Wilson v. Spring Hill Manor Convalescent Hosptial

Filed 6/8/07 Wilson v. Spring Hill Manor Convalescent Hosptial CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

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Plaintiff William Wilson appeals from entry of summary judgment in favor of defendant Spring Hill Manor Convalescent Hospital. William^[1]sued Spring Hill for professional negligence in connection with the death of his mother, Jessie Wilson. Spring Hills motion for summary judgment contended William could not establish an element of his cause of action -- breach of the applicable standard of care.

In support of its motion, Spring Hill submitted the declaration of an expert whose opinion was that Spring Hill did not breach its duty of care in providing convalescent services to Jessie. William did not provide an expert declaration in opposition. Given this fact, we agree with the trial court that William cannot establish a claim for professional negligence as a matter of law.

In his opposition to the motion, William raised a claim of negligence per se based on alleged statutory violations by Spring Hill. Since William failed to include this claim in his pleadings, we may not consider it at this time. Accordingly, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Jessie was admitted to Spring Hill, a skilled nursing facility in Grass Valley, California, on March 22, 2002. At the time, she was crippled and suffered from senile dementia, incontinence, arthritis, and various other health problems. The first year of Jessies residence at Spring Hill was uneventful.

Around March 2003, Jessie was transferred from the private pay side to the Medi-Cal section of Spring Hill. Right away, William became dissatisfied with the care his mother was receiving. He often made complaints to the nurses on duty. William acknowledges that the nursing home would usually take care of these problems. There were, however, problems William claims the nursing home did not address. One of his main complaints was that unnecessary prescription medications were administered that he claims detrimentally affected his mothers physical condition and ultimately led to her death. On September 3, 2004, Jessie died at Spring Hill at the age of 97.

William filed his operative second amended complaint against Spring Hill on October 31, 2005, alleging a single cause of action for general negligence in the wrongful death of his mother. After filing a timely answer, Spring Hill moved for summary judgment on the ground that its treatment of Jessie was consistent with the applicable standard of care. In support of its motion, Spring Hill submitted the declaration of Susan Acquisto, a registered nurse. In her opinion, Spring Hill and its employees conducted themselves within the applicable standard of care at all times while caring for Jessie.

In his opposition to Spring Hills motion for summary judgment, William attempted to establish a triable issue of fact as to breach of duty by submitting his own declaration recounting the alleged negligent treatment he saw his mother receive. He also submitted 12 exhibits to support his position. William further submitted a separate statement of disputed facts, although that document did not refer to the specific evidence supporting each asserted fact in dispute. Finally, William contended that breach of duty was established based on various statutory violations Spring Hill allegedly committed.

Spring Hill raised evidentiary objections to eight of the exhibits William proffered. The trial court sustained each objection, thus excluding a handwritten journal compiled by William, photographs of his mother, an excerpt from a telephone book, two magazine clippings, two complaint letters William wrote to the Bureau of Licensing and Certification of the California State Health Department, and an internet printout from the California Secretary of States website.

After reviewing the remaining admissible evidence William submitted, the trial court granted the motion based on Williams failure to provide an expert declaration to contradict Spring Hills expert, thus failing to create a triable issue of fact with respect to breach of the applicable standard of care. As an additional ground for granting summary judgment, the trial court noted that William failed to cite specific evidence in his response to the separate statement of disputed facts, as required by the summary judgment statute.

DISCUSSION

On appeal, William raises three issues. First, he contends the trial court erred in excluding 8 of his 12 exhibits submitted in opposition to summary judgment. Additionally, he faults the court for finding that he did not cite to specific evidence in his separate statement of disputed facts and claims he disputed most all of the undisputed facts raised by Spring Hill. Finally, he asserts that summary judgment should not have been granted because he presented extensive evidence to establish a triable issue of fact with respect to breach; that there was no expert testimony requirement because his lawsuit is against a business, not a nurse or doctor; and that breach could be presumed on a theory of negligence per se based on various statutory violations Spring Hill allegedly committed. We do not agree with any of Williams contentions and affirm the judgment in its entirety.

I

Evidentiary Rulings

William complains that the trial court erred in excluding 8 of the 12 exhibits he submitted in opposition to Spring Hills motion. He contends the excluded evidence is real and true and real and reliable, and thus should have been admitted. These naked assertions are insufficient to demonstrate error.

Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellants burden to affirmatively demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) In meeting its burden of establishing error, it is incumbent on the appellant to present argument and relevant authority on each point of error contended. (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278; Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.) Here, William fails to direct the court to any legal authority supporting his position that the excluded evidence should have been admitted. A failure to cite any relevant authority in support of an assertion results in a waiver of the right to appellate review of that assertion. (People v. Foote (2001) 91 Cal.App.4th Supp. 7, 12, citing People v. Stanley (1995) 10 Cal.4th 764, 793.) Consequently, we will not further consider Williams challenges to the trial courts evidentiary rulings.

II

Grant Of Summary Judgment Was Proper

A

Standard Of Review

An order granting summary judgment is reviewed independently by the appellate court. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) It is well-established that an appellate court applies the same three-step analysis used by the trial court: First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact. (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.)

In this case, we first determine whether Spring Hill conclusively negated a necessary element of Williams cause of action. (See Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 317, 334.) Once the defendant demonstrates that the plaintiff failed to establish an element of his claim or cannot reasonably obtain the evidence needed to do so, the burden of production shifts to the plaintiff. The plaintiff must then produce evidence showing the existence of a triable issue of material fact. (Code Civ. Proc, 437c, subd. (p)(2).) If the plaintiff fails to carry this burden, summary judgment is proper.

In determining the propriety of summary judgment, the court considers all evidence except that to which objections have been made and sustained by the court . . . . (Code Civ. Proc., 437c, subd. (c).) Since William failed to show reversible evidentiary error, we do not consider those items that the trial court excluded.

B

A Claim Of Professional Negligence

Requires Expert Testimony

Whenever negligence in the execution of ones professional duties is involved, expert testimony is generally required to establish the applicable standard of care and breach of that standard. (See Miller v. Los AngelesCounty Flood Control Dist. (1973) 8 Cal.3d 689, 702; Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89, 95.) In the case of a health care provider, professional negligence is generally defined as 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 . . . . (Code Civ. Proc., 364, subd. (f)(2).) A facility that provides convalescent services is a health care provider. (See id., subd. (f)(1); see also Health & Saf. Code, 1250 [defining a health facility to include any facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, including convalescence].) William claims that Spring Hill, through its employees, was negligent in the execution of its professional duties, namely, that Spring Hill did not provide adequate convalescent care for Jessie. This is a claim for professional negligence that requires expert testimony to establish breach of the applicable standard of care.

California courts have incorporated the expert evidence requirement into their standard for summary judgment . . . . (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607, quoting Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.) Once a defendant moving for summary judgment supports his motion with a competent expert declaration that his conduct fell within the appropriate professional standard of care, he is entitled to summary judgment unless the plaintiff comes forth with conflicting expert testimony. (See Munro, at p. 984 [finding that a defendant in a medical malpractice action who submitted uncontroverted expert testimony that he did not breach the standard of care was entitled to summary judgment].)

The common knowledge exception to the expert testimony requirement is not applicable here. It applies in cases where a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. (Ewing v. Northridge Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1302, quoting Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) This narrow exception applies only in cases of obvious negligence, such as when a foreign object is left in the body of a patient after surgery (Flowers, at p. 1001), when injury occurs to a part of the body not scheduled for treatment (Ybarra v. Spangard (1944) 25 Cal.2d 486), or where the wrong limb has been amputated. The facts in this case do not warrant application of the narrow common knowledge exception and thus expert testimony would be required for William to establish his negligence claim at trial.

C

Spring Hills Expert Declaration Is Sufficient

An expert declaration is competent if it discloses the evidence the expert relied on in reaching her conclusions and supports those conclusions with reasons and explanations. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524-525.)

In support of its motion, Spring Hill submitted the declaration of Susan Acquisto, a registered nurse with extensive experience in quality management and regulatory compliance for assisted living facilities. After reviewing Williams deposition testimony and the nursing home records of Jessie, Acquisto concluded that Spring Hill met or exceeded the applicable standard of care in all facets of this case. Specifically, she reasoned that Spring Hills staff properly managed Jessies care and that all medications administered were appropriate to alleviate pain and mitigate behavioral issues.

William argues, however, that experts do not have to be believed and thus the declaration of Spring Hills expert is not dispositive on the issue of breach. While it is true that expert evidence is not absolutely conclusive, [i]t is conclusive, however, to the extent that it may not be contradicted by the testimony of a nonexpert witness. (Liberty Mut. Ins. v. Industrial Acc. Com., supra, 33 Cal.2d at p. 95, italics added.)

D

Sufficiency Of Williams Evidence In Opposition

Once Spring Hill met its initial burden of negating the element of breach, it was incumbent upon William to submit a contradictory expert declaration to demonstrate a triable issue of fact. (See Munro v. Regents of University of California, supra, 215 Cal.App.3d at p. 984.) William acknowledges he did not include such a contradictory expert declaration. William contends it was not necessary for him to submit expert testimony on the element of Spring Hills breach of the professional standard of care. It is his position that his lawsuit is against a business, not a doctor or nurse, and thus does not require expert testimony to establish the standard of care. We disagree. Thus, the burden shifted to William to demonstrate a triable issue of fact with respect to this element of his cause of action. William submitted his own declaration. However, he is not an expert on the appropriate standard of care to be exercised by a convalescent hospital and thus his own declaration is not sufficient to contradict Spring Hills expert. Consequently, William did not meet his burden to demonstrate a triable issue of fact.

E

Failure To Cite To Specific Evidence In

Separate Statement Of Disputed Facts

A party opposing summary judgment must submit a separate statement of disputed facts contradicting the moving partys statement of undisputed facts. Code of Civil Procedure section 437c, subdivision (b)(3), requires that the party opposing summary judgment must follow every asserted disputed fact which must include a reference to the supporting evidence. Failure to comply with this requirement may constitute a sufficient ground, in the courts discretion, for granting the motion. (Ibid.)

In its order granting motion for summary judgment, it is clear the trial court based its ruling, at least in part, on Williams failure to cite to specific evidence in his separate statement. As it was within the statutory discretion of the trial court to reject Williams opposition to summary judgment based entirely on that failure, we cannot say that the trial court abused its discretion in relying on this ground in granting the motion.

F

Negligence Per Se

In opposing Spring Hills motion for summary judgment, William attempted to expand the issues in this proceeding through an assertion of statutory negligence (negligence per se). Under the theory of negligence per se, a violation of statute may establish either the duty of care or the standard of care in a given case. (Elsner v. Uveges (2004) 34 Cal.4th 915, 927, fn. 8.) When a statute establishes the standard of care, violation of that statute leads to a presumption of breach of that standard. (Evid. Code, 669, subd. (a)(1).) If William had properly raised a claim of negligence per se in his complaint, this might have been an appropriate argument. However, the only cause of action alleged in the operative second amended complaint was one for general negligence. No statutory violations were alleged in that complaint, nor were such allegations made in any of the two prior complaints. In fact, the issue was never raised until William submitted his opposition to Spring Hills motion for summary judgment.

It is clearly established that the burden of a defendant moving for summary judgment is only to negate the plaintiffs theories of liability as alleged in the complaint. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) The [papers] filed in response to a defendants motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Nash v. Fifth Amendment (1991) 228 Cal.App.3d 1106, 1116.) Since William did not raise the issue of negligence per se in his initial pleadings, he cannot rely on that theory to survive summary judgment.

Disposition

The judgment is affirmed. Spring Hill shall recover its costs on appeal. (Cal. Rules of Court, rule 8.276, subd. (a).)

ROBIE , J.

We concur:

DAVIS, Acting P.J.

MORRISON , J.

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^[1] We will refer to plaintiff as William and to his mother as Jessie.