiffs filed their reply.

MEET AND CONFER

Defendant argues that that Court should deny Plaintiffs’ motion because of insufficient meet and confer efforts.

A motion to compel answers for depositions questions must be accompanied by a declaration stating facts showing “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2025.480 subd. (b).)

Here, Plaintiffs’ counsel filed a declaration that describe the meet and confer efforts. Specifically, Plaintiffs’ counsel mailed a letter on December 26, 2019, Defendant’s counsel responded via letter on January 3, 2020, and there was some communications via email on unknown dates that Defendant’s counsel did not respond to. (Buda Decl. ¶¶ 9-11.)

As a preliminary matter, the Court notes that Plaintiffs did not file any of the exhibits that are claimed to be annexed to the Buda Declaration. Therefore, the Court finds it difficult to assess whether the meet and confer efforts were done reasonably and in good faith. However, Defendant did include some of this correspondence as exhibits to their opposition.

Specifically, Defendant included the initial meet and confer letter sent on December 26, 2019 (Koerner Decl. Ex. C.) In this three page letter, Plaintiffs’ counsel claims there were approximately 25 times that Defendant was instructed not to answer a question because of relevance, form of the questions, and unidentified reasons. Plaintiffs’ counsel argues that any instruction not based on privilege were improper. With the exception of questions objected to on the basis of eliciting an expert opinion, it is unclear from the meet and confer letter what specific questions that was the subject of a second deposition. In fact, the letter itself does not identify any of questions from the deposition verbatim so that the parties’ counsel can try to resolve the dispute informally.

In response, Defendant’s counsel sent a letter on January 3, 2020. (Id. Ex. D.) In that letter, Defendant’s counsel notes that the previous letter did not identify the questions. Therefore, Defendant’s counsel could not discuss any specific question and requested to discuss the issue in more detail with citations to “page and line number.” (Id. pg. 2.)

In response, Plaintiffs’ counsel sent on January 15, 2020. (Id. Ex. E.) In that letter, Plaintiffs’ counsel identified the topics of the questions and included portions of the transcript, though she did not identify the specific page or line numbers corresponding to the topics.

In response, Defendant’s counsel sent a letter on January 16, 2020. (Id. Ex. F.) In that letter, Defendant’s counsel noted that the transcript in the previous letter did not correspond to all of the topics.

There were no other discussions before Plaintiffs filed this motion.

Although the Court finds that the initial meet and confer efforts were inadequate, Plaintiffs’ letter on January 15, 2020 constitute sufficient—albeit belated—meet and confer efforts.

Accordingly, the Court discusses the merits.

LEGAL STANDARDS

Code of Civil Procedure section 2025.480, subdivision (a) states: “If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer . . . .”

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc. § 2025.480, subd. (i).)

ANALYSIS

The parties dispute 18 identified questions, with question number 2 have three subquestions/subparts. The questions involve a variety of topics and a few questions center around Defendant’s opinion.

Whether Question Nos. 1 and 4 were Withdrawn

Defendant argues that Plaintiff withdrew question numbers 1 and 4. Plaintiffs do not respond to this argument. The Court treats this failure to oppose an inference that Defendant’s argument has merit. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (Sexton).) Nevertheless, the Court examines the relevant testimony.

Following asking question number 1,[2] Plaintiffs’ counsel based on the transcript appeared to withdraw this question: “Well, the importance of the hobbies — and I'll get to it — is a little bit of what you do on a regular basis so — and how you perform as a professional. So I’ll get to the nitty-gritty. Maybe I don't need your hobbies: you’re right.” Based on this transcript and Plaintiffs’ failure to otherwise address this argument, the Court finds that Plaintiffs did withdraw this question.

Following asking question number 4,[3] Plaintiffs’ counsel and Defendant’s counsel discussed that this question was unclear. During this discussion, Plaintiffs’ counsel based on the transcript appeared to clarify the issue, noting that Defendant had testified that Randy Gilman was a physician assistant on the shift of earlier days. After this clarification, Plaintiffs’ counsel had an opportunity to ask the specific question again but moved on: “Okay. I won't ask the question if you interacted with him. I'm going to ask a different question now.” Based on this transcript and Plaintiffs’ failure to otherwise address this argument, the Court finds that Plaintiffs did withdraw this question.

Therefore, the Court denies Plaintiffs’ request as to question numbers 1 and 4.

Whether Question Nos. 2-3, 5-9, 11, and 14-15 were Answered

Defendant argues that he already answered question numbers 2-3, 5-9, 11, and 14-15. Plaintiffs do not respond to this argument. The Court treats this failure to oppose an inference that Defendant’s argument has merit. (See Sexton, supra, 58 Cal.App.4th at p. 1410.) Nevertheless, the Court examines the relevant testimony.

As a preliminary matter, the Court reminds counsel that a deposition is a broad discovery device and there are limited permissible times to instruct a witness not to answer a question. The Court also reminds the parties to follow the civility guidelines for depositions.

Questions 2a,[4] 2b,[5] and 2c,[6] concern whether Defendant drinks socially. According to the Court’s review of the transcript, Defendant already testified that he was not drinking on May 5, 2017 because he does not drink before he works and he worked that day. Plaintiffs seek testimony about Defendant’s alcohol use generally and on the date of the incident. But as demonstrated by the testimony and also his responses to form interrogatories, Defendant already testified that he was not drinking that day and any questions about Defendant’s personal drinking history are irrelevant.

Question 3[7] concerns Defendant’s supervisory responsibilities. According to the Court’s review of the transcript, Defendant later answered questions whether he supervised physician assistants and nurses. These answers are regarding specific components of the “staff.” Defendant’s argument that the original question calls for a legal conclusion is unavailing, especially considering that Defendant could easily clarify. Nevertheless, there does not appear to much value in asking the original question now that Defendant answered the follow-up questions. However, the Court finds it appropriate for Defendant to answer the original question. The Court finds an oral deposition for this specific question is unnecessary and can be easily answered through a written deposition or specific interrogatory.

Question 5[8] concerns Defendant’s supervisory responsibility for Randy Gilman. Defendant testified about his supervisory responsibility for Randy Gilman at other points during the deposition.

Question 6,[9] which are two questions identified with the same number, concerns whether Defendant goes by another name. Defendant objects to this question because he claims the question was asked for harassing reasons. Although there is value in having Defendant answer these questions, Defendant answered a previous form interrogatory stating that he does not go by any other name.

Question 7[10] concerns whether Queen of the Valley pays Defendant’s salary. According to the Court’s review of the transcript, Defendant already testified that he was paid by CEP.

Question 8[11] concerns who would have been responsible for Decedent before Defendant was notified. Defendant’s argument that the original question calls for a legal conclusion is unavailing, especially considering that Defendant could easily clarify. According to the Court’s review of the transcript, Defendant asked for clarification and Plaintiffs’ counsel rephrased the question, with Defendant later testifying that Randy Gilman saw the patient initially. This does not clearly answer the question about who “would have been responsible” and merely provides testimony that Randy Gilman saw her initially. For example, it is possible that Randy Gilman saw her initially but someone else was in charge and/or someone else assisted Randy Gilman or many other possibilities. The Court finds it appropriate for Defendant to answer the original question. The Court finds an oral deposition for this specific question is unnecessary and can be easily answered through a written deposition or specific interrogatory.

Question 9[12] concerns whether an author of another document made an inaccurate entry or was a mistake. According to the Court’s review of the transcript, Defendant testified that he did not do the event that was documented in the note, i.e., the inaccurate entry. This question likely calls for Defendant to speculate and is better positioned to be asked to the author of the document. Nevertheless, Defendant could possibly answer this question if for some reason has knowledge. The objection based on speculation is appropriate at trial. The Court finds it appropriate for Defendant to answer the original question. The Court finds an oral deposition for this specific question is unnecessary and can be easily answered through a written deposition or specific interrogatory.

Question 11[13] concerns whether Defendant supervises Randy Gilman. Defendant testified about his supervisory responsibility for Randy Gilman at other points during the deposition.

Question 14[14] concerns whether Defendant could know about patients Randy Gilman saw. According to the Court’s review of the transcript, Defendant testified during the deposition that answers this question.

Question 15[15] concerns what Defendant’s understanding of his role as supervisor to Randy Gilman. Defendant testified about his supervisory responsibility for Randy Gilman at other points during the deposition.

The Court denies Plaintiffs’ request as to question numbers 2a, 2b, 2c, 5, 6, 7, and 14-15.

The Court grants Plaintiffs’ request as to question numbers 3, 8, and 9.

Whether Question Nos. 12 was a Rhetorical Question

Defendant argues that question number 12 was a rhetorical question that did not need to be answered.

Question 12[16] concerns whether Defendant knew that Decedent died. This question is an abuse of the deposition because Defendant knows that he is being sued in a wrongful death case. Plaintiffs do not respond to this argument other than claiming without explanation that question 12 “was anything but” a rhetorical question. (Opposition 3:2.) The Court treats this failure to oppose an inference that Defendant’s argument has merit. (See Sexton, supra, 58 Cal.App.4th at p. 1410.)

The Court denies Plaintiffs’ request as to question number 12.

Whether Question Nos. 10, 13, and 16 are prohibited by caselaw

Defendant argues that question numbers 10, 13, and 16 are prohibited by caselaw, specifically County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446 (County).

Before addressing the issue, the Court identifies the specific questions. Question 10[17] concerns whether Defendant was surprised to see an entry on a record. Question 13[18] concerns whether Defendant developed an opinion based on looking at the documents what caused Decedent to suffer the consequences of reduced blood flow. Question 16,[19] which are two questions identified with the same number, concerns whether Randy Gilman could have done something different on the day of the incident.

Physicians or other health care providers sued for malpractice must answer questions about the impressions they obtained and the reasons for their behavior at the time of the events in issue. However, questioning goes too far which elicits expert opinions about the deponent's present opinions or conclusions concerning those events, unless the witness has been designated as an expert. (County, supra, 224 Cal.App.3d at p. 1457.)

Here, Defendant is a treating physician and not a retained expert. Question 10 merely asks for Defendant’s opinion about a medical entry, and not for his expert opinion on causation. Perhaps if Defendant knew the nurse was sloppy he should have questioned her work in this case. The Court finds this question appropriate. Questions 13 and 16 improperly seek to obtain his current impressions and opinions. Plaintiffs incorrectly try to apply Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31 to the case here, which involves a defendant physician who has not been designated as an expert and is being asked about his present day impressions as to causation. Schreiber involved depositions of nonparties who were the treating physicians.

The Court denies Plaintiffs’ request as to question numbers 13 and 16.

The Court grants Plaintiffs’ request as to question number 10. The Court finds an oral deposition for this specific question is unnecessary and can be easily answered through a written deposition or specific interrogatory.

SANCTIONS

Both parties seek monetary sanctions.

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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.” (Code Civ. Proc. § 2025.480, subd. (j).)

Plaintiffs seek $7,831.20 in monetary sanctions. This request does not appear in Plaintiffs’ notice of motion, and therefore the notice is improper. (See Code Civ. Proc., § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. . . . .”].). Accordingly, the Court denies Plaintiffs’ request for monetary sanctions at the outset and no further analysis is necessary.

Defendant seeks $2,390.00 in monetary sanctions. Defendant did not entirely prevail and the Court does not find monetary sanctions appropriate. Additionally, the Court notes that Defendant’s counsel improperly instructed Defendant not to answer certain questions. The Court denies several of Plaintiffs’ requests not because Defendant made proper objections, but because ordering Defendant to testify again on certain issues is a waste of time.

CONCLUSION

The Court grants Plaintiff’s motion in part. Defendant is to answer the following questions either through a written deposition or interrogatories: 3, 8, 9, and 10.

The Court denies Defendant’s request for monetary sanctions.

The Court denies Plaintiff’s request for monetary sanctions.

[1] Most of the defendants are no longer in this case. The only remaining defendants in this action are Defendant and Randy Gilman, P.A.

[2] I'm curious — do you do — do you have any hobbies?

[3] So would you talk to Randy?

[4] You said you drink socially.

[5] All right. Were you drinking on May 5th, 2017?

[6] Do you go drinking with your friends on Cinco de Mayo?

[7] Are you responsible for overseeing any of the staff at Queen of the Valley?

[8] And are you responsible for Randy Gilman, or is that an unusual question as well to you? Because maybe I'm misunderstanding how the roles work. I'm just trying to figure it out.

[9] You've never used another name, right? . . . Have you used a different name other than Shun Pa?

[10] Does Queen of the Valley pay your salary?

[11] Who would have been responsible then for Mrs. Gaspar before you were notified?

[12] And she wouldn't put notes in there that were inaccurate unless she did something —or could this be a mistake? Because it says, "was seen and examined by Dr. Pa 02:23.

[13] Do you supervise Randy Gilman?

[14] Okay. So it would be relatively impossible for you to know, unless you check every patient that Mr. Gilman was examining while you guys were on simultaneous shills?

[15] Okay. What is your understanding of your role as a supervisor to Randy Gilman?

[16] You know that the young girl passed away, right?

[17] Are you surprised to see that the Nurse Gonzales made that entry?

[18] Looking at the documents today, you’re not in the high stress situation. Have you developed an opinion as to what caused Sarah Gaspar to suffer those consequences?

[19] Could Randy Gilman have done anything different that day? . . . You don't have an opinion to that?

Case Number: BC704049    Hearing Date: January 14, 2020    Dept: S27

INTRODUCTION

Defendant Citrus Valley Health Partners, Inc. (dba Queen of the Valley Hospital; “Citrus Valley”) moves for summary judgment on the complaint of Plaintiff Mauro Gaspar Guzman and Zabdi Gaspar Guzman “as heirs of Minor Child A (collectively “Guzman”):

1. Negligence (wrongful death)

ALLEGATIONS

Plaintiffs are the parents on “Minor Child A.” On May 6, 2017 the child, two years of age, was brought to the emergency department of a medical facility operated by Citrus Valley with symptoms of vomiting and headache. Plaintiff Zabdi Guzman (“mother”) alleges she informed “nurses and medical staff” numerous times that the child had a “right front ventriculoperitoneal shunt placed in her head.” The child had been born at this facility and Citrus Valley is alleged to have the child’s medical records readily accessible to them.

Plaintiffs allege that Defendant failed to properly evaluate and screen the child, failed to perform the assessments, imaging and tests necessary for a timely accurate diagnosis.

The child was transferred to other Miller Children’s Hospital, but the child died several hours after transfer. Although Plaintiffs do not allege what the condition was or what the diagnosis and treatment should have been, they do allege that delays in patient care and failure to diagnose caused the child’s death.

There is a generalized allegation that all defendants were the agents and employees of the others, but no facts are alleged in support of this legal conclusion.

DISCUSSION

The evidence before the court is considerably more detailed than the bare allegations set forth above. This is a motion whereby expert testimony is presented negating breach of the standard of care and causation.

As a preliminary issue, hospitals do not practice medicine and are not vicariously liable for the acts or omissions of physicians absent an employer/employee relationship.

The declaration of Susan Taylor, Coordinator of Medical Staff Services at the subject facility establishes that neither physician’s assistant Randy Gilman nor Dr. Shun Pa are the Defendant’s employees. Dr. Pa had staff privileges and Randy Gilman had privileges as a physician’s assistant under the supervision of an emergency physician. They were independent contractors.

The deposition of Zabdi Guzman is offered to show that she was on notice that the physicians were not employees. The notice is in Spanish, a language she testified as she can read and understand.

The medical standard of care and causation to a reasonable medical probability may only be established through expert testimony.

The medical records provide the foundation for the expert opinion. These records are in evidence.

Defendant’s expert is Dr. Ray Ricci, board-certified in emergency medicine. Health & Safety Code §1799.110(c) requires specific requirements for expert foundation in the area of emergency medicine:

“(c) 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. For purposes of this section, “substantial professional experience” shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in general acute care hospital emergency departments in the same or similar localities where the alleged negligence occurred.”

Dr. Ricci’s declaration at paragraphs 1 – 2 and his curriculum vitae authenticated therein satisfies the special foundational requirements for expert opinion in this area. He indicates he has reviewed the medical records from Memorial Care Long Beach Medical Center (Miller Children’s Hospital), the records of Dr. Emil Dominguez, the deposition of Dr. O’Brien, and the deposition of Plaintiff Zabdi Guzman. These are all in evidence and provide foundation for expert opinion.

Dr. Ricci explains that the minor child had a birth defect called myelomeningocele – a condition where the spinal cord does not develop properly – and which results in hydrocephalus, a build-up of fluid in deep brain cavities. This is why the shunt was placed in the patient’s head on October 28, 2014.

Dr. Ricci details the facts of the patient’s presentation in the ER on May 26, 2017. The court will not repeat these facts.

Physician’s Assistant Gilman performed a physical examination. The court will not repeat the details as set forth in paragraphs 5C – 5d. Diagnostic exams were evaluated, then re-evaluated – the patient was not in extreme distress and was responding well to the treatment provided. Mother was instructed to follow-up with the pediatrician within one to two days or to return to the ER if symptoms worsened.

At 4:21 a.m. before the patient was discharged there was a change in conditions. The patient turned pale and less responsive. Staff observed a pink frothy substance coming from the nose and mouth.

ER specialist Dr. Pa was summoned, and told the patient was in respiratory distress. Without repeating the details of x-rays and other evaluations, an electrocardiogram was interpreted as showing atrial bradycardia, non-specific T wave abnormality. A chest x-ray at 5:47 a.m. was interpreted by a radiologist as showing “diffuse bilateral lung opacities, concerning for severe respiratory distress syndrome, as well as decreased gastric distention.”

Dr. Pa contacted Dr. O’Brien, a pediatric critical care specialist at Miller Children’s Hospital and requested a transfer. Dr. O’Brien recommended an epinephrine drip and maintenance fluids and ordered a critical transport team. The team arrived at 6:44 a.m. and the Miller team took over “bagging.”

The court omits the details of treatment at paragraphs 5M – 5N. The patient and team left the facility at 9:00 a.m. and arrived in Long Beach at 9:29 a.m. An emergency ventriculostomy was performed to relive cranial pressure “following presumed ventriculoperitoneal shunt malfunction.” The patient died despite the procedures employed.

Dr. Ricci’s ultimate opinion is that the care and treatment rendered by the nursing staff and employees complied with the standard of care in the community. He explains that diagnostic testing and decision making to admit or discharge a patient rests exclusively with the treating physicians.

He further opines to a reasonable medical probability that nothing could have been done by physicians, physician’s assistants, nurses or staff would have changed the outcome and that no act or omission caused injury.

He opines that the patient was properly assessed and timely transferred.

The court concludes that the opinion is competent and shifts the burden to Plaintiffs to show a triable issue of fact.

The court declines to deny the motion for non-compliance with the CRC 3.1350. The court is sympathetic to this argument because it weekly deals with technical deficiencies which complicate analysis on summary judgment. But the law prefers rulings on the merits and the purported deficiencies have not prevented Plaintiffs from submitting a cogent opposition.

The court disagrees that Dr. Ricci failed to provide a reasoned analysis.

Plaintiff has submitted the expert declaration of Dr. Ross Levin who is board-certified in emergency medicine. His declaration satisfies the requirements of Health & safety Code §1799.110 and he is qualified to render expert opinion in this case. He lays foundation for his opinion by designation of the documents he has reviewed, which is fundamentally the same as the moving expert.

Without detailing his testimony, he gives a reasoned explanation as to why PA Gilman and Dr. Pa breached the applicable standard of care and attributes the patient’s death to those breaches.

If this was a motion by the Dr. Pa or PA Gilman there would be clear triable issues. But the motion is by the facility. Dr. Levin’s declaration makes what appears to be a single criticism of the employees of the hospital at Paragraph 9 stating “there is no documentation in the reviewed documents that a Spanish interpreter was utilized.” This has no apparent connection to causation of injury. Zabdi Guzman’s deposition, as noted above, reflects she had a Spanish language notice that physicians were not employees and there is competent evidence Randy Gilman was not an employee. The opposing memorandum argues there is a triable issue whether CVHP failed to observe the decedent’s malfunctioning VP shunt. But Dr. Levin’s declaration ascribes the breaches to PA Gilman and Dr. Pa (Paragraph 15 – 16). Paragraph 18 indicates Dr. Levin’s opinion that the patient would have survived “if the standard of care was followed by the Emergency Providers PA Gilman and Dr. Pa.

The court does not see where Dr. Levin ascribes breaches to anyone other than Dr. Pa and PA Gilman, and Plaintiff’s counsel is invited to specify where such an opinion is found.

The court will hear oral argument which must focus on the culpability of Citrus Valley Health Partners, Inc.

The court does not see where there is evidence creating a triable issue of ostensible agency. The fact that Zabdi does not recall signing the consent form is immaterial. She does not deny signing it. Whitlow is not binding authority on this court because the facts are distinct. Where is the evidence that Zabdi believed she was dealing with hospital employees?

There is no doubt that Dr. Levin raises significant issues as to the care and treatment rendered by Dr. Pa and PA Gilman, but that is not sufficient by itself to defat this motion.