Opinion
A147716
09-14-2017
NATHAN HALL, Plaintiff and Appellant, v. GEORGE BEATTY et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV 1403400)
Plaintiff Nathan Hall, an inmate at San Quentin State Prison (San Quentin), sued the California Department of Corrections and Rehabilitation (CDCR) and Dr. George Beatty, his treating physician, alleging professional negligence in connection with medical treatment he received for pneumonia. The trial court granted defendants' motion for summary judgment and denied a motion by Hall for reconsideration. Hall, in propria persona, raises three issues on appeal. He contends the trial court (1) erred in granting defendants' motion for summary judgment, (2) abused its discretion in denying his motion for reconsideration, and (3) erred in admitting medical records from San Quentin pursuant to the business records exception (Evid. Code, § 1271). We affirm.
CDCR is immune from liability for injury to a prisoner under Government Code section 845.6, and Hall does not challenge this on appeal.
BACKGROUND
While Hall was confined at San Quentin, he became ill. This lawsuit arises from his interactions with Dr. Beatty, a licensed physician, board certified in internal medicine. As a staff physician at San Quentin, Dr. Beatty is responsible for providing general medical treatment to inmates.
In January 2014, Hall submitted a health care request for a cold set up, new reading glasses, a knee brace, and insoles for his shoes. Two days later, Hall's request was reviewed by a triage nurse and he was scheduled for an appointment the following day.
The next day, Hall was seen by nursing staff and referred to Dr. Beatty. When Dr. Beatty examined Hall, Hall had a fever of 102 and a primary complaint of chills, along with a severe headache and knee ache, sore throat, and other flu-like symptoms. Hall had a normal blood oxygen saturation level of 95-97 percent, distinguishing uncomplicated upper respiratory viral infections like influenza from bacterial or viral pneumonia, which often causes a decrease in oxygen levels. Hall also did not have dyspnea (difficult or labored breathing), specific pulmonary complaints, and his lungs were clear with no indications of pneumonia. According to Hall's medical records, he had declined the season's influenza vaccine. At the time, there was also an outbreak of influenza in Hall's housing unit.
Based on this examination, Dr. Beatty made a preliminary diagnosis of likely influenza and prescribed medications for pain, fever, congestion, and cough. In accordance with CDCR procedures for inmate-patients with influenza, Dr. Beatty placed Hall in observation and medical isolation to monitor his condition and prevent infection of other inmates and staff.
Dr. Beatty also ordered that Hall be monitored daily, as influenza can lead to a secondary infection such as pneumonia. Accordingly, for the next six days, Hall's temperature was taken daily and was normal on some days and high on others, a typical pattern for someone with influenza. His chest symptoms fluctuated as well. Toward the end of this period, Hall's fever spiked again, and he had dizziness, nausea, and other symptoms. Influenza patients usually show signs of improvement within five days to a week. Because Hall's symptoms did not improve, the medical staff sought further treatment.
Radiographs were taken and Hall was referred to an outside hospital for respiratory isolation. This was to ensure he did not have active tuberculosis, considering he had a history of tuberculosis and tuberculosis can appear as pneumonia on a chest radiograph. Hall received several diagnostic tests and was prescribed antibiotics for presumed bacterial pneumonia, and his condition improved quickly thereafter. Hall could have been managed as an outpatient on oral antibiotics, but because of his history of tuberculosis, Hall underwent an extensive evaluation to rule out tuberculosis as the cause of his pulmonary infection. A few days later, Hall was discharged with treated haemophilus pneumonia, a bacterial pneumonia that often occurs secondary to viral influenza. He was discharged in fair condition and instructed to see a primary care provider in a week and report any worsening symptoms immediately.
A few days after his discharge, Dr. Beatty saw Hall for a follow-up visit. Hall's recovery continued to be uneventful. His cough had resolved and his breathing was much better. Dr. Beatty noted Hall's chest examination demonstrated some rhonchus breath sounds but was otherwise clear. Dr. Beatty also noted Hall had no complaints of dyspnea, fever, chills, or night sweats, and Hall continued to take an antibiotic to treat bacteria that causes pneumonia.
Two months later, Dr. Beatty saw Hall in response to a request for a knee brace and noted Hall's breathing had returned to baseline after his previous pneumonia.
A few months later, Hall filed the instant medical malpractice case against CDCR and Dr. Beatty, alleging Dr. Beatty should have diagnosed his condition sooner by requesting X-rays when he presented with flu-like symptoms.
Defendants subsequently moved for summary judgment, supporting their motion with a declaration from Dr. Beatty, as well as an expert declaration from Dr. Lisa Pratt, an internist who is the chief physician and surgeon at San Quentin. Dr. Pratt stated that in her professional opinion, Dr. Beatty's treatment was proper and within the community standard of care for Hall's symptoms. In opposition, Hall offered only his personal opinion that he had not been properly treated. Based on the uncontroverted expert opinion of Dr. Pratt, the trial court ruled from the bench that there was no triable issue that Dr. Beatty breached the duty of care in his examination and treatment for Hall's influenza, and granted defendants' motion.
Several days before the court issued its written order granting summary judgment, Hall filed a motion for reconsideration, making several evidentiary objections and claiming defendants had not met their burden of proof. Hall then filed a notice of appeal from the order granting summary judgment. Several weeks later, the trial court denied the motion for reconsideration.
The trial court eventually entered final judgment, and in the interests of justice and conserving judicial resources, we deem plaintiff's premature appeal as being taken from that judgment.
DISCUSSION
The Trial Court Did Not Err in Granting Defendants' Motion for Summary Judgment
Hall asserts defendants were not entitled to summary judgment because the medical care provided by defendants did not meet the community standard of care. In particular, Hall claims Dr. Beatty breached his duty of care by failing to properly diagnose his pneumonia.
An appellate court reviews a trial court's grant of summary judgment de novo. (Reliance Nat. Indemnity Co. v. General Star Indemnity Co. (1999) 72 Cal.App.4th 1063, 1074; Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) "In performing our de novo review, we view the evidence in the light most favorable to [the] plaintiff[s] as the losing part[y]." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) "Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
To prove professional negligence, a plaintiff must establish the applicable standard of care and breach of that standard. (See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077.) The standard of care in a medical malpractice case is a matter " 'peculiarly within the knowledge of experts.' " (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305, quoting Sinz v. Owens (1949) 33 Cal.2d 749, 753.) Unless the negligence is obvious to a layperson, expert testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care. (Johnson, at p. 305, citing Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) Accordingly, " ' "[w]hen 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." ' " (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.)
Knowing the difference between the diagnoses of influenza and pneumonia is not obvious to a layperson and requires expert testimony. Thus, defendants complied with their summary judgment burden by submitting an expert declaration by Dr. Pratt. Dr. Pratt opined Dr. Beatty provided the necessary and proper care for Hall consistent with community standards. She explained Dr. Beatty's examination revealed a typical influenza case. Though Hall claims Dr. Beatty should have done a chest X-ray, Dr. Pratt believed there was no clinical indication for a radiograph based on Hall's symptoms. The outbreak of influenza in Hall's housing unit strengthened Dr. Beatty's diagnosis that Hall was suffering from this viral illness. Furthermore, by monitoring Hall daily, Dr. Beatty was instrumental in catching Hall's pneumonia a few days later. In opposition, Hall provided only his personal opinion, and thus did not " ' "come[] forward with conflicting expert evidence." ' " (Hanson v. Grode, supra, 76 Cal.App.4th at p. 607.)
Accordingly, defendants having carried their burden and Hall having raised no triable issue, defendants were entitled to summary judgment.
To the extent Hall is challenging the grant of summary judgment on evidentiary grounds he never raised in the trial court—for example, his complaint that Dr. Pratt's declaration was hearsay and did not qualify as a business record under Evidence Code section 1271, and his claim she improperly relied on non-San Quentin medical records— those issues have been forfeited on appeal, and we will not consider them. (See Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1184, fn. 2; Collin v. Calportland Co. (2014) 228 Cal.App.4th 582, 599, fn. 5 [failure to raise evidentiary objections in trial court forfeited issue on appeal from summary judgment].)
The only comment plaintiff made in his summary judgment opposition as to Dr. Pratt's declaration was that it was "just an opinion under California Evidence Code [s]ection 801," and it was based on the statements and records of "another under [California Evidence] Code section 804." And, as for the non-San Quentin medical records of Doctors Medical Center to which he now seems to object, he submitted these records, himself, in his opposition to the motion for summary judgment.
The Trial Court Did Not Abuse Its Discretion by Denying Hall's Motion for Reconsideration
Hall also maintains the trial court improperly denied his motion for reconsideration. In his motion, Hall variously asserted the evidentiary objections we have noted above, which he did not raise in the trial court in opposition to the defendants' motion for summary judgment. He cannot avoid the forfeiture of those issues on appeal, or any evidentiary objections he failed to make, by having sought reconsideration of the order granting summary judgment.
On appeal, we review a trial court's denial of a motion for reconsideration for abuse of discretion. (Hudson v. County of Los Angeles (2014) 232 Cal.App.4th 392, 408.) "[A] discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal." (Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 106.)
An application for reconsideration of a prior order under Code of Civil Procedure section 1008, subdivision (a), must be based on "new or different facts, circumstances, or law." Accordingly, a party seeking reconsideration must provide "a satisfactory explanation for the previous failure to present the allegedly new or different evidence or legal authority offered in the second application." (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 383.) This is the same showing required of a party seeking a new trial on the ground of newly discovered evidence " ' "which he could not, with reasonable diligence, have discovered and produced at the trial." ' " (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198, italics omitted, quoting Code Civ. Proc., § 657, subd. 4.)
Facts of which a party was aware at the time of the original ruling are not "new or different facts" that can support reconsideration. (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.) Particularly in a summary judgment context, when evidence is readily available, belated objections to that evidence do not constitute "new or different facts" for purposes of reconsideration. (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255-256; Hennigan v. White (2011) 199 Cal.App.4th 395, 405-406; see Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690-691 [information known to attorney at the time he filed opposition to summary judgment, and as to which he provided no explanation as to why it was not timely presented, could not support reconsideration under Code of Civ. Proc., § 1008].)
Here, Hall's motion for reconsideration was not based on new or different facts, circumstances, or law "which he could not, with reasonable diligence, have discovered and produced" in opposition to defendant's summary judgment motion. (Code Civ. Proc., § 657, subd. 4.) Rather, his reconsideration motion consisted of belated objections to defendants' evidentiary showing in support of their motion for summary judgment. For example, Hall never raised in his summary judgment opposition any objection under Evidence Code section 1271, even though he could have done so. Nor did he ever claim in his summary judgment opposition that Dr. Pratt's expert declaration is hearsay and has no evidentiary value because she did not perform or witness the examination conducted by Dr. Beatty, even though he could have done so.
In short, Hall could have, and should have, made all of the evidentiary challenges he belatedly made in his application for reconsideration in his original opposition to the defendants' motion for summary judgment. He therefore did not make the showing required to warrant reconsideration, and the trial court properly denied his motion.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.