Opinion
B301463
03-11-2021
AUSTIN L., a Minor, etc., Plaintiff and Appellant, v. PERPETUA LAWAS-ALEJO, Defendant and Respondent.
Law Office of Sohaila Sagheb and Sohaila Sagheb for Plaintiff and Appellant. Kaufman Borgeest and Ryan and Jeffrey S. Whittington for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BC692955 APPEAL from a judgment of the Superior Court of Los Angeles County, Peter A. Hernandez, Judge. Reversed. Law Office of Sohaila Sagheb and Sohaila Sagheb for Plaintiff and Appellant. Kaufman Borgeest and Ryan and Jeffrey S. Whittington for Defendant and Respondent.
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INTRODUCTION
Plaintiff Austin L., by his mother and guardian ad litem, sued defendant Dr. Perpetua A. Lawas-Alejo for medical malpractice. He alleges that Lawas-Alejo's negligence caused him to suffer a burn wound while he was being treated at the Neonatal Intensive Care Unit (NICU) at Citrus Valley Medical Center (Medical Center).
Austin appeals from the summary judgment entered in favor of Lawas-Alejo. He contends there are triable issues of fact and the expert declaration submitted in support of the summary judgment motion was conclusory and did not meet Lawas-Alejo's initial burden on the standard of care and causation. We agree and reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Austin was born in good condition at the Medical Center on April 4, 2017. A few hours after he was born, however, he appeared "dusky" and was in respiratory distress. Lawas-Alejo, a neonatologist, admitted Austin to the NICU.
Because Austin was in respiratory distress, an arterial blood gas (ABG) test was ordered to measure his oxygen and carbon dioxide levels. ABG test results are also used to determine the level of metabolic acidosis which, if elevated, could decrease pulmonary flow and oxygenation of the blood.
Based on Austin's ABG test results on April 6, 2017, Lawas-Alejo determined that he was suffering from mild metabolic acidosis. Notwithstanding that she determined that Austin's metabolic acidosis was mild, at 2:00 p.m. on April 6, 2017, Lawas-Alejo ordered that he be given a double dose (two milliequivalents) of sodium bicarbonate—a caustic substance—through an intravenous line to treat the acidosis. A few minutes later, at 2:07 p.m., a nurse began the infusion of sodium bicarbonate through a peripheral intravenous line placed on Austin's right foot. The sodium bicarbonate was administered over the course of 60 minutes.
Lawas-Alejo also noted that Austin's carbon dioxide level was "a little bit high." Lawas-Alejo's expert opined, however, that Austin's ABG was "remarkable for a moderately severe metabolic acidosis."
Lawas-Alejo did not recall when she left the NICU on April 6, 2017. She would, however, usually stay until 4:00 p.m. And although there is only one doctor physically present in the NICU at night, three doctors shared responsibility for the patients: the "post-call person, on-call person and the backup person."
During a shift change around 7:00 p.m. on April 6, 2017, a nurse noticed that the sodium bicarbonate had infiltrated—i.e., leaked—from Austin's peripheral intravenous line. At 8:00 p.m., another doctor responsible for Austin's care, Dr. Shah, ordered the removal of the peripheral intravenous line and the placement of dressing over the wound.
Lawas-Alejo learned that the sodium bicarbonate had infiltrated and burned Austin's foot on April 9, 2017 when she examined him. She described Austin's wound as "moderate to severe." Photographs of the wound corroborate Lawas-Alejo's description. In May 2017, Austin was discharged from the Medical Center and admitted to Children's Hospital Los Angeles where his wound continued to be treated through at least July 2017.
2. Procedural Background
In February 2018, Austin, by his mother and guardian ad litem, sued Lawas-Alejo and the Medical Center. The only claim at issue in this appeal is a single cause of action asserted against Lawas-Alejo for medical malpractice. Austin alleges that she breached the standard of care by negligently ordering the administration of sodium bicarbonate, an extremely caustic material, through a peripheral intravenous line that infiltrated at the top of his foot. Austin also alleges that Lawas-Alejo was negligent in her hospital care, pain management care, and treatment, after he suffered the infiltration.
Austin abandoned his misrepresentation causes of action after the court sustained Lawas-Alejo's demurrer to those claims with leave to amend. Austin and the Medical Center settled their dispute and the Medical Center is not a party to this appeal.
Lawas-Alejo filed a motion for summary judgment or alternatively summary adjudication on two grounds. First, she argued that ordering a "standard dose" of sodium bicarbonate to treat Austin's "moderately severe" metabolic acidosis conformed with the standard of care. Second, Lawas-Alejo argued that no act or omission by her caused or contributed to the infiltration of sodium bicarbonate and Austin's subsequent injury. Lawas-Alejo submitted the declaration of a neonatologist, Dr. Jerry Schwartz, as an expert witness. Based on Austin's medical condition and ABG test results, Schwartz opined that Lawas-Alejo's order to administer sodium bicarbonate was within the standard of care and Lawas-Alejo was not responsible for how the sodium bicarbonate was administered.
In opposition to the motion, Austin submitted the declaration of Dr. Erin Zinkhan, also a neonatologist, as an expert witness. Zinkhan opined that Lawas-Alejo breached the standard of care because sodium bicarbonate was not medically indicated for Austin's condition, the use of sodium bicarbonate in neonates has long been a questionable practice, she exceeded the recommended dose, and, in any event, sodium bicarbonate should not have been administrated through a peripheral intravenous line on Austin's foot because he already had an umbilical venous catheter that was not otherwise being used. Zinkhan also opined that Lawas-Alejo's failure to observe, recognize, and treat the infiltration for hours after it occurred contributed to the severity of Austin's injury.
To be sure, the trial court sustained two of Lawas-Alejo's numerous evidentiary objections to statements in Dr. Zinkhan's declaration. The remainder of Zinkhan's declaration, however, created a disputed factual issue regarding whether Lawas-Alejo's conduct was below the standard of care and caused Austin's injury. For example, the court overruled the objection to Zinkhan's statements that the infiltration would have been evident by 3:00 p.m. on April 6, 2017, and that the delayed discovery of the injury breached the standard of care and caused Austin to suffer a more serious burn.
The trial court found that Austin raised a triable issue of fact as to Lawas-Alejo's breach of the standard of care. The court also found, however, that Austin failed to rebut Lawas-Alejo's showing on causation that no act or omission by her caused or contributed to his injuries. In particular, the court noted that signs of the infiltration were not discovered until Lawas-Alejo's shift had ended on April 6, 2017. The court granted the motion and entered judgment in Lawas-Alejo's favor on August 29, 2019.
Austin timely appealed.
DISCUSSION
1. Standard of Review
A defendant moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (See Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1124; Code Civ. Proc., § 437c, subd. (c).) Initially, the defendant has the burden to show, as to each claim, that one or more elements of the cause of action cannot be established or that there is a complete defense to that action. (§ 437c, subd. (p)(2); Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 661; Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717.) If the defendant makes the required showing, the burden shifts to the plaintiff to show there exists a triable issue of material fact. (Simmons, at p. 1124; Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 805.) Motions for summary judgment are adjudicated within the parameters of the allegations raised by the complaint and the answer. (FPI Development, Inc. Nakashima (1991) 231 Cal.App.3d 367, 381.)
All undesignated statutory references are to the Code of Civil Procedure.
A medical malpractice defendant moving for summary judgment must support her motion with expert declarations that her conduct was not negligent. If she does so, the burden shifts to the plaintiff to produce conflicting expert declarations. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) Expert declarations whose opinions are either speculative, lack foundation, or are stated without sufficient certainty, are inadequate. (Ibid.) An expert's opinion that does not include "a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based." (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.)
On appeal, we independently review the record that was before the trial court to determine whether the facts give rise to a triable issue of material fact. (A-H Plating, Inc. v. American National Fire Ins. Co. (1997) 57 Cal.App.4th 427, 433-434.) In making this determination, the moving party's evidence is strictly construed, while the opposing party's evidence is liberally construed. (Id. at p. 434.) Because summary judgment deprives the losing party of a trial on the merits, summary judgment may not be granted unless it is clear there are no triable issues of material fact. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 304 (Johnson).)
2. The court erred in granting summary judgment.
The elements of a medical malpractice claim are: (1) a physician's duty to use the same skill and diligence as other members of the profession in providing care; (2) breach of that duty; (3) causation of injury; and (4) damages. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) Generally, expert testimony is required to prove duty and breach of duty. A physician's duty is defined by the standard of care in his or her community. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607; Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 762.) Only an expert can establish causation. (Lattimore, at p. 970.)
At issue here is whether there is a triable issue of fact as to whether Lawas-Alejo's care and treatment of Austin fell below the standard of care, and whether any act or omission by Lawas-Alejo caused or contributed to Austin's injury. In support of her summary judgment motion, Lawas-Alejo presented the declaration of her expert, Dr. Schwartz, to establish that her treatment of Austin's "moderately severe" metabolic acidosis with a "standard dose (2meq/kg = 6meq)" of sodium bicarbonate was within the standard of care. Notably, however, Lawas-Alejo's deposition testimony did not establish that Austin's metabolic acidosis was moderately severe, or that she prescribed a standard dose of sodium bicarbonate. As we discussed, Lawas-Alejo testified that Austin was suffering from mild metabolic acidosis, and she ordered that he be given a double dose (two milliequivalents) of sodium bicarbonate.
Later in her deposition, Lawas-Alejo also testified that she could have given Austin "[a]s much as nine milliequivalents based on [counsel's] formula." --------
In any event, Dr. Zinkhan's declaration created a triable issue of fact as to whether Lawas-Alejo's treatment of Austin's respiratory distress with sodium bicarbonate breached the standard of care. Zinkhan opined that sodium bicarbonate was not medically indicated for Austin's condition, the use of sodium bicarbonate in neonates has long been a questionable practice, and Lawas-Alejo exceeded the recommended dose.
Further, Lawas-Alejo did not meet her initial burden with respect to other breaches of the standard of care and causation. Other than the bare conclusion that Lawas-Alejo was not responsible for how the sodium bicarbonate was administered, and that no act or omission by Lawas-Alejo caused or contributed to Austin's injury, Lawas-Alejo's expert did not address one of Austin's central theories of liability: Lawas-Alejo negligently failed to monitor the administration of the sodium bicarbonate through a peripheral intravenous line and failed to follow protocols when the sodium bicarbonate infiltrated and burned Austin's foot. Put differently, Dr. Schwartz's declaration does not explain why Lawas-Alejo, the attending physician, had no responsibility for monitoring the administration of medication that she ordered, especially when she testified at her deposition that she had seen lots of infiltrates in the NICU in the past five years, sodium bicarbonate is a caustic substance, and Austin's burn wound was caused by the sodium bicarbonate.
Dr. Schwartz's declaration also does not explain why Lawas-Alejo had no responsibility for Austin's care after the infiltration occurred. Indeed, in her deposition, Lawas-Alejo could not remember when she left the NICU on April 6, 2017, and three doctors—not just the doctor that was physically present in the NICU—were responsible for caring for NICU patients. (See Johnson, supra, 143 Cal.App.4th at pp. 305, 307 [bare conclusion of the defendants' expert, unsupported by reasons or explanations, was insufficient to show the defendants acted within the standard of care]; see also Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 [value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed].)
In sum, there is a triable issue of fact as to whether Lawas-Alejo's treatment of Austin's respiratory distress with sodium bicarbonate breached the standard of care. In addition, there are triable issues of fact whether Lawas-Alejo's failure to monitor the administration of the sodium bicarbonate on April 6, 2017 and be involved in Austin's treatment shortly after the infiltration occurred, breached the standard of care and caused or contributed to Austin's injury. And because Lawas-Alejo did not meet her initial burden of production, she was not entitled to summary judgment regardless of the adequacy of Austin's opposition.
DISPOSITION
The judgment is reversed. Austin shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
EGERTON, J.