Filed 4/5/18 Gilmore v. Parkview Community CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



TAMMY GILMORE,

Plaintiff and Appellant,

v.

PARKVIEW COMMUNITY HOSPITAL MEDICAL CENTER,

Defendant and Respondent.


E065519

(Super.Ct.No. RIC1410168)

OPINION


APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge. Affirmed.
Law Office of Corey Evan Parker and Corey Evan Parker for Plaintiff and Appellant.
Hershorin & Henry, Lori C. Hershorin, Paula F. Henry and David M. Hershorin for Defendant and Respondent.
Plaintiff and appellant Tammy Gilmore initiated this negligence and medical malpractice action against defendant and respondent Parkview Community Hospital Medical Center (Parkview) based on a visit in August 2013. She claimed that Parkview caused a foreign object to be left in her arm. Parkview successfully moved for summary judgment, and the trial court entered judgment in its favor. On appeal, plaintiff contends she demonstrated a triable issue of material fact. For the reasons set forth below, we affirm the judgment.
I. PROCEDURAL BACKGROUND AND FACTS
On December 2, 2013, plaintiff’s attorney sent a letter to Parkview alleging that plaintiff had sustained an injury to her left arm on August 26, 2013, while at Parkview’s Emergency Room (ER), and that she learned about the injury on September 19, 2013. Plaintiff claimed that an ER nurse “broke the needle off” when attempting to insert an intravenous (IV) line into her arm. On July 28, 2014, plaintiff served an official “Notice of Intent to Bring Action Against Parkview Community Hospital Medical Center,” and on October 28, 2014, she initiated this action. By way of her first amended complaint (FAC) filed on March 4, 2015, plaintiff alleges negligence and medical malpractice against Parkview. According to the FAC, on August 26, 2013, an ER nurse at Parkview inserted an IV into plaintiff’s left arm. When plaintiff returned on September 19, 2013, an X-ray of her arm “revealed a very small metallic piece of 2 to 3 mm size in soft tissues close to joint in left elbow area.”
On November 6, 2015, Parkview moved for summary judgment on the ground that the action was barred by the applicable statute of limitations. Alternatively, Parkview argued there was no triable issue of material fact (1) that one of its nurses breached the duty of care on August 26, 2013, or (2) that the action of one of its nurses caused or contributed to plaintiff’s injuries. In support of its motion, Parkview offered plaintiff’s medical records and the expert opinion of Linda Leon, a registered nurse. Parkview also submitted a separate statement of facts.
Parkview’s medical records documented plaintiff’s visits to the ER on August 26 (the alleged day of the incident), August 28, September 5, September 10, and September 16, 2013. The records of these visits show there were no complications regarding the insertion or removal of the IV, and plaintiff never complained about pain in the area where the IV was inserted. On September 19, 2013, plaintiff visited the Parkview ER complaining that a metal wire went into her left arm when she attempted to retrieve her cell phone, which had “[fallen] into hole” in a restroom. An X-ray of her left arm was taken, and the results showed the presence of two foreign bodies. Plaintiff was “not sure” how she got the foreign bodies in her left upper arm. She was advised to see a specialist regarding removal; the X-rays were given to her.
Parkview’s expert, Ms. Leon, reviewed plaintiff’s medical records, her deposition transcript, and the deposition transcript of her percipient witness, Ricky Bradford. Based on Ms. Leon’s review, she opined that “the ER nurse’s care on 8/26/13 2:12 a.m. ER visit, including but not limited to the insertion and removal of the intravenous catheter in [plaintiff’s] left antecubital space was appropriate and within the standard of care.” Ms. Leon added that in her expert opinion, the Parkview “nurse’s actions during 8/26/13 2:12 a.m. ER visit by [plaintiff] did not cause or contribute to [p]laintiff’s alleged injury.”
On January 22 and January 26, 2016, Plaintiff filed a late response and an amended response to Parkview’s motion. She failed to offer a separate statement of material facts or any expert testimony to oppose that of Ms. Leon. Instead, her response asserted that (1) a female nurse inserted an IV in her “upper left arm”; (2) this was witnessed by Mr. Bradford; (3) on September 19, 2013, a doctor told her there was a broken needle in her arm; (4) she told the doctor that one of his nurses broke the needle in her arm; and (5) on September 19, 2013, she told Parkview she was injured at Forever 21. She also offered an unsigned statement from Mr. Bradford, who stated that a female nurse “tried to start an IV” in plaintiff’s left upper arm, and plaintiff complained that her left upper arm hurt.
On February 5, 2016, the trial court denied the motion for summary judgment on the statute of limitations ground; however, it granted the motion for summary adjudication on the issues of breach of duty and causation. The trial court found that plaintiff had failed to submit a declaration from a nurse expert to oppose Ms. Leon’s expert opinion concerning the standard of care and causation. Judgment was entered in favor of Parkview on March 1, 2016.
II. DISCUSSION
Plaintiff contends that the trial court erred in granting summary adjudication, because (1) Parkview failed to provide evidence to demonstrate there was no triable issue of material fact; (2) the court refused to accept the declaration of Mr. Bradford; and (3) the common knowledge exception of the doctrine of res ipsa loquitur applies. We affirm the judgment.
A. Standard of Review.
A moving party is entitled to summary judgment when that party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant meets this burden by demonstrating that the plaintiff cannot establish one or more elements of its cause of action, or that the defendant has a complete defense to the cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)
“[T]he 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. . . . 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fns. omitted.) “[G]enerally, the 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.” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Ibid.)
On appeal, the reviewing court makes “‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]’ [Citation.]” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
B. Noncompliance with Section 437c Requirements.
When responding to a motion for summary judgment, under section 437c, subdivision (b)(3), “[t]he opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (See also Cal. Rules of Court, former rule 3.1350(f).)
Plaintiff’s opposition to Parkview’s motion for summary judgment fails to provide a response to each of the material facts stated in Parkview’s separate statement of material facts. “The separate statement is required, not discretionary, on the part of each party, and the statutory language makes the failure to comply with this requirement sufficient grounds to grant the motion. [Citation.]” (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902; see also Cal. Rules of Court, former rule 3.1350(f). ) The purpose of the moving party’s separate statement and the opposing separate statement is to assist in establishing whether the parties have met their burdens of proof. “The separate statement is not merely a technical requirement, it is an indispensable part of the summary judgment or adjudication process. ‘Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for . . . summary judgment to determine quickly and efficiently whether material facts are disputed.’ [Citation.]” (Whitehead, supra, at p. 902.) By failing to provide an opposing separate statement, plaintiff failed to assist the court in determining whether there is any specific evidence raising a triable issue of fact. This failure to comply with the separate statement requirements constitutes sufficient grounds to grant summary judgment. However, even apart from this valid technical basis for granting summary judgment, the trial court did not err in ruling on the merits that plaintiff failed to raise any triable issue of material fact, as discussed below.
C. Parkview’s Evidence Demonstrated There Was No Triable Issue of Material Fact.
1. Applicable Law.
“Generally, ‘negligence’ is the failure to exercise the care a reasonable person would exercise under the circumstances. [Citation.] Medical negligence is one type of negligence, to which general negligence principles apply. [Citation.] [¶] Accordingly, a nurse is negligent if he or she fails to meet the standard of care—that is, fails to use the level of skill, knowledge, and care that a reasonably careful nurse would use in similar circumstances. [Citations.] [¶] ‘The standard of care against which the acts of a medical practitioner [including a nurse] are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen.’ [Citation.] In other words, expert opinion testimony is required to prove that a defendant nurse did not meet the standard of care and therefore was negligent, ‘except in cases where the negligence is obvious to laymen.’ [Citation.]” (Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 694-695.)
Here the alleged negligence (standard of care and breach) involving Parkview’s nursing staff’s conduct required the testimony of an expert.
2. Analysis.
Parkview’s expert, Ms. Leone, stated she was “familiar with the nurse’s duties pertaining to the insertion of intravenous catheter for the administration of intravenous fluids and medications and the removal of intravenous catheters”; that she had reviewed the medical records of plaintiff from Parkview, and that Parkview’s nursing staff had fully complied with the standard of care required. Ms. Leone’s declaration was sufficient to make a prima facie showing that plaintiff could not establish the breach of duty element of her cause of action. Thus, the burden shifted to plaintiff to make a prima facie showing of a triable issue that Parkview breached its duty of care. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468.)
Plaintiff failed to make this showing. On appeal, she justifies such failure on the grounds that Parkview’s evidence was insufficient to satisfy its burden of showing there was no triable issue of material fact, and the common knowledge exception of the doctrine of res ipsa loquitur applies.
Regarding the opinion of Parkview’s expert, plaintiff argues that Ms. Leone’s reliance on the notes and records prepared by Parkview’s medical staff is insufficient, because they “will not contain any details about [plaintiff’s] objection regarding insertion of the needle into her arm and snatching out of the needle by the nurse.” However, in addition to reviewing these medical records, Ms. Leone reviewed the deposition transcripts of both plaintiff and Mr. Bradford before offering her opinion. Ms. Leone was aware of both plaintiff’s and Mr. Bradford’s statements regarding what occurred on August 26, 2013. As previously stated, Ms. Leone’s expert opinion, combined with the medical records, provided sufficient evidence to satisfy Parkview’s burden of proving there was no triable issue of material fact; the burden then shifted to plaintiff to show otherwise.
Regarding the doctrine of res ipsa loquitur, plaintiff argues that the broken needle found in her arm “is a foreign object where the common knowledge exception of the res ipsa loquitur doctrine can be applied.” “[R]es ipsa loquitur is a presumption affecting the burden of producing evidence.” (Evid. Code, § 646, subd. (b).) The presumption arises when the plaintiff produces evidence sufficient to satisfy three conditions: (1) the accident is “‘“of a kind which ordinarily does not occur in the absence of someone’s negligence”’”; (2) the accident was caused by “‘“an agency or instrumentality within the exclusive control of the defendant”’”; and (3) the accident was not due to any “‘“voluntary action or contribution on the part of the plaintiff.”’” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.) Because plaintiff has not met these conditions we reject her attempt to affirmatively establish negligence on the part of Parkview.
Plaintiff asserts that she has a broken needle in her left arm that ordinarily would not be present absent someone’s negligence. However, she presented no evidence that the foreign object in her arm was in fact a broken needle, or that Parkview, exclusively, was the cause of the foreign object being in her arm. Plaintiff’s medical records demonstrate that in her ER visits between August 26, 2013, and September 19, 2013, she never complained about any left arm pain or problems regarding the IV insertion on August 26, 2013. Her deposition testimony shows that she also visited Riverside Community Hospital when she was ill, and that her visit on September 19, 2013, was due to the fact that a piece of the bathroom wall from Forever 21 (that was broken and had metal pieces) had gotten into her left arm. None of this evidence supports the application of the doctrine of res ipsa loquitur. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 318-319 [the doctrine of res ipsa loquitur does not apply when plaintiff fails to produce direct evidence of defendant’s negligence and causation, or the three elements of res ipsa loquitur].)
Finally, plaintiff contends the trial court erred in excluding the declaration of her percipient witness, Mr. Bradford. Not so. Because the statement was not signed under penalty of perjury, it does not constitute an admissible declaration under California law. (§ 2015.5 [a declaration must state that the declarant certified or declares under penalty of perjury that the statements made are true and correct].) Moreover, it is irrelevant because it fails to provide evidence as to the nature of the foreign objects in plaintiff’s arm or how they came to be there.
In sum, plaintiff’s evidence in opposition to Parkview’s motion for summary adjudication fails and the trial court did not err in granting summary judgment.
III. DISPOSITION
The judgment is affirmed. Parkview is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RAMIREZ
P. J.
We concur:

MCKINSTER
J.

SLOUGH
J.