Ray v. St. Francis Medical Center
Filed 11/8/13 Ray v. St. Francis Medical Center CA2/5
Second opn. following partial disposition by opn. 1/18/13
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
MARGUERITA RAY et al.,
Plaintiffs and Appellants,
v.
ST. FRANCIS MEDICAL CENTER,
Defendant and Respondent.
B239750
(Los Angeles
County
Super. Ct.
No. TC024308)
APPEAL from
a judgment of the Superior Court
of
County, Rose Hom, Judge.
Reversed.
Law Offices
of Benjamin P. Wasserman and Benjamin P. Wasserman for Plaintiffs and
Appellants.
LaFollette,
Johnson, De Haas, Fesler & Ames, Louis H. De Haas and David J. Ozeran, for
Defendant and Respondent.
I. INTRODUCTION
Plaintiffs, Marguerita Ray and Frederick Hagen, appeal
from a January 6, 2012
judgment for defendant, St. Francis Medical Center. Plaintiffs complained defendant’s medical
care of Ms. Ray from February 25 to March
2, 2009, was medically negligent.
On November 1, 2011,
the trial court granted defendant’s summary judgment motion. The trial court concluded a registered
nurse, Dorothy A. Pollock, who provided a declaration for plaintiffs, was not
competent to testify as to causation. We
disagree and reverse the judgment.
II. BACKGROUND
A. Complaint
On May 18, 2010, Plaintiffs filed their
complaint. On November 5, 2010, Plaintiffs filed their second
amended complaint. Plaintiffs made the
following allegations. Mr. Hagen and Ms.
Ray are husband and wife and reside in Los Angeles
County. Defendant is a hospital located in Los
Angeles County. On February
25, 2009, Ms. Ray was admitted to defendant for surgical repair of
her right hip. Defendant provided
plaintiff with diagnosis and treatment at the hospital until March 2, 2009. Ms. Ray alleges defendant’s nursing staff
failed to properly assist her with bed pans, causing her buttock to become
grossly infected. Ms. Ray alleges
defendant. Mr. Hagen alleges consortium
loss.
B. Summary Judgment Motion, Opposition And Reply
On July 14, 2011, defendant filed a
summary judgment motion. Defendant
argued plaintiffs cannot establish a breach of the standard of care of a
nurse. Defendant contended plaintiffs
could not demonstrate malpractice caused injury. Defendant also argued Mr. Hagen’s consortium
loss claim must fail as a necessarily dependent underlying claim. Defendant submitted in support of its motion
a declaration from Dr. Isaac Gorbaty, a board-certified physician. Dr. Gorbaty was familiar with the
standard of care in medical profession for facilities like that of defendant
based on his education and years of experience.
Dr. Gorbaty declared that based on a review of Ms. Ray’s medical
records, defendant provided treatment that complied with the standard of care
in the professional community.
On October 21, 2011, plaintiffs filed
their opposition. Plaintiffs argued Dr. Gorbaty
failed to provide a proper basis for his opinion. In the alternative, plaintiffs relied on the
declaration of registered nurse, Ms.
Pollock on the causation issue. Ms.
Pollock testified she graduated from nursing school in 1968. She received specialty training in advanced
cardiac life support and pediatric advanced life support since 1997. She was certified as an operating room
nurse since 1997 and a legal nurse consultant since 1999. Ms. Pollock declared: “I possess over 40 years of general nursing
practice experience including coronary care . . . and dialysis; current role
emphasis and clinical nursing expertise focuses on operating room/surgical
nursing practice for the past 38 years in both generalized and specialty
surgical procedures in ophthalmology, orthopedics, [ear, nose, and throat],
gynecology, neurology, trauma, laparoscopy, endoscopy, laser and pain
management including pre-operative and post-operative medical surgical nursing
care.†She concluded defendant’s nursing
staff’s post-operative care fell below the applicable standard of care. On October
27, 2011, defendant filed its reply. Defendant objected to Ms. Pollack’s
declaration because she was not competent to provide a causation opinion. Defendant argued Ms. Pollock may have an
opinion concerning the standard of care but could not testify as to whether
negligence caused harm.
C. Undisputed Facts
Ms. Ray was
admitted to defendant on February 25,
2009, for revision right total hip replacement. Dr. Thomas K. Peterson performed the surgical
procedure. During surgery, Ms. Ray was
placed on her left side. Surgery was
performed without complication and Ms. Ray’s postoperative condition was noted
as stable. Following surgery, Ms. Ray
was transferred to a gurney and taken to the post-anesthesia recovery
room. Ms. Ray was subsequently
transferred to the floor in stable condition.
Dr. Peterson entered instructions for Ms. Ray to remain on bed rest on
the day of surgery.
Follow-up
X-rays revealed a dislocation of the femoral portion of Ms. Ray’s right
hip. Ms. Ray consented for Dr. Peterson
to perform a closed reduction procedure on February 26. Plaintiff remained on bed rest for the
remainder of February 25. On February
26, Dr. Peterson performed the closed reduction procedure on Ms. Ray’s right
hip without complication. Ms. Ray was
later transferred to the floor in stable condition. On February 27, Ms. Ray underwent a
physical therapy evaluation.
On March 1,
2009, Ms. Ray had three small skin tears on her left buttock and skin repair
lotion was applied. On March 2, 2009,
Ms. Ray was transferred to defendant’s skilled nursing facility. Dr. Peterson was the physician in
charge. Ms. Ray was noted as having an
ulcer on her coccyx and left buttock.
Dr. Peterson ordered physical and occupational therapy and calazime
cream applied to Ms. Ray’s skin tears with each position change. Plaintiff was discharged from the nursing
facility on March 24, 2009.
D. Disputed Facts
Defendant
asserted the following disputed facts.
While at the hospital, Ms. Ray was turned and repositioned regularly
beginning February 26 through March 2.
She was continuously monitored.
Her skin was noted as being warm and dry with color within normal
limits. Skin lotion and skin cleanser
were regularly used. Ms. Ray was noted
to be out of bed and ambulating.
Plaintiffs
asserted the following disputed facts.
Ms. Ray’s skin assessment records were incomplete and improperly
dated. Ms. Ray was given a bedpan that
was not sterile. The nurse applied the
bedpan under Ms. Ray. This caused pain
and tears to Ms. Ray’s skin on her buttock.
After Ms. Ray used the bedpan, defendant’s nursing staff did not come in
to remove it until the next morning. Ms.
Ray testified she did not have a railing to pull herself up, causing her to
slide or wiggle up on the bed sheets.
Ms. Pollock declared defendant’s nursing staff failed to perform
preventive and protective skin care measures.
Ms. Pollock declared the failure to properly use bedpan procedures
caused skin tears in Ms. Ray’s buttocks region which led to the ulcer.
E. Motion And Order
On November
1, 2011, the trial court held a motion hearing regarding the summary judgment
motion. Plaintiffs argued nurses have
been able to testify regarding medical causation in other jurisdictions. Defendant contended in California no court
had permitted a nurse to testify regarding
The trial
court found Dr. Gorbaty’s declaration sufficient to meet the moving party’s
burden on issues of breach of duty and causation. The trial court found Ms. Pollock could
not competently testify regarding the element of causation. On January 6, 2012, the trial court entered
judgment for defendant and against plaintiffs. Plaintiffs subsequently appealed.
III. DISCUSSION
A. Summary Judgment
Standard Of Review
In
25 Cal.4th 826, 850-851, our Supreme Court described a party’s burdens on
judgment motions as follows : “[F]rom commencement to conclusion, the party
moving for summary judgment 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. That is because of the general principle that
a party who seeks a court’s action in his favor bears the burden of persuasion
thereon. [Citation.] There is a triable issue of material fact if, and 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. . . . [¶] [T]he party moving for summary
judgment
bears an initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact; if he carries his burden of
production, he causes a shift, and the opposing party is then subjected to a
burden of production of his own to make a prima facie showing of the existence
of a triable issue of material fact. . . . A prima facie showing is one that is
sufficient to support the position of the party in question. [Citation.]†(Fns. omitted, see Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) We review the trial court’s decision to grant
the summary judgment motion de
novo. (Coral Const., Inc. v. City and County of San Francisco (2010) 50
Cal.4th 315, 336; Johnson v. City of Loma
Linda (2000) 24 Cal.4th 61, 65, 67-68.) The trial court’s stated reasons for granting
because we review its ruling not its rationale. (Coral
Construction, Inc. v. City and County of San Francisco,
(2003) 107 Cal.App.4th 1190, 1196.) In
addition, a summary judgment motion
is directed to the issues framed by the pleadings. (Turner
v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, disapproved
on another point in Reid v. Google, Inc. (2010)
50 Cal.4th 512, 527,
fn. 5.) Those are the only issues a motion for
v. Regents of Uni
(2009) 45 Cal.4th 1244, 1249-1250; Goehring
v. Chapman University (2004) 121 Cal.App.4th 353, 364.)
B. Opinion Testimony
The Court
of Appeal has held: “‘[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.†(Budd v.
Nixen (1971) 6 Cal.3d 195, 200 . . . .].)’â€
(Hanson v. Grode (1999) 76
Cal.App.4th 601, 606; Avivi v. Centro
Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2 (
Opinion testimony from a properly qualified witness is generally
necessary to demonstrate the elements for medical malpractice claims. (Barris
v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1;
Evidence Code section 720, subdivision (a) provides: “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.â€
As noted,
the trial court ruled Ms. Pollock was not competent to testify regarding causation.
Our Supreme Court has made it clear as a
matter of law, “[T]he [trial] court will be deemed to have abused its
discretion if the witness has disclosed sufficient knowledge of the subject to
entitle his opinion to go to the jury.â€
(Mann v. Cracchiolo (1985) 38
Cal.3d 18, 39; EHP Glendale v. County of
Los Angeles (2011) 193 Cal.App.4th 262, 276.) A trial court’s decision to exclude opinion
testimony is reviewed for abuse of discretion.
(Avivi, supra, 159 Cal.App.4th at p. 467 citing People v. Bolin (1998) 18 Cal.4th 297, 321-322.) Plaintiffs contend: the trial court abused its discretion by
finding Ms. Pollock not competent to testify regarding causation; Ms. Pollock
could not testify regarding medical causation as a matter of law; and Ms. Pollock
was not qualified to offer opinion testimony in this case. The trial court’s order sustaining
defendant’s objection was a determination beyond the allowable scope of
judicial discretion. Courts in other
jurisdictions have permitted nurses to testify in medical malpractice claims on
causation and other issues. (See, e.g.,
(Okla. 2006) 143 P.3d 203, 206, fn. 10; Baylor
University Medical Center v. Rosa (Tex.Ct.App. 2007) 240 S.W.3d 565, 570;
(N.C. App. 1980) 262 S.E.2d 680, 683.) In
these instances, the nurse demonstrated qualification and knowledge regarding
the relevant issue. (
supra, 143 P.3d at p. 206, fn. 10
[nurse could testify regarding decubitus ulcers because she was certified in
wound care and had extensive experience with care of critically ill and
elderly]; Baylor University Medical
Center v. Rosa, supra, 240 S.W.3d
at p. 570 [nurse,
certified in critical care, with a nursing master’s degree, who had experience
caring for post-operative patients pursuant to physicians’ cold therapy orders could
testify concerning such a treatment]; Maloney v. Wake Hospital Systems, Inc., supra, 262 S.E.2d at p. 683 [nurse found properly qualified to
testify regarding intravenous potassium solution causing disfigurement based on
her expertise in field of intravenous therapy].) The same is true here. Ms. Pollock’s extensive training and
experience permitted her to express an opinion on the causation issue. The trial court did not have the discretion
to sustain defendant’s objection.
IV. DISPOSITION
The
judgment is reversed. Plaintiffs,
Marguerita Ray and Frederick Hagen, are awarded their appeal costs from
defendant, St. Francis Medical Center.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
KRIEGLER,
J.
KUMAR, J.
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
