Opinion
D081743
04-23-2024
MOSS GROPEN, Plaintiff and Appellant, v. FANG WU et al., Defendants and Respondents
McMahon Lynch Law Firm, Inc., Robert J. Lynch and Matthew A. Slater, for Plaintiff and Appellant. Neil, Dymott, Hudson, Benjamin J. Howard and Mark C. Krok for Defendants and Respondents Danielle Greer and Fang Wu. Schaeffer Cota Rosen, James C. Schaeffer, Andrew K. Whitman; Peabody &Buccini, Thomas M. Peabody and Aaron D. Burden, for Defendant and Respondent Michael J. Noud.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County 37-2021-00030296-CU-MM-NC, Blaine K. Bowman, Judge. Affirmed.
McMahon Lynch Law Firm, Inc., Robert J. Lynch and Matthew A. Slater, for Plaintiff and Appellant.
Neil, Dymott, Hudson, Benjamin J. Howard and Mark C. Krok for Defendants and Respondents Danielle Greer and Fang Wu.
Schaeffer Cota Rosen, James C. Schaeffer, Andrew K. Whitman; Peabody &Buccini, Thomas M. Peabody and Aaron D. Burden, for Defendant and Respondent Michael J. Noud.
DO, Acting P. J.
INTRODUCTION
Moss Gropen was admitted to an emergency department for a severe respiratory condition one day after statewide shelter-in-place orders were issued as a result of the COVID-19 pandemic. He was hospitalized for 11 days in isolation to minimize transmission of the virus, treated for a pleural effusion of the right lung, which included a chest-tube placement, and awaited a COVID-19 test result before the hospital could safely administer a CT scan and discharge him. Following his discharge, he sued the hospital and his treating doctors, Dr. Fang Wu, Dr. Danielle Greer and Dr. Michael J. Noud (defendants), for medical negligence and false imprisonment.
In support of summary judgment, defendants submitted expert declarations to establish that their conduct did not fall below the appropriate standard of care and cause Gropen's alleged injuries. In opposition, Gropen failed to present any medical evidence or expert testimony to meet his shifted burden of production. The defendants also produced evidence that they did not falsely imprison Gropen; rather he consented to all aspects of his hospitalization. The trial court granted summary judgment in favor of defendants. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Gropen's Hospital Stay and Treatment
Because this is an appeal from a grant of summary judgment in favor of defendants, we examine the evidence de novo and our account of the facts is presented in the light most favorable to Gropen and, where the evidence is in conflict, assumes his version of all disputed facts is the correct one. (See Miller v. Department of Corrections (2005) 36 Cal.4th 446, 470; Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999.) Our account of the facts here is also primarily based on the medical records defendants submitted as evidence in support of their summary judgment motions.
On March 4, 2020, Governor Gavin Newsom declared a State of Emergency in California due to the COVID-19 global pandemic. On March 19, he issued Executive Order N-33-20 mandating all California residents to stay home, except as needed to maintain continuity of operations in certain federal critical infrastructure sectors. The healthcare delivery system was also ordered to prioritize services to "those who are the sickest" and to "prioritize resources . . . for the providers providing direct care" to those patients. The next day, Gropen was admitted to the emergency department of Palomar Medical Center (the hospital).
All further date references will be to 2020, unless otherwise noted.
We understand the hospital was named Pomerado Hospital at the time and has since been renamed to Palomar Medical Center.
A. Initial Evaluation at the Emergency Department: March 20
Gropen, who was 62 years old, complained of back pain and shortness of breath when he went to the emergency department on March 20. The emergency department physician, Dr. Thomas Moats, noted Gropen had received an X-ray through his primary care physician four days earlier that revealed a pleural effusion (fluid around the lungs). He was scheduled to undergo a thoracentesis to remove fluid from the right lung at the hospital's interventional radiology department earlier that day. Dr. Noud in that department, however, cancelled the thoracentesis because there was "[n]ot enough fluid" for the procedure. At his appointment with Dr. Noud, Gropen "had a temperature of 101.5 degrees and he was instructed to seek evaluation at the emergency department."
In his opposition to summary judgment, Gropen attempted to dispute he had a temperature of 101.5 degrees with his own declaration averring, "I do not recall being feverish at the time I went to [the hospital] and do not believe that I was."
Gropen, according to Dr. Moats' report, complained of lingering back pain, shortness of breath, and intermittent fevers. Dr. Moats ordered a chest X-ray to further evaluate Gropen's shortness of breath, which revealed a "[l]arge right pleural effusion" that was "consistent with empyema underlying pneumonia."
Gropen's oral temperature at the emergency department was 98 degrees. He denied experiencing "any cough [or] sputum," any "recent travel or surgery," though he reported having recently been evaluated for his back pain "at other emergency departments." Accordingly, Dr. Moats noted Gropen was "negative for all risk factors including fever, shortness of breath, cough, recent travel, or positive COVID-19 contact." However, Gropen does not dispute his "symptomology and imaging demonstrated a potentially severe respiratory illness warranting isolation." He was administered a COVID-19 PCR test and isolated due to COVID-19 restrictions.
B. Care by Dr. Noud March 20 and Dr. Greer March 20 to March 26
Dr. Greer was Gropen's attending hospitalist from March 20 until March 26. Dr. Greer's initial assessment and plan for Gropen was to admit him with an "expected length of stay of more than two nights for chest tube management and antibiotics." She noted on his charts there was "possible COVID 19 given visits to ER and fever with some shortness of breath" and that Gropen "ha[d] been isolated appropriately with airborn[e] and droplet precautions" while awaiting his COVID-19 test results. Dr. Greer updated Gropen's brother on Gropen's condition over the phone on March 21.
On March 20, Dr. Noud performed a CT-guided chest tube placement into the pleural collection of Gropen's right lung. Approximately 500 cc of serosanguineous fluid was aspirated. CT imaging after the procedure showed the chest tube was appropriately positioned and no complications were observed. After the chest-tube placement, Gropen's medical charts show that fluid drained nearly every day while he was in the hospital.
On March 24, pulmonologist Dr. Frank Bender performed a "[p]ulmonary follow-up" on Gropen. Dr. Bender assessed Gropen with "[r]ight lung pneumonia/atelectasis [(collapse of part or all of the lung) of the] middle and lower lobes with loculated large right pleural effusion" and shortness of breath. He opined that a CT scan "likely will be needed" for "further treatment" and "to see how complete [the] drainage" of Gropen's "residual fluid" had been. However, his charting reflects the CT scan "at present [wa]s being used in limited fashion due to . . . COVID."
Dr. Greer rounded on Gropen each day, physically examining and evaluating his condition and progress and overseeing his medications. He was provided antibiotics for pneumonia, narcotics for back pain, and medication for his anxiety. During this time, nursing notes reflect Gropen was provided hygienic and dermatologic care. He was bathed, his bowel movements were monitored, and he was provided barrier creams and other dressings to remedy and prevent skin irritations. Although Gropen reported a rash on his back or groin area, he admittedly refused to permit Dr. Greer to evaluate it.
Dr. Greer, according to her clinical notes, counseled Gropen on the need for a CT scan but that there would be "delay" in obtaining a CT scan "while [he was] in COVID rule out isolation." Gropen was "[f]rustrated and upset about the delay," but she observed he was "comfortable, resting, [and] not in distress." The COVID-19 PCR test result had not returned by Dr. Greer's final examination of Gropen on March 26. That same day she updated Gropen's brother over the phone.
C. Care by Dr. Wu: March 27 to March 30
Dr. Wu assumed care as Gropen's attending hospitalist from March 27 to March 30. Dr. Wu rounded on Gropen each day during her care, physically examining and evaluating his condition and progress. He continued to receive hygienic and dermatologic care.
Gropen remained in isolation with a chest tube in place, awaiting the COVID-19 PCR test result and pending CT scan. Dr. Wu's notes state that she "went over with him . . . the importance of the CT scan to direct further care," which included potentially another chest tube or chest surgery. However, the hospital was "[h]olding on" with the CT scan pending the COVID 19 test result.
On March 29, nine days after being admitted to the hospital, Gropen's COVID-19 test returned negative. Within hours, Gropen received his CT scan and was transferred out of isolation. The CT scan showed "minimal residual fluid" and minimal "loculated air" in the right lung, with the lungs otherwise clear.
The next day, March 30, Dr. Wu performed a final evaluation of Gropen. She counseled him on the potential need for surgery consult. That same day, Dr. Cyrus Shabrang performed a thoracentesis procedure to drain fluid from Gropen's left lung; approximately 100 mL of fluid was removed. The chest-tube was then removed without any complications. Pulmonology then cleared Gropen for discharge. Dr. Wu updated Gropen's wife on his condition over the phone on March 28, 29, and 30.
D. Gropen's Discharge: March 31 Gropen was discharged from the hospital the following day, on March 31.
II.
Gropen's Lawsuit
Gropen's operative complaint asserts causes of action for medical malpractice against Drs. Greer, Noud, and Wu, and false imprisonment against Drs. Greer and Wu.
Gropen dismissed his cause of action for false imprisonment, leaving only the medical negligence cause of action, against Dr. Noud. Gropen had also sued but voluntarily dismissed with prejudice Dr. Shabrang. He also sued the hospital. The trial court denied the hospital's motion for summary judgment.
Gropen alleged that upon admission for a "large loculated right pleural effusion with atelectasis of the middle and lower lobe" of his right lung, he "was deprived of necessary care over the course of seven (7) days without any medical reason or justification." He alleged his treatment was "held up" after he had a chest-tube placed and was isolated "because of the stated need for a CT scan to determine pulmonary damage." But defendants "refused" to administer the CT scan."
He further alleged he was placed in a room "with no windows and was prevented contact with most nurses or doctors" and had "no family contact whatsoever," despite being "negative for all risk factors for COVID-19." He further claimed the "room was dirty, substandard, and did not have effective means for [him] to contact staff or family members"; he was provided "substandard nutrition"; he suffered "iatrogenic delays in urination and defecation, causing extreme rashes and soiling" and was not bathed "for days" after defecating and soiling himself; he required but was denied psychiatric care; and he was not treated for his back pain.
In support of his first cause of action for medical negligence, Gropen asserted defendants' "withholding of care by refusing to treat his back pain, severe rash and the refusal to administer a CT scan, as well as the minimal feedings were violations of the relevant standards of care for the hospital facility . . ., as well as violations of the relevant standards of care for the medical professionals involved." He specifically alleged defendants "fail[ed] to conform to the standard of practice of care required by reasonably competent hospitals, doctors, and nurses, in that they" (among other reasons) "[n]egligently and carelessly failed to explore other treatment options with [Gropen] other than awaiting a CT scan that [d]efendants failed to provide for more than seven (7) days even though it was clinically indicated."
As for his second cause of action for false imprisonment, Gropen alleged "he was effectively imprisoned and denied necessary life-preserving services" as a result of the "substandard care" to which he was subjected. (Italics added.) More specifically, he claimed defendants "intentionally deprived [him] of his freedom of movement by use of physical barriers, fraud and unreasonable duress by isolating [him] in a small, windowless room for a period of at least seven (7) days without the ability to contact family." His confinement, he alleged, "included the physical intrusion of [his] body with medical equipment past any time of consent to such procedures."
III.
Defendants' Motions for Summary Judgment
Defendants each filed separate motions for summary judgment, or in the alternative, summary adjudication, on similar grounds.
A. Defendants' Supporting Evidence
Drs. Greer and Wu argued there were no triable issues of material fact on any element of the false imprisonment cause of action. They each submitted a declaration, averring they never intentionally deprived Gropen of his freedom, confined him to his room, or prevented him from leaving by any means, and that Gropen executed written consents to all aspects of his hospitalization, including his admission, isolation, and chest-tube placement.
Drs. Wu, Greer and Noud all argued there were no triable issues of material fact on the medical negligence cause of action because their conduct met the standard of care and was not the cause of Gropen's alleged injuries. Drs. Wu and Greer submitted an expert declaration by Dr. Megan Hamreus and Dr. Noud submitted an expert declaration by Dr. Stuart Schroff in support of their motions, establishing the following facts.
1. Dr. Hamreus's Declaration
Dr. Hamreus is board certified in family medicine, the medical director of Scripps Health Inpatient Providers and a hospitalist. She stated she was familiar with the standard of care for hospitalists and could review "Gropen's medical care and render an opinion as to whether the care and treatment provided to him by Dr. Fang Wu and Dr. Danielle Greer was within the community standard of care." She based her opinion on her education, training, experience, and review of the pleadings and Gropen's medical records and discovery responses. Gropen did not challenge Dr. Hamreus's qualifications.
Relying on the medical facts we have already summarized (see Section I, ante), Dr. Hamreus stated that "[a]s the attending hospitalists, Dr. Greer and Dr. Wu managed and monitored Mr. Gropen's care" and "[t]heir role . . . was to ensure appropriate consults and interventions were provided, then maintain proper communication between the care team." Dr. Hamreus observed that Dr. Greer attended to Gropen daily from March 20 to March 26 and that Dr. Wu assumed care of Gropen on March 27 and attended to him every day until March 30. Dr. Hamreus noted that "[p]ulmonology followed and believed a CT scan would be required to determine the definite amount of drainage before proceeding with a thoracentesis, and determine if surgical intervention was necessary. However, the pulmonary consult who would be ordering the imaging-Dr. Bender-reported the CT machine was being used in limited fashion due to COVID; therefore, Mr. Gropen could not receive a CT until he was negative."
On March 27, the pulmonologist "felt [Gropen] still had fluid buildup in his chest after reviewing another chest X-ray." The next day, "[p]ulmonology again expressed to [Gropen] the importance of the COVID test result and CT scan to further direct his care-which may have included another chest tube or chest surgery." On March 29, his "COVID test results returned negative. Within hours, he subsequently had the anticipated chest CT scan and was transferred out of isolation to a room." On March 30, interventional radiology "performed the ultrasound-guided left thoracentesis, which was reported as successful." After consultation with another pulmonologist, interventional radiology removed Gropen's chest tube. Gropen was discharged the following day.
Dr. Hamreus opined that Dr. Greer and Dr. Wu "met the standard of care for hospitalists at all times" in their "care and treatment of Mr. Gropen." "With regard to Mr. Gropen's isolation to rule out COVID-19, neither Dr. Wu nor Dr. Greer ordered the isolation. However, they did appropriately continue his isolation as they awaited his test results." "[T]o the extent Dr. Wu and Dr. Greer did have the authority to order it or discontinue it, Mr. Gropen's isolation was appropriate." "Furthermore, turnaround for the COVID PCR test . . . was out of the hospitalists' control." The doctors "ensured the appropriate consults and interventions were provided for Mr. Gropen by coordinating with pulmonology and [interventional radiology]." "[N]o alternative treatment was indicated and Mr. Gropen's hospitalization was not 'unnecessarily' extended as a result of the CT hold. In fact, the above care led to the resolution of Mr. Gropen's acute respiratory condition, and likely saved his life."
Dr. Hamreus further opined that Gropen "consented to the care in which he was provided. At no point, according to the relevant records and discovery responses, did Mr. Gropen indicate he wished to leave against the advice of his physicians, or request a second opinion. All patients want to leave the hospital; if a patient wishes to pursue alternative care, they must explicitly vocalize so in order to be accommodated." The doctors "provided appropriate communication with Mr. Gropen and his family." Specifically, they "counseled him on the treatment course" and provided updates to his brother and wife.
It was Dr. Hamreus's opinion that "[a]t the onset of a deadly pandemic," the doctors "still met the full measure" of their "responsibility to Mr. Gropen in managing and monitoring his care and treatment-acting as a reasonable hospitalist would have acted in similar, unique circumstances." "Accordingly, [they] met the standard of care at all times in [their] treatment of Mr. Gropen." She further opined that "no act or omission on the part of Dr. Greer [and Dr. Wu] was a substantial factor in causing or contributing to any alleged injury of Mr. Gropen."
2. Dr. Schroff's Declaration
Dr. Schroff is board certified in interventional radiology and diagnostic radiology and the vice chair of image-guided interventions at USC. He stated he was "familiar with the standard of care for treatment provided by interventional and diagnostic radiologists in 2020." Like Dr. Hamreus, he based his opinions on his education, training, experience, and review of the pleadings and Gropen's medical records and discovery responses. Gropen also did not challenge his expert qualifications.
Relying on the same medical facts previously summarized (see Section I, ante), Dr. Schroff noted Dr. Noud's only involvement with Gropen's care was to perform the thoracentesis ordered by Gropen's primary care physician, which he did not initially perform "due to an inability to adequately visualize the fluid, which is required to safely perform the procedure"; that Dr. Noud recommended Gropen be sent to the emergency department for further evaluation and, if admitted, a CT-guided thoracentesis could be performed to allow better visualization of the loculated fluid; and that shortly after being admitted to the hospital, Dr. Noud successfully performed a CT-guided chest tube placement to address Gropen's pleural effusion.
Dr. Schroff highlighted Gropen's "only specific allegation against Dr. Noud is that he, 'refused to treat [Gropen] even though there were no factors indicative of a COVID-19 infection.'" Dr. Schroff opined the medical care provided by Dr. Noud "was at all times appropriate and met the applicable standard of care in the community." He further opined that Dr. Noud did not refuse to treat Gropen, because he performed a CT-guided chest tube placement, a few hours after stopping the outpatient thoracentesis due to safety reasons, resulting in the immediate aspiration of 500 cc of fluid from Gropen's pleural space and facilitating his continued medical treatment. Thus, Dr. Noud "acted well within the standard of care at all times during [Gropen's] presentation" to the hospital and no alleged negligent act or omission by Dr. Noud was a substantial factor in causing Gropen's claimed injuries or damages.
B. Gropen's Opposition Evidence
To try and meet his shifted burden of production, Gropen submitted his own declaration and excerpts of his deposition testimony; excerpts of Dr. Greer's deposition testimony, and an expert declaration by a psychiatrist on his injuries. He failed to offer any expert declaration on the standard of care.
1. Dr. Greer's Deposition Testimony
Gropen designated Dr. Greer as a non-retained expert and relied on this aspect of her deposition testimony: "The difficulty is there was no standard of care in this situation. It was a pandemic. It was new. This was the very start of the pandemic. This is when the State of California went into a shutdown, and there was no standard of care prior to this." Gropen also pointed to Dr. Greer's testimony that she was "not aware of any documents that relate or refer to any policy regarding restricting the use of imaging equipment for patients deemed at risk of COVID 19 infection transmission which were in effect from March 1 through March 29, 2020." He argued Dr. Greer's deposition testimony established "there was no established medical standard of care."
2. Dr. Stephen Signer's Declaration
Dr. Stephen Signer, board certified for psychiatry and geriatric psychiatry, stated he was currently treating Gropen. He diagnosed Gropen with Post-Traumatic Stress Disorder (PTSD) "related to his time at" the hospital. Dr. Signer averred Gropen's PTSD "is triggered by certain stressors, including questioning by others related to the incidents that led up to his trauma"; it was his opinion that sitting for a deposition "will more likely than not result in triggering his PTSD" and his wife should be present during a deposition to "lessen the impact" on his PTSD. Dr. Signer did not offer any opinions on standard of care.
Gropen originally filed this declaration in opposition to Dr. Noud's and Dr. Shabrang's motion for a protective order to bar Gropen's wife from attending his deposition, which the trial court granted. This court granted Gropen's petition for writ of mandate and remanded the matter back to the trial court to consider Gropen's request for an accommodation under the Americans with Disabilities Act. (Gropen v. Superior Court (2023) 89 Cal.App.5th 1068.) Upon remand, the trial court denied Gropen's request for an accommodation.
3. Gropen's Declaration
Finally, Gropen sought to rely on his own declaration to establish that he did not consent to the length and degree to which he was retrained. He averred "[t]he chest tube was attached to a box that provided suction and the attachment was so short that [he] could not move from the bed without help. [He] was placed in a room that had the windows boarded and taped up." He stated he "could not move from [his] bed for an extended period of time," experienced "excruciating pain" from his back injury and was "isolated from physical contact or communication with family." Because he was bedridden, he suffered "self-soiling," which caused "extensive and painful rashes." His isolation, pain, inability to move and "humiliation" made him "question whether [he] should continue living." Gropen acknowledged he was "not a medical professional," but nevertheless asserted it was "common knowledge" that he was confined in the hospital "longer than necessary" due to the "failure to perform the thoracentesis." He concluded by stating that it was his "lay opinion" that the COVID pandemic and the governor's directives "weighed in favor of [his] release from the hospital as soon as possible." C. Trial Court's Ruling
On the medical negligence cause of action, the trial court found the expert declarations submitted by the defendants satisfied their burden of establishing that there was no breach of the appropriate standard of care and that Gropen failed to produce any medical expert testimony to refute the defendants' evidence. The court rejected Gropen's attempt to rely on the common knowledge exception to the rule requiring expert testimony, finding that it was not" 'obvious' that a CT scan was needed after the chest tube" and that "[e]xpert testimony regarding the risks of using the CT scanner, the risks of COVID-19 transmission that were known or suspected at the time, and the burden on hospital staffing to clean the machine during an 'all hands on deck' emergency time period are all needed to gauge the medical factors that were at play in meeting the applicable standard of care."
As for the false imprisonment cause of action, the trial court found that "there does not appear to be a question in this case that [Gropen] had the right to leave the hospital." It therefore concluded there were no triable issues as to the elements of the false imprisonment cause of action. Accordingly, the trial court granted defendants' motions for summary judgment.
DISCUSSION
I.
No Abuse of Discretion in the Trial Court's Rulings on Gropen's Evidentiary Objections
On appeal, Gropen reiterates his objections that certain medical records submitted by defendants lacked foundation to qualify as business records, which the trial court overruled. We review that outcome for abuse of discretion, subject to the overarching principle that the moving party's submissions are considered strictly, while the opponent's submissions are viewed liberally. (Mackey v. Trustees of California State University (2019) 31 Cal.App.5th 640, 657.) We conclude defendants offered a sufficient basis to authenticate the documents and the trial court did not abuse its discretion in overruling Gropen's objections.
"If [a document] is prepared before trial and offered to prove the truth of the words it contains, it is hearsay." (Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th 442, 447.) Under the business records exception to the hearsay rule, "[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1271, subds. (a)-(d).)
"Authentication of a writing is required before it may be received in evidence." (Evid. Code, § 1401, subd. (a).) This means evidence sufficient to sustain a finding "that the document is what it purports to be." (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321; see Evid. Code, § 1400.) In the summary judgment context, "[s]upporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations." (Code Civ. Proc., § 437c, subd. (d).) "A trial court has wide discretion in determining whether a qualified witness possesses sufficient personal knowledge of the identity and mode of preparation of documents for purposes of the business records exception." (Estate of O'Connor (2017) 16 Cal.App.5th 159, 170 (O'Connor).) "[A]ny 'qualified witness' who is knowledgeable about the documents may lay the foundation for introduction of business records- the witness need not be the custodian or the person who created the record." (Ibid., internal quotation marks omitted.)
Here, Dr. Greer averred in her declaration that she reviewed the records and they included "true and correct copies of [her] original medical records." She averred the records "were created by [her] in the regular course of business at or near the time of the medical assessments and treatment described." Dr. Greer is a qualified witness with sufficient personal knowledge to authenticate and establish the medical records are business records. (O'Connor, supra, 16 Cal.App.5th at p. 170; Code Civ. Proc., § 437c, subd. (d).) We see no abuse of discretion in the trial court's ruling.
Dr. Greer's counsel also submitted a declaration that stated the records were produced by Gropen in discovery. Although the fact that a document was produced in discovery by the opposing party does not necessarily render it authenticated (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 855), the authenticity of a document can be established by circumstantial evidence and counsel can authenticate documents produced by opposing counsel in discovery that bear "clear indicia" that they are what they purport to be (Hooked Media Group, Inc. v. Apple, Inc. (2020) 55 Cal.App.5th 323, 338 [distinguishing Serri]). Here, like in Hooked, the medical records at issue were produced by opposing counsel, "their form . . . indicates authenticity" and there is "nothing that would cast doubt on the authenticity of the evidence." (Ibid.) For this additional reason, we conclude the trial court did not abuse its discretion in overruling Gropen's objections.
II.
Summary Judgment Was Properly Granted in Favor of Defendants
A trial court properly grants summary judgment when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "[T]he party moving for summary judgment bears the burden of persuasion" on both points. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
We review the trial court's grant of summary judgment de novo based on the evidence that was before the trial court, "liberally constru[ing] the evidence in support of the party opposing summary judgment and resolv[ing] doubts concerning the evidence in favor of that party." (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347, internal quotation marks omitted.)" '[T]he relevant facts are limited to those set forth in the parties' statements of undisputed facts, supported by affidavits and declarations, filed in support of and opposition to the motion in the present case, to the extent those facts have evidentiary support.'" (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 175.)
On our de novo review, we" 'employ[ ] the same process as the trial court.'" (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054.)
That process begins with "identif[ying] the issues framed by the pleadings" (ibid.), which" 'set the boundaries of the issues to be resolved at summary judgment'" (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250). As to each cause of action in the pleadings, "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." (Aguilar, supra, 25 Cal.4th at p. 850.) To satisfy the initial burden of production, a moving defendant must present evidence "that the plaintiff cannot establish at least one element of the cause of action." (Id. at pp. 853854.) The defendant's evidence must "show[ ] that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Ibid.) Once the defendant has done so, the burden of production shifts to the plaintiff to present evidence "to make a prima facie showing of the existence of a triable issue of material fact." (Id. at p. 850.) Then "we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law." (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
A. Medical Negligence
When, as here, a defendant in a medical malpractice case moves for summary judgment and supports her motion with expert declarations that her conduct fell within the community standard of care and did not proximately cause the resulting injury," '[s]he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.'" (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985, italics added.) Because Gropen failed to meet his shifted burden of production with conflicting expert testimony on standard of care, and the common knowledge exception does not apply, the trial court properly granted summary judgment on this cause of action.
" 'The elements of a cause of action in tort for professional negligence are: (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.'" (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077.)
When a defendant is accused of failing to adhere to accepted standards of practice, such standards must generally be established by qualified expert testimony. (Stephenson v. Kaiser Foundation Hospitals (1962) 203 Cal.App.2d 631, 635 ["Ordinarily, proof of the prevailing standard of skill and learning in the locality and proof on the question of the propriety of particular conduct by the practitioner in particular instances is not a matter of general knowledge and can only be supplied by expert testimony."].)" 'The standard of care against which the acts of a physician 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 [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.'" (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)
The common knowledge exception to the requirement for expert testimony is "narrow" and "limited." (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542.) "It arises when a foreign object, such as a sponge or surgical instrument, is left in a patient following surgery and applies only when the plaintiff can invoke the doctrine of res ipsa loquitur." (Ibid., italics added.) It "is principally limited to situations . . . when 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.'" (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001 (Flowers).)
Gropen argues "the decision to not perform a procedure had nothing to do with the complexity of the care to [him]. The decision to not provide the requested care was one that a layperson could make." We disagree. The medical determinations that defendants made cannot be reduced to a simple decision to delay providing Gropen with a CT scan or thoracentesis. On the contrary, Gropen's doctors had to know what was needed to treat his pleural effusion; decide a course of treatment, including whether a CT scan was required after draining the fluid; determine the timing of the CT scan versus draining the fluid; and navigate the infectious disease considerations amidst the onset of the COVID-19 pandemic. The defendants' decisions with respect to Gropen's medical care did not involve a common treatment or facts that are common knowledge.
A layperson would not innately know Gropen required a chest tube or CT scan to assess the progress and determine next steps, including when to send him for imaging impressions. The context of COVID-19 made expert testimony even more necessary. As Dr. Greer testified, the policy of delaying CT scans while in the COVID-19 pandemic was meant to limit exposure to other patients and staff members. In a stable patient, "[t]he benefit of using the CT scanner and exposing whoever to COVID wasn't greater than the risk." Dr. Hamreus similarly opined that isolation policies, which are applicable to the CT scan policy, were to "protect the patient" and "protect the general hospital population from the patient's potential infection."
Unlike the cases relied upon by Gropen, the treatment here was complex and required defendants to weigh significant medical judgments. For example, Gropen likens the instant case to a failure to provide specific care as in McBride v. Saylin (1936) 6 Cal.2d 134. There, the high court evaluated the failure of a doctor to use an X-ray to "determine the presence or absence of a foreign body in the eye" and held that "the use of the X-ray as an aid to diagnosis . . . is a matter of common knowledge." (Id. at p. 138.) But unlike McBride, Gropen does not dispute that the defendants provided him a CT scan. As the trial court recognized, "the question here was not just about the 'need' for a CT scan - it concerns the timing of when to have that CT scan done in the context of other medical necessities going on at the hospital in the emergency conditions of a pandemic." No layperson could assess the need for and timing of a CT scan for the diagnosis and treatment of a pleural effusion during the COVID-19 pandemic.
See, for example, Ales v. Ryan (1936) 8 Cal.2d 82, 95-96 [sponge left inside abdomen following surgery]; Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 99-100, 102 [broken rib during kidney operation]; Ybarra v. Spangard (1944) 25 Cal.2d 486, 488-489 [shoulder injury during appendectomy]; Barham v. Widing (1930) 210 Cal. 206, 215 [infection caused by unsterile equipment]; Timbrell v. Suburban Hospital, Inc. (1935) 4 Cal.2d 68, 70-71 [burns from hot water bottles or hot compresses]); Dierman v. Providence Hospital (1947) 31 Cal.2d 290, 292, 295 [anesthetic gases exploded in the operating room]; Leonard v. Watsonville Community Hospital (1956) 47 Cal.2d 509, 514 [a clamp left in patient's abdomen following surgery]; Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 425, 429 [psychiatric patient commits suicide by jumping from window in a mental institution after the staff left the window unlocked]; Flowers, supra, 8 Cal.4th at p. 1001 [patient fell from gurney].)
Like Barton v. Owen (1977) 71 Cal.App.3d 484, "the present case is not one of those 'simple' malpractice situations where a lay person could draw upon his own common sense to determine whether there was negligence." (Id. at p. 495 ["[T]he effect of the defendant's failure timely to administer the culture and sensitivity test can[not] be deemed a matter within the common knowledge of the average judge or juror. These types of judgment questions are just not the same inherent type as was involved in cases . . . where a sponge was left in the patient after the operation."].) On the contrary, "[t]he law requires only that doctors exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by doctors under similar circumstances in diagnosis and treatment, with no different or higher degree of responsibility than that obtaining in their professional community. The law does not hold doctors liable for every untoward result which may occur." (Folk v. Kilk (1975) 53 Cal.App.3d 176, 185 (Folk).) As in Huffman v. Lindquist (1951) 37 Cal.2d 465, "this is not such a case [where the doctrine of res ipsa loquitur applies], for here what was done lay outside the realm of the layman's experience." (Id. at p. 474 ["The physical factors to be noted in the diagnosis . . . as well as the merits of such a diagnosis, were matters of medical learning, peculiarly within the knowledge of experts."].)
The facts of this case are more aligned with the case of Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064. The plaintiff there was first treated in the emergency room following a grand mal seizure. (Id. at p. 1067.) The emergency room doctor "discovered nothing significant to establish the reason for the seizure" and arranged for imaging and a neurological examine two days later. (Ibid.) When the patient returned, he had "a C.T. scan, an MRI scan, and two exploratory surgeries," which led to the discovery of "two brain abscesses," and resulted in "partial paralysis of his left limbs." (Ibid.) The patient alleged the imaging should have been performed the day he visited the emergency room. (Ibid.) The court reasoned that "a physician can consider only what is known at the time he or she acts." (Id. at p. 1070.) In rejecting the patient's theory that a doctor should be "required to explain each and every possible diagnostic procedure regardless whether he or she believes it to be medically indicated," the court explained that "a physician should not prescribe a procedure which is not medically indicated simply because the patient desires it." (Id. at pp. 1070-1071.) Accordingly, it held that "the standard of practice of an emergency medicine specialist with respect to neurological symptoms" was not a matter "of such common knowledge that expert testimony is unnecessary." (Id. at p. 1072.)
So too here. Only a qualified expert can opine on the hospital's policy on transporting suspected COVID-19 patients for CT scans and the defendants' judgment in carrying it out. Allowing the common knowledge exception here would permit Gropen to "create [his] own standards for the medical profession." (Folk, supra, 53 Cal.App.3d at p. 187.) Thus, the trial court was correct to find that the common knowledge exception was inapplicable.
Defendants' expert declarations established that the care and treatment of Gropen by Drs. Greer, Wu, and Noud always met the standard of care and did not cause any injury to him. The defendants met their initial burden of showing there was no triable issue of material fact on breach of the appropriate standard of care. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607 ["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." (Internal quotation marks omitted.)].) The burden shifted to Gropen to present conflicting evidence to demonstrate the existence of a triable issue of material fact. He failed to do that.
Gropen failed to produce a declaration by a qualified physician that contained any information concerning the standard of care owed by any of the defendants. The only physician declaration supporting his opposition to summary judgment was by Dr. Signer, a psychiatrist who did not offer any standard of care opinions.
As authority for relying on Dr. Greer's deposition testimony that "there was no standard of care in this situation," Gropen cites Cobbs v. Grant (1972) 8 Cal.3d 229. Cobbs does not help Gropen. In Cobbs, the defendant physician expressed "a feeling of remorse" that plaintiff had to return to the hospital after a surgery he performed, and that surgery was "not usually warranted." (Id. at pp. 237, 238.) The court concluded this was "not an admission of a negligent decision to operate when all the medical experts testified that . . . surgery was indicated." (Id. at p. 237.) The court reasoned, "Since a medical doctor is not an insurer of result, such an equivocal admission does not constitute a concession that he lacked or failed to use the reasonable degree of learning and skill ordinarily possessed by other members of the profession." (Id. at p. 238.)
As in Cobbs, there is no admission of negligence here by defendants. Here, the defendants had a duty of care to Gropen to comply with the standard of care in treating his pleural effusion and suspected COVID-19. Greer's deposition testimony about the standard of care at the onset of the COVID-19 pandemic was not "inculpatory" and cannot be used to input negligence upon defendants.
Even if Dr. Greer's testimony was admitted as expert testimony, it does not help Gropen meet his shifted burden of production, for two reasons. First, her statement was merely a reflection of the unique situation the hospital faced in March 2020. Just because these were unprecedented circumstances, however, does not mean that the defendants no longer had any duty of care to Gropen. In fact, Dr. Greer testified there was a standard of how to treat suspected COVID-19 patients. She testified that she "maintain[ed]" the COVID-19 policies and "wore P[ersonal] P[rotective] E[quipment] when [she] went into patients who were being ruled out for COVID, and [she] couldn't force a CT scan to be performed on a patient who was being ruled out for COVID." She noted how transporting a potential COVID-19 positive patient through the halls would "increase the risks to other patients [and] staff members," and that the CT scanner would then "sit empty" until it was cleaned. Dr. Hamreus similarly opined that the isolation policy was done "to protect" potential COVID-19 patients themselves from these exposures.
Because both Dr. Hamreus and Dr. Greer agree that Dr. Greer and Dr. Wu complied with the standard of care when they refused to give Gropen a CT scan until he tested negative for COVID-19, no triable dispute of material fact exists.
Second, Dr. Greer's deposition testimony does not speak to Dr. Noud's conduct at all. Dr. Noud's involvement in Gropen's care was limited to March 20 when he referred Gropen to the emergency room and performed the chest tube placement. He then had no further involvement in Gropen's care, including any decision regarding Gropen's isolation. Dr. Schroff, an interventional radiologist like Dr. Noud, established that Dr. Noud met the standard of care for an interventional radiologist at all times. Gropen's own opinion about Dr. Noud's medical care of him amounts to unsupported speculation which cannot controvert Dr. Schroff's expert declaration. (See Soto v. Union Pacific R.R. Co. (2020) 45 Cal.App.5th 168, 183 [plaintiff's "speculation" in response to defendant's expert declaration "is not sufficient to defeat summary judgment"].) B. False Imprisonment
"The tort of false imprisonment is the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short." (City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 810.) Gropen argues that Drs. Wu and Greer "actively knew" he "did not want, nor expect, to be in the hospital." Even so, there is no evidence Gropen demanded to leave the hospital against medical advice-not just expressed frustration about the delay in getting a CT scan. There is also no evidence Drs. Wu and Greer intended to deprive Gropen of his freedom, rather than follow best medical practices.
Gropen's hospital admission papers state he "consent[s] to the procedures that may be performed during this hospitalization or while I am an outpatient." The "Patient Rights and Responsibilities" section states he has "the right to . . . Request or refuse treatment, to the extent permitted by law.... You have the right to leave the hospital even against the advice of physicians, to the extent permitted by law." (Some capitalization omitted.)
There is no evidence Gropen invoked his rights under the Rights and Responsibilities forms, assertively demanded to be released against the defendants' medical advice, or modified or withdrew his consent at any time. Gropen's declaration states that he asked Drs. Wu and Greer "to hurry treatment," and that he "demanded the treatment that would let [him] out of the hospital." He also told them he "wanted out of the hospital" and that he asked them "to try to move the COVID testing along." He "made it clear that [he] wanted a CT scan done to allow discharge." Gropen's declaration does not state he either attempted to leave the hospital and was prevented from doing so, or he wished to forgo the CT scan and go home. Although he requested his COVID-19 test results, CT scan and treatment be expedited so he could leave, there is no evidence he expressed a desire to act against the defendants' medical advice. The trial court properly granted summary judgment on this cause of action as well.
On our own motion, we augment the record on appeal to include (1) a minute order filed on December 13, 2023, in which the trial court denied the hospital's motion for summary adjudgment/adjudication, (2) the declaration of Dr. Signer, which was filed on August 26, 2022, in support of Gropen's opposition to the motion for protective order, and (3) a minute order filed on July 3, 2023, in which the trial court denied Gropen's ADA request for accommodation to have his wife attend his deposition. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
DISPOSITION
The judgment is affirmed. Defendants Fang Wu, Danielle Greer and Michael J. Noud are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
WE CONCUR: BUCHANAN, J. CASTILLO, J.