This case was last updated from Los Angeles County Superior Courts on 12/07/2022 at 01:53:57 (UTC).

RITA M CABEZA ET AL VS HUNTINGTON MEMORIAL HOSPITAL ET AL

Case Summary

On 09/14/2017 RITA M CABEZA filed a Personal Injury - Medical Malpractice lawsuit against HUNTINGTON MEMORIAL HOSPITAL. This case was filed in Los Angeles County Superior Courts, Pasadena Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI and JOHN J. KRALIK. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5841

  • Filing Date:

    09/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JON R. TAKASUGI

JOHN J. KRALIK

 

Party Details

Plaintiff

CABEZA RITA M.

Defendants

SAAD AYMAN M.D.

STEVENS PERRY M.D.

QUTUBIDDIN DR. M.D.

FISCHEL DAVID D.O.

GRAMMATICO SHEILA M.D.

HUNTINGTON MEMORIAL HOSPITAL

BEDROSIAN ARMEN M.D.

HEALTH CARE PARTNERS INC.

KOWALSKI M.D. ADAM

RASHTIAN M.D. DR.

15 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

ONTIVEROS AIDE CRISTINA ESQ.

ONTIVEROS AIDE CRISTINA

Defendant Attorneys

LIGORSKY BRENDA

MCCOLGAN KATHLEEN

GRASS JEFFERY WAYNE

BLESSEY RAYMOND LESLIE

MAYER PATRICK WILLIAM

TROTTER MICHAEL J.

GONZALEZ MICHAEL DALE

BRANDMEYER KENT THOMAS

 

Court Documents

RETURNED MAIL

10/3/2022: RETURNED MAIL

Notice - NOTICE OF CASE REASSIGNMENT AND ORDER FOR PLAINTIFF TO GIVE NOTICE WITH PROOF OF SERVICE

10/5/2022: Notice - NOTICE OF CASE REASSIGNMENT AND ORDER FOR PLAINTIFF TO GIVE NOTICE WITH PROOF OF SERVICE

Notice of Case Reassignment and Order for Plaintiff to Give Notice

9/22/2022: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice of Ruling

9/19/2022: Notice of Ruling

Opposition - OPPOSITION TO EX PARTE MOTION TO CONTINUE TRIAL

9/9/2022: Opposition - OPPOSITION TO EX PARTE MOTION TO CONTINUE TRIAL

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

9/12/2022: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER CONTINUING TRIAL...)

9/12/2022: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER CONTINUING TRIAL...)

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER CONTINUING TRIAL AND ALL TRIAL RELATED DEADLINES FOR 90 DAYS OR (ALTERNATIVELY) FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING OF THE SAME

9/9/2022: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER CONTINUING TRIAL AND ALL TRIAL RELATED DEADLINES FOR 90 DAYS OR (ALTERNATIVELY) FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING OF THE SAME

Minute Order - MINUTE ORDER (COURT ORDER)

9/2/2022: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 09/02/2022

9/2/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 09/02/2022

Notice of Change of Address or Other Contact Information

7/12/2022: Notice of Change of Address or Other Contact Information

Status Conference Statement

9/29/2021: Status Conference Statement

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: REMAINING DEFENDANTS)

10/6/2021: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: REMAINING DEFENDANTS)

Order - Dismissal

10/6/2021: Order - Dismissal

Request for Dismissal

10/6/2021: Request for Dismissal

Request for Dismissal

10/6/2021: Request for Dismissal

Order - ORDER [PROPOSED] ON APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

10/6/2021: Order - ORDER [PROPOSED] ON APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

Notice of Ruling - NOTICE OF RULING RE: 10-06-2021 STATUS CONFERENCE, OSC RE DISMISSAL (SETTLEMENT) FOR DEFENDANT PASADENA HOSPITAL ASSOCIATION, LTD., MANDATORY SETTLEMENT CONFERENCE DATES, AND TRIAL

10/14/2021: Notice of Ruling - NOTICE OF RULING RE: 10-06-2021 STATUS CONFERENCE, OSC RE DISMISSAL (SETTLEMENT) FOR DEFENDANT PASADENA HOSPITAL ASSOCIATION, LTD., MANDATORY SETTLEMENT CONFERENCE DATES, AND TRIAL

314 More Documents Available

 

Docket Entries

  • 01/03/2023
  • Hearing01/03/2023 at 09:30 AM in Department P at 300 East Walnut St., Pasadena, CA 91101; Final Status Conference

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  • 01/03/2023
  • Hearing01/03/2023 at 09:30 AM in Department P at 300 East Walnut St., Pasadena, CA 91101; Jury Trial

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  • 10/10/2022
  • DocketCase reassigned to Pasadena Courthouse in Department P - Hon. Margaret L. Oldendorfeffective 10/10/2022; Reason: Inventory Transfer

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  • 10/05/2022
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice with Proof of Service; Filed by: Perfecto I. Cabeza (Plaintiff); Rita M. Cabeza (Plaintiff); As to: Artin Minaeian, M.D. (Defendant)

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  • 10/03/2022
  • DocketRETURNED MAIL; Filed by: Clerk; As to: Pasadena Hospital Association, LTD. Erroneously Sued As HUNTINGTON MEMORIAL HOSPITAL (Defendant)

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  • 09/22/2022
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by: Clerk

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  • 09/22/2022
  • DocketUpdated -- 01/03/2023 Final Status Conference: Location changed from Department B to Department P

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  • 09/22/2022
  • DocketUpdated -- 01/03/2023 Jury Trial: Location changed from Department B to Department P

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  • 09/19/2022
  • DocketNotice of Ruling; Filed by: Perfecto I. Cabeza (Plaintiff); Rita M. Cabeza (Plaintiff)

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  • 09/12/2022
  • DocketUpdated -- Ex Parte Application for an Order Continuing Trial and all Trial Related Deadlines for 90 Days or (alternatively) for Order Shortening Time for Notice and Hearing of the Same: Filed By: Rita M. Cabeza (Plaintiff),Perfecto I. Cabeza (Plaintiff); Result: Granted; Result Date: 09/12/2022

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540 More Docket Entries
  • 09/15/2017
  • DocketERROR with ROA message definition 92 on [ln 33, col 29] with Document:43617065

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  • 09/15/2017
  • DocketUpdated -- Request to Waive Court Fees: Result: Granted; Result Date: 09/15/2017; As To Parties: Perfecto I. Cabeza (Plaintiff)

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  • 09/15/2017
  • DocketDocument:Order-Court Fee Waiver Filed by: Clerk

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  • 09/15/2017
  • DocketDocument:Order-Court Fee Waiver Filed by: Clerk

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  • 09/15/2017
  • DocketCalendaring:Final Status Conference 02/28/19 at 10:00 am Yolanda Orozco

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  • 09/15/2017
  • DocketCalendaring:Jury Trial 03/14/19 at 8:30 am Yolanda Orozco

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  • 09/14/2017
  • DocketCase Filed/Opened:Med Malpractice (Drs & Surgeons)

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  • 09/14/2017
  • DocketDocument:Complaint Filed by: N/A

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  • 09/14/2017
  • DocketDocument:Request-Waive Court Fees Filed by: Plaintiff/Petitioner

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  • 09/14/2017
  • DocketDocument:Request-Waive Court Fees Filed by: Plaintiff/Petitioner

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Tentative Rulings

b"

Case Number: ****5841 Hearing Date: October 29, 2021 Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

rita cabeza, et al.,

Plaintiffs,

v.

huntington memorial hospital, et al.,

Defendants.

Case No.: ****5841

Hearing Date: October 29, 2021

[TENTATIVE] order RE:

defendant ian ross, m.d.’s motion for summary judgment

BACKGROUND

A. Allegations

Plaintiffs Rita M. Cabeza (“Mrs. Cabeza”) and Perfecto I. Cabeza (“Mr. Cabeza”) commenced this action against various medical Defendants. They allege that on June 16, 2016, Mrs. Cabeza sought urgent medical attention from Defendant Health Care Partners Urgent Care aka Health Care Partners, Inc. for symptoms of impending stroke. They allege that Mrs. Cabeza informed Defendants of her symptoms and was transported to Defendant Huntington Memorial Hospital (“Hospital”) by ambulance, but Hospital’s physicians and nursing staff failed to properly evaluate, screen, test, and detect her stroke symptoms and thereby failed to provide adequate medical treatment. They allege that the physicians and nurses failed to administer appropriate anti-stroke medication during a critical 4.5-hour window after Mrs. Cabeza was admitted and she was left unattended.

The fourth amended complaint (“4AC”), filed March 4, 2021, alleges causes of action for: (1) medical malpractice by Mrs. Cabeza; and (2) loss of consortium by Mr. Cabeza.

B. Motion for Summary Judgment

On July 16, 2021, Defendant Ian Ross, M.D. (“Dr. Ross”) filed a motion for summary judgment against Plaintiffs on the grounds that there are no triable issues of material fact as to Dr. Ross’ compliance with the standard of care and causation.

On October 15, 2021, Plaintiffs filed an opposition brief.

On October 22, 2021, Dr. Ross filed a reply brief.

LEGAL STANDARD

A defendant moving for summary judgment has the burden of proving that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. In a medical malpractice action, the elements 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) 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 negligence (citations omitted).” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612, emphasis in original.) Additionally, the standard of care against which doctors are measured is a matter within the knowledge of experts. Breach of the standard of care may only be proven by expert testimony. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

EVIDENTIARY OBJECTIONS

With the reply brief, Dr. Ross submitted an evidentiary objection to the declaration of Dr. David A. Lombardi, M.D., Plaintiff’s expert. Dr. Ross objects to the entirety of Dr. Lombardi’s declaration, arguing that Dr. Lombardi is a neurologist, but Dr. Ross is a neurosurgeon such that Dr. Lombardi cannot opine as to the standard of care regarding Dr. Ross’ work performed. The Court overrules the objection. The Court does not find that the entirety of the declaration to be objectionable or warrants striking. While Dr. Lombardi may not be a neurosurgeon, he is still qualified to opine as to the standard of care of doctors in the Southern California area.

DISCUSSION

Dr. Ross moves for summary judgment, arguing that he complied with the appropriate standard of care and did not cause or contribute to Mrs. Cabeza’s injuries. In support of his initial burden, Dr. Ross provides the following facts.

Mrs. Cabeza presented to Health Care Partners Urgent Care on June 16, 2016, at approximately 10:00 p.m., after experiencing stroke-like symptoms. (Def.’s Fact 1.) At 11:53 p.m., a stat EKG revealed atrial fibrillation and Cardizem 20 mg was ordered but not given because her troponin level came back at 0.300; 911 was called. (Id. at 2.)

On June 17, 2016, Mrs. Cabeza was transported by ambulance, and arrived in Hospital’s Emergency Department at 12:47 a.m. (Id. at 3.) At 12:54 a.m., after admission to the ER, Mrs. Cabeza’s vitals were again taken. (Id. at 4.) At 1:17 a.m., Timothy Lin, D.O., examined Mrs. Cabeza and noted that she suffered a prior transient ischemic attack, she was hypertensive and obese, and she had an altered level of consciousness, headache, dizziness and palpitations. (Id. at 5.) Mrs. Cabeza underwent a neurological examination soon after, and no focal neurological deficits were noted, and she had normal sensory, motor, speech, and coordination. Her differential diagnosis was confusion, dementia, cerebral vascular accident, transient ischemic attack, urinary tract infection, pneumonia, dehydration, electrolyte imbalance, intracranial hemorrhage, acute coronary syndrome, and atrial fibrillation. (Id. at 6.) An EKG was performed and revealed a heart rate of 121, atrial fibrillation with rapid ventricular response, and nonspecific ST wave abnormalities. (Id. at 7.) A chest x-ray was taken at 1:46 a.m. that demonstrated an unremarkable heart, mediastinum and pulmonary vasculature; her lungs were free of focal airspace consolidation; there was no pneumothorax or sizable pleural fluid collection; and there was no acute intrathoracic process. (Id. at 8.) At 2:23 a.m., she underwent a head CT that indicated “no acute intracranial abnormality” but noted moderate ICA atherosclerosis. (Id. at 9.) Shortly before 3:00 a.m., Maria T. Aranas, D.O., examined Mrs. Cabeza and noted that she reported feeling better and she denied any episodes of chest pain but experienced palpitations; it did not appear that Dr. Aranas performed a neurological exam. (Id. at 10.) At 3:08 a.m., Dr. Lin ultimately diagnosed Mrs. Cabeza with TIA and atrial fibrillation with rapid ventricular response and he planned to admit her to the telemetry unit. (Id. at 11.) He noted that she “remain[ed] in critical condition” and “require[ed] constant attention” due to her multiple comorbidities including atrial fibrillation with RVR, TIA, elevated troponin.” He noted that he performed serial assessments and spoke with Dr. Aranas. (Id.) At 3:16 a.m., Mrs. Cabeza was started on Diltiazem and her heart rate was well controlled, then given Digoxin with further improvement of heart rate control, and also given a dose of Metropolol. (Id. at 12.) Her brain CT without contrast was unremarkable. Her troponin level was trending up, and because she did not complain of chest pain, they believed it was due to cardiac strain. (Id.)

At 3:56 a.m., Mrs. Cabeza was transferred from the ER to the neurology unit, where she was reported as stable and could verbalize her needs and follow commands. (Id. at 13.) She was examined by nurses at 4:22 a.m. (Id.) At 5:38 a.m., a Rapid Response Code was called for possible asphasia, a six second pause in her heart rate, and not responding to questions and Dr. Armen Bedrosian and Dr. Afrina Qutubuddin responded. (Id. at 14.) At 6:03 a.m., Dr. Bedrosian noted that by the time he and Dr. Qutubuddin responded to the call, Mrs. Cabeza was responding to questions appropriately, her speech improved, and her bilateral upper extremity strength was intact, such that at 5:50 a.m., the code was called off. (Id. at 16.)

At 8:11 a.m., Shumen Zhen, N.P., noted that Mrs. Cabeza seemed to be confused and had right sided ignorance. A code stroke was initiated and she was diagnosed with cerebral vascular event with prior transient ischemic attack. Nurse Zhen’s plan was to consider anticoagulation therapy once approved by neurology. (Id. at 17.) Kimberly Garrison, R.N., noted that at 8:30 a.m., Mrs. Cabeza’s daughter noticed Mrs. Cabeza had garbled speech, was unable to follow simple commands, and was flaccid to the right side. An in-house code stroke/rapid response was called at 8:35 a.m. upon Justin Levy M.D. and Eva Wang, M.D.’s return to the call. (Id. at 18.) At 8:37 a.m., Dr. Minaeian. returned the call. An EKG read atrial fibrillation that was her admitting diagnosis. She was then taken for a CT with interventional radiology and was to be transferred. (Id.) At 9:02 a.m., Plaintiff underwent a CT exam with 2D reconstruction, which revealed a punctuate hyperdensity in the proximal M2 branch of the left middle cerebral artery suggestive of a thrombus. (Id. at 19.) At 9:12 a.m., the CT angiogram of the head with IV contrast revealed an abrupt occlusion in the dominant M2 division of the left middle cerebral artery with a very large core penumbra mismatch in the perfusion maps. The M1 segment, cranial segments of the ICAs, right MCA, and anterior cerebral arteries were patent. (Id. at 20.)

Dr. Minaiean was the first neurologist to examine Mrs. Cabeza following the stroke call. He noted that the last known well time for the patient was at either at 3:00 a.m. – the time of admission – and therefore, Mrs. Cabeza was not a candidate for tissue Plasminogen Activator (“tPA”) an intravenous treatment that can restore blood flow to the brain and reduce clot size so long as it is received within four hours of the well time. Dr. Minaeian claims to have immediately contacted Dr. Ross. (Id. at 21.)

At 9:40 a.m., Dr. Ross talked to Mrs. Cabeza’s family about performing a clot extraction. At 9:58 a.m., the family was noted to be attempting to contact Mr. Cabeza to sign the extraction consent form. (Id. at 22.) At 10:06 a.m., Dr. Ross performed a mechanical thrombectomy of the left middle cerebral artery without successful recanalization. He noted that he was able to get quite a bit of the clot out and opened the middle cerebral artery a little further downstream, but he could not get the distal vessels recanalized even though the angiogram looked slightly better as the stump had been pushed farther along. Dr. Ross noted that there was a lesion that appeared to be calcified and could not be crossed a second time. Dr. Ross was going to use a penumbra device; however, due to difficulty accessing the groin, he aborted the procedure. (Id. at 23.)

Dr. Ross provides the declarations of expert Duncan McBride, M.D., regarding the standard of care and causation in support of the motion. Dr. McBridge is a physician and neurosurgeon who is licensed to practice medicine in the State of California. (See Def.’s Fact 24-28.)

· Based upon his review of the materials in this case, and further based upon his education, training and experience, the care and treatment provided to Mrs. Cabeza by neurosurgeon Dr. Ross was appropriate and complied in all respects with the standard of care as required at all times pertinent to this matter. Dr. Ross fully complied with the standard of care during his care and treatment of Mrs. Cabeza. (Ross Decl., ¶7.)

· tPA is an intravenous treatment that can restore blood flow to the brain and reduce clot size so long as it is received within four hours of the well time. Although tPA can be an effective treatment for those suffering stroke symptoms, there is a significant amount of people upon whom tPA does not work and there is no guaranteed result. tPA is contraindicated after four hours due to increased risk of hemorrhage into the cerebral infarction. (Id., ¶8.) As the medical records reflect, a stroke alert was activated at 8:35 a.m., and Dr. Ross was not asked to evaluate Mrs. Cabeza until 8:37 a.m. at the earliest. Moreover, the records indicate that her last known “well time” was 3:00 a.m. Therefore, Dr. Ross could not have administered tPA because the records demonstrate that he was consulted outside of the tPA window. (Id., ¶9.) In in the operative note, Dr. Ross noted that while operating, he found a calcified vessel and calcified plaque that was causing the arterial blockage. tPA does not work on calcium. Therefore, even had Dr. Ross examined Mrs. Cabeza within the tPA window and administered tPA, it would not have worked and cleared the clot. (Id., ¶10.)

· To a reasonable degree of medical probability, there was no act or omission on the part of Dr. Ross that caused or contributed to Mrs. Cabeza’s injuries. There was nothing that Dr. Ross did, or failed to do, that caused her alleged injuries. (Id., ¶11.)

Based on the expert opinion of Dr. McBridge, the Court finds that Dr. Ross has upheld his initial burden in summary judgment on the cause of action for medical malpractice. Thus, the burden shifts to Plaintiffs to raise a triable issue of material fact.

In opposition, Plaintiffs provide the opposing expert declarations of Dr. David A. Lombardi, M.D. (neurologist physician). Dr. Lombardi states that he is familiar with the applicable standard of care and that based on his experience and qualifications, he opines that Dr. Ross breached the standard of care. (Lombardi Decl., ¶¶3-5.) Dr. Lombardi makes the following opposing opinions:

· Dr. Ross breached the standard of care when he performed the mechanical thrombectomy without also administering T-PA prior to the procedure given that Mrs. Cabeza had 2 TIAs with aphasia within 7 hours and her last known well time was 0650. (Id., ¶42.) He states that Dr. Ross “breached the standard of care by not calculating the Last Known Well and presumably relying on Dr. Minaean's calculations, and failing to administer T-PA to the patient. Dr. Ross had ample opportunity to order T-PA be administered to Patient given that at 9:40 AM he was speaking with the family about the risks and benefits of the mechanical thrombectomy, and T-PA could have been given until 10:20 A.M. (See Exhibit M.) Dr. Lombardi disagrees with expert Dr. David Alexander's assessment that the calcified material (noted during the mechanical thrombectomy procedure) made it less susceptible to T-PA or so called 'clot-busting' agents. It should be noted that the CT of the brain at 9:02 AM on June 17, 2016 showed results of a punctate increased density proximal M2 suggestive of thrombus. These results were discussed by the radiologist with the Stroke Neurologist at 0935 hours. The Patient had an opportunity to be given the T-PA before the mechanical thrombectomy in order to lessen the severity of her stroke symptoms, and she was denied that opportunity to her detriment.” (Id.; Pl.’s Fact 24; Pl.’s Additional Material Fact [AMF] 29.)

· Dr. Lombardi disputes Dr. Ross’s Fact 25 regarding the time to administer tPA, (Def.’ Fact 25; Pl.’s Fact 25.) While Dr. McBride opined that tPA should be received 4 hours of the well time, Dr. Lombardi opines that it can be received within 4.5 hours of the last known well time.

· Dr. Lombardi opines that Dr. Ross’s failure to correctly calculate the Last Known Well for Mrs. Cabeza of 0550 AM, and failure to administer T-PA to her within the 4.5 hour window prior to 1020 AM, each and all contributed to the cause and/or severity of her stroke symptoms. (Lombardi Decl., ¶45.)

· If Mrs. Cabeza’s left M2 vessel occlusion occurred over time, then the 4.5 hour window for administration of T-PA was even more critical. (Lombardi Decl., ¶46; Pl.’s AMF 30.) “The administration of T-PA offered the best chance of lessening the severity of Patient's stroke symptoms. If T-PA had been administered to Patient within the 4.5 hour window, to a reasonable degree of medical probability, Mrs. Cabeza's stroke symptoms would likely have been less severe.” (Lombardi Decl., ¶46.)

· To a reasonable degree of medical probability, Dr. Lombardi opines that Dr. Ross’s breaches of the standard of care were substantial factors in causing or contributing to Mrs. Cabeza’s stroke and/or the severity of her stroke. (Lombardi Decl., ¶47; Pl.’s Fact 28.)

In reply, Dr. Ross argues that Dr. Lombardi lacks the ability to offer expert opinion on the standard of care of a neurosurgeon. However, the Court finds that sustaining the entirety of the declaration on this basis is not appropriate. Further, Dr. Lombardi may still be qualified to provide expert testimony on the standard of care regarding the appropriate time to administer tPA to Mrs. Cabeza. Dr. Lombardi has not provided any contrary evidence showing that a neurologist is unqualified to provide opinions regarding a patient’s last known well time or the time frame to administer tPA. This does not appear to be solely in the purview of a neurosurgeon only. Next. Dr. Ross argues that Dr. Lombardi’s declaration fails to discuss Dr. McBride’s declaration. This is true as Dr. Lombardi’s declaration was signed in 2020, while Dr. McBride’s declaration is signed in 2021. While Dr. Lombardi’s declaration does not discuss or respond to Dr. McBride’s declaration, the Court finds that this is not fatal to Dr. Ross’ opposition. Plaintiff’s expert Dr. McBride opined about the propriety of administering tPA in Dr. Ross’ position. Dr. Lombardi’s submitted declaration addresses the same subject and provides opinions that Dr. Ross had time to administer tPA. Finally, Dr. Ross argues that the opposing declaration fails to mention Dr. Ross at all, but the declaration names Dr. Ross and opines as to the work he performed. (See e.g., Lombardi Decl., ¶¶36, 44, 47.)

At the summary judgment stage, the Court finds that Plaintiffs’ opposing expert declaration raises sufficient triable issues of material fact that warrant denying the motion for summary judgment as to Mrs. Cabeza’s medical malpractice claim.[1]

CONCLUSION AND ORDER

Defendant Ian Ross M.D.’s motion for summary judgment is denied.

Defendant shall provide notice of this order.


[1] The Court notes that Dr. Ross’ moving papers do not address the 2nd cause of action for loss of consortium. Nevertheless, even if the moving papers had discussed the 2nd cause of action, the motion for summary judgment would be denied for the reasons discussed above. (See Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927 [stating that a loss of consortium cause of action is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.].)

"


Case Number: ****5841    Hearing Date: February 26, 2021    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

rita cabeza, et al.,

Plaintiffs,

v.

huntington memorial hospital, et al.,

Defendants.

Case No.: ****5841

Hearing Date: February 26, 2021

[TENTATIVE] order RE:

motion for leave to file fourth amended complaint

BACKGROUND

A. Allegations

Plaintiffs Rita M. Cabeza (“Mrs. Cabeza”) and Perfecto I. Cabeza (“Mr. Cabeza”) commenced this action against various medical Defendants, alleging that on June 16, 2016, Mrs. Cabeza sought urgent medical attention from Defendant Health Care Partners Urgent Care aka Health Care Partners, Inc. (“Health Care Partners”) for symptoms of impending stroke. They allege that Mrs. Cabeza informed Defendants of her symptoms and was transported to Defendant Huntington Memorial Hospital (“Hospital”) by ambulance, but Hospital’s physicians and nursing staff failed to properly evaluate, screen, test, and detect her stroke symptoms and thereby failed to provide adequate medical treatment. They allege that the physicians and nurses failed to administer appropriate anti-stroke medication during a critical 3-hour window after Mrs. Cabeza was admitted and she was left unattended.

The third amended complaint (“TAC”), filed February 6, 2020, alleges causes of action for: (1) medical malpractice as to Mrs. Cabeza; and (2) loss of consortium as to Mr. Cabeza.

B. Motion on Calendar

On February 3, 2021, Plaintiffs filed a motion for leave to file the Fourth Amended Complaint (“4AC”).

The Court is not in receipt of an opposition brief.

LEGAL STANDARD

CCP ; 473(a)(1) states: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

CRC rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

1) The effect of the amendment;

2) Why the amendment is necessary and proper;

3) When the facts giving rise to the amended allegations were discovered; and

4) The reasons why the request for amendment was not made earlier.

The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530.)

DISCUSSION

Plaintiffs move for leave to file the proposed 4AC. A copy of the proposed 4AC is attached to the declaration of Aide C. Ontiveros, Esq., counsel for Plaintiffs, as Exhibit A.

In support of the motion, Plaintiffs provide the declaration of Ms. Ontiveros. Ms. Ontiveros states that the effect of the amendment would be to correct the employer for Defendant Maria T. Aranas at the time of Mrs. Cabeza’s stroke, update certain paragraphs to conform to the evidence as discussed by Plaintiffs’ experts regarding Mrs. Cabeza’s last known well time and the time frame for when T-PA could have been administered, and other typographical changes, corrections to Defendants’ names, and the addition of specific facts. (Ontiveros Decl., ¶5; see Notice of Motion at pp.3-5.) She states that there would be no prejudice to Defendants as no defendant depositions have been taken other than the deposition of Dr. Aranas and the trial date is set for November 5, 2021, such that there is sufficient time for discovery and expert discovery. (Ontiveros Decl., ¶6.) Ms. Ontiveros states that the amendment is necessary and proper because it conforms the pleadings to evidentiary facts obtained during discovery regarding the breaches of the standard of care and causation to Plaintiffs’ injuries. (Id., ¶7.) She states that these additional facts were discovered when Plaintiffs prepared their oppositions to the motions for summary judgment of Dr. Aranas and Dr. Minaeian, which were filed on December 24, 2020. (Id., ¶8.) Counsel states that Defendants Dr. Aranas, Dr. Minaeian, Dr. Qutubuddin, Dr. Bedrosian, and Pasadena Hospital Ltd. refused to stipulate to the proposed 4AC; Defendant Ian Ross expressed no objections to the 4AC; and all other Defendants have been dismissed or are in the process of being dismissed. (Id., ¶9.)

The Court notes that there are 4 motions for summary judgment reserved for May 14, 21, and 28, 2021 and June 4, 2021. As the motions have not yet been filed, the parties who reserved those motion dates will still have sufficient time to prepare and file their moving papers in light of the amended pleadings. Further, the Final Status Conference and Jury Trial are set for November 4, 2021 and November 15, 2021, respectively, such that there is sufficient time to conduct discovery and prepare for trial.

Based on the declaration of Ms. Ontiveros and the liberal policy in favor of allowing amendments to the pleading, the Court grants Plaintiffs’ motion for leave to file the proposed 4AC.

CONCLUSION AND ORDER

Plaintiffs’ motion for leave to file the proposed Fourth Amended Complaint is granted. Plaintiffs are ordered to electronically file a separate version of the amended complaint with the Court by this date following the hearing on the matter.

Plaintiffs shall provide notice of this order.



Case Number: ****5841    Hearing Date: January 08, 2021    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

rita cabeza, et al.,

Plaintiffs,

v.

huntington memorial hospital, et al.,

Defendants.

Case No.: ****5841

Hearing Date: January 8, 2021

[TENTATIVE] order RE:

(1) Dr. rashtian and np zhen’s motion for summary judgment;

(2) dr. aranas’ motion for summary judgment; and

(3) dr. minaeian’s motion for summary judgment or, in the alternative, summary adjudication

BACKGROUND

A. Allegations

Plaintiffs Rita M. Cabeza (“Mrs. Cabeza”) and Perfecto I. Cabeza (“Mr. Cabeza”) commenced this action against various medical Defendants, alleging that on June 16, 2016, Mrs. Cabeza sought urgent medical attention from Defendant Health Care Partners Urgent Care aka Health Care Partners, Inc. for symptoms of impending stroke. They allege that Mrs. Cabeza informed Defendants of her symptoms and was transported to Defendant Huntington Memorial Hospital (“Hospital”) by ambulance, but Hospital’s physicians and nursing staff failed to properly evaluate, screen, test, and detect her stroke symptoms and thereby failed to provide adequate medical treatment. They allege that the physicians and nurses failed to administer appropriate anti-stroke medication during a critical 3-hour window after Mrs. Cabeza was admitted and she was left unattended.

The third amended complaint (“TAC”), filed February 6, 2020, alleges causes of action for: (1) medical malpractice by Mrs. Cabeza; and (2) loss of consortium by Mr. Cabeza.

B. Motions for Summary Judgment

On August 18, 2020, Defendant Maria T. Aranas, D.O. (“Dr. Aranas”) filed a motion for summary judgment against Plaintiffs. Dr. Aranas argues that Plaintiffs cannot prove breach of duty or causation for Mrs. Cabeza’s medical malpractice claim and thus Mr. Cabeza’s loss of consortium claim fails. On December 24, 2020, Plaintiffs filed an opposition to Dr. Aranas’ motion. On December 30 and 31, 2020, Dr. Aranas filed reply papers.

On August 25, 2020, Defendant Artin Minaeian, M.D. (“Dr. Minaeian”) filed a motion for summary judgment against Plaintiffs’ TAC on the grounds that there is no triable issue of material fact as Plaintiffs’ causes of action in the TAC against him and there is an absence of evidence to maintain each of the causes of action. In the alternative, Dr. Minaeian moves for summary adjudication on the 1st and 2nd causes of action. On December 24, 2020, Plaintiffs filed an opposition to Dr. Minaeian’s motion. On December 30, 2020, Dr. Minaeian filed a reply brief.

On July 17, 2020, Defendants Mayer Rashtian, M.D. and Shumin Zhen, N.P. filed a motion for summary judgment against Plaintiffs. They argue that their care and treatment of Mrs. Cabeza complied with the standard of care and no act or omission on their part caused or contributed to Plaintiffs’ alleged injuries. On December 18, 2020, Plaintiffs filed Notices of Acceptance of Dr. Rashtian and Nurse Zhen’s Statutory Offers to Compromise to Plaintiff Rita M. Cabeza and Plaintiff Perfecto I. Cabeza pursuant to CCP ; 998. On December 31, 2020, Plaintiffs filed a Notice of Settlements stating that they have entered into individual settlements with Dr. Rashtian and Nurse Zhen. Thus, this motion will go off-calendar.

LEGAL STANDARD

A defendant moving for summary judgment has the burden of proving that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. In a medical malpractice action, the elements 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) 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 negligence (citations omitted).” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612, emphasis in original.) Additionally, the standard of care against which doctors are measured is a matter within the knowledge of experts. Breach of the standard of care may only be proven by expert testimony. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

DISCUSSION RE MOTION OF DR. RASHTIAN AND NURSE ZHEN

On December 31, 2020, Plaintiffs filed a Notice of Settlements, stating that Plaintiffs have entered into individual settlements with Dr. Rashtian, Nurse Zhen, Dr. Saad, HealthCare Partners, Dr. Woo Sok Lee, and Dr. Boris Pearlman.

In light of the notices of settlements, the motion for summary judgment filed by Dr. Rashtian and Nurse Zhen is taken off-calendar.

DISCUSSION RE DR. ARANAS’ MOTION

A. Evidentiary Objections

With the reply brief, Dr. Aranas submitted evidentiary objections to the declarations of David A. Lombardi, M.D. and Meldon Levy, M.D. Objections nos. 1 and 2 the Dr. Lombardi’s declaration and nos. 3 and 4 to Dr. Levy’s declaration are overruled.

B. Medical Malpractice

Dr. Aranas moves for summary judgment, arguing that she complied with the appropriate standard of care and did not cause or contribute to Mrs. Cabeza’s injuries. In support of her initial burden, Dr. Aranas provides the following facts.

On June 16, 2016, Mrs. Cabeza was brought to the ER at Huntington Hospital by ambulance. (Aranas Fact 3.) At the ER, Mrs. Cabeza’s condition improved, she had a normal neurological exam, her head CT without contrast was negative, and she was considered stable for admission. (Id.) Dr. Lin’s diagnosis was TIA and atrial fibrillation with rapid ventricular response. (Id.)

On June 17, 2016 at 0301 hours, Dr. Aranas performed Mrs. Cabeza’s history and physical, the results of the negative CT, and Mrs. Cabeza was noted to be doing better. (Id. at 4.) Dr. Aranas spoke with Dr. Gary Conrad (cardiologist) who recommended digoxin and a beta blocker and that he would check the 2D echocardiogram. (Id.) This was the only time Dr. Aranas saw Mrs. Cabeza and the only time she discussed the plan of care with the family, to which they were agreeable. (Id.)

Mrs. Cabeza was transferred to the Neuro-Unit at 0356 and was noted to be stable. (Id. at 5.) At 0356, Nurse Ruma performed an assessment and neuro exam, where no symptoms were noted. (Id.) From 0538 to 0550, a code was called and the plan was to wait for cardiology to evaluate Mrs. Cabeza. (Id.) The resident spoke to Dr. Aranas about Mrs. Cabeza, informing Dr. Aranas about the code and Mrs. Cabeza’s alert state. (Id.) Dr. Aranas’ shift ended 10 minutes later. (Id.)

Thereafter, cardiology was consulted and another code was called. (Id. at 6.) Dr. Antin Minaeian (neurologist) noted that Mrs. Cabeza had expressive aphasia and right-sided weakness and a stroke team was called at 0835. (Id.) Mrs. Cabeza was seen by Dr. Minaeian, who noted she had an episode of expressive aphasia. (Id. at 7.) Dr. Ross performed a mechanical thrombectomy left middle cerebral artery with unsuccessful recanalization. (Id.) Mrs. Cabeza remained hospitalized until June 22, 2016 when she was transferred to Pasadena Park for rehabilitation. (Id.)

Dr. Aranas provides the declarations of experts Michael Eilbert, MD and David Alexander, MD regarding the standard of care and causation in support of her motion.

· Dr. Eilbert (internal medicine physician) states that he is familiar with the standard of care applicable to Dr. Aranas and possesses the experience and qualifications necessary to render expert opinions. (Aranas Fact 8.) He states that to a reasonable medical probability, Dr. Aranas’ care and treatment rendered to Mrs. Cabeza was at all times within the standard of care for family practice physicians practicing in the Southern California area in 2016. (Id. at 9.) He states that prior to admission, and thereafter in the ER, it was felt that Mrs. Cabeza may have experienced new onset of TIA, but she showed no true signs of stroke. (Id. at 10.) She had a preadmission examination by Dr. Aranas, a CT scan of the head was done prior to admission onto the neurologic floor, and it was clear Dr. Aranas was to be the hospitalist admitting the patient. (Id.) He states that at that time, Mrs. Cabeza had no signs or symptoms of a stroke, had no lateralization or facial droop, and she was putting words together appropriately. (Id.) He opines that the admitting diagnosis was appropriate and that her symptoms showed a systemic problem that was cardiac in nature, and not localized weaknesses or symptoms localized to the right or left hemisphere, such as in the case of stroke. (Id.) Thus, Dr. Eilbert states that it was excellent practice to admit her to a monitored neurology floor where she would receive not only cardiac monitoring but frequent nursing neuro-checks. (Id.) He states that Dr. Aranas made standard admitting orders for Mrs. Cabeza and appropriately obtained a telephonic conference from a cardiologist, implemented his recommendations, and secured his evaluation for later that day, which show Dr. Aranas engaged in good care that was not poor or negligent. (Id. at 11.) Dr. Aranas ordered Lovenox as a precaution as Mrs. Cabeza was to presumably be bedbound for some period of time, which he opines was good care. (Id.) He states that when Dr. Aranas was contacted by the resident at 0550 hours, there was no need for her to make additional orders because a code had been called and canceled by that time, such that there was no need for Dr. Aranas to intervene. (Id. at 12.) With regard to the 0830 code stroke, Dr. Eilbert states that the stroke symptoms described at 0826 were not available findings at the time Dr. Aranas had briefly seen Mrs. Cabeza. (Id. at 13.) Thus, he opines that Dr. Aranas was entirely within the standard of care and that her care and treatment was simply not related to Mrs. Cabeza’s stroke. (Id. at 13.) He opines that from the perspective of Dr. Aranas during her brief care and treatment, there was no intervention required by the standard of care in this clinical setting beyond those employed by Dr. Aranas. (Id.)

· Dr. Alexander (neurologist) states that he is familiar with the standard of care applicable to Dr. Aranas and that he possesses the experience and qualifications necessary to render expert opinions in this case. (Aranas Fact 14.) He states that Dr. Aranas’ care of Mrs. Cabeza was in no way related to the stroke she suffered on June 17, 2017. (Id. at 15.) He opines that it was uniformly clear from all the documented care and treatment leading up to the code stroke that Mrs. Cabeza showed no signs or symptoms of stroke, such as focal weakness, loss of sensation, or any symptoms lateralized to one side or the other, and had a clear CT scan in the ED prior to admission onto the floor. (Id. at 16.) He states that to the extent there were brief periods of confusion or aphasia, Mrs. Cabeza recovered quickly and spontaneously from those symptoms, which would lead any reasonable practitioner to conclude that those symptoms were either due to her heart rhythm issues or potentially TIA, which are well documented. (Id.) He states that given Mrs. Cabeza’s condition, embolectomy was absolutely the treatment of choice and offered the best chance of successful treatment; and though the surgery was not successful, it was still the best option available. (Id. at 17.) He states that the stroke Mrs. Cabeza suffered occurred sometime after the initial code and the stroke extended post-mechanical embolectomy due to the failure of the collateral blood supply to the surrounding blood tissues. (Id. at 18.) Dr. Alexander opines that the stroke was not in any way associated with the care and treatment or lack thereof provided by Dr. Aranas within a reasonable medical probability. (Id.)

Based on the expert opinions of Dr. Eilbert and Dr. Alexander, the Court finds that Dr. Aranas has upheld her initial burden in summary judgment on the cause of action for medical malpractice. Thus, the burden shifts to Plaintiffs to raise a triable issue of material fact.

In opposition, Plaintiffs provide the opposing expert declarations of Dr. David A. Lombardi, M.D. (nuerologist physician) and Dr. Meldon Levy, M.D. (internal medicine physician). Dr. Levy and Dr. Lombardi state that they are familiar with the standard of care applicable to Dr. Aranas and that based on their experience and qualifications, they opine that Dr. Aranas breached the standard of care. (Pl.’s Fact 8.) They opine that Dr. Aranas breached the standard of care when she examined Mrs. Cabeza shortly before 3:01 a.m. and failed to conduct a neurological examination of Mrs. Cabeza. (Pl.’s Additional Material Fact [PAMF] 19; Levy Decl., ¶¶36-38, 41-43; Lombardi Decl., ¶¶378-39, 44-47.) Dr. Lin diagnosed Mrs. Cabeza with TIA at 2:30 a.m. and Dr. Aranas noted in her 3:01 a.m. report that Mrs. Cabeza complained of confusion, dizziness, and headache. (PAMF 19.) They opine that based on these circumstances, it was incumbent on Dr. Aranas to do a neurological examination of Mrs. Cabeza. (Pl.’s Fact 11, PAMF 19.) They also opine that Dr. Aranas breached the standard of care at 5:50 a.m. when she was notified after the first Rapid Response Code of Mrs. Cabeza’s condition and she failed to call for a Stroke Neurologist consultation after Mrs. Cabeza suffered 2 TIAs with aphasias within 7 hours. (Pl.’s Fact 13; PAMF 19.) They opine that Dr. Aranas breached the standard of care by failing to order a follow-up CT scan and/or CT-angiogram and by failing to place Mrs. Cabeza on 30-minute neuro-checks when she was advised about the first Rapid Response Code. (Id.) To a reasonable degree of medical probability, Dr. Levy and Dr. Lombardi opine that Dr. Aranas’ breaches of the standard of care were substantial factors in causing or contributing to Mrs. Cabeza’s stroke and/or the severity of her stroke. (Pl.’s Fact 15; PAMF 20.)

At the summary judgment stage, the Court finds the opposing expert declarations raise sufficient triable issues of material fact that warrant denying the motion for summary judgment as to Mrs. Cabeza’s medical malpractice claim.

C. Loss of Consortium

The elements to a loss of consortium claim are: (1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff's spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant's act. (Vanhooser v. Superior Court This cause of action is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse. (Id.)

As the medical negligence claim survives summary adjudication, so too does the claim for loss of consortium, which is dependent on the existence of a cause of action for tortious injury to a spouse. (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

Thus, the motion is denied as to Mr. Cabeza’s loss of consortium claim.

Dr. Aranas’ motion for summary judgment is denied.

DISCUSSION RE DR. MINAEIAN’S MOTION

A. Evidentiary Objections

With the reply brief, Dr. Minaeian submitted evidentiary objections to the declaration of Dr. Lombardi. The objections are overruled.

B. Medical Malpractice

Dr. Minaeian moves for summary judgment or alternatively summary adjudication, arguing that he acted within the standard of care at all times during his limited involvement with Mrs. Cabeza’s care and no act or omission on his part was a substantial factor in causing her injuries. In support of his initial burden, Dr. Minaeian provides the following facts.

On June 16, 2016, Mrs. Cabeza arrived at the ER at Huntington Hospital and was evaluated by Timothy Lin, D.O., who took her medical history. (Minaeian Fact 1.) At the ER, Mrs. Cabeza’s condition improved, but examination revealed an irregular tachycardia and no neurological deficit was observed. (Id. at 1-2.) An EKG showed atrial fibrillation with rapid ventricular response, and Mrs. Cabeza was started on medication, which improved rate control. (Id. at 3.) An x-ray of the chest did not show any acute intrathoracic process and a CT scan of the head did not identify any intracranial abnormality. (Id. at 4.) Dr. Lin noted that Mrs. Cabeza was stable at admission to the Inpatient Telemetry Unit and her diagnosis was transient ischemic attack and atrial fibrillation with rapid ventricular rate. (Id. at 5.)

On June 17, 2016 at 0301 hours, Dr. Aranas evaluated Mrs. Cabeza, where she reported that Mrs. Cabeza was feeling better and denied chest pains. (Id. at 6.) At 0538, a Rapid Response Code was called for possible aphasia after Mrs. Cabeza experienced a 6-second pause in her heart rate. (Id. at 7.) By the time the residents arrived, Mrs. Cabeza was responding to questions appropriately and sleepy, but improving. (Id.) At 0811, Mrs. Cabeza was seen by nurse practitioner Shumin Zhen and cardiologist Dr. Mayer and they reviewed all ECGs and tele-strips and noted her heart rate was controlled. (Id. at 8.) At 0826, a second Rapid Response Code was called for aphasia and residents Dr. Justin Levy and Dr. Eva Wang arrived, Mrs. Cabeza’s words were garbled, and a CT exam and CT angiogram exam of her head were ordered. (Id. at 9.) At 0902, a CT exam of the head was performed and showed punctate hyperdensity in the proximal M2 branch of the left middle cerebral artery, suggestive of a thrombus; no acute infarct or hemorrhage was seen on this noncontrast CT. (Id. at 10.) At 0912, a CT angiogram exam was performed showing abrupt occlusion in the proximal aspect of the superior M2 division of the left MCA. (Id. at 11.)

Dr. Minaeian (neurologist) was first consulted to evaluate Mrs. Cabeza after the 0826 code stroke was called. (Id. at 12.) He noted that Mrs. Cabeza had severe, expressive aphasia and was unable to provide any history. (Id.) He diagnosed her with an acute ischemic stroke. (Id.) Because Mrs. Cabeza’s last known well time was between 0300 and 0500, he noted she was outside of the window for any IV t-PA, but given her left middle cerebral artery second branch occlusion, Mrs. Cabeza was a candidate for intervention. (Id. at 13.) Dr. Minaeian immediately contacted neurosurgeon Dr. Ian Ross, they spoke of Mrs. Cabeza’s risks and benefits with the family, and the family agreed to the procedure for possible thrombectomy. (Id.) At 1006, Mrs. Cabeza went into surgery by Dr. Ross for mechanical embolectomy of the left MCA clot. (Id. at 14.) Dr. Ross was able to remove the clot and slightly increase blood flow distally, but was unable to recanalize the distal vessels. (Id.) Hospitalist Dr. Ayman Saad was consulted and noted Mrs. Cabeza’s status post-mechanical embolectomy, and he diagnosed her with acute cerebrovascular accident. (Id. at 15.) At 1153, a CT exam showed high-density material around the left sylvian fissure and surrounding sulci. (Id. at 16.)

On June 18, 2016 at 0632, Dr. Daniel Sufficool evaluated Mrs. Cabeza and noted she was alert and comfortable, but aphasic. (Id. at 17.) At 1207, Dr. Minaeian ordered an MRI scan of the brain, recommended a follow-up CT scan or MR angiogram for further evaluation. (Id. at 18.) On June 21, 2016 at 1006, Mrs. Cabeza was evaluated by nurse practitioner Janette Grigg and Dr. Minaeian, where it was noted that Mrs. Cabeza would need anticoagulation for her atrial fibrillation and stroke, but, it would not be started for another 4 weeks given the size of her stroke and risk for hemorrhagic conversion. It was noted that Mrs. Cabeza continued to be at risk for a cardioembolic stroke, and the risks were discussed with her family. (Id. at 19.) On June 22, 2016 at 1003, Mrs. Cabeza was evaluated by nurse Grigg and Dr. Minaeian and it was noted she was able to pass her dysphagia test. (Id. at 20.) Dr. Minaeian noted she could be discharged. (Id. at 20.) On June 23, 2016, Mrs. Cabeza was discharged in stable condition to a skilled nursing facility. (Id. at 21.)

Dr. Minaeian provides the expert declaration Michael Gold, M.D. regarding the standard of care and causation. Dr. Gold states that he is familiar with the applicable standard of care for neurologists in the Southern California community at all times relevant to the action and his opinions are based on his knowledge, education, training and experience and to a reasonable degree of medical probability. (Gold Decl., ¶4.) He states that Dr. Minaeian complied with the applicable standard of care in his evaluation, care, and treatment of Mrs. Cabeza. (Minaeian Fact 22.) He states that Dr. Minaeian correctly determined that Mrs. Cabeza was firmly outside the timeframe for TPA and did not meet inclusion criteria for this therapy. (Id.) He states that Mrs. Cabeza was a candidate for mechanical embolectomy and Dr. Minaeian correctly called in an interventionalist for this procedure. (Id.) Dr. Gold states that given the results of Mrs. Cabeza’s CT scan and the time elapsed from her onset of symptoms, the mechanical embolectomy was the correct course of treatment. (Id.) He states that to a reasonable degree of medical probability, Dr. Minaeian did not cause or contribute to Mrs. Cabeza’s injuries. (Id. at 23.) He states that Dr. Minaeian properly treated her and was consulted to evaluate her only after her second Rapid Response Code, such that Mrs. Cabeza’s injuries were irreversible by that point in time. (Id.)

Based on the expert opinions of Dr. Gold, the Court finds that Dr. Minaeian has upheld his initial burden in summary judgment on the cause of action for medical malpractice. Thus, the burden shifts to Plaintiffs to raise a triable issue of material fact with an opposing expert declaration.

In support of the opposition, Plaintiffs provide the declaration of Dr. David A. Lombardi, M.D. Dr. Lombardi opines that Dr. Minaeian failed to comply with the applicable standard of care in regard to his evaluation, care, and treatment of Mrs. Cabeza. Based on Mrs. Cabeza’s last known well time, which was 5:50 a.m. on June 17, 2016, this would have provided for the safe administration of TPA. (Pl.’s Fact 22; Lombardi Decl., ¶¶44-46.) He states that there were no contra-indications for TPA with regard to Mrs. Cabeza and that TPA could have been administered when Dr. Minaeian first saw Mrs. Cabeza after the second Rapid Response Code was called or up to 4.5 hours after symptom onset (up until 10:20 a.m. on June 17, 2016). (Pl.’s Fact 22.) He states that to a reasonable degree of medical probability, Dr. Minaeian’s breaches of standard of care were a substantial factor in causing Mrs. Cabeza’s stroke and/or severity of her stroke. (Id. at 23.)

Based on Dr. Lombardi’s declaration, there are triable issues of material fact regarding whether Dr. Minaeian’s care and treatment of Mrs. Cabeza met the standard of care and whether his care and treatment (or lack thereof) caused and/or contributed to her injuries. Thus, the motion is denied as to Mrs. Cabeza’s medical malpractice cause of action.

C. Loss of Consortium

Dr. Minaeian argues that because Mrs. Cabeza’s medical malpractice claim fails, Mr. Cabeza cannot maintain a cause of action for loss of consortium. As discussed above, there are triable issues of material fact regarding Mrs. Cabeza’s medical malpractice claim. Thus, the motion is denied as to Mr. Cabeza’s loss of consortium claim.

Dr. Minaeian’s motion for summary judgment is denied.

CONCLUSION AND ORDER

The motion for summary judgment of Dr. Rashtian and Nurse Zhen is taken off-calendar.

Defendant Dr. Aranas’ motion for summary judgment is denied.

Defendant Dr. Minaeian’s motion for summary judgment or, alternatively, summary adjudication is denied.

Defendants shall each provide notice of their respective order.



Case Number: ****5841    Hearing Date: January 17, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

rita cabeza, et al.,

Plaintiffs,

v.

huntington memorial hospital, et al.,

Defendants.

Case No.: ****5841

Hearing Date: January 17, 2020

[TENTATIVE] order RE:

demurrer

BACKGROUND

A. Allegations

Plaintiffs Rita M. Cabeza (“Mrs. Cabeza”) and Perfecto I. Cabeza (“Mr. Cabeza”) commenced this action against various medical Defendants, alleging that on June 16, 2016, Mrs. Cabeza sought urgent medical attention from Defendant Health Care Partners Urgent Care aka Health Care Partners, Inc. (“Health Care Partners”) for symptoms of impending stroke. They allege that Mrs. Cabeza informed Defendants of her symptoms and was transported to Defendant Huntington Memorial Hospital (“Hospital”) by ambulance, but Hospital’s physicians and nursing staff failed to properly evaluate, screen, test, and detect her stroke symptoms and thereby failed to provide adequate medical treatment. They allege that the physicians and nurses failed to administer appropriate anti-stroke medication during a critical 3-hour window after Mrs. Cabeza was admitted, she was left unattended, and they did not give her appropriate care and medication.

The second amended complaint (“SAC”), filed September 17, 2019, alleges causes of action for: (1) medical malpractice by Mrs. Cabeza; (2) NIED by Mrs. Cabeza and Mr. Cabeza; and (3) loss of consortium by Mr. Cabeza.

B. Demurrer

On October 22, 2019, Defendant Mayer Rashtian, MD (“Dr. Rashtian”) filed a demurrer to 2nd cause of action for NIED in the SAC.

The Court is not in receipt of an opposition brief from Plaintiff regarding Dr. Rashtian’s demurrer. (However, the Court is in receipt of an opposition brief from Plaintiff regarding Defendant Maria T. Aranas’ demurrer to the SAC, stating in the caption that the hearing date is January 17, 2020. However, the demurrer of Ms. Aranas is currently on calendar for January 31, 2020.)

On January 10, 2020, Dr. Rashtian filed a reply. In the reply, Dr. Rashtian also states that he is not in receipt of an opposition in response to his demurrer.

DISCUSSION

A. NIED (2nd cause of action)

NIED is not an independent tort, but is the tort of negligence; thus, the traditional elements of duty, breach of duty, causation, and damages apply. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.) NIED is typically analyzed by reference to 2 theories: (1) the bystander theory; and (2) the direct victim theory. (Id.) Under the bystander theory, a duty is owed in a limited class of cases where the plaintiff is: (1) closely related to the injury victim, (2) present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness. (Id.) Under the direct victim theory, a duty is owed directly to the plaintiff that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Id.)

Dr. Rashtian argues that the 2nd cause of action as alleged by Mr. Cabeza only fails to allege sufficient facts to constitute a cause of action against Dr. Rashtian.

In the 2nd cause of action, Plaintiffs allege that Defendants knew or should have known that their failure to exercise due care in performing their duties would cause Plaintiffs severe emotional distress. (SAC, ¶37.) They allege that Defendants’ conduct and inaction constituted a breach of duty, which proximately resulted in Mrs. Cabeza suffering as a patient and direct victim of Defendants’ negligence, and Mr. Cabeza (Mrs. Cabeza’s spouse) suffering as a bystander when he was present during Mrs. Cabeza’s stroke and had contemporary sensory awareness of the causal connection between Defendants’ negligence and Mrs. Cabeza’s resulting injury. (Id., ¶¶38-39.)

The parties do not dispute that Mr. Cabeza has a close relationship with Mrs. Cabeza (a patient of Defendants at the Hospital) as her spouse. The allegations also allege that Mr. Cabez was at the scene of Mrs. Cabeza’s stroke.

However, Dr. Rashtian argues that Plaintiffs have not alleged sufficient facts showing that he had a contemporaneous sensory awareness of a causal connection between Defendants’ negligent conduct and the resulting injury—i.e., that Defendants’ negligence caused Mrs. Cabeza’s stroke. In the 2nd cause of action, Plaintiffs allege that “Plaintiff PERFECTO I. CABEZA alleges he was present during RITA M. CABEZA’s stroke, and during the aforementioned negligent acts and omissions of Defendants, Plaintiff PERFECTO I. CABEZA further alleges that he had the requisite contemporaneous sensory awareness of the causal connection between Defendants’ negligent conduct and RITA M. CABEZA’s resulting injury, and that the acts and omissions of Defendants were wrongful and caused injuries.” (SAC, ¶39.)

In its demurring papers, Dr. Rashtian cites to Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926. In Morton, the Court of Appeal affirmed the trial court’s holding sustaining the demurrer without leave to amend on the NIED claim. The plaintiffs (children of the patient-mother, at the time of their mother’s post-operative treatment, had alleged that they were “experienced in the medical field and understood and appreciated the dangers faced by their mother” in the event remedial action was not taken. (Morton, supra, 187 Cal.App.4th at 928.) The Court of Appeal found that this allegation was insufficient to establish that the plaintiffs knew and appreciated the medical circumstances affecting their mother, and thus failed to establish the second element of NIED. (Id. at 928-29.)

Based on the Morton case cited by Dr. Rashtian, the Court now finds that the allegations of the NIED claim have not been sufficiently alleged with supporting facts. This case is similar with regard to the specificity of the alleged facts in the NIED claim as the Morton claim, whereby the Court of Appeal did not find that such allegations were sufficient to meet the threshold of alleging such a claim.

The demurrer to the 2nd cause of action is sustained with 20 days leave to amend as to Mr. Cabeza.

CONCLUSION AND ORDER

Dr. Rashtian’s demurrer to the 2nd cause of action for NIED in the SAC is sustained with 20 days leave to amend as to Mr. Cabeza.

Dr. Rashtian shall provide notice of this order.



Case Number: ****5841    Hearing Date: December 27, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

rita cabeza, et al.,

Plaintiffs,

v.

huntington memorial hospital, et al.,

Defendants.

Case No.: ****5841

Hearing Date: December 27, 2019

[TENTATIVE] order RE:

demurrer

BACKGROUND

  1. Allegations

Plaintiffs Rita M. Cabeza (“Mrs. Cabeza”) and Perfecto I. Cabeza (“Mr. Cabeza”) commenced this action against various medical Defendants, alleging that on June 16, 2016, Mrs. Cabeza sought urgent medical attention from Defendant Health Care Partners Urgent Care aka Health Care Partners, Inc. (“Health Care Partners”) for symptoms of impending stroke. They allege that Mrs. Cabeza informed Defendants of her symptoms and was transported to Defendant Huntington Memorial Hospital (“Hospital”) by ambulance, but Hospital’s physicians and nursing staff failed to properly evaluate, screen, test, and detect her stroke symptoms and thereby failed to provide adequate medical treatment. They allege that the physicians and nurses failed to administer appropriate anti-stroke medication during a critical 3-hour window after Mrs. Cabeza was admitted, she was left unattended, and they did not give her appropriate care and medication.

The second amended complaint (“SAC”), filed September 17, 2019, alleges causes of action for: (1) medical malpractice by Mrs. Cabeza; (2) NIED by Mrs. Cabeza and Mr. Cabeza; and (3) loss of consortium by Mr. Cabeza.

  1. Demurrer

On September 17, 2019, Defendants Woo Sok Lee, M.D. (“Dr. Lee”), Boris Pearlman, M.D. (“Dr. Pearlman”), and HealthCare Partners Affiliates Medical Group (“HealthCare Partners”). They demur to each cause of action alleged in the SAC.

On December 13, 2019, Plaintiffs filed an opposition.

On December 19, 2019, Defendants filed a reply brief.

DISCUSSION

  1. Allegations Against Dr. Lee

Defendants demur to the SAC, arguing that the allegations of the SAC fail to allege any conduct on the part of Dr. Lee.

In the SAC, Dr. Lee is alleged to be employed by HealthCare Partners. (SAC, ¶5.) While Dr. Lee is not mentioned specifically in the SAC or the causes of action, the Court overrules the demurrer. Plaintiffs allege that on June 16, 2016, Mrs. Cabeza sought urgent medical attention at HealthCare Partners of symptoms of impending stroke and she informed the staff of her symptoms prior to being transported to Huntington Memorial Hospital. (Id., ¶10.) She alleges that the physicians and nursing staff of HealthCare Partners failed to administer the appropriate anti-stroke medications during a critical 3-hour window after Mrs. Cabeza was admitted. (Id., ¶13.)

Although the HealthCare Partner defendants are referred together, the allegations of the SAC are not so vague or ambiguous such that Dr. Lee is unable to respond. Plaintiffs allege that the events (or inactions) occurred at HealthCare Partners on June 16, 2016 and that Mrs. Cabeza suffered a stroke on June 17, 2016. (SAC, ¶¶10, 14.) The harm complained of in the SAC is regarding Mrs. Cabeza’s care in the span of these two days—and in particular, the June 16 day when she was under HealthCare Partners’ care.

At the pleading stage, the Court will find that this is sufficient to put Defendants on notice of the medical malpractice claim alleged against them.

Thus, the demurrer on the basis that the SAC lacks sufficient allegations to constitute a cause of action against Dr. Lee is overruled.

  1. NIED (2nd cause of action)

NIED is not an independent tort, but is the tort of negligence; thus, the traditional elements of duty, breach of duty, causation, and damages apply. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.) NIED is typically analyzed by reference to 2 theories: (1) the bystander theory; and (2) the direct victim theory. (Id.) Under the bystander theory, a duty is owed in a limited class of cases where the plaintiff is: (1) closely related to the injury victim, (2) present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness. (Id.) Under the direct victim theory, a duty is owed directly to the plaintiff that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Id.)

Defendants argue that Mrs. Cabeza’s 2nd cause of action is essentially a cause of action in negligence, and not emotional distress. In turn, they argue that because she already has a medical malpractice cause of action, this 2nd cause of action (which is essentially a negligence claim) is duplicative and should be sustained without leave to amend.

While NIED is not an independent tort, an NIED claim is a tort of negligence such that the traditional elements of negligence must be satisfied and that there were 2 theories of NIED—bystander and direct victim cases. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) However, the Supreme Court did not state that an NIED claim was subsumed in or duplicative to a professional negligence claim. Thus, so long as Plaintiffs have established the elements of an NIED claim, this is a viable cause of action that may be alleged separate from professional negligence.

Next, Defendants demur to the NIED cause of action, arguing that Plaintiffs fail to allege facts showing that Mr. Cabeza was a bystander victim.

In the 2nd cause of action, Plaintiffs allege that Defendants knew or should have known that their failure to exercise due care in performing their duties would cause Plaintiffs severe emotional distress. (SAC, ¶37.) They allege that Defendants’ conduct and inaction constituted a breach of duty, which proximately resulted in Mrs. Cabeza suffering as a patient and direct victim of Defendants’ negligence, and Mr. Cabeza (Mrs. Cabeza’s spouse) suffering as a bystander when he was present during Mrs. Cabeza’s stroke and had contemporary sensory awareness of the causal connection between Defendants’ negligence and Mrs. Cabeza’s resulting injury. (Id., ¶¶38-39.)

Here, the allegations are sufficient to allege that Mrs. Cabeza was a patient of Defendants at the Hospital and thus there was a duty that arose by nature of a doctor-patient relationship. With regard to Mr. Cabeza, the SAC sufficiently alleges that Mr. Cabeza has a close relationship with Mrs. Cabeza as her spouse, and that he was at the scene of the stroke and was aware that Defendants’ negligence caused both Cabezas to suffer emotional distress. At the pleading stage, the allegations are sufficient to allege NIED. Putting the plausibility of the allegations aside, “[w]hether the plaintiff[s] will be able to prove the pleaded facts is irrelevant to ruling upon a demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.)

The demurrer to the 2nd cause of action is overruled.

3. Loss of Consortium (3rd cause of action)

The Court notes that though the notice of the demurrer states that Defendants were demurring on the 3rd cause of action, there are no substantive arguments or discussions on this cause of action in the demurrer papers. Thus, the demurrer to the 3rd cause of action is overruled for the same reasons stated above.

CONCLUSION AND ORDER

Dr. Lee, Dr. Pearlman, and HealthCare Partners’ demurrer to the SAC is overruled. Defendants are directed to answer within 10 days of this order.

Plaintiffs shall provide notice of this order.



Case Number: ****5841    Hearing Date: November 15, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

rita cabeza, et al.,

Plaintiffs,

v.

huntington memorial hospital, et al.,

Defendants.

Case No.: ****5841

Hearing Date: November 15, 2019

[TENTATIVE] order RE:

demurrer; motion to strike

BACKGROUND

  1. Allegations

Plaintiffs Rita M. Cabeza (“Mrs. Cabeza”) and Perfecto I. Cabeza (“Mr. Cabeza”) commenced this action against various medical Defendants, alleging that on June 16, 2016, Mrs. Cabeza sought urgent medical attention from Defendant Health Care Partners Urgent Care aka Health Care Partners, Inc. (“Health Care Partners”) for symptoms of impending stroke. They allege that Mrs. Cabeza informed Defendants of her symptoms and was transported to Defendant Huntington Memorial Hospital (“Hospital”) by ambulance, but Hospital’s physicians and nursing staff failed to properly evaluate, screen, test, and detect her stroke symptoms and thereby failed to provide adequate medical treatment. They allege that the physicians and nurses failed to administer appropriate anti-stroke medication during a critical 3-hour window after Mrs. Cabeza was admitted, she was left unattended, and they did not give her appropriate care and medication.

The second amended complaint (“SAC”), filed September 17, 2019, alleges causes of action for: (1) medical malpractice by Mrs. Cabeza; (2) NIED by Mrs. Cabeza and Mr. Cabeza; and (3) loss of consortium by Mr. Cabeza.

  1. Demurrer and Motion to Strike

On October 16, 2019, Defendant Ayman Saad, M.D. (“Dr. Saad”) and Artin Minaein, M.D. (“Dr. Minaein”) filed a demurrer to the 1st and 2nd causes of action in the SAC. They also filed a motion to strike portions of the SAC.

On November 5, 2019, Plaintiffs filed an untimely opposition to the demurrer. The opposition was due by November 1, 2019, pursuant to CCP ;1005(b). However, the Court will consider this late filed paper. (CRC Rule 3.1300(d).)

On November 7, 2019, Dr. Saad and Dr. Minaein filed a reply brief.

DISCUSSION RE DEMURRER

  1. Medical Malpractice (1st cause of action)

Dr. Saad and Dr. Minaein demur to the 1st cause of action on the ground of uncertainty. They argue that the 1st cause of action is uncertain because it is unclear which defendants treated Mrs. Cabeza, the extent of the treatment, and their role in her care, particularly when there are 18 named defendants.

Pursuant to CCP ; 430.10(f), “uncertainty” is a proper demurrer ground where the pleading is ambiguous and unintelligible. Demurrers for uncertainty will only be sustained where the complaint is so bad that the defendant cannot reasonably respond—i.e., determine what issues must be admitted or denied or what counts or claims are directed against him or her. (Khoury v. Maly’s Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Generally, demurrers for uncertainty are overruled and counsel is expected to clear up any ambiguities through discovery or stipulations. Demurrers for uncertainty will almost certainly be overruled where they are: (1) directed to inconsequential matters; (2) the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable through discovery; or (3) not dispositive of one or more causes of action. (Id.; Gressley v. Williams (1961) 193 Cal.App.2d 636, 643.)

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶7:85.) Regarding uncertainty, “[t]here is no need to require specificity in the pleadings because 'modern discovery procedures necessarily affect the amount of detail that should be required in a pleading.'“ (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.)

Defendants argue that the allegations of the operative complaint essentially lump all the defendants together. Plaintiffs name the individual defendants as Mrs. Cabeza’s treating physicians while she was at Hospital. (SAC, ¶11.) The doctor defendants are then referred to as “Huntingtin Memorial Hospital Practitioners” in the SAC. Although the doctor defendants are referred together, the allegations of the SAC are not so vague or ambiguous such that Dr. Saad and Dr. Minaein are unable to respond. Plaintiffs allege that the events (or inactions) occurred at the Hospital on June 16, 2016 and that Mrs. Cabeza suffered a stroke on June 17, 2016. (SAC, ¶¶10, 14.) The harm complained of in the SAC is regarding Mrs. Cabeza’s care in the span of these two days.

At the pleading stage, the Court will find that this is sufficient to put Defendants on notice of the medical malpractice claim alleged against them. The demurrer to the 1st cause of action is overruled on the basis of uncertainty.

  1. NIED (2nd cause of action)

NIED is not an independent tort, but is the tort of negligence; thus, the traditional elements of duty, breach of duty, causation, and damages apply. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.) NIED is typically analyzed by reference to 2 theories: (1) the bystander theory; and (2) the direct victim theory. (Id.) Under the bystander theory, a duty is owed in a limited class of cases where the plaintiff is: (1) closely related to the injury victim, (2) present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness. (Id.) Under the direct victim theory, a duty is owed directly to the plaintiff that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Id.)

First, Dr. Saad and Dr. Minaein argue that the 2nd cause of action is duplicative of the medical malpractice cause of action because the medical malpractice/professional negligence claim would potentially cover emotional distress, as well as physical pain and suffering. They argue that NIED is not an independent tort and is simply considered a part of her medical malpractice claim, citing to Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.

While the Supreme Court discussed in Burgess that NIED is not an independent tort, it explained that NIED is a tort of negligence such that the traditional elements of negligence must be satisfied and that there were 2 theories of NIED—bystander and direct victim cases. The Supreme Court did not state that an NIED claim was subsumed in or duplicative to a professional negligence claim. Thus, so long as Plaintiffs have established the elements of an NIED claim, this is a viable cause of action that may be alleged separate from professional negligence.

Second, Dr. Saad and Dr. Minaein demur to the NIED cause of action, arguing that Plaintiffs fail to allege facts showing that Mrs. Cabeza was a direct victim of Defendants’ negligence, and that Mr. Cabeza was a bystander victim.

In the 2nd cause of action, Plaintiffs allege that Defendants knew or should have known that their failure to exercise due care in performing their duties would cause Plaintiffs severe emotional distress. (SAC, ¶37.) They allege that Defendants’ conduct and inaction constituted a breach of duty, which proximately resulted in Mrs. Cabeza suffering as a patient and direct victim of Defendants’ negligence, and Mr. Cabeza (Mrs. Cabeza’s spouse) suffering as a bystander when he was present during Mrs. Cabeza’s stroke and had contemporary sensory awareness of the causal connection between Defendants’ negligence and Mrs. Cabeza’s resulting injury. (Id., ¶¶38-39.)

Here, the allegations are sufficient to allege that Mrs. Cabeza was a patient of Defendants at the Hospital and thus there was a duty that arose by nature of a doctor-patient relationship. With regard to Mr. Cabeza, the SAC sufficiently alleges that Mr. Cabeza has a close relationship with Mrs. Cabeza as her spouse, and that he was at the scene of the stroke and was aware that Defendants’ negligence caused both Cabezas to suffer emotional distress. At the pleading stage, the allegations are sufficient to allege NIED. Putting the plausibility of the allegations aside, “[w]hether the plaintiff[s] will be able to prove the pleaded facts is irrelevant to ruling upon a demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.)

The demurrer to the 2nd cause of action is overruled.

DISCUSSION RE MOTION TO STRIKE

Dr. Saad and Dr. Minaein move to strike a portion of paragraph 24 (at page 10, lines 2-4), paragraph 34, and certain claims for damages.

First, Defendants move to strike loss of consortium damages sought under the NIED cause of action, arguing that loss of consortium was already alleged as a separate cause of action. (See Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927 [elements of loss of consortium].) The Court grants the motion to strike the phrase “loss of consortium” from page 14, line 7.

Second, Defendants move to strike Plaintiffs’ attempt to seek prejudgment interest pursuant to CCP ;998 and Civil Code, ;3291, arguing that there has been no statutory offer of compromise as of yet in this action. As such, the request for such types of prejudgment interest is prematurely sought. The Court grants the motion to strike as to paragraph 34.

With regard to the allegation that Mr. Cabeza was present and suffered emotional distress (paragraph 24), and the requests for medical and related expenses (page 15, prayer at lines 2-3), Defendants have not discussed these allegations in the memorandum of points and authorities. Thus, the Court will deny the motion as to these allegations.

CONCLUSION AND ORDER

Dr. Saad and Dr. Minaein’s demurrer to the 1st and 2nd causes of action in the SAC overruled.

The motion to strike is granted in part as to: (a) the phrase “loss of consortium” from page 14, line 7; and (b) paragraph 34. The motion is denied as to the remainder.

Defendants shall provide notice of this order.



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