Great American Ins. Co. v. Marian Regional Medical Center et al

Case Number

20CV02055

Case Type

Hearing Date / Time

Tue, 09/12/2023 - 08:30

Nature of Proceedings

Motion: Summary Judgment

Tentative Ruling

Factual Summary

On June 11, 2020, Everest, GAIC, and Chubb Ins. Co. (plaintiffs or plaintiff insurers) filed this action for equitable subrogation, equitable indemnity, and declaratory relief against Marian Regional Medical Center, Santa Barbara Cottage Hospital, Thomas Church, MD, Victor Pulido, DO, Nicholas Slimack, MD, and Brian Fields, MD.[1]

Adriana Velazquez was injured in a car accident on July 9, 2018 and was admitted to Marian Medical Center. Defendant Dr. Daniel Oh was the admitting doctor and prepared the History and Physical for Adrianna Velazquez. Adrianna Velazquez became unresponsive in the morning hours of July 10, 2018. A CT angiography (CTA) was performed which caused the doctors to be concerned for cerebrovascular dissection/occlusion. Due to the concern of dissection, it was ordered that Ms. Velazquez be transferred to a higher level of care at Cottage Hospital. Dr. Oh next saw Ms. Velazquez on the afternoon of July 10 at approximately 4:44 p.m. She was moaning in bed and not following commands. The orders had already been given to have her transferred to a higher level of care.

On July 10, 2018, at around 6:00 p.m., ten (10) hours after the initial call for the stroke team at Marian, Ms. Velazquez was admitted to Cottage Hospital, where another CTA of the head and neck was performed and showed “complete occlusion of the basilar trunk except for the top of the basilar artery region.” On the evening of July 10, 2018, Dr. Zauner performed an emergency procedure to remove the clot, however, after the procedure Ms. Velazquez was diagnosed with brainstem stroke syndrome. She was able to communicate with eye blinks but had no motor function on command to all her extremities. Velazquez remained “locked in” during her twenty (20) day treatment period at Cottage Hospital. Ms. Velazquez will never again walk or sit up under her own power.

The complaint alleges the following causes of action against Dr. Oh: (1) subrogation; (2) equitable comparative indemnity; and (3) declaratory relief. On May 15, 2023, the second cause of action for equitable indemnity was dismissed. On June 12, 2023, the court dismissed the declaratory relief cause of action. Thus, the sole remaining cause of action is for subrogation.

On Calendar

            Defendant Oh’s motion for summary judgment is made on the grounds that plaintiffs are unable to establish any breach of the standard of care and/or any causation on his part that would make him liable for any damages claimed by the plaintiffs. Opposition was filed on August 29, 2023. Reply was filed on September 8, 2023. All filings have been considered by the court.

Applicable Law

The defendant moving for summary judgment/adjudication has the burden of persuasion that “one or more elements” of the “cause of action cannot be established” or that there is a “complete defense,” and the burden of production to make a prima facie showing of no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850.) Once the defendant has met this burden, the burden shifts to plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c subd. (p)(2).)

The elements of an equitable subrogation claim are: “ ‘(1) [t]he insured has suffered a loss for which the party to be charged is liable, either because the latter is a wrongdoer whose act or omission caused the loss or because he is legally responsible to the insured for the loss caused by the wrongdoer; (2) the insurer, in whole or in part, has compensated the insured for the same loss for which the party to be charged is liable; (3) the insured has an existing, assignable cause of action against the party to be charged, which action the insured could have asserted for his own benefit had he not been compensated for his loss by the insurer; (4) the insurer has suffered damages caused by the act or omission upon which the liability of the party to be charged depends; (5) justice requires that the loss should be entirely shifted from the insurer to the party to be charged ...; and (6) the insurer's damages are in a stated sum, usually the amount it has paid to its insured, assuming the payment was not voluntary and was reasonable.’ ” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1522-1523.)

Dr. Oh impliedly argues the fourth element cannot be established because he did not deviate from the acceptable standard of medical care during the care and treatment of Ms. Velazquez on July 9-10, 2018, nor was any deviation the direct and proximate cause of physical injury to Ms. Velazquez or the exacerbation her injuries and damages. Stated another way, he did not commit medical malpractice.[2]

Qualified expert testimony is required in order to establish that a medical practitioner performed in accordance with the prevailing standard of care within the community. (Zavala v. Board of Trustees of the Leland Stanford. Jr. University, et al. (1993) 16 Cal.App.4th 1755, 1756; Johnson v. Superior Court (2006) 143 Cal.App 4th 297, 305). An expert opinion must be supported by reasons or explanations. (Kelley v. Trunk (1998) 66 Cal App 4th 519, 523). The plaintiff must then submit his or her own expert declaration in order to controvert defendant's expert relative to whether defendant breached the requisite duty and standard of care. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 414.) Thus, to avoid summary judgment in a medical malpractice case, a plaintiff must produce expert testimony to rebut any defense expert who asserts the defendant acted within the standard of care. (Jambazian v. Borden (1994) 25 Cal.App.4th 836) Furthermore, plaintiff must establish causation within a “reasonable medical probability” based upon competent expert testimony. (Jones v Ortho Pharmaceutical Corp. (1985) 163 Cal App.3d 396, 402-403; Bromme v. Pavitt (1992) 5 Cal App 4th 1487, 1504-1505.)

The evidence submitted in support of the motion and in opposition must be admissible evidence. (Code Civ. Proc., § 437c subd. (d).)[3] Declarations submitted by the party opposing, once found admissible, are liberally construed, while the moving party's declarations are strictly construed (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.)

Analysis

1. Dr. Oh’s Evidence

1. Oh Declaration

Defendant Dr. Oh has submitted his own declaration in support of his motion opining that he did not breach the standard of care, nor is there any evidence which would demonstrate any causal connection between any professional action or inaction on his part and plaintiffs’ claimed injuries or damages. (Oh Decl., ¶¶ 8-9.)

2. Objections to Oh Declaration Overruled

Plaintiffs object to paragraph 4 of Dr. Oh’s declaration on the basis that he failed to identify the relevant standard of care. However, Dr. Oh states that “it was my duty to have [Ms. Velazquez] admitted. Therefore, I prepared the History and Physical report.” (Oh Decl., ¶ 7(a).) He also states that the next morning, she was seen by Dr. Slimack, Dr. Fields, and Dr. Becketti, who ordered additional procedures and concluded that Ms. Velazquez should be moved to a higher level of care. “I was not involved in those decisions. At the time I saw her in the afternoon on July 10, the orders had already been given to transfer her to a higher level of care. Thus, there was nothing further for me to do at that time as the appropriate testing and orders had been given.” (Oh Decl., ¶ 7(b).) Even giving this declaration a strict construction, Dr. Oh’s opinion is clearly that his duty of care was strictly limited to Ms. Velazquez’s admission. This objection is overruled.

Plaintiffs object that this same paragraph is contrary to Dr. Oh’s deposition testimony, where he testifies that “…there is no standard of care in this specific transfer situation.” (Add’l UMF No. 9; Oh Depo, page 53, lines 9-11.) The court does not view this as contrary to Dr. Oh’s opinion; rather, it’s irrelevant given the court’s interpretation of Dr. Oh’s opinion on the scope of his duty re transfer. This objection is overruled.

Plaintiffs object that paragraph 7 of Dr. Oh’s declaration is self-serving. However, in medical negligence cases, a physician defendant may be his or her own expert. (O'Connor v. Bloomer (1981) 116 Cal.App.3d 385.) This objection is overruled.

The remaining objections are irrelevant or unsupported and overruled.

2. Plaintiffs’ Evidence

1. Gold Declaration

            Plaintiffs submit the declaration of Dr. Michael Gold, who has been affiliated with the UCLA Department of Neurology since 1985 and is now an Associate Clinical Professor of Neurology in the UCLA Department of Neurology. He has reviewed the medical records of Adrianna Velazquez from Santa Barbara Cottage Health and Marian Regional Medical Center; has performed an independent exam of Ms. Velazquez and has reviewed the pertinent portions of Dr. Oh’s deposition. He

opines that the fact treatment was not undertaken for over 8 hours after activating stroke protocol aggravated the injuries suffered by Ms. Velazquez. (Gold Decl., ¶ 6.) Dr. Gold opines that Dr. Oh breached the standard of care when he failed to take action on the afternoon of July 10 knowing that Ms. Velazquez’ neurological condition was deteriorating, that the stroke protocol had been initiated, and that she was to be transferred on an emergency or urgent basis to Santa Barbara Cottage Hospital for treatment. (Gold Decl., ¶¶ 7-8.) He also opines that had the appropriate procedures been performed within 4.5 hours of the triggering stroke protocol at Marian, Ms. Velazquez would have suffered significantly less permanent brain damage and resulting severe physical impairment. (Gold Decl., ¶ 6.)

2. Objections to Gold Declaration Overruled

            Dr. Oh objects to Dr. Gold’s declaration on two bases: (1) that he is not qualified to render standard of care opinions as to a surgeon; and (2) that the declaration lacks foundation and is inadmissible hearsay. These objections are overruled.

The test for whether a witness is qualified to testify as an expert is whether the witness possess the “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid.Code, § 720, subd. (a).) “ ‘ “To qualify a witness as a medical expert it must be shown that the witness (1) has the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject, and (2) is familiar with the standards required of physicians under similar circumstances.” ” ” (Chadock v. Cohn (1979) 96 Cal.App.3d 205, 208-209.) The criteria for determining professional expertise are: “(1) occupational experience, the kind which is obtained casually and incidentally, yet steadily and adequately in the course of some occupation or livelihood; (2) basic education and professional training; and (3) practical knowledge of what is customarily done by physicians under circumstances similar to those which confronted defendant.” (Evans v. Ohanesian (1974) 39 Cal.App.3d 121, 128.)

Contrary to Dr. Oh’s unsupported assertion, there is no general requirement that a medical expert share the same subspecialty as the physician whose treatment is under scrutiny for breach of the standard of care. It is settled that a physician in one specialty area may be competent to testify about the standard of care of a physician in another specialty. “The unmistakable general trend in recent years has been toward liberalizing the rules relating to the testimonial qualifications of medical experts.” (Brown v. Colm (1974) 11 Cal.3d 639, 645.) The determinative issue is whether the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth. Where a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 37.) Other authorities have held  similarly, e.g., a pathologist was qualified to testify as to causes of aseptic necrosis (Agnew v. City of Los Angeles (1950) 97 Cal.App.2d 557, 566); an expert in otolaryngology to testify regarding plastic surgery (Mirich v. Balsinger (1942) 53 Cal.App.2d [103,] 105); a homeopathic physician and surgeon to testify on the degree of care required of a physician educated in the allopathic school of medicine (Hutter v. Hommel (1931) 213 Cal. 677, 681); a pathologist and professor of pathology to testify on the subject of gynecology (Cline v. Lund [ (1973) ] 31 Cal.App.3d [755,] 766).” (Mann, supra, 38 Cal.3d at pp. 37-38.)

In Mann, the defendants argued that a neurosurgeon was not qualified to opine on the standard of care applicable to radiologists reading x-rays. (See Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38, overruled on other grounds by Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal. 5th 536.) The Court held that, to the contrary, “a neurosurgeon is obviously aware not only of the practice of his speciality [sic] but also the symptomology which leads other specialists to treat patients coming within his speciality and to refer patients to neurosurgeons.” (Id. at 38-39.) The Court reversed the trial court's grant of summary judgment to the defendants. Similarly, in Lattimore v. Dickey, the trial court granted summary judgment on the basis that a doctor certified in family medicine and emergency medicine was not competent to testify about the standard of care applicable to general surgeons. The California Court of Appeal reversed, holding that the family practitioner's qualifications demonstrated sufficient skill and experience to be able to opine on the standard of care applicable to a doctor treating a patient experiencing internal bleeding or otherwise in need of immediate treatment. (See Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970.)

Here, Dr. Oh provides no argument as to whether Dr. Gold has the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject, other than the fact he is not of the same specialty as Dr. Oh. This objection is thus overruled. 

A medical expert's declaration stating an opinion based entirely on review of medical records does not support summary judgment where the records were not attached to the declaration or otherwise before the court. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743.) Dr. Oh argues that Dr. Gold’s declaration is unsupported because the medical records he reviewed are not attached.

Dr. Gold states: “My workup of this matter has included review of medical records of Adrianna Velazquez from Santa Barbara Cottage Health and Marian Regional Medical Center (MRMC). . . (Decl. of Dr. Gold, ¶ 3.) None of these records are attached to his declaration.

A party opposing summary judgment need not file duplicate copies of medical records on which its expert relied in forming a disputed expert opinion when those records, properly authenticated, are already before the court in connection with the moving party's papers. (Shugart v. Regents of Univ. of Calif. (2011) 199 Cal.App.4th 499, 505-506—error to grant summary judgment where opposing party's expert declaration, relying on medical records submitted by moving party as foundational evidence for its expert, created genuine issue of material fact.) Here, Dr. Oh submitted “pertinent medical records from Marian Hospital . . .” (Mish Decl., ¶ 3.) However, no records from Santa Barbara Cottage Health were submitted by either party. Dr. Gold’s opinion thus arguably lacks foundation—at least to the extent it relies on records from Santa Barbara Cottage Health. However, defendant has failed to identify which portion of Dr. Gold’s opinions are undermined by this failure. Dr. Gold’s opinion largely involves events occurring at Marian Medical. It is incumbent on the objecting party to show why the absence of medical records from a different institution undermines Dr. Gold’s opinion regarding those events. The objection is overruled.

3. Duty of Care

The court finds the declaration of Dr. Gold creates a triable issue of material fact whether Dr. Oh’s actions (or inaction) to ensure a timely transfer were in accordance with the prevailing standard of care within the community. Quite plainly, there is a material issue whether the applicable duty of care requires an admitting and treating physician, such as Dr. Oh, to ensure that a transfer ordered by another physician occurs in a timely fashion, or whether that physician’s duty is discharged upon admitting the patient. As no cases have been cited on this precise issue, it cannot be resolved as a matter of law.

As noted above, Dr. Gold’s declaration clearly suggests that to comply with the standard of care, Dr. Oh, as the admitting doctor, the treating doctor, and a part of the managing team for Ms. Velazquez, was required to make efforts to ensure that Ms. Velazquez’s transfer occurred in a timely fashion so she could receive treatment that Marian could not provide. (Gold Decl., ¶7(a), (c).) Dr. Oh was the admitting physician and wrote the History and Physical Report at 5:03 p.m. on July 9, 2018. (Mish Decl., Exh. B.) Dr. Oh did not call the stroke protocol; Dr. Nicholas Becketti called it on the morning of July 10, 2018. (Mish Decl., Exh. B, Pulido Consultation Report authored by Becketti, Nicholas, C DO, MRMC-A-00035.) Stroke protocol was called at 8 a.m. on July 10, 2018. (Responsive Separate Statement, Stmt. of Undisputed Fact No. 6.) It was ordered that Ms. Velazquez be transferred to a higher level of care at Cottage Hospital. (Separate Statement, Stmt. of Undisputed Fact No. 7.) Dr. Oh nevertheless knew, as of some time between 9 a.m. and 11 a.m. that his patient was having significant neurologic problems and that a workup was ongoing and that they had notified the neurosurgeon who was on his way or evaluating the patient already.” (UMF, Fact No. 2; Oh Depo. attached to Horowitz Decl., p. 25, ll. 17-20.) He did nothing.  Dr. Oh was informed that the decision had been made to transfer Ms. Velazquez to another facility. (Additional UMF, Fact No. 3 [4]—" Later during the day of July 10, 2019, Dr. Oh spoke to a nurse on at least one occasion and obtained further information about the patient’s condition but did not return to the hospital or take any action on the patients behalf even though he was concerned about the patient because her status was deteriorating.”; Oh Depo. attached to Horowitz Decl., p. 29, ll. 2-8.[5]) Dr. Oh did nothing. Even after he saw his patient at 4:44 p.m. on the afternoon of July 10, he did nothing. (Additional UMF, No. 6.)

Time was of the essence. Dr. Gold states: “It is my opinion that to a reasonable medical probability, had a “clot-busting” injection of tPA (tissue Plasminogen Activator) first (sic), and a subsequent thrombectomy been performed within approximately 4.5 hours of the triggering of the stroke protocol at MRMC, Ms. Velazquez would have suffered significantly less permanent brain damage and resulting severe physical impairment.” (Gold Decl., ¶ 6.)

The court thus finds the declaration of Dr. Gold, while not a model of clarity, creates a triable issue of material fact whether Dr. Oh’s actions (or inaction) to ensure a timely transfer (during the critical time frame identified by Dr. Gold) were in accordance with the prevailing standard of care within the community.

4. Causation

Dr. Oh argues that based on this timeline, Dr. Gold’s declaration does not raise a triable issue of material fact. Specifically, Dr. Oh argues “Dr. Gold’s declaration states that something needed to be done within four and a half hours. With the stroke occurring at 8:00 a.m., then action needed to be taken according to Dr. Gold before 12:30 p.m. four and a half hours later.” (Reply, p. 3, ll. 24-26.) Dr. Oh did not see Ms. Velazquez again until the afternoon of July 10, 2018 at 4:44 p.m. (Separate Statement, Stmt. of Undisputed Fact No. 8; Oh Decl., ¶6(e).) Dr. Oh argues that because the time frame in which to take action was between 8 a.m. and 12:30 p.m., and because he did not see Ms. Velazquez again until 4:44 p.m., any efforts to expedite the transfer at that point would not have made difference. (See Gold Decl., last sent.—"In my opinion, Dr. Oh’s failure to take action, even after examining Ms. Velazquez still at MRMC over 8 hours after the stroke protocol was initiated constitutes a breach of the medical standard of care.”) Dr. Oh concludes that “plaintiff’s own expert gives Dr. Oh a causation defense.” (Reply, p. 3:28-4:1.)

The court agrees that the critical time frame identified by the Gold declaration is between 8 a.m. and 12:30 p.m. However, it disagrees with Dr. Oh’s conclusion that since he did not see his patient again until 4:44 p.m. on the afternoon of July 10, a time after which the damage had arguably been done, he bears no responsibility. Whether Dr. Oh had a duty to ensure a timely transfer is not tied to when he physically saw his patient. Based on this record, the court views the issue as one of duty, not causation. And disputed issues of material fact exist as to this critical issue. 

For the reasons articulated above, the motion for summary judgment is denied.  

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[1] In 2018, Adriana Velazquez and Miguel Velazquez sued Corazon Del Campo, LLC, Lidia Bibiano, and Santa Maria Farms for motor vehicle negligence, general negligence, negligence per se, and loss of consortium, following a July 9, 2018, accident, in which a black 2000 Ford Explorer (driven by Bibiano) collided with a 2013 silver Nissan Altima driven by Adriana. (Case No. 18CV03707, Judge Beebe.) Chubb Insurance Co., Everest Insurance Co. (“Everest”), and Great American Ins. Co. (“GAIC”) provided defenses for their respective insured. On April 24, 2019, the Velazquez’s resolved their claims for $20 million dollars. Pursuant to the terms of the comprehensive Release negotiated between the parties, Chubb paid $3 million dollars, Everest paid $7 million dollars, and GAIC paid $10 million dollars on behalf of their insureds.

[2] The elements of a cause of action for medical negligence are: (1) The duty of the professional to use the skill, prudence and diligence of other members of the profession commonly possess and exercise; (2) breach of the duty; (3) proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the negligence. (Burgess v. Superior Court of Los Angeles County (1992) 2 Cal.4th 1064, 1077.)

[3] Objections to opposing expert Dr. Michael Gold will be considered within the Analysis section of this ruling.

[4] No response to plaintiff’s additional statement of undisputed material facts was received.

[5] “Q: Do you believe that it was during this second phone call that you were advised that the decision had been made to transfer the patient to a different facility?

A: That information was transmitted to me during the day at some point by somebody.”

(Oh Depo. attached to Horowitz Decl., p. 29, ll. 2-8.)