Case Name: ?? Vreeland v. Swenson, et al.
Case No.:??????? 2015-1-CV-283604
After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the court makes the following rulings:
This is a medical malpractice action.? When she was two months old, plaintiff Sarah Nicole Vreeland (?Plaintiff?) had a ventriculoperitoneal shunt (VP) placed due to obstructive hydrocephalus, and has received chemotherapy since then.? (See Def.?s separate statement of undisputed material facts, nos. (?UMFs?) 2-3.)? On December 18, 2008, an endoscopic assisted laparoscopic shortening of the distal end of the shunt was performed.? (See UMF 2.)? There was no history of any infection related to the shunt through 2014.? (Id.)? On May 1, 2014, Plaintiff was diagnosed by Dr. Kathleen Kramer with an irritating seborrheic keratosis of the mid chest, and was treated with liquid nitrogen.? (See UMF 4.)? On July 15, 2014, Plaintiff complained of abnormal menstrual bleeding to defendant Dr. Elizabeth Swenson (?Swenson?), and was given a pelvic ultrasound which showed a probable endometrial polyp measuring 1.8 centimeters that was confirmed on a sonohystrogram by Dr. Lock at the San Mateo County Medical Clinic.? (See UMF 5.)? Swenson assessed that the abnormal menstrual bleeding was likely due to the endometrial polyp such that the polyp needed to be removed with hysteroscopy and dilatation and curettage.? (See UMF 6.)? On August 1, 2014, Swenson performed the 20 minute procedure, during which no complications occurred and no prophylactic antibiotics were administered; Plaintiff was discharged that day.? (See UMF 7.)? On August 13, 2014, Plaintiff went to the emergency department at Stanford, complaining of mid sternal chest pain and erythema, but there is no objective laboratory evidence that identified any bacteria as the cause of any infection of the VP shunt, and no specific bacteria has been identified as the cause of any presumed infection or cellulitis experienced.? (See UMFs 8-9.)? On August 27, 2014, Plaintiff underwent an endoscopic third ventriculostomy at Stanford and her VP shunt was also removed.? (See UMF 10.)? On October 9, 2014, Plaintiff was seen by Stanford neurosurgery where she was asymptomatic, and the neurosurgeon, Dr. Michael Edwards, confirmed that ?[t]he cellulitis resolved and all her CSF cultures remained negative.?? (See UMF 11.)? Plaintiff has experienced no further sign or symptom of infection or cellulitis and her third ventriculostomy has remained patent.? (See UMF 11.)
On July 28, 2015, Plaintiff filed a complaint against Swenson, Palo Alto Medical Foundation and Palo Alto Medical Foundation for Health Care, Research and Education, alleging that ?Defendant(s) and each of them negligently managed, treated, care for and performed surgery on Plaintiff on 8-1-14 in that Plaintiff was not given pre or post surgery prophylactic antibiotics to prevent infection to her brain shunt.?? (Complaint, first cause of action, ? GN-1.)? However, Plaintiff mistakenly sued Palo Alto Medical Foundation and Palo Alto Medical Foundation for Health Care, Research and Education based upon the mistaken belief that they were the employers of Swenson, and so, on January 19, 2016, the parties agreed to dismiss Palo Alto Medical Foundation and Palo Alto Medical Foundation for Health Care, Research and Education, and substitute Palo Alto Foundation Medical Group as a defendant.? Defendants Swenson and Palo Alto Foundation Medical Group (collectively, ?Defendants?) move for summary judgment on the grounds that Swenson did not breach the applicable standard of care, and also did not cause Plaintiff?s injuries.
Burden of proof for summary judgment?
?A defendant seeking summary judgment must show that at least one element of the plaintiff?s cause of action cannot be established, or that there is a complete defense to the cause of action. ?? ?The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.? ?(Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.)
?The ?tried and true? way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff?s claim.? ?(Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ? 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) ??The moving party?s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff?s claim ?in order to avoid unjustly depriving the plaintiff of a trial.?? ?(Id. at ? 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)
?Another way for a defendant to obtain summary judgment is to ?show? that an essential element of plaintiff?s claim cannot be established. ?Defendant does so by presenting evidence that plaintiff ?does not possess and cannot reasonably obtain, needed evidence? (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) ?Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.? ?(Id. at ? 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) ???
There is a triable issue as to the breach of the community standard of care
?The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.? ?(Johnson v. Super. Ct. (Rosenthal) (2006) 143 Cal.App.4th 297, 305, citing Hanson v. Grode (1999) 76 Cal.App.4th 601. 606; see also Budd v. Nixen (1971) 6 Cal.3d 195, 200; see also Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)
California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. ?When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.
(Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 984-985, quoting Hutchison v. United States (9th Cir. 1988) F.2d 390, 392).) ? ?[E]xpert opinions ? are worth no more than the reasons and factual data upon which they are based.? ?(Griffith v. County of Los Angeles (1968) 267 Cal.App.2d 837, 847.)
In support of their motion, Defendants present the declarations of Dr. Richard A. Jacobs and Dr. Charlene Reimnitz?both physicians licensed to practice medicine in California?who both testify that Swenson did not breach the standard of care in deciding not to utilize prophylactic antibiotics associated with the August 1, 2014 procedure.? (See Jacobs decl., ?? 1- 13; see also Reimnitz decl., ?? 1- 14.)? Accordingly, Defendants meet their initial burden to demonstrate that Defendants complied with the standard of care in the procedure.? In opposition, Plaintiff provides the declarations of Dr. Grace D. Hassid and Dr. Dennis M. Israelski.? Both of these physicians testify that the failure to use such prophylactic antibiotics during the August 1, 2014 procedure does not comply with the standard of care in the community.? (See Hassid decl., ?? 1-10, 12-15; see also Israelski decl., ?? 1-12.)? Plaintiff has demonstrated the existence of a triable issue of material fact as to whether Defendants met the applicable standard of care with regards to the August 1, 2014 procedure.
Plaintiff fails to demonstrate the existence of a triable issue of material fact as to causation of her injuries
As previously stated, ?expert opinions? are worth no more than the reasons and factual data upon which they are based.? ?(Griffith v. County of Los Angeles (1968) 267 Cal.App.2d 837, 847; see also Mitchell v. United Nat. Ins. Co. (2005) 127 Cal.App.4th 457, 478 (stating that ?an expert opinion based on?speculation?or conjecture is inadmissible? [t]he trial court was within its discretion to conclude that Ms. Rossi’s opinions were not based on reliable ?matter??); see also In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564 (stating that ?[a]n expert opinion has?no?value if its basis is unsound? ?matter that provides a reasonable basis for one opinion does not necessarily provide a reasonable basis for another opinion?); see also Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633 (stating that ?the opinion of any expert witness ?is only as good as the facts and reasons on which it is based??; see also ?Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1115 (excluding testimony of expert on infectious diseases regarding bacterial infection as his ?articulated explanation of the etiology of the infection was conclusory? and lacked foundation; stating ?when an expert?s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ?expert opinion is worth no more than the reasons upon which it rests?); see also Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524; see also Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 (stating that ?[w]here an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value?).)
In support of their motion for summary judgment as to causation, Defendants present the declarations of Jacobs and Reimnitz to establish that Defendants? failure to administer prophylactic antibiotics associated with the August 1, 2014 procedure was not the legal cause of Plaintiff?s injuries.? Indeed, their declarations state that Swenson?s decision to not utilize prophylactic antibiotics during the August 1, 2014 procedure was not the cause of Plaintiff?s injuries as ?there is no objective, scientific, medical evidence that SARAH VREELAND contracted a bacterial infection associated with the August 1, 2014 gynecologic procedure which would have been prevented by the administration of an antibiotic.?? (Jacobs decl., ?? 1-8, 14; see also Reimnitz decl., ?? 1- 8.)? Defendants also present the medical records of Plaintiffs in which the blood cultures indicate that there was no bacterial infection as a result of the August 1, 2014 procedure.? Defendants meet their initial burden to demonstrate that they are not the cause of Plaintiff?s injuries as alleged in the complaint.
In opposition, Plaintiff presents the declarations of Hassid and Israelski who both assert that Swenson?s negligent actions and omissions in failing to prescribe and/or administer prophylactic antibiotics prior to and during the procedure on August 1, 2014 were substantial factors in causing a MRSA or other bacterial infection surrounding her intraventricular shunt, extending to her chest wall.? (See Hassid decl., ? 11 (?VREELAND was diagnosed with a MRSA infection surrounding her intraventricular shunt, extending to her chest wall? [a]s a result of this MRSA infection, VREELAND lost a significant amount of brain function?); ? 16; see also Israelski decl., ?? 10-11, 13.)? Plaintiff also attaches her medical records.? (See Pl.?s compendium of evidence in support of opposition to Defs.? motion for summary judgment, exhs. 1-3.)? However, Plaintiff?s medical records belie the doctors? assertions: there is nothing in the medical records to suggest that Plaintiff had a MRSA infection, or any other bacterial infection as a result of the August 1, 2014 procedure.? (Id.)? According to the MRSA screen in Plaintiff?s records, it states that ?NO Methicillin resistant Staphylococcus aureus ISOLATED?, and according to other blood cultures ?NO ORGANISMS SEEN… NO GROWTH.?? (See Kanter decl., exh. C.)??? Defendants? objections to Hassid?s and Israelski?s declarations on the ground that they are unsupported and lacking in foundation are SUSTAINED.? (See Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510-511 (affirming grant of motion for summary judgment because declarations filed in opposition to motion for summary judgment contradicted by medical records upon which the plaintiff relied ?were of no evidentiary value on the question of negligence or causation?); see also Pacific Gas & Electric Co., supra, 189 Cal.App.3d at p.1135; see also Jennings, supra, 114 Cal.App.4th at p. 1115; see also Howard, supra, 72 Cal.App.4th at p. 633; see also In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.)
As Plaintiff has not otherwise presented admissible evidence to demonstrate a triable issue of material fact as to whether Defendants caused Plaintiff?s injuries, the motion for summary judgment is GRANTED on this basis.
After Defendants have served notice of entry of this signed order, Defendants shall circulate for approval and submit a proposed judgment.
The Court will prepare the order.