Guadalupe Lopez, et al. v. Goleta Valley Cottage Hospital, et al

Case Number

22CV03075

Case Type

Hearing Date / Time

Mon, 06/03/2024 - 10:00

Nature of Proceedings

Defendants’ Motion for Summary Judgment

Tentative Ruling

Guadalupe Lopez, et al. v. Goleta Valley Cottage Hospital, et al.               

Case No. 22CV03075          

Hearing Date: June 3, 2024                                                           

HEARING:                Defendants’ Motion for Summary Judgment

ATTORNEYS:          For Plaintiffs Guadalupe Lopez and Gloria Ann Perez: Georgia Anderson

                                    For Defendants Goleta Valley Cottage Hospital and Robin E. Malone,  MD: William Clinkenbeard and Cathy Anderson                             

TENTATIVE RULING:

Defendant’s  Motion for Summary Judgment is granted.

Background:

This action commenced on August 9, 2022, by the filing of the original complaint by plaintiff Guadalupe Lopez against defendants Goleta Valley Cottage Hospital (GVCH), Santa Barbara Cottage Hospital, Cottage Health, and Robin E. Malone, MD for medical malpractice and wrongful death.

On May 25, 2023, Lopez filed her first amended complaint (FAC) against the same defendants asserting the same two causes of action. Gloria Ann Perez was added as a plaintiff.

As alleged in the FAC:

This action relates to the death of Jeremiah Lopez (decedent). On May 10, 2019, decedent went to the emergency room of GVCH due to fatigue, loss of appetite, and right calf pain. Decedent was diagnosed with a tear on his right gastrocnemius. He was discharged, given crutches, and advised to follow up with orthopedics. (FAC, ¶ 11A.)

On May 13, 2019, decedent went back to the emergency room of GVCH, critically ill and was transferred to the ICU of Santa Barbara Cottage Hospital. (FAC, ¶ 12A.) Upon arrival at the ICU, decedent was in respiratory failure, septic shock, tachycardic, and hypotension. He was then intubated. (Ibid.) At Santa Barbara Cottage Hospital, plaintiff met with Jeffrey C. Fried, MD, who had been treating decedent, and Dr. Fried told plaintiff that decedent’s white blood cell count was at zero and that he had no chance of survival. (FAC, ¶ 13A.) Plaintiff had no reason to believe that an act of medical negligence caused decedent’s death. (Ibid.)

On May 14, 2019, decedent went into cardiac arrest and passed away. (FAC, ¶ 15A.) The immediate cause of death was sepsis and the condition leading to death was B-Cell leukemia/lymphoma. (Ibid.)

On April 24, 2020, plaintiff filed a lawsuit against Monsanto Company, Wilbur-Ellis Company, LLC, and Wilbur-Ellis Nutrition, LLC alleging that decedent’s use of glyphosate was a contributory cause of decedent’s becoming ill of B-Cell leukemia/lymphoma. (FAC, ¶ 14A.)

“On or around February 2021, during settlement negotiations related to [the] Monsanto case, [it] was brought to Plaintiff[s] attention that a level of white blood cell[s] at zero is treatable, and Decedent[s] underlying B-Cell malignancy[,] whether Hairy cell leukemia [] or another B-Cell malignancy[,] is a treatable condition[.] [A]s such[,] if on May 10, 2019[,] Decedent [] would have been admitted for inpatient evaluation Decedent would have most likely lived longer since the sepsis, which was the ultimate cause of death, could have been rapidly treated at first sign.” (Ibid.)

Defendants filed the present motion for summary judgment on January 19, 2024, on the grounds that plaintiffs’ claims are time-barred pursuant to Code of Civil Procedure section 340.5 and that the medical defendants provided medical care and treatment which at all times complied with the standard of care applicable to emergency medical physicians and general acute care hospital staff. Defendants further argue that vicarious liability cannot be imputed to GVCH since there is no underlying medical negligence.

Plaintiffs oppose the motion.

On April 8, 2024, plaintiffs dismissed defendants Santa Barbara Cottage Hospital and Cottage Health. The remaining defendants are GVCH and Dr. Malone.

Analysis:

            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. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

“ ‘The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.’ ” [Citation.] “ ‘The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. [Citation.] This does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.’ ” [Citation.]” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.)

GVCH asserts six objections to plaintiffs’ proffered evidence.

Objection No. 2, to the statement “Until then, we had no reason to believe that medical negligence could have occurred because we relied on Dr. Jeffrey Fried’s diagnosis that Jeremiah had an incurable low level of white blood cells for weeks prior to the hospitalization and given the low white blood cell count of zero, he had no chance to survive,” is sustained to the extent that it purports to state what plaintiffs had reason to believe. The objections to the remainder of Melanie Fennell’s declaration are overruled.

Objection Nos. 4, 5, and 6 are overruled.

The remainder of the objections are to evidence that is not material to the disposition of the motion.

            Summary Judgment Standard

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented 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 that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 235 Cal.4th 826, 850.) Consequently, a defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) 

Once a moving defendant meets its initial burden, the burden shifts to the plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if plaintiff is unable to do so, defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.)

In ruling on a motion for summary judgment, the trial court must consider all of the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)), and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)

In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)

            Separate Statement

“Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement “ ‘setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.’ ” California Rules of Court, rule 3.1350(d)(2)4 states: “ ‘The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.’ ” Under the Rules of Court, “ ‘ “Material facts’ “ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.’ ” (Rule 3.1350(a)(2).)” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 850-851.)

“The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “ ‘The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ ” [Citation.]” (Ibid.)

“The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.” (Ibid.)

“In opposing a defendant’s motion for summary judgment, the plaintiff must submit a separate statement setting forth the specific facts showing that a triable issue of material fact exists. [Citations,] Without a separate statement of undisputed facts with references to supporting evidence in the form of affidavits or declarations, it is impossible for the plaintiff to demonstrate the existence of disputed facts.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116; disapproved on other grounds by Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41-42.)

Defendants have set forth 67 material facts in their separate statement. As to those that are material to the statute of limitations defense, they are all either undisputed or not reasonably disputed. (UMF Nos. 2, 4, 5, 6, 28, 32, 33, 34, 35, 36, and 37.)

            Statute of Limitations

“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.

For the purposes of this section:

“(1) “ ‘Health care provider’ ” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “ ‘Health care provider’ ” includes the legal representatives of a health care provider;

“(2) “ ‘Professional negligence’ ” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (Code Civ. Proc., § 340.5.)

“[U]nder MICRA [Medical Injury Compensation Reform Act of 1975], a plaintiff alleging medical negligence must file suit within “ ‘three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.’ ” (Code Civ. Proc., § 340.5.) As to the one-year limitations period, MICRA “ ‘sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing.’ [Citation.]” (Carrillo v. County of Santa Clara (2023) 89 Cal.App.5th 227, 232.)

“Generally speaking, a cause of action accrues at the time when the cause of action is complete with all of its elements. [Citation.] The “ ‘discovery rule’ ” is an exception to this general rule and postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citation.] To rely on the discovery rule for delayed accrual of a cause of action, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. [Citation.] In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to show diligence. [Citation.]” (Id. at p. 234.)

“A patient “ ‘is charged with ‘ “presumptive” ’ knowledge of his negligent injury, and the statute commences to run, once he has “ ‘ “notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation ....’ ” ’ ” [Citation.] “ ‘It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action.’ ” [Citation.]” (Id. at p. 235.)

As the California Supreme Court has held: “A plaintiff need not be aware of the specific “ ‘facts’ ” necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.)

In the present case, the relevant undisputed, or not reasonably disputed, timeline is:

May 10, 2019: Decedent went to the emergency room at GVCH, was examined, treated, and discharged.

May 13, 2019, decedent was again brought to the emergency room at GVCH for myalgias, shortness of breath, fatigue, respiratory distress, and tachycardia. The decedent was transferred to Santa Barbara Cottage Health by ambulance and admitted to the medical intensive care unit.

May 14, 2019, decedent had a cardiac arrest and died.

April 24, 2020, Lopez filed a lawsuit against Monsanto Company, Wilbur-Ellis Company, LLC, and Wilbur-Ellis Nutrition, LLC related to decedent’s death.

February 2021: “On or around February 2021, during settlement negotiations related to [the] Monsanto case, [it] was brought to Plaintiff[s] attention that a level of white blood cell[s] at zero is treatable, and Decedent[s] underlying B-Cell malignancy[,] whether Hairy cell leukemia [] or another B-Cell malignancy[,] is a treatable condition[.] [A]s such[,] if on May 10, 2019[,] Decedent [] would have been admitted for inpatient evaluation Decedent would have most likely lived longer since the sepsis, which was the ultimate cause of death, could have been rapidly treated at first sign.” (FAC, ¶ 14A.)

(Note: With regard to the above language included in the FAC, in plaintiffs’ counsel’s declaration in support of plaintiffs’ motion for leave to amend, counsel stated: “The Amend[ed] Complain[t] presents additional facts explaining how Plaintiff discovered that medical malpractice caused Decedent’s Death. Those facts are important if a Statute of Limitation issue is going to be raised by Defendants as to why the one year statute of limitation does not apply.” (GVCH Evid. in Support, Exh. F, p. 11, ll. 6-11.)

May 2, 2022: Plaintiffs serve defendants with a notice of intention to initiate action.

August 9, 2022: Plaintiff Lopez files suit against the moving defendants.

By way of their opposition, plaintiffs appear to believe that the statute of limitations is always three years from decedents time of death, increased by the Emergency Rule 9 tolling from April 6, 2020, until October 1, 2020. Plaintiffs are incorrect. Pursuant to the plain language of Code of Civil Procedure section 340.5, quoted in full above, and an abundance of case law: “the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Italics added.)

“The pleadings play a key role in a summary judgment motion.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 (Hutton).) “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. [Citations.]” (Hutton, supra, 213 Cal.App.4th at p. 493.)

“A defendant moving for summary judgment may rely on the allegations contained in the plaintiff’s complaint, which constitute judicial admissions. As such they are conclusive concessions of the truth of a matter and have the effect of removing it from the issues.” (Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1433.)

As noted above, the FAC alleges that in February 2021, it was brought to the attention of plaintiff that a level of white blood cell at zero is treatable, decedent’s underlying B-Cell malignancy is treatable, and if decedent had been admitted for impatient evaluation on May 10, 2019, he would have most likely lived longer. This is the entire basis for plaintiffs’ malpractice and wrongful death claims. Defendants are entitled to rely on plaintiffs’ allegations.

In an effort to overcome summary judgment, plaintiff submits a declaration from plaintiffs’ daughter, Melanie Fennell, declaring: (1) She handled the updates and communications regarding the previous Monsanto case; (2) She recalls a discussion in February 2021, regarding how a low white blood cell count of zero was treatable; (3) She did not consider those discussions reliable because they were coming from an opposing party and did not mention it to plaintiffs; (5) On September 30, 2021, while speaking with an acquaintance that is a nurse, the nurse told her that a low white blood cell count of zero is treatable and that she should do more research on the topic; and (6) She spoke to the plaintiffs about what the nurse said and then Lopez decided that he wanted to file a medical malpractice lawsuit.

Fennell is not a party to this action, and it is of no consequence what she did not consider reliable, what she did or did not suspect, or what she did or did not know. What is of consequence is what plaintiffs and their attorney should have reasonably suspected.

“In order to employ the discovery rule to delay accrual of a cause of action, a plaintiff must demonstrate that he or she conducted a reasonable investigation of all potential causes of his or her injury.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 811.)

The FAC contains a clear and unambiguous allegation that plaintiffs were given information of circumstances to put a reasonable person on inquiry in February 2021, that medical malpractice may have taken place. In further support of this conclusion is that the same attorney represented Lopez in the Monsanto case and the information was alleged to have been acquired during settlement negotiations in that case. Plaintiffs’ attorney was also put on reasonable inquiry that medical malpractice may have taken place. “Since plaintiffs’ attorney ought to have, “ ‘in good faith and the exercise of ordinary care and diligence,’ ” communicated this information to plaintiffs, plaintiffs must be charged with knowledge of these facts. [Citations.]” (Stalberg v. Western Title Ins. Co. (1994) 27 Cal.App.4th 925, 930.)

Further, Lopez’s deposition testimony that his “memory is shot” but he recalls it was “a couple of years later” that he suspected medical malpractice, is not helpful to plaintiffs. Plaintiffs’ counsel misquotes the deposition testimony and claims that Lopez testified it was “at least a couple of years.” That is not what the testimony says. The decedent passed away on May 14, 2019. “A couple of years” is a very vague term that could certainly mean he suspected medical malpractice, as alleged in the FAC, in February 2021.

“While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.” (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1112.)

The uncontroverted facts establish that the one-year statute of limitations was triggered in February 2021, and plaintiffs were obligated to exercise diligence and file suit within one-year. They did not do so. Rather, they waited approximately 18 months after they were put on inquiry of the potential medical malpractice to file their action. There is no indication that plaintiffs even attempted to investigate the information they received in February 2021. The evidence presented by plaintiffs leads only to one reasonable inference: they did not investigate at all.

Plaintiffs’ complaint is barred by the statute of limitations set forth in Code of Civil Procedure section 340.5. Summary judgment will be granted in favor of defendants.

Plaintiffs’ request that they be given the opportunity to amend the complaint if “summary judgment is granted on the ground that the complaint is legally insufficient,” will be denied. The motion is not being granted on the ground that the complaint is legally insufficient, it is being granted because the uncontroverted facts establish that this action was not brought prior to the expiration of the statute of limitations.

Because defendants’ motion for summary judgment is being granted based on the statute of limitations defense, the court need not address defendants’ other arguments.