Opinion
B187644
4-26-2007
MARGHERITA UNDERHILL, Plaintiff and Appellant, v. LONG BEACH MEMORIAL MEDICAL CENTER et al., Defendants and Respondents.
Mancini & Associates, Marcus A. Mancini and David Cohn; Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon for Plaintiff and Appellant. Law Offices of Lynn E. Moyer and Lynn E. Moyer; Law Office of Kent M. Bridwell and Kent M. Bridwell for Defendants and Respondents Long Beach Memorial Medical Center and Miller Childrens Hospital. Schmid & Voiles and Suzanne De Rosa for Defendant and Respondent Eliezer Nussbaum, M.D.
NOT TO BE PUBLISHED
Plaintiff and appellant Margherita Underhill (plaintiff) appeals from the summary judgment entered in favor of defendants and respondents Miller Childrens Hospital (MCH), Long Beach Memorial Medical Center (LBMMC), and Eliezer Nussbaum, M.D. (Dr. Nussbaum), (MCH, LBMMC and Dr. Nussbaum are referred to collectively as defendants) in plaintiffs wrongful death and survival action premised upon defendants allegedly negligent treatment and care of her son, Christian, a cystic fibrosis patient who died in February 2003. Plaintiff contends the trial court erred by excluding portions of an expert declaration submitted in opposition to the summary judgment motion, that triable issues of material fact exist as to whether defendants negligence caused Christians death, and that her survival action is not time barred.
We affirm the judgment. The trial court did not abuse its discretion by excluding certain opinions expressed in a declaration by plaintiffs medical expert because those opinions lacked an adequate foundational basis. Plaintiff failed to present any triable issue of material fact as to whether defendants negligence proximately caused Christians death. The undisputed evidence showed that Christian had less than a 10 percent chance of surviving his last hospitalization, and that no medical intervention would have prevented him from succumbing to end stage cystic fibrosis, a fatal, noncurable disease.
BACKGROUND
A. Factual Background
Christian Underhill was born on July 15, 1991 with a meconium ileus (a congenital intestinal obstruction caused by thickened mucilaginous material in the intestine), a condition often associated with cystic fibrosis in newborn infants. (See Stedmans Medical Dictionary (27th ed. 2000).) Christian underwent several abdominal surgeries following his birth, and was subsequently diagnosed with cystic fibrosis.
Cystic fibrosis is a fatal, noncurable, genetic disease that causes gradual destruction of the lungs. Cystic fibrosis generally occurs when a defective gene causes the body to produce abnormally thick, sticky mucus that clogs the lungs and leads to life-threatening lung infections. These thick secretions also obstruct the pancreas, preventing digestive enzymes from reaching the intestines to help break down and absorb food.
On September 27, 1998, Christian was admitted to LBMMC for bilious vomiting consistent with gastrointestinal obstruction. He had had multiple similar episodes in the past. Dr. Nussbaum saw Christian on September 28, 1998, and recommended continuing treatment for meconium ileus by gastroenterology, nutritional evaluation and supportive treatment, as well as continuing Christians pulmonary therapy.
On March 23, 1999, Dr. Nussbaum examined Christian in the Pediatric Pulmonology Clinic (the Clinic). Since Christians last visit to the Clinic, he had been admitted to the hospital twice, in June 1998 and again in September 1998. Dr. Nussbaum found that Christian was suffering from cystic fibrosis and poor growth. He recommended Intal and Pulmozyme and placement of a G-tube if there was no improvement in Christians growth and weight gain and asked Christian to return to the Clinic in one week.
Christian was seen in the Clinic again on November 23, 1999. He weighed only 35 pounds. He was to continue on Albuterol and Intal nebulizers and to return in three weeks.
On March 14, 2000, Dr. Maggi assessed Christians condition at the Clinic and determined that Christian was suffering from cystic fibrosis, sinusitis, hypertrophic tonsils, and poor weight gain. Dr. Maggi made a number of recommendations and asked Christian to return for a follow up examination in two weeks. Dr. Maggi stated that if Christian failed to improve, he needed to be hospitalized.
On April 18, 2000, Dr. Nussbaum concluded that Christian needed to be hospitalized for intravenous antibiotic (IV) therapy and aggressive airway clearance. Dr. Nussbaum recommended that Christians prolonged IV therapy would be enhanced by placement of a Portacatheter or PICC (peripherally inserted central catheter) line.
Dr. Nussbaum examined Christian again on April 25, 2000, and found him slightly improved. He continued Christian on IV Zosyn, discontinued IV Tobramycin, and started TOBI 300 mg aerosol bid. Dr. Nussbaum ordered a CBC and full pulmonary function test the following Tuesday and wanted to see Christian again on Tuesday afternoon.
On May 2, 2000, Dr. Nussbaum saw Christian at the Clinic. Christians condition had not improved after two weeks of IV antibiotics, and he continued to suffer from sinusitis and hypertrophic tonsils. Dr. Nussbaum discharged Christian to his mother only after discussing the need to admit him to the hospital because Christians home treatment program had been a failure.
On May 9, 2000, Christian was seen in the Clinic with increased cough, increased sputum production and weight loss. Dr. Nussbaum had seen Christian the previous week for a fever and had recommended admission to the hospital for IV antibiotics and a "tune up" (pulmonary therapy to clear the lungs). Christian had lost one kilogram (2.2 pounds) in weight in one week. Admission to the hospital was recommended, however, plaintiff refused to authorize the admission. Christian went home with IV Zosyn and Tobramycin.
Christians symptoms and mucus production decreased during the course of his pulmonary therapy. An ear, nose, and throat surgeon was contacted to evaluate Christians chronic sinusitis, but no surgical intervention was done at the time. Christians height and weight were below the fifth percentile. Laboratory test results revealed an elevated liver function. A gastroenterology consult was arranged for failure to thrive. A fecal fat study on May 10, 2000, indicated intestinal mal absorption or pancreatic mal digestion. Christian was continued on a high-calorie diet that included special supplements, and his Tagamet dosage was increased. A fecal fat study on May 18, 2000, was negative.
On November 14, 2002, Christians stepfather, Glen Underhill, attended a meeting with physicians and social workers at LMBCC. Dr. Maggi reported that Christian was getting worse and was not gaining weight, and that long-term sinus issues could be partly to blame. Dr. Youness and Diane Paralus, a dietician, said that Christians poor nutritional status was also responsible for his worsening health. Dr. Maggi recommended a G-tube, sinus surgery, bronchoscopy, and a long-term solution to the IV issue, namely a Portacatheter, and strongly urged that these actions be taken immediately. Dr. Maggi warned that absent any treatment, Christian had at best a two-year life expectancy. Plaintiff refused a flu shot, even though recommended.
Although this fact is undisputed, it is unclear whether plaintiff refused a flu shot recommended for herself or for Christian.
On February 8, 2003, Christian was admitted to LBMMC in critical condition with pneumonia. He had symptoms of progressive respiratory distress and was hospitalized in the pediatric intensive care unit. Laboratory test results showed that Christian had an influenza A viral infection and he was treated with Rimantadine. Throughout his hospitalization, Christian was in marked respiratory distress and worsening hypoxia. Christian died on February 11, 2003. The cause of death was listed as cardiorespiratory failure, secondary to pneumonia, secondary to his underlying diagnosis of cystic fribrosis and end stage lung disease.
B. Procedural History
Plaintiff filed this action on February 6, 2004. On December 31, 2004, plaintiff filed a declaration pursuant to Code of Civil Procedure sections 377.10 or 377.11 stating that she was Christians successor-in-interest to the action against defendants. On January 26, 2005, plaintiff filed a third amended complaint, the operative pleading in this appeal, alleging causes of action for wrongful death and recovery of survivors expenses.
Dr. Nussbaum filed a motion for summary judgment on April 6, 2005. LBMMC and Miller Childrens Hospital filed a motion for summary judgment on May 6, 2005. In their respective motions, defendants argued that there was no triable issue of material fact as to whether their conduct fell below the applicable standard of care and whether their acts or omissions caused or contributed to plaintiffs alleged injuries. Dr. Nussbaum further argued that plaintiffs cause of action for survivorship was time barred because plaintiff failed to comply with Code of Civil Procedure section 377.10. In support of their respective motions, defendants submitted the declaration of Nick Anas, a medical doctor certified by the American Board of Pediatrics, the American Board of Pediatric Pulmonology, and the American Board of Pediatric Critical Care, and the director of the pediatric intensive care unit at Childrens Hospital of Orange County. Dr. Anas opined that Christians care and treatment by Dr. Nussbaum and by the staff at LBMMC and MCH was appropriate and within the standard of practice; that Christians death occurred as the result of his noncurable cystic fibrosis, and that nothing defendants did or did not do caused or contributed to plaintiffs alleged damages or injuries. Dr. Anas based his opinion on "the voluminous medical records of Christian Underhill from [LBMMC] and [MCH]."
Plaintiff opposed the summary judgment motions, arguing that triable issues of fact existed as to whether defendants made any attempt to resuscitate or intubate Christian upon his hospitalization, and that the failure to intubate and resuscitate caused Christians death. Plaintiff further argued that her survivor claim was not time barred under Code of Civil Procedure section 377.30 because Christian was a minor and a surviving cause of action would not lapse until he would have been 18 years old. In support of her opposition, plaintiff submitted her own declaration and the declaration of Barry E. Gustin, a medical doctor certified by the American Board of Emergency Medicine and a practicing critical care physician in pediatric and adult medicine. In his declaration, Dr. Gustin stated that his opinions and conclusions were based on his review of Christians medical records from LBMMC and MCH. Dr. Gustin observed that Christians medical records included a consultation note stating that Christians parents had agreed to a "Do Not Resuscitate" (DNR) order, but that there was no written verification by the parents confirming their agreement to such an order. He opined that defendants failure to obtain the parents written agreement fell below the standard of care. Dr. Gustin further opined that Christian died as a result of cardiac arrest due to failure to intubate and failure to resuscitate, that Dr. Nussbaum contributed to plaintiffs injuries and damages by withholding life sustaining medical intervention from Christian, and that defendants care and treatment of Christian "was inappropriate and fell below the standard of practice for pediatric pulmonologists treating a child."
In her declaration, plaintiff stated that she never authorized Dr. Nussbaum or any staff member of LBMMC or MCH to withhold resuscitation, and that it was her wish that Christians life be prolonged. Attached to plaintiffs declaration was a handwritten note by Dr. Nussbaum dated February 9, 2003, stating that he had discussed Christians condition "at great length" with Margherita and Glen Underhill, that a pulmonary fellow named Dr. Passara and a nurse named Jill Hall were present during the discussion, and that both parents agreed to a DNR order "in view of [Christians] chronic irreversible condition."
The summary judgment motions were continued to allow further discovery. Pursuant to stipulation, the parties agreed to a supplemental briefing schedule requiring defendants to file supplemental briefs by September 7, 2005, and plaintiff to file supplemental opposition papers by September 19, 2005.
Defendants filed joint supplemental briefs on September 7, 2005. As part of the supplemental filing, defendants submitted a supplemental declaration from Dr. Anas, which addressed the DNR order as follows: "The records indicate that Dr. Nussbaum along with two other medical personnel, a doctor and a nurse, had a lengthy conversation with both parents, Glen and Margarita Underhill wherein Christians grave medical condition was discussed. It was recommended by Dr. Nussbaum and the parents agreed that in the event of a cardiac or respiratory arrest that no endotracheal intubation, ventilator support, CPR medications or chest compressions would be given. All other interventions were in place; i.e., nutrition, antibiotics, administration of medicines, oxygen administration. These were given to keep Christian comfortable." When Christian suffered cardiac respiratory arrest on February 11, 2003, "[n]o endotracheal tube placement was done, nor accompanying ventilation or chest compressions were given as ordered (the DNR)."
In the supplemental declaration, Dr. Anas further opined: "No matter what interventions given upon or during this admission on February 8, 2003, Christian had less than a 50% chance of survival. His condition was severely compromised by the flu. I would estimate based upon my review of the records that within medical probability he had less than a 10% chance to survive this hospitalization. [¶] . . . [¶] It is my opinion within reasonable medical probability that even if these interventions were administered (endotracheal intubation, ventilation and chest compressions) Christian would not have survived the hospitalization. Further, if an endotracheal tube had been placed it is more than likely he would have drowned in his own mucous — a terrible and painful death. The DNR for withholding endotracheal intubation, ventilation support and chest compressions was not only consistent with the mothers previous requests and intentions of no invasive therapies, but humane, and prevented a horrible and painful death for her son. It would have made no difference medically for Christian had these therapies been administered. [¶] . . . [¶] Even if resuscitation had been successfully undertaken, at most it may have temporarily postponed (for at most one to two weeks) Christians inevitable death from CF [cystic fibrosis]; no intervention would cure his CF. . . . To a reasonable degree of medical probability, there is nothing Dr. Nussbaum and/or the staff of Miller Childrens Hospital or Long Beach Memorial Medical Center did do, should have done and/or could have done to avert Christian Underhills ultimate death from CF, because CF is incurable and 100 percent fatal, despite all available treatment."
Plaintiff filed no supplemental opposition papers by the September 19, 2005 deadline for doing so. On September 27, 2005, defendants filed supplemental reply briefs and evidentiary objections challenging the Gustin declaration for lack of foundation. On September 30, 2005, plaintiffs filed a supplemental declaration of Dr. Gustin that stated, "It has been brought to my attention that my earlier declaration fails to state that my opinions are stated within `a reasonable degree of medical certainty. This is what I intended and to the extent that there is a difference between that standard and what I stated, I amend my earlier declaration to reflect that all opinions are stated to within a reasonable degree of medical certainty."
On October 18, 2005, the date of the hearing on defendants summary judgment motions, plaintiff filed and served three declarations in opposition to the motions. The declaration of document examiner Jess Dines questioned the authenticity of Christians medical records; plaintiffs declaration claimed that Christians records were "altered, forged, falsified, and with missing pages"; and Frederick Baisley, RN, concluded that the medical records were "altered and with missing pages." The trial court struck all three declarations on the grounds that they were untimely filed and served, and that they were filed by plaintiff herself, and not by her counsel.
The trial court sustained in part defendants objections to the Gustin declarations filed on July 25 and September 30, 2005, for lack of foundation. The trial court then granted summary judgment in defendants favor, concluding that plaintiffs survivor action was barred by the statute of limitations and that her wrongful death cause of action failed because she did not meet her burden of establishing "a reasonable medical probability" that defendants negligence caused Christians death. Plaintiff filed this appeal.
DISCUSSION
A. Standard of Review
Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate. In order to obtain a summary judgment, "all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . . [T]he defendant need not himself conclusively negate any such element . . . ." (Id. at p. 853.)
We review the trial courts grant of summary judgment de novo and 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; Code Civ. Proc., § 437c, subd. (c).) We review the trial courts evidentiary rulings in connection with the summary judgment motion under the abuse of discretion standard. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694; Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.)
B. Evidentiary Rulings
1. Applicable Law
"Because the standard of care in a medical malpractice case is a matter `peculiarly within the knowledge of experts [citation], expert testimony is required to `prove or disprove that the defendant performed in accordance with the standard of care unless the negligence is obvious to a layperson. [Citation.] However, the expert testimony must be based on such matter as may be reasonably relied upon by an expert in forming an opinion on the subject. [Citation.] With regard to a standard of care derived from a professional practice `the induction of a rule from practice necessarily requires the production of evidence of an ascertainable practice. [Citation.]" (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)
With a proper foundation, a qualified medical expert may "testify on matters involving causation when the causal issue is sufficiently beyond the realm of common experience that the experts opinion will assist the trier of fact to assess the issue of causation. [¶] However, even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. [Citation.] For example, an experts opinion based on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence. [Citations.] Similarly, when an experts opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an `expert opinion is worth no more than the reasons upon which it rests. [Citation.]" (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1116-1117 (Jennings).)
A ruling excluding expert testimony "cannot be assessed in a vacuum, but must instead be considered through the prism of the purpose for plaintiffs proffer of [the] opinion." (Jennings, supra, 114 Cal.App.4th at p. 1118.) In a wrongful death action, "the plaintiff must prove the death was `caused by the defendants wrongful act or neglect, i.e., the wrongful act or neglect was a cause in fact of the death. [Citations.] To be a cause in fact, the wrongful act must be `a substantial factor in bringing about the death. [Citations.] [¶] Ordinarily, `the actors negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. [Citations.]" (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1497-1498.)
2. Absence of Foundation
Plaintiff challenges the trial courts ruling sustaining defendants evidentiary objections, based on lack of foundation, to paragraphs 12, 13, and 14 of Dr. Gustins declaration. In those paragraphs, Dr. Gustin opines that defendants conduct fell below the standard of care and caused Christians death: " 12. It is my professional opinion that Christian died as a result of cardiac arrest due to failure to intubate and failure to resuscitate. [¶] 13. Based on my education, training, experience, practice and review of the materials to date, it is my expert opinion, at all times, that the care and treatment recommended by and rendered by Eliezer Nussbaum, M.D., Long Beach Memorial Medical Center, and Miller Childrens Hospital for Christian Underhill was inappropriate and fell below the standard of practice for pediatric pulmonologists treating a child. [¶] 14. Based on my education, training, experience, practice and review of the materials to date, it is my expert opinion that Dr. Nussbaum did contribute to the injuries and damages alleged by plaintiff. His death occurred as a result of withholding life sustaining medical intervention and directing the intensive care doctor, Dr. Babbit, to do the same."
Plaintiff does not challenge the trial courts ruling sustaining defendants evidentiary objections to paragraphs 7 through 11 of the Gustin declaration.
In assessing the validity of the trial courts ruling concerning the challenged portions of the Gustin declaration, we must also consider the other admissible portions of that declaration. Paragraph one of the declaration lists Dr. Gustins qualifications as a medical expert and states that he is certified by the American Board of Emergency Medicine and is a practicing critical care physician in both pediatric and adult medicine. Paragraphs two and three state that Dr. Gustin reviewed Christians medical records from LBMMC and MCH. The remaining admissible portions of the declaration state: "4. On February 8, 2003, Christian was admitted to Long Beach Memorial Medical Center. His labs indicated CO2 levels of 114 indicating that Christian was having in respiratory distress requiring immediate intensive care attention and respiratory support. Christian waited over a day before being admitted into intensive care. This fell below the standard of care. [¶] 5. The standard of care for children with an elevated CO2 of 114 is intubation with mechanical ventilation. Long Beach Memorial Medical Center did not intubate which fell below the standard of care. [¶] 6. Although there is a consultation note dated February 9, 2003, from Dr. Eliezer Nussbaum, there is nothing in writing by the father and mother verifying such consultation. This fell below the standard of care."
a. Standard of Care
Paragraph 13 of Dr. Gustins declaration states his opinion that defendants care and treatment of Christian fell below the standard of care for pulmonogists treating a child. Dr. Gustin bases this opinion "on my education, training, experience, practice and review of the materials to date." He fails, however, to provide any facts, reasons or explanation as to how or why he formulated this opinion. The absence of an adequate foundational basis for the opinion expressed in paragraph 13 of Dr. Gustins declaration is evident when compared with the opinions expressed in the admissible portions of the declaration. Paragraph four, for example, states that laboratory results obtained upon Christians admission to LBMMC on February 8, 2003, indicated the need for immediate intensive care attention, that Christian waited for over a day before being admitted into intensive care, and that this fell below the standard of care. Paragraph five states that the standard of care for children with an elevated CO2 level of 114 is intubation with mechanical ventilation, and that LBMMCs failure to intubate fell below the standard of care. Paragraph 13 of Dr. Gustins declaration sets forth no evidence of an ascertainable standard (see Johnson v. Superior Court, supra, 143 Cal.App.4th at p. 305), nor does it set forth facts demonstrating how or why defendants conduct fell below that standard. An expert declaration offered in connection with a motion for summary judgment cannot "provide only an ultimate opinion, unsupported by reasoned explanation." (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 525.) "[A]n experts opinion rendered without 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.) The trial court did not abuse its discretion by excluding paragraph 14 of the Gustin declaration.
In their appellate briefs, LBMMC and MCH challenge the factual bases for Dr. Gustins opinions in paragraphs four and five of his declaration, arguing that Christian was admitted to intensive care within hours of his admission to LBMMC, and that Dr. Gustins recitation of Christians laboratory results are inaccurate. Neither LBMMC nor MCH cross-appealed the trial courts evidentiary rulings, however, and they accordingly forfeited the right to challenge those rulings on appeal.
b. Causation
Paragraph 12 of Dr. Gustins declaration states his opinion that "Christian died as a result of cardiac arrest due to failure to intubate and failure to resuscitate." Paragraph 14 states that "Dr. Nussbaum did contribute to the injuries and damages alleged by plaintiff" and that Christians death "occurred as a result of withholding life sustaining medical intervention." Nowhere in these paragraphs or elsewhere in the declaration does it state that defendants negligence was a cause in fact of Christians death or a substantial factor in bringing about his death. Also notably absent from the declaration is any mention of Christians lifelong battle with cystic fibrosis, a fatal, noncurable, genetic disease; his 10-year medical history under Dr. Nussbaums care; or his declining condition during the months preceding his death. The declaration does not mention that Christians medical caregivers advised his parents in November 2002 that Christians life expectancy would not exceed two years without the recommended treatment; that his mother refused a flu shot recommended at that time; or that upon Christians final hospital admission in February 2003, he had pneumonia and the flu, and his breathing had been compromised for several days. In short, the Gustin declaration ignores certain essential facts relevant to the opinions expressed therein. The opinions on causation are thus expressed without regard to Christians medical history or condition, and have minimal evidentiary value. (Jennings, supra, 114 Cal.App.4th at p. 1117.) The trial court did not abuse its discretion by excluding paragraphs 12 and 14 of the Gustin declaration.
C. Summary Judgment
Plaintiffs causes of action for wrongful death and survivors benefits are premised on defendants negligent care and treatment of Christian during his final hospital stay. The elements of a cause of action for negligent medical care 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 professionals negligence." [Citations.] [Citation.]" (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) With regard to the element of causation, the plaintiff must prove within a reasonable medical probability based on competent medical testimony that the medical professionals negligent care caused the injury or death. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403 (Jones); see also Jennings, supra, 114 Cal.App.4th at p. 1117.) "That there is a distinction between a reasonable medical `probability and a medical `possibility needs little discussion. There can be many possible `causes, indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes `probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]" (Jones, supra, at p. 403.)
Plaintiff failed to present any admissible evidence as to causation, an essential element of both her wrongful death and survivorship causes of action. The admissible portions of Dr. Gustins declaration establish no causal connection between defendants conduct and Christians death. Logacz v. Limansky (1999) 71 Cal.App.4th 1149 and Hughey v. Candoli (1958) 159 Cal.App.2d 231, on which plaintiff relies, are inapposite. Those cases address the issue of concurrent causation and are inapplicable here, where the evidence showed only a single cause of death — end stage cystic fibrosis.
There is undisputed evidence that Christian had less than a 10 percent chance to survive his last hospitalization, and that no matter what interventions were given upon or during his admission, Christian had less than a 50 percent chance of survival. There is also undisputed evidence that even if defendants had intubated and resuscitated Christian during his final hospitalization, Christian would not have survived, and such measures would have made his inevitable death from cystic fibrosis a more painful one. In light of this evidence, plaintiffs assertion that she never consented to a "Do Not Resuscitate" order withholding from Christian life-prolonging medical interventions such as intubation and resuscitation raises no triable issue of fact as to whether defendants negligence caused Christians death. Summary judgment was properly granted as to plaintiffs wrongful death and survival causes of action. In view of our holding, we need not determine whether plaintiffs survival cause of action was time barred as the result of her alleged failure to comply with Code of Civil Procedure section 377.32.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal.
We concur:
BOREN, P. J.
DOI TODD, J.