Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2008-00111568 Jamoa A. Moberly, Judge.
Richard A. Higbie for Plaintiff and Appellant.
Murchison & Cumming, David A. Winkle, Terry L. Kesinger and Kristie M. Mackey for Defendant and Respondent.
OPINION
MOORE, J.
Appellant Lyndell Flowers sued respondent Fountain Valley Regional Hospital and Medical Center (the hospital) for medical malpractice. The hospital’s expert declared the nursing staff did not violate the standard of care owed Flowers. The superior court granted the hospital’s motion for summary judgment because Flowers did not produce any expert evidence to contradict the hospital’s expert evidence. Flowers contends the trial court erred because the action was for general negligence, not medical malpractice. He also argues no expert was needed under the doctrine of res ipsa loquitor. We affirm.
I
FACTS
Flowers filed his complaint against the hospital for medical malpractice in September 2008. The complaint alleged Dr. John Belville was negligent in implanting a central venous catheter (Port-a-cath) and the hospital was “negligent, careless, and unskillful” in its management and treatment of Flowers, resulting in a leakage of fluids (extravasation) into his to his chest wall.
The clerk’s transcript on appeal did not contain a copy of the complaint. Flowers attached a copy of the complaint to his opening brief. The hospital did not object. We therefore treat Flower’s action as a request to augment the record to include the complaint and grant the motion.
The hospital filed a motion for summary judgment. Attached to the motion were declarations by the director of human resources for the hospital and the defense’s expert, Dr. Michael Van Scoy-Mosher. The director declared Flowers’s doctors were not employees of the hospital and the hospital has never paid the doctors, paid their professional liability insurance, or billed on their behalf.
Van Scoy-Mosher’s declaration stated Flowers had been diagnosed with non-Hodgkin’s lymphoma, had surgery performed at the hospital on November 19, 2007, and was subsequently discharged. He was readmitted on December 7, 2007, for severe pain and swelling. Four days later he was transferred to the oncology floor for chemotherapy.
Flowers refused to let nurses access the Port-a-cath in preparation for chemotherapy without pain medication. At 10:10 p.m on December 11, 2007, nurses administered Dilaudid to Flowers and were then able to access the Port-a-cath. Chemotherapy treatment of Rituximab began at 12:40 a.m. and was concluded by 5:00 a.m.
A nurse’s note stating the date and time of December 12, at 9:00 a.m. states Flowers wanted to go home and had been manipulating his central line earlier in that morning. It also states a psychiatric consult of Flowers had been ordered. A 12:30 p.m. nursing note says Flowers was “unstable mentally” and had been manipulating his central line. At 2:30 p.m., Flowers was observed walking by himself when he returned from a procedure. He complained nobody wanted to bring him back, so he walked.
Entries in Flowers’s chart that afternoon indicate the oncologist saw Flowers and determined it was unsafe to administer chemotherapy to an uncooperative patient. Another doctor subsequently ordered a chemotherapy treatment that night, and directed that Flowers be administered Haldol prior to the treatment. The pain management specialist ordered increased pain medication. A 7:00 p.m. nurse’s note states Flowers “[r]emained safe throughout the shift.”
Prior to administering the chemotherapy treatment that night, Flowers was administered several medications. The December 13, 2007, 1:30 a.m. chart entry states chemotherapy treatment of Vincristine was administered via the Port-a-cath with good blood return. Another note stated the Vincristine had infused by 2:35 a.m. and there were no chemo side effects or reactions, followed by another medication. The 4:30 a.m. note states Flowers complained about burning at the Port-a-cath site. The site was slightly swollen and pinkish. A nurse applied an ice pack to the area. A nurse called a doctor. Orders were given and carried out. Dr. Nguyen called in an order to continue Cytoxan and to have the pharmacy check on skin extravasation.
At 6:00 a.m., the nurse noted a medication was infusing and the patient had no complaints. A 9:30 a.m. note states Flowers was alert, oriented, and complained of a burning sensation at the Port-a-cath site. Flowers was discharged from the hospital the next day, December 14, 2007. Prior to discharge the Port-a-cath was flushed with Heperin. Flowers was readmitted to the hospital the next day due to issues with the Port-a-cath. It was noted there was a question of an episode of extravasation during chemotherapy.
Van Scoy-Mosher stated in his declaration that the nursing staff documented Flowers’s condition and status, kept his physicians advised of the same, and followed the physician’s orders. He further stated it was not nursing or nonphysician staff’s responsibility to determine the mode and manner in which Flowers’s chemotherapy was to be administered. Van Scoy-Mosher concluded the “nursing staff competently, and within the standard of care, evaluated and assessed Flowers and notified his physicians of his clinical condition and cared for him pursuant to physicians orders and as warranted by the medical circumstances presented throughout his entire hospitalization.” (Capitalization omitted.)
Flowers did not submit a declaration of an expert in opposition to the hospital’s motion. At the hearing on the hospital’s motion, Flowers conceded the single cause of action alleged in the complaint was for medical malpractice. He argued an expert was not necessary because nurses (or the nursing staff) violated the hospital’s rules.
II
DISCUSSION
Flowers sued the hospital for medical malpractice after receiving a chemical burn during his chemotherapy treatment. “[I]n any medical malpractice action, the plaintiff must establish: ‘(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.’ [Citation.]” (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.)
The trial court granted the hospital’s motion for summary judgment. We review that decision de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.)
Because the hospital moved for summary judgment, its burden was to demonstrate there was no triable issue of material fact and that it was entitled to judgment as a matter of law. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 506.) When a defendant makes a prima facie showing that one of more elements of the plaintiff’s cause of action cannot be established, “the burden shifts to the plaintiff to make a prima facie showing that the element[s] in question can be established. [Citations.]” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)
A hospital’s liability for medical malpractice based upon the negligence of a physician “must be based upon a theory of vicarious liability. [Citation.]” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501.) There is no evidence any of the physicians were employees or agents of the hospital. Indeed, all the evidence is to the contrary. Therefore, the hospital cannot be held liable for the alleged negligence of Flowers’s physicians. (Ibid.)
That leaves the question of whether the court erred in granting summary judgment in finding the hospital’s nursing staff did not breach its duty of care owed to its patient, Flowers. The standard of care and the defendant’s breach of that standard must generally be established by an expert (Avivi v. Centro Medico Urgente Center, supra, 159 Cal.App.4th at p. 467) because the conduct required by the particular circumstances are not within the common knowledge of the layperson. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984.)
Whether leaving a patient alone and asleep for a period of time, in a heavily sedated state while he receives chemotherapy is medically appropriate, is not within the common knowledge of a layperson. As stated in Van Scoy-Mosher’s declaration, the nursing staff followed the physicians’ orders and acted within the standard of care. Flowers did not offer an expert opinion to counter the opinion of the hospital’s expert. Thus, Flowers failed to make a prima facie showing of an essential element of his cause of action and the judgment must be affirmed, unless this case falls within a limited exception to the rule requiring expert testimony.
“In medical malpractice cases where the conduct in question is within the common knowledge of laypersons, expert testimony may be unnecessary, such as cases where the plaintiff can invoke the doctrine of res ipsa loquitur. [Citation.]” (Avivi v. Centro Medico Urgente Medical Center, supra, 159 Cal.App.4th at p. 467, fn 1.) In such cases 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.’ [Citations.] The classic example, of course, is the X-ray revealing a scalpel left in the patient’s body following surgery. [Citation.]” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. omitted.) However, the administration of chemotherapy, including the initial implantation of a Port-a-cath, and extravasation, are not matters of common knowledge. Neither is the amount of time necessary for a leaking chemical to cause Flower’s injury.
The fact that a particular injury suffered during chemotherapy treatment rarely occurs does not necessarily prove the injury was probably caused by a nurse administering the treatment. (Cf. Sanchez v. Rodriguez (1964) 226 Cal.App.2d 439, 446 [“no evidence that the procedures were contrary to good medical practice”].) The doctrine of res ipsa loquitor does not apply here.
Lastly, Flowers argues that although the complaint was labeled as one for medical malpractice, it alleged “appropriate allegations necessary to complain for general negligence, ” and the matter should therefore be remanded to the trial court. However, as our Supreme Court stated in Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th 992, the reliance upon a distinction between ordinary negligence and professional negligence “is misplaced in resolving a motion for summary judgment in which the question is whether the moving party has demonstrated or negated negligence as a matter of law.” (Id. at p. 997.) Whether termed ordinary negligence or medical malpractice, there is only one standard of care: “‘the care that a person of ordinary prudence would exercise under the circumstances.’ [Citations.]” (Ibid., fn. omitted.) “With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional ‘circumstances’ relevant to an overall assessment of what constitutes ‘ordinary prudence’ in a particular situation.” (Id. at pp. 997-998.)
III
DISPOSITION
The judgment is affirmed. The hospital shall recover its costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.