Finley Mathieu vs Carin Craig, MD et al

Case Number

22CV00092

Case Type

Hearing Date / Time

Fri, 08/16/2024 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For all reasons discussed herein, the motion of defendant Alejandro R. Soffici, M.D., for summary judgment is denied.

Background:

On January 10, 2022, plaintiff Finley Mathieu (Mathieu), a minor by and through his guardian ad litem Sarka Holeckova (Holeckova), filed a complaint in this action against defendants Carin Craig, M.D. (Dr. Craig), Sansum Clinic, and Santa Barbara Cottage Hospital (Cottage Hospital) (collectively, defendants), alleging one causes of action labeled medical malpractice negligence. (Compl., ¶ 10(f) & p. 4.) In the complaint, Mathieu alleges that defendants failed to monitor, observe, control, and evaluate Mathieu during and after his birth and delivery on November 22, 2019. (Id. at ¶ GN-1.) Mathieu further alleges that, as a result, he suffered substantial pain, suffering, and permanent impairment. (Ibid.)

On February 24, 2022, Cottage Hospital filed its answer to the complaint generally denying its allegations and asserting nine affirmative defenses.

On March 11, 2022, Dr. Craig and Sansum Clinic filed their respective answers to the complaint, each generally denying its allegations and asserting twenty-two affirmative defenses.

On February 28, 2023, Mathieu filed a request for dismissal of the complaint as to Cottage Hospital only, without prejudice.

On March 17, 2023, Mathieu filed an amendment to the complaint substituting Alejandro R. Soffici, M.D. (Dr. Soffici) for the fictitious name Doe 1. Dr. Soffici filed an answer to the complaint on May 31, 2023, generally denying its allegations and asserting thirteen affirmative defenses.

On June 20, 2024, Dr. Soffici filed a motion for summary judgment on the grounds that he met the standard of care for maternal-fetal medicine physicians at all times and did not cause or contribute to any harm to Mathieu. Mathieu opposes the motion.

Analysis:
 

For all reasons discussed below, there exist trial issues of material fact with respect to whether or not Dr. Soffici met the applicable standard of care and whether or not Dr. Craig discussed with Holeckova options for vaginal delivery versus Cesarean section or “C-section” or the risks of needing a C-section. Therefore, the Court will deny the motion.

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) The moving party “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at p. 850.)

Relevant here, “[a] defendant moving for summary judgment has the burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. [Citations.] If a defendant’s moving papers make a prima facie showing that justifies a judgment in its favor, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact.” (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945.) To assess whether a defendant has made the required showing, the court views the evidence in the light most favorable to the plaintiff, and resolves any evidentiary doubts or conflicts in plaintiff’s favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)

Mathieu’s Evidentiary Objections:

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (Code Civ. Proc., § 437c, subd. (q).) Mathieu asserts evidentiary objections to the whole of the declaration of David A. Miller, M.D. (Dr. Miller), which is submitted by Dr. Soffici in support of the present motion, and to statements and material appearing in that declaration. (Mathieu Evid. Obj. Nos. 1-5.) Mathieu also asserts objections to Holeckova’s medical records from the offices of Dr. Craig, Dr. Soffici, Bonnie J. Dattel, M.D. (Dr. Dattel), and Cottage Hospital. (Id., Obj. Nos. 6-8.)

As discussed more fully below, available information shows that Dr. Miller is a physician licensed to practice medicine in the State of California. (Miller Decl., ¶ 1.) Dr. Soffici ostensibly consulted Dr. Miller as an expert witness in this matter and relies on the opinions set forth in the Miller declaration to support the contention that Dr. Soffici’s conduct met the applicable standard of care. (Id. at ¶¶ 3-5 & 16; see also Sinz v. Owens (1949) 33 Cal.2d 749, 753 [“[t]he standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony”]; accord, Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001].)

Regarding the medical records to which Mathieu asserts objections, available information also shows that, in forming the opinions offered in the Miller declaration, Dr. Miller reviewed Holeckova’s medical records which include records from the offices of Dr. Soffici, Sansum Clinic, and Cottage Hospital. (Miller Decl., ¶¶ 4-5; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743 [medical and hospital records relied on by a party’s expert must be properly before the court on summary judgment].) In addition, to support the present motion, Dr. Soffici offers Holeckova’s medical records to establish facts which Dr. Soffici contends are undisputed and material to the disposition of the motion. (See, e.g., Sep. Stmt., UMF No. 1 [citing portions of the medical records to establish facts relating to Holeckova’s office visit with Dr. Craig]; No. 2 [same re facts relating to Holeckova’s office visit with Dr. Dattel]; No. 3 [same re facts regarding outpatient prenatal care received by Holeckova].) By citing portions of the medical records to establish facts separate from or in addition to those asserted by Dr. Miller, it appears that Dr. Soffici also effectively relies on the medical records to which Mathieu objects as independent grounds for adjudication of the motion.

For all reasons discussed above, the information and opinions offered in the Miller declaration, the medical records on which Dr. Miller relied to form his opinions, and the medical records on which Dr. Soffici relies to establish facts either separate from or in addition to those asserted by Dr. Miller, are material to the disposition of the motion. Therefore, the Court must resolve Mathieu’s objections to this evidence before it can determine the motion.

Specifically, Mathieu objects to the entirety of the Miller declaration based on “foundation” and “competency”. (Evid. Obj. No. 1.) California Rules of Court requires that written objections to evidence “[q]uote or set forth the objectionable statement or material[.]” (Cal. Rules of Court, rule 3.1354(b)(3).) In his objection no. 1, Mathieu fails to identify which specific statements or material among the multiple statements and material appearing in the Miller declaration are objectionable based on foundation or competency. For example, Mathieu fails to explain why information appearing in the Miller declaration to establish Dr. Miller’s education, training, and experience is objectionable based on a lack of foundation or competency to offer these facts. (See, e.g., Miller Decl., ¶ 3.) These examples are intended to be illustrative but not exhaustive. Mathieu’s failure to identify the specific statements or material in the Miller declaration to which Mathieu objects forces the Court to guess whether Mathieu objects to the cited material in whole or in part.

For all reasons discussed above, Mathieu has failed to substantially comply with the formatting rules set forth in California Rules of Court, rule 3.1354(b)(3) with respect to his evidentiary objection no. 1. Therefore, the Court will disregard this objection. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8 [a trial court may decline ruling on improperly formatted objections].)

Mathieu also objects to portions of the Miller declaration by stating only the page and line numbers where the purportedly objectionable statements or materials appear. (Evid. Obj. Nos. 2-4.) The same analysis applies. Though Mathieu states, in his objection nos. 2 through 4, the page and line number were the material objected to appears in the Miller declaration, Mathieu fails to quote the objectional material or statements as required under California Rules of Court, rule 3.1345(b)(3), forcing the Court to guess whether the objection applies to the cited material or statements in whole or in part. Therefore, for the same reasons further discussed above, the Court declines ruling on Mathieu’s objection nos. 2 through 4.

The objections of Mathieu to medical records from the offices of Dr. Craig at Sansum Clinic, Cottage Hospital, and from the offices of Dr. Soffici and Dr. Dattel at the Santa Barbara Clinic also are improperly formatted. Mathieu fails to state either the exhibit, title, page, or line number of the material objected to forcing the Court to guess which specific evidence Mathieu is referring to in these objections. Therefore, and for all reasons further discussed above, the Court declines ruling on Mathieu’s objection nos. 6 through 8.

Furthermore, with respect to Mathieu’s objection nos. 6 through 8, the Court notes that Dr. Soffici has submitted, with his reply papers, declarations of the custodians of records of the offices of Dr. Craig, Dr. Soffici, Dr. Dattel, and Cottage Hospital to authenticate the medical records produced by each office. (Reilly Decl., ¶¶ 2-4 & Exhs. E-G; Soffici Reply To Evid. Obj. Nos. 6-8.) The Court also notes that in support of his opposition to the motion, Mathieu submits the declaration of Michele Milovina, M.D. (Dr. Milovina) who Mathieu ostensibly consulted as an expert witness in this case and who states that she reviewed “medical records from Cottage Hospital” in forming the opinions on which Mathieu relies. (Milovina Decl., ¶ 3; McCallion Decl., ¶ 2 & Exh. A [counsel’s declaration attaching Holeckova’s medical records from Cottage Hospital].) Accordingly, there exist sufficient grounds on which the Court may overrule Mathieu’s objections to the medical records of Holeckova.

Mathieu’s objection no. 5 refers to a statement that purportedly appears at page 4, line 3, of the Miller declaration in which Mathieu contends that Dr. Miller asserted that Holeckova “elected to have vaginal delivery[.]” (Mathieu Evid. Obj. No. 3.) Mathieu objects to this statement based on foundation, speculation, and hearsay. (Ibid.) The Court has reviewed the material appearing at page 4, line 3, of the Miller declaration submitted by Dr. Soffici. The statement quoted by Mathieu in objection no. 5 does not appear at the stated page and line number of the Miller declaration. Therefore, the Court will overrule Mathieu’s objection no. 5.

The issues framed by the pleadings:

“It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Accordingly, the Court first considers the allegations of the complaint to determine the scope of the issues to which the motion must respond. (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 975.)

As further detailed above, Mathieu alleges in the complaint that his injuries arise from services provided by Dr. Soffici during and after Mathieu’s birth and delivery. Available undisputed or not reasonably disputed evidence shows that the services provided by Dr. Soffici included “maternal-fetal medicine” or MFM consultations with and evaluations of Holeckova, including during a hospital admission as further discussed herein. (See, e.g., Dermenjyan Decl., Exh. C [Cottage Health medical records for Holeckova] at PDF pp. 37-38; 47-50; 53-60; 65-66; 75-78; 81-88; 93-94 [consultation notes authored by Dr. Soffici]; see also Opp. Sep. Stmt., UMF Nos. 6, 9, 10, 11 [not disputed or reasonably disputed with regard to the medical services provided to Holeckova by Dr. Soffici].)

The parties here do not, and cannot reasonably, dispute that Mathieu’s claim arises from injuries which Mathieu contends are directly related to professional medical services provided by Dr. Soffici during and after Mathieu’s birth and delivery. Therefore, the claim asserted against Dr. Soffici in this action is one of professional negligence. (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-192 [where a party seeks damages “for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such”, then the action arises out of the provider’s professional negligence]; accord, Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 353-354.)

“ ‘ “[I]n any medical malpractice action, the plaintiff must establish: ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a 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's negligence.’ ” ’ [Citation.]” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310 (Borrayo).) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467 (Avivi).) Because opinion testimony from a qualified witness is necessary to demonstrate the elements of a medical malpractice claim, “[w]hen a defendant health care practitioner moves for summary judgment and supports his motion with an expert declaration that his conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Borrayo, supra, 2 Cal.App.5th at p. 310.)

The declaration of Dr. Miller:

“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” (Evid. Code, § 720, subd. (a).) Relevant here, “the appropriate test for expert qualification in ordinary medical malpractice actions is whether the expert is familiar with circumstances similar to those of the [plaintiff].” (Avivi, supra, 159 Cal.App.4th at p. 465.)

As further discussed above, in support of the motion, defendants submit the declaration of Dr. Miller who is a licensed physician board certified in Obstetrics and Gynecology as well as MFM. (Miller Decl., ¶ 3.) Dr. Miller states that he obtained his medical degree in 1988 from the University of Arkansas for Medical Sciences in Little Rock, Arkansas. (Miller Decl., ¶ 3.) Dr. Miller completed an internship and residency in Obstetrics and Gynecology at Vanderbilt University Medical Center in Nashville, Tennessee in 1992, and thereafter a fellowship in MFM at Los Angeles County-University of Southern California (USC) Medical Center through the Keck School of Medicine in 1994. (Miller Decl., ¶ 3.) Dr. Miller has taught in the Division of MFM at USC Keck School of Medicine since 1994, and has been a Professor of Clinical Obstetrics, Gynecology, and Pediatrics in this division since 2007. (Miller Decl., ¶ 3.) Additionally, from 2005-2007, Dr. Miller was an Associate Professor of Clinical Pediatrics at Children’s Hospital Los Angeles (CHLA), and from 2008-2011, Dr. Miller was the Chief of the Division of MFM at USC. (Miller Decl., ¶ 3.) Since 2011, Dr. Miller been the Chief of the Division of MFM at CHLA. (Miller Decl., ¶ 3.) In addition to his clinical practice and teaching, Dr. Miller conducts research. (Miller Decl., ¶ 3.)

Dr. Miller states that he is “fully familiar with the facts and circumstances in this action” as well as the “standard of care for [MFM] physicians at all relevant times in this action, including in 2019.” (Miller Decl., ¶¶ 4-5.) Based on the information offered in the Miller declaration, the Court finds that Dr. Miller is familiar with circumstances similar to those of Mathieu and is qualified to provide expert opinion testimony on the subject to which his testimony relates. (Avivi, supra, 159 Cal.App.4th at p. 467.) The Court further notes that Mathieu does not dispute that Dr. Miller is a is a board-certified MFM specialist who has extensive education, training, and experience in that field which qualifies him to provide expert opinion testimony in this case. (Opp. Sep. Stmt., UMF no. 17 & evidence cited therein.)

As noted above, in arriving at the opinions set forth in his declaration, Dr. Miller personally reviewed medical records from the offices of Dr. Soffici, Sansum Clinic, and Cottage Hospital, and states his understanding that as to Dr. Soffici, Mathieu alleges a claim for medical negligence based on the alleged failure of Dr. Soffici to recommend or order delivery by C-section. (Miller Decl., ¶¶ 4.) Based on his review of the materials described above and his education, training, and experience, Dr. Miller has determined the following facts to be relevant to the opinions set forth in the Miller declaration. (Miller Decl., ¶ 5.) Below, the Court will further note which facts offered by Dr. Miller are not disputed or reasonably disputed by Mathieu as set forth in Mathieu’s opposing separate statement.

On June 4, 2019, Holeckova, then 40 years old, had her first obstetric office visit with Dr. Craig, who is an obstetrician at Sansum Clinic. (Miller Decl., ¶ 6; see also Opp. Sep. Stmt., UMF No. 1 & evidence cited therein [undisputed on this point].) An initial ultrasound confirmed that Holeckova was pregnant with twins. (Ibid.) Holeckova was referred to be seen by an MFM specialist for ultrasounds and monitoring. (Ibid.)

On June 13, 2019, Holeckova was seen by Dr. Dattel, ostensibly an MFM physician, at Santa Barbara Clinic. (Miller Decl., ¶ 7; Opp. Sep. Stmt., UMF No. 2 & evidence cited therein [undisputed on this point].) Dr. Dattel noted Holeckova’s advanced maternal age and pregnancy with spontaneous dichorionic, diamniotic male twins. (Ibid.) The fetuses were 11 weeks and 3 days in gestational age and had normal anatomy and measurements. (Ibid.) Dr. Dattel discussed with Holeckova the high-risk nature of her pregnancy due to age and twin gestation, with risks including aneuploidy, gestational diabetes mellitus, preeclampsia, growth issues, preterm labor, and preterm delivery. (Ibid.) Holeckova thereafter continued receiving outpatient prenatal care at regular intervals with no complaints or problems. (Miller Decl., ¶ 7; Opp. Sep. Stmt., UMF No. 3 & evidence cited therein [same].)

On Monday, October 7, 2019, Holeckova, who was now 41 years old, presented to the Cottage Hospital labor and delivery department due to premature preterm spontaneous rupture of membranes of Twin A. (Miller Decl., ¶ 8; Opp. Sep. Stmt., UMF No. 4 & evidence cited therein [undisputed on this point].) The fetuses were 28 weeks in gestational age and were both cephalic in presentation, i.e., head-down. (Ibid.) Holeckova was admitted for extended bedrest in the hospital to reduce the risk of infection and monitor the well-being of the fetuses until they could be safely delivered. (Miller Decl., ¶ 8; Opp. Sep. Stmt., UMF No. 5 & evidence cited therein [same].)

Holeckova’s treatment plan included antibiotics, nonstress testing (NST) of the fetuses three times a day, regular monitoring of labs and cultures, expectant management, and delivery at 34 weeks gestational age. (Miller Decl., ¶ 8; Opp. Sep. Stmt., UMF No. 5 & evidence cited therein [undisputed on this point].) Holeckova was evaluated by either Dr. Dattel or Dr. Soffici each day of her prolonged admission and had no complaints or complications, including no signs of infection. (Miller Decl., ¶ 9; Opp. Sep. Stmt., UMF No. 6 & evidence cited therein [same].) NST and growth scans confirmed that both fetuses were doing well and growing normally. (Miller Decl., ¶ 9; Opp. Sep. Stmt., UMF No. 7 & evidence cited therein [same].)

On Tuesday, November 12, 2019, during a growth ultrasound, Dr. Dattel noted that both fetuses were still cephalic in position and had normal fetal growth. (Miller Decl., ¶ 10; Opp. Sep. Stmt., UMF No. 8 & evidence cited therein [undisputed on this point].) The plan was for induction of labor at 34 weeks. (Ibid.)

On Saturday, November 16, 2019, Dr. Soffici noted that Holeckova was 33 weeks and 5 days in her pregnancy and doing well. (Miller Decl., ¶ 11; Opp. Sep. Stmt., UMF No. 9 & evidence cited therein [not reasonably disputed on this point].) Fetal heart rate monitoring was reassuring with rare contractions detected. (Ibid.) Dr. Soffici noted that the exact date of delivery was to be decided by Holeckova and her obstetrician Dr. Craig, who were currently planning on induction of labor and attempted vaginal delivery. (Ibid.)

On Sunday, November 17, 2019, at 33 weeks and 6 days, Dr. Soffici noted that on fetal monitoring, there were increasing contractions that were not felt regularly by Holeckova. (Miller Decl., ¶ 12; Opp. Sep. Stmt., UMF No. 10 & evidence cited therein [undisputed on this point].) Holeckova was still doing well with no sign of infection. (Ibid.) The plan was still for induction of labor and attempted vaginal delivery, with the exact date to be planned by Holeckova and her obstetrician Dr. Craig. (Ibid.)

On Monday, November 18, 2019, Dr. Craig evaluated Holeckova who was having mild contractions and reported doing well. (Miller Decl., ¶ 13; Opp. Sep. Stmt., UMF No. 12 & evidence cited therein [undisputed on this point].) Dr. Craig noted that she discussed the options for planned induction of labor with Holeckova, who wished to wait a little longer. (Ibid.) Dr. Craig noted that the risk associated with delivering the babies prematurely at 34 to 35 weeks gestation was not significant compared with the risk of infection associated with delivering later than that. (Ibid.) Therefore, Dr. Craig planned to start the induction of labor early on Thursday, November 21, 2019. (Ibid.)

On Thursday, November 21, 2019, at 34 weeks and 3 days gestation, labor was induced by Dr. Craig. (Miller Decl., ¶ 14; Opp. Sep. Stmt., UMF No. 14 & evidence cited therein [undisputed on this point].) On Friday, November 22, 2019, Holeckova was administered epidural anesthesia and taken to the operating room to attempt vaginal delivery. (Miller Decl., ¶ 15; Opp. Sep. Stmt., UMF No. 15 & evidence cited therein [same].) Both babies’ vertex positions were confirmed. (Ibid.) Dr. Craig delivered Twin A at 5:11 a.m., and Twin B (Mathieu) at 6:02 a.m. (Miller Decl., ¶ 15; Opp. Sep. Stmt., UMF No. 16 & evidence cited therein [same].)

Based upon Dr. Miller’s review of the medical records of Holeckova, the facts further described above, and his education, training, and experience, it is the opinion of Dr. Miller that Dr. Soffici met the standard of care for MFM physicians in his prenatal care and treatment of Holeckova. (Miller Decl., ¶ 16.) The specific basis for this opinion includes that, according to Dr. Miller, the standard of care does not require that the MFM physician recommend, nor that the patient have, a C-section delivery simply because the patient is having twins or is over 40 years old. (Ibid.) Dr. Miller explains that, although these factors may increase the risks associated with a pregnancy, neither twin gestation nor advanced maternal age are contraindications to vaginal delivery. (Ibid.)

Dr. Miller further states that, in this case, the dichorionic, diamniotic twins had normal fetal growth, reassuring NSTs, and no infection throughout Holeckova’s pregnancy, despite Twin A’s premature rupture of membranes. (Miller Decl., ¶ 16.) In addition, according to Dr. Miller, both fetuses were in a cephalic vertex presentation and doing well throughout Holeckova’s extended admission, and their vertex presentation was confirmed shortly before delivery. (Ibid.) Therefore, it is Dr. Miller’s opinion that there was no contraindication to vaginal delivery in this case. (Ibid.) Dr. Miller also states that he found no evidence that Dr. Soffici was asked to make a recommendation regarding the method of delivery in this case. (Ibid.) Further, Dr. Miller asserts that if Dr. Soffici had been asked to make a recommendation regarding the method of delivery, the standard of care would not have required him to recommend that Holeckova have a C-section as opposed to vaginal delivery. (Ibid.)

It is the further opinion of Dr. Miller that the applicable standard of care does not, and did not, require an MFM consultant (in this case, Dr. Soffici) to order, set up, or arrange for the patient of a different doctor (in this case, Dr. Craig) to have a C-section. (Miller Decl., ¶ 16.) Dr. Miller explains that an MFM provider may counsel a patient regarding the risks and benefits of the different routes of delivery, but that the MFM provider is not involved in labor and delivery, which is within the scope of the obstetrician. (Ibid.) According to Dr. Miller, the decision regarding route and timing of delivery is ultimately made by the patient in discussion with her obstetrician and it is not the role of the MFM to tell the obstetrician how to deliver the baby unless a specific method of delivery is required by the standard of care, which did not apply in this case, or the MFM is specifically asked to make a recommendation regarding delivery method, which also did not apply in this case. (Ibid.) Dr. Miller states that, in this case, Dr. Soffici’s role was to assist and advise the obstetrician regarding antepartum management of preterm premature rupture of membranes. (Ibid.)

Dr. Miller further notes that his review of the medical records show that Dr. Craig discussed the option of C-section versus vaginal delivery over several weeks, culminating in a plan for vaginal delivery. (Miller Decl., ¶ 16.) In addition, Dr. Soffici documented that the exact day of delivery was to be scheduled by the patient and Dr. Craig and that, as of November 16, 2019, the patient and her obstetrician were planning on induction of labor and attempted vaginal twin delivery, a plan which, according to Dr. Miller, was entirely reasonable and well within the standard of care. (Ibid.) Though Dr. Soffici was not asked to participate in the decision regarding delivery method according to Dr. Miller, Dr. Miller opines that, if he had been asked to do so, it would have been well within the standard of care for him to conclude that the plan for attempted vaginal twin delivery was reasonable. (Ibid.) In addition, Dr. Miller states that the standard of care did not require Dr. Soffici to oppose the reasonable plan formulated by the patient and her obstetrician or to counsel the patient at any time regarding a different plan. (Ibid.) For these and all reasons further detailed above, Dr. Miller further concludes that, to a reasonable degree of medical probability, nothing that Dr. Soffici did or did not do caused or contributed to any harm to Mathieu. (Id. at ¶ 17.)

Based on the information and opinions presented in the declaration of Dr. Miller, Dr. Soffici has shown prima facie that Mathieu cannot establish a breach of duty by Dr. Soffici or causation with respect to Mathieu’s claim that Dr. Soffici failed to meet the applicable standard of care in providing MFM consulting services during or after Mathieu’s birth and delivery as alleged in the complaint. Because Dr. Soffici has made a prima facie showing that the breach of duty and causation elements of the claim alleged by Mathieu in this action cannot be established, the burden now shifts to Mathieu to rebut the expert testimony offered by defendants and to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.)

The declaration of Dr. Milovina:

To demonstrate that there exist triable issues of fact as to whether or not Dr. Soffici’s conduct fell below the standard of care based on an alleged failure to recommend to Dr. Craig that she perform a C-section delivery, Mathieu submits the declaration of Dr. Milovina who is also licensed to practice medicine in the State of California and board-certified in Obstetrics and Gynecology. (Milovina Dec., ¶¶ 1-2.) Dr. Milovina attended medical school at the University of Hawaii where she obtained her medical degree in 1998. (Id. at ¶ 2.) Dr. Milovina began a four-year residency program in Obstetrics and Gynecology at Cedars-Sinai Medical Center in Los Angeles under the chairmanship of perinatologist Dr. Larry Platt. (Ibid.) Dr. Milovina has been an attending physician at Cedars-Sinai Medical Center since 2002, and regularly works with and teaches residents in training. (Ibid.) Dr. Milovina has been in private practice in Beverly Hills also since 2002. (Ibid.)

Dr. Milovina states that her clinical interest is in caring for women with high-risk pregnancies. (Milovina Dec., ¶ 2.) Beginning in 2018, Dr. Milovina has travelled annually with Helps International to remote villages in Guatemala for 10 days at a time to provide poverty-stricken populations of women with prenatal and gynecologic care, as well as life-saving gynecologic surgery. (Ibid.) Dr. Milovina also initiated the first midwife training course in rural Guatemala through Helps, which she continues to teach annually. (Ibid.) Dr. Milovina helps educate and train rural lay midwives about postpartum hemorrhage, preeclampsia, and other pregnancy and labor complications. (Ibid.)

Dr. Milovina asserts that she is familiar with the standard of care for MFM physicians applicable at all relevant times including in 2019. (Milovina Decl., ¶ 4.)

In his reply papers, Dr. Soffici contends that the Milovina declaration is speculative with respect to causation. However, Dr. Soffici does not appear to assert, or offer any reasoned argument to demonstrate, that Dr. Milovina does not possess sufficient, knowledge, learning, or skill with respect to the relevant subject matter or that Dr. Milovina is not familiar with the applicable standard of care such that Dr. Milovina is not qualified to offer the opinions stated in her declaration. (See, e.g., Avivi, supra, 159 Cal.App.4th at pp. 467-468 [general discussion regarding the requirements to testify as an expert in a medical malpractice case].) Based on the information offered in the Milovina declaration and for all reasons discussed above, the Court finds that Dr. Milovina possesses sufficient knowledge, skill, and familiarity with the applicable standard of care to qualify Dr. Milovina as an expert on the subject to which her testimony relates.

Dr. Milovina states that, in forming the opinions offered in her declaration, she has personally examined Holeckova and reviewed medical records from Cottage Hospital, Holeckova’s fetal heart monitor strip from the delivery, a neurology note, and the Miller declaration. (Milovina Dec., ¶ 4.) In her declaration, Dr. Milovina explains that the definition of a perinatologist, according to the Society for MFM, is “a medical doctor who specializes in MFM.” (Id. at ¶ 5.) Dr. Milovina further explains that a perinatologist focuses on pregnancies where the pregnant person or fetus has a health complication, works with mothers and infants to ensure safety before, during and after birth, and are often involved in labor, delivery, and the postpartum period in some cases. (Ibid.)

According to Dr. Milovina, a perinatal consult is brought in because the pregnancy is high risk, and Holeckova was high risk for multiple reasons including that she was over the age of 35, specifically over the age of 40, and had a twin pregnancy with a premature rupture of membranes at 28 weeks. (Milovina Dec., ¶ 6.) Dr. Milovina asserts that part of Dr. Soffici’s obligation as a perinatal specialist is not only to see the patient with the general OBGYN but also to give recommendations because OBGYNs do not typically take care of high-risk patients alone. (Ibid.) Dr. Milovina states that part of those recommendations would not only be inpatient care, but often delivery recommendations and postpartum care. (Ibid.)

Dr. Milovina notes that Holeckova was referred to an MFM specialist for ultrasounds and monitoring, and that Dr. Soffici was asked to consult and offer advice in this high risk pregnancy. (Milovina Dec., ¶¶ 6 & 8.) Dr. Milovina also recites many of the same facts which appear in the Miller declaration. (Id. at ¶¶ 6-10.) Dr. Milovina further states that, after Holeckova was admitted to Cottage Hospital, Dr. Soffici ordered bedrest, antibiotics, betamethasone (a steroid that is given to preterm patients to help mature the fetal lungs, intestines and brain), and magnesium sulfate for 12 hours in an attempt to mature the fetal brain in case of delivery. (Id. at ¶ 8.) In addition, Dr. Soffici ordered electronic fetal heart rate monitoring of the babies. (Ibid.) Dr. Milovina notes that there is no mention in Dr. Soffici’s notes regarding the mode of delivery even though a perinatologist, in most cases, would also advise regarding the mode of delivery. (Ibid.) For example, Dr. Milovina notes that there is no record that Dr. Soffici made a recommendation for either a C-section or vaginal delivery. (Id. at ¶ 14.)

Dr. Milovina contends that the standard of care requires that Dr. Soffici make a recommendation with regard to the mode of delivery rather than responding to an inquiry from Dr. Craig because he was brought in as a specialist specifically for antepartum or antenatal management. (Milovina Dec., ¶¶ 13-14.) It is Dr. Milovina’s opinion that because Dr. Soffici did not make a written recommendation in Holeckova’s chart to Dr. Craig in this regard, his conduct fell below the standard of care. (Id. at ¶ 14.) Dr. Milovina further states her opinion that if a C-section had been performed, Mathieu would have been born without any traumatic brain injury. (Id. at ¶ 15.)

The declaration of Dr. Milovina is adequate to satisfy Mathieu’s burden to produce conflicting expert evidence giving rise to a triable issue of fact with respect to whether Dr. Soffici’s conduct fell below the applicable standard of care. Though Dr. Soffici contends that the opposition fails to address causation between any alleged negligent conduct by Dr. Soffici and Mathieu’s injuries, Mathieu “is entitled to all favorable inferences that may reasonably be derived from [the Milovina] declaration” which includes “a reading of the declaration to state that the [injury suffered by Mathieu] was caused by the conduct of [Dr. Soffici], which conduct fell below the applicable standard of care.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) Moreover, to the extent Dr. Soffici appears to contend that Mathieu must, for present purposes, prove that any conduct by Dr. Soffici which fell below the standard of care was also the cause of the injuries alleged in the complaint, this contention is without merit. (Code Civ. Proc., § 437c, subd. (p)(2).)

Additional triable issues of material fact:

Further, there exist additional triable issues of material fact which require the Court to deny the motion. As further discussed above, many of the facts offered in the moving separate statement, including those which appear in the Miller declaration, are not disputed or reasonably disputed by Mathieu. However, the Court notes that facts appearing in paragraph 13 of the moving separate statement which Dr. Soffici claims to be undisputed include that Dr. Craig noted that the options for vaginal delivery versus C-section had been discussed well with Holeckova and that Dr. Craig also discussed, ostensibly with Holeckova, the risk of needing a C-section. (Sep. Stmt., UMF No. 13 & evidence cited therein [progress notes by Dr. Craig dated Oct. 7 and Nov. 18, 2019].) These facts are also included in paragraph 13 of the Miller declaration.

In the opposing separate statement, Mathieu disputes the material facts set forth in paragraph 13 of the moving separate statement. To support his position that these facts are controverted, Mathieu refers to and cites portions of Holeckova’s deposition transcript in which Holeckova testified that she did not have any discussions with Dr. Craig about a C-section delivery including the risks of either a vaginal or C-section delivery, and that Dr. Craig never told Holeckova that she recommended a C-section delivery. (Opp. Sep. Stmt., UMF no. 13 & evidence cited therein [Holeckova deposition transcript at p. 39, ll. 23-25, & p. 40, ll. 1-21.].) From the testimony referred to and cited by Mathieu, a trier of fact could reasonably infer that Dr. Craig did not have any discussions with Holeckova regarding a C-section. The evidence offered by the parties also gives rise to competing inferences with respect to whether or not Dr. Craig recommended a C-section or discussed the risks of needing a C-section with Holeckova. For these additional reasons, Mathieu has met his burden to show that there exist triable issues of material fact.