Case Number: BC514989??? Hearing Date: June 14, 2016??? Dept: S27
INTRODUCTION
Defendants Community Hospital Long Beach, MemorialCare Health System and Memorial Health Services move for summary judgment on Plaintiff?s complaint for professional negligence and several counts of deceit (negligent, intentional, concealment). There are also counts for unfair business practices and loss of consortium.
Although the moving party fails to tell us expressly, it may be inferred that the Memorial Defendants own and operate Community Hospital.
OBJECTION BY PLAINTIFF
This is not an evidentiary objection ? it is an objection to the alternative request for summary adjudication.
The notice fails to identify issues properly. It refers to ?the first two causes of action? and ?the last five causes of action.? This is not really a problem because it is clear that the Motion for Summary Adjudication is sought as to each cause of action. Although improperly framed, the notice is clear that the first two Causes of Action (professional negligence and loss of consortium) fails because 1) the hospital staff met their standard of care, 2) the physicians are not hospital employees and this was properly disclosed, and 3) no act or omission by defendants caused or contributed to damages.
As to the ?last five? the notice is more problematic. The notice states that the alleged misrepresentations on the hospital?s website were ?true and accurate.? The substance of the motion asserts only two misrepresentations are relevant because only two were conveyed to Mrs. O?Rourke (she was driving and her son Zachary orally told her what the website said). The motion doesn?t identify what other misrepresentations were alleged.
The objection is well taken as to the separate statement. CRC 3.1350(b) requires that each issue ?must be stated specifically? followed by the facts which pertain to that issue. MP?s separate statement does not recite any issues at all. As Plaintiff points out, the document itself only refers to the separate statement as being in support of ?Defendant?s motion for summary judgment.?
There is merit to Plaintiff?s argument. If the Court sustains the objection, Plaintiff is correct that only summary judgment may be granted, not summary adjudication. If there is a triable issue on any cause of action the summary judgment motion must be denied.
The Court sustains the Plaintiff?s objection.
PLAINTIFF’S EVIDENTIARY OBJECTIONS
Objections 16 and 19 are sustained.
All others are overruled.
DEFENDANTS’ OBJECTIONS
In Defendants’ reply on their Summary Judgment motion, they object to the ?untimely and incomplete? opposition. The Court takes judicial notice of its file which reflects that part of the opposition was filed by the due date, but other documents including the Memorandum of Points and Authorities and Evidentiary Objections to the moving parties? evidence were filed days later.
Defendants were able to present a timely and substantial reply despite these irregularities. The Court finds there has been no prejudice and exercises its discretion to consider the opposition on its merits. If at the time of hearing Plaintiffs request additional time to amplify their reply, the Court will grant a brief continuance.
Defendants make 19 evidentiary objections in their reply but have not complied with CRC 3.1354(c) by submitting a proposed order on these objections for the Court?s signature. The Court will overlook this defect and rules as follows:
Objection number 1 is overruled. Zachary O?Rourke?s declaration does not contradict his deposition testimony and is not a ?sham;?
Objections 2 through 19 are each overruled.
SUMMARY OF FACTS
On January 13, 2012 Walter O?Rourke awoke in the early morning hours with epigastric pain and pain in his left arm. Wendy O?Rourke and Plaintiffs? son Zachary decided to take Walter to the hospital. They went to the Veteran?s Administration hospital in Long Beach and after learning Walter could not be treated there, a security guard directed them to Community Hospital. On the way Zachary looked up Community?s website on his lap top computer. The two ?relevant? misrepresentations, according to the moving party, were:
1. That there was an emergency room in operation, and
2. That there was around the clock access to specialists including cardiology. The moving party argues this is true; the fact that Plaintiff was not promptly seen by a cardiologist is not a lack of a cardiologist. He did not see the patient until about 11 hours after he presented in the ER because that was when a consult was ordered.
Paragraph 23 makes these allegations. The complaint says more. Under the count for fraud (Paragraph 30) Plaintiffs refer to ?specific representations as to the quality and availability of staff and services to treat patients suffering from acute cardiac symptoms.?
Plaintiff presented to the ER at Community Hospital on January 13, 2012. He was seen by Dr. O?Brien.
A Rhythm Strip indicated a normal sinus rhythm.
Dr. O?Brien ordered a chest x-ray which revealed possible enlargement of the mediastinum. There also appeared to be a large gastric air bubble.
Dr. O?Brien ordered testing of cardiac enzymes including the troponin levels. The results were in normal limits suggesting no immediate signs of cardiac infarction.
A CT scan was ordered to rule out aortic dissection and pulmonary embolism. Oxygen and various medication (including sublingual nitroglycerin) were administered. The patient still complained of arm pain at 5:55 a.m.
Dr. O?Brien prepared his report with a final diagnosis of thrombocytopenia (an abnormal decrease in the number of blood platelets).
At 7:42 a.m. he spoke with Dr. Ali who agreed to admit Plaintiff, who was transferred from the ER to the telemetry unit at 8:40 a.m.
Dr. Ali examined Plaintiff at 1:00 p.m. and noted there was no pertinent medical history. The patient had no chest pain, nausea, vomiting or shortness of breath. There was no chest pressure or tightness. An EKG showed ?some evidence of left ventricular hypertrophy? suggesting ?an old inferior myocardial infarction.? Dr. Ali?s assessment was ?arm pain and possible inferior myocardial infarction.? The plan included monitoring in telemetry, aspirin, nitroglycerine and dilaudid for control of pain and to prevent myocardial infarction. He also ordered a cardiology consult and a cardiac echocardiogram.
Dr. Vasilomanolakis was called at 3:00 p.m. and was informed of the order for a consultation. At 3:15 p.m. a nurse called to inform him the patient had an elevated troponin level (from blood sample drawn at 3:05 p.m.). Dr. Vasilomanolakis ordered transfer to the ICU.
Plaintiff arrived at ICU at 3:30 p.m. Dr. Vasilomanolakis was contacted for further orders. He requested arrangements to transfer the patient to Memorial and prescribed intravenous nitroglycerin. At 4:00 p.m. a nurse called Dr. Vasilomanolakis to inform him that the patient was experiencing chest pain. He ordered STAT EKG, morphine and heparin.
The EKG showed ?acute ST segment elevation myocardial infarction over the anterolateral leads including the inferior leads.? Compared to the earlier EKG, the ST segment elevation was a new development. Dr. Vasilomanolakis ordered immediate transfer to Memorial and a 911 to expedite transfer. His impression was acute ST segment elevation myocardial infarction.
The ambulance arrived at 4:38 p.m. They left for Memorial at 5:16 p.m. and arrived at 5:25 p.m.. Vital signs were stable with the patient on a nitroglycerine and heparin drip.
As Plaintiff arrived at the catheterization lab he suffered cardiac arrest with ventricular fibrillation. He was resuscitated and Dr. Vasilomanolakis performed an angiogram. ?There was no filling of the left anterior descending artery.? Another doctor tried to help to ?cannulate? the artery, which was achieved with some difficulty. Regardless, ?there was no flow noted in the artery.? A balloon ?was advanced and inflated? but there was still no flow. The patient could not be ?revascularized? in the ?cath lab? so he was taken to an OR where he underwent two coronary bypass surgeries. He developed adult respiratory distress syndrome and spent a ?prolonged? time being ventilator-dependent. He required a tracheostomy. He was ultimately transferred via paramedic ambulance to a cardiorespiratory facility in Toronto, Canada.
PROFESSIONAL NEGLIGENCE AND LOSS OF CONSORTIUM
While Defendants meet the initial burden, the Plaintiff?s experts competently create triable issue both as to breach of standard and causation:
Dr. Charles Pietrafesa makes the excellent point that the misrepresentations were not about the availability of a cardiologist but about the absence of a licensed cardiac catheterization lab. This rendered the facility incapable of emergency angiograms.
Dr. Ritter (Director of ER services at Mission Hospital) discusses the representation that Community was a ?STEMI Center? which it cannot be without a cath lab.
R.N. Dorothy Pollock competently raises issues that the nursing staff breached the standard of care.
Dr. Stanford (internist) also creates triable issues as to whether the nursing staff timely notified physicians of a change in the patient?s status. (paragraph 30 ? directly disputing moving party?s expert Nurse Leon). He also criticizes Dr. Akli and Dr. O?Brien.
Zachary O?Rourke gives testimony as to what he saw on the website and related this to Mrs. O?Rourke. Paragraph 8 states he saw a representation that Community was ?a Chest Pain and STEMI Center.? He interpreted this to mean cardiac stents could be provided and that there was a cardiac cath lab. He admits to no formal medical training, but Walter was involved in the sale of medical supplies, including cardiac supplies, and so had some general knowledge. He believed his father was having a heart attack and he wanted to ensure a cath lab was available.
Moving party submitted the declaration of Paul Hoffman, who holds a doctorate in public health. He notes that Mrs. O?Rourke initialed the Conditions of Admission (?COA?) stating doctors are independent contractors. She also testified at deposition that her custom and practice is to read documents before signing them.
Dr. Pietrafesa does not contradict Hoffman?s opinion that the COA form was standard and appropriate. Instead, Plaintiff?s expert states the effect that the legal effect of the COA and contractor status, both of which are beyond the scope of expert opinion.
RULING
Moving party met the burden of showing that doctors were contractors and this was disclosed. The hospital is not vicariously liable for the physicians? acts and omissions. Dr. Pietrafesa cannot competently testify as to the appropriate scope of expert opinion.
The other experts competently identify breaches of the nursing staff?s standard of care and causation. That is enough to create triable issues on Causes of Action 1 and 2.
The Court agrees with Plaintiff that the Motion for Summary Adjudication suffers from the sloppy formatting of notice and separate statement. The Court nonetheless has reviewed the issue of fraud. There is clear allegation that the availability of services was a misrepresentation. There is competent expert opinion that the representations indicated that this was a STEMI Center, and it was not due to the absence of a cath lab. Zachary?s testimony ties the misrepresentation into causation.
Since the moving party combined five causes of action into one argument, Motion for Summary Adjudication fails as to all on this issue.
The Motion for Summary Judgment is denied.