Opinion
B161175.
11-25-2003
BENJAMIN GEARE KELSCH, a Minor, etc., Plaintiff and Appellant, v. ALAN CAROE et al., Defendants and Respondents.
Robert S. Schlifkin for Plaintiff and Appellant. Sinclitico & Burns, Dennis J. Sinclitico and David J. Ozeran for Defendants and Respondents Alan Caroe and Long Beach Memorial Medical Center. Carroll, Kelly, Trotter, Franzen & McKenna, Richard D. Carroll, David P. Pruett and Lori A. Conway for Defendant and Respondent Paula Groncy.
Benjamin Geare Kelsch, a minor, by and through his guardian ad litem, Jeanne Kessler, appeals the summary judgments granted against him and in favor of Paula Groncy, M.D., Alan Caroe, M.D., and Long Beach Memorial Medical Center, on appellants complaint for medical malpractice. Appellant contends (1) his expert witness declaration created a triable issue of material fact as to causation, and (2) the trial court improperly considered factual issues not raised by the moving papers. We affirm.
BACKGROUND
Factual Background
Appellant was three and a half years old when he was diagnosed with medulloblastoma, a malignant brain tumor, in March 1988. Following a craniomoty, appellant underwent radiation and chemotherapy for approximately one year. On April 30, 1989, appellant was evaluated in the emergency department of Long Beach Memorial Medical Center (the hospital) for complaints of wrist pain. He was admitted for treatment and examined by respondent Dr. Groncy, an oncologist who was on call for her partner, Jerry Finklestein, M.D., who was appellants regular oncologist. Dr. Groncy noted that in addition to a possible infection in his hand, appellant had an ear infection and decreased blood counts, with a platelet count at a critically low level. Dr. Groncy advised appellants mother, Jeanne Kessler, that a blood platelet transfusion was necessary. Ms. Kessler requested that the transfusion be held off until absolutely necessary, and Dr. Groncy agreed.
During this time, the hospital was participating in a research study involving the collection and storage of platelets. Respondent Dr. Caroe, who was performing a fellowship in blood banking at the hospital, discussed the study with Ms. Kessler and obtained her consent for participation. On May 1, 1989, tests showed that appellants blood counts had dropped even further. Without a blood platelet transfusion, appellant was at risk for spontaneous hemorrhage, including in his brain. Appellant received a transfusion of irradiated platelets on May 1, 1989.
Appellant initially reacted favorably to the transfusion, but his blood counts continued to drop over the next few days. Appellant received another transfusion of irradiated platelets on May 4, 1989.
At this time in 1989, blood banks in Southern California did not have a specific test for the Hepatitis C virus, and donor blood was not routinely tested for the virus. Dr. Groncy, as an oncologist, would not have personally tested donor blood for the presence of the virus. Given his medical condition, appellant was not eligible to donate his own blood for future use.
Appellants condition improved and he was discharged from the hospital on May 8, 1989. Ten years later, on August 25, 1999, appellant learned that he may have been exposed to the Hepatitis C virus.
Procedural Background
A. The Complaint
On November 16, 2000, appellant filed a complaint for medical malpractice against respondents. The specific allegation was that respondents "negligently provided medical, hospital and nursing services to [appellant], including but not limited to failure to disclose alternative methods of blood collection and source of platelets for replacement, resulting in the infection of [appellant] with the Hepatitis C, which was first suspected on August 25, 1999." Respondents denied the allegation of negligence in their answers to the complaint.
B. Dr. Groncys Motion for Summary Judgment
1. Moving Papers
On February 8, 2002, Dr. Groncy filed a motion for summary judgment. She asserted that her care of appellant complied with the standard of care and that she did nothing which caused him injury. In support of her motion, Dr. Groncy submitted the declaration of expert witness Ira Shulman, M.D., who received his medical degree in 1975 and is board certified in anatomic and clinical pathology with special competence in blood banking and transfusion medicine. Based on his education, training and experience, and his review of appellants medical records, Dr. Shulman opined that Dr. Groncys two orders for platelet transfusions were appropriate and within the standard of care and did not contribute to appellants injuries. Dr. Shulman also stated: "Directed Donor blood is a current process by which a patient selects a known individual to donate blood or blood products for their specific use. Directed Donor blood is not safer than random donor blood or blood products to decrease the risk of transfusion related exposure to infection. In fact, experience has demonstrated that when a friend or family member is asked to donate blood as a directed donor, that individual may be reluctant to disclose that they fall into a high risk category of individuals who should not be blood donors, and nevertheless, feel compelled to donate blood. Assuming there was a Directed Donor program at Long Beach Memorial Medical Center in April-May 1989, and assuming that Dr. Groncy had advised [appellant] and his mother of this program, there is no guarantee that [appellant] would not have contracted Hepatitis C or other blood borne infection from a transfusion of directed donor blood."
2. Appellants Opposition
In opposition to the motion, appellant clarified that his "actual contention is that Dr. Groncy knew of the risk of infection with Hepatitis C from a transfusion and failed to offer direct donation to [his] mother," and he alleged that "Dr. Groncy never told Mrs. Kessler that she could donate her own blood for [appellant]." In support of the motion, appellant submitted two laboratory reports, which indicated that appellants mother had tested negative for the Hepatitis C virus in September 1999, a decade after the two transfusions. Appellant also submitted the declaration of expert witness Herbert L. Duvivier, M.D., who received his medical degree in 1988 and is board certified in internal medicine, oncology and hematology. Dr. Duvivier stated that he had reviewed appellants medical records, Dr. Groncys deposition and Ms. Kesslers laboratory test results. He agreed that no specific test for the Hepatitis C virus existed in April and May 1989, but stated it was known at that time that there was a risk of blood products being infected with the virus. Dr. Duvivier also stated that direct blood donation was available and opined that it was below the standard of care for Drs. Groncy and Caroe not to offer directed donation to Ms. Kessler. He further stated that Ms. Kesslers testing under current standards establishes that she was not infected with Hepatitis C in 1989, and that had her blood been used, appellant would not have contracted the virus.
3. The Reply
In reply, Dr. Groncy submitted a supplemental declaration of Dr. Shulman, in which he stated that Ms. Kesslers test results did not guarantee that she was free of the Hepatitis C virus 10 years earlier because in some cases patients will clear their infection, a process known as anti-HCV seroreversion. Dr. Shulman also stated that in 1989 there was no standard of practice defined by the State of California regarding directed donation, and that even when the law was changed after 1989 to require the direct donor option, it was still not required in cases of emergency transfusion. Dr. Shulman further stated that based on his experience and expertise, even if the option of directed donor blood or platelets had been offered to Ms. Kessler, there is no guarantee that she would have been able to serve as the sole donor for both transfusions, and that it would have taken several days to process her blood, such that it would not have been available for immediate transfusion.
In her reply, Dr. Groncy also took the position that Dr. Duvivier was not competent to offer expert opinions because he was not a licensed physician in April and May 1989, and he did not claim to possess any knowledge, training or experience with blood banking. The trial court ultimately found that Dr. Duvivier was qualified to render an expert opinion on the issues presented.
In response to the reply, appellant submitted portions of Dr. Caroes deposition transcript, in which he discussed his duties and responsibilities at the hospital in April and May 1989 concerning directed blood donations.
4. Supplemental Opposition and Response
At the hearing on the motion on March 26, 2002, the trial court found "there is no triable issue of fact because [Dr. Groncy] has competently negated the issue of causation and [appellant] has not offered any evidence of causation." The court noted that Dr. Duviviers declaration failed to address the issue of causation because it did not state that the failure to inform Ms. Kessler of directed donation was a substantial cause of harm within a reasonable medical probability. The court granted appellant leave to amend Dr. Duviviers declaration to address causation. The court further stated that the following specific issues were omitted from Dr. Duviviers declaration: "[H]ow much blood was needed, how much could [Ms. Kessler] donate, would it have been sufficient, would there have been other donors beyond her." Appellants counsel objected that these issues were not raised by the motion or Dr. Shulmans original declaration. The court stated, "I think these are part and parcel of the causation issue and I would like them addressed."
Appellant then submitted a supplemental declaration of Dr. Duvivier, in which Dr. Duvivier added the following two statements to his original declaration: "There was adequate time to screen, test and process Ms. Kesslers platelets for transfusion into [appellant]," and "The failure to offer directed donation for [appellants] transfusion caused [appellant] to be infected with Hepatitis C."
In response to the supplemental declaration of Dr. Duvivier, Dr. Groncy submitted the full transcript of Dr. Duviviers deposition, which had been taken on March 27, 2002, the same date as his supplemental declaration. Dr. Duvivier agreed that in 1989 the risk associated with directed donor blood and blood products was about the same as random donation. Dr. Duvivier also testified that he did not know whether Ms. Kessler was a compatible platelet donor for her son, whether she had sufficient platelets or other risk factors herself or whether she met all of the criteria for donation. He also did not know when Ms. Kessler had been tested for Hepatitis C.
5. The Courts Ruling
At the continued hearing on April 5, 2002, the court again found that "there is no triable issue of fact because the defendant has competently negated the issue of causation and the plaintiff has not offered even by way of their supplemental [declaration] by Dr. Duvivier . . . any evidence of causation. . . . [A]nd the court had tried to give some guidance on this and Dr. Duvivier even in the supplemental did not state that the failure to inform Ms. Kessler of directed donations was a substantial cause of harm within a reasonable medical probability." Judgment was entered in favor of Dr. Groncy on April 11, 2002.
C. Dr. Caroe and the Hospitals Motion for Summary Judgment
On April 26, 2002, Dr. Caroe and the hospital jointly filed a motion for summary judgment. In addition to the supplemental declaration of Dr. Shulman previously submitted to the court, they submitted the declaration of expert witness Douglas Blackall, M.D., who received his medical degree in 1988 and is board certified in clinical pathology and transfusion medicine. Based on his education, training and experience, and his review of appellants medical records and Dr. Caroes deposition, Dr. Blackall opined that the care and treatment rendered by Dr. Caroe was appropriate and within the standard of care and that nothing he did or failed to do caused appellants injuries. Dr. Blackall agreed that blood banks did not have a specific test for the Hepatitis C virus in 1989, that Ms. Kesslers negative test results did not guarantee that she was free of the virus 10 years earlier, and that her blood could not have been processed in time for an immediate transfusion. He also stated that there was no evidence that Ms. Kessler was a suitable donor or that she would have been able serve as the sole donor.
In opposition, appellant relied on the previously submitted supplemental declaration of Dr. Duvivier, Ms. Kesslers laboratory reports, Dr. Duviviers deposition testimony that Ms. Kessler was a compatible donor because "[i]ts more likely that shes going to be compatible since its her son," Ms. Kesslers deposition testimony that Dr. Caroe informed her the blood study was developing safer methods of extracting blood properties, and Dr. Caroes deposition testimony that a test existed in 1989 for screening Hepatitis C, though it was not foolproof.
At the hearing on the motion on May 2, 2002, the court granted the motion on the same basis as the prior summary judgment motion. Judgment in favor of Dr. Caroe and the hospital was entered on June 18, 2002.
DISCUSSION
Standard of Review
We review a trial courts ruling on a motion for summary judgment de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 148; Code Civ. Proc., § 437c, subd. (c).) A motion for summary judgment "shall be granted if all of 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).) A defendant moving for summary judgment meets this burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2).) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Barton v. Elexsys Internat., Inc. (1998) 62 Cal.App.4th 1182, 1187.) To do so, a plaintiff cannot rely upon the mere allegations or denials of its pleadings, but "shall set forth the specific facts" showing a triable issue exists. (Code Civ. Proc., § 437c, subd. (o)(2).)
Appellant Did Not Establish a Triable Issue of Material Fact
The trial court granted the summary judgment motions in favor of respondents based on its finding that appellant did not establish a triable issue of material fact as to causation. Appellant contends this was error because the declaration of his expert, Dr. Duvivier, raised triable issues of material fact on the two "essential" elements of his action for professional negligence—breach of duty and causation. We disagree.
"In a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendants negligence, there was a reasonable medical probability the plaintiff would have obtained a better result." (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.) "The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. . . . 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." (Jones v. Ortho Pharmaceutical Corp . (1985) 163 Cal.App.3d 396, 402-403.)
Appellant points to the following statement made in both Dr. Duviviers original and supplemental declarations to support his position that he raised a triable issue of material fact as to causation: "Mrs. Kessler has been tested for the presence of HIV, AIDS or Hepatitis long after [appellant] was transfused with platelets. Her testing under current standards establishes that Mrs. Kessler was not infected with HIV or Hepatitis in 1989. Had Mrs. Kesslers blood been used for the platelets that were transfused into [appellant] in 1989, [appellant] would not have contracted Hepatitis C."
But Dr. Duvivier provides no explanation or foundation for the conclusions in his declarations, which are not only unsupported by the record, but directly undermined by Dr. Duviviers very own deposition testimony. For example and perhaps most fundamentally, there is no evidence that had Ms. Kessler been offered the choice of donating platelets to her son, she would have chosen this option rather than participating in the hospitals research study. Dr. Duvivier admitted, in his deposition taken by Dr. Groncys attorneys while the motion was pending, that he simply assumed she would have opted to be the donor. Because this unproven "assumption" forms the basis for each of Dr. Duviviers conclusions, we find they lack merit.
Our review of the record reveals other evidentiary omissions, which stem in large part from the absence of a declaration by Ms. Kessler or her deposition testimony (only two pages of which were part of the record in connection with the motion filed by Dr. Caroe and the hospital). With respect to Dr. Groncys motion, there is no evidence that Ms. Kessler was not presented with the directed donor option. With respect to both motions, while respondents do not dispute the threshold facts, there is no evidence that appellant does, in fact, have the Hepatitis C virus or that he did not have any other transfusions from which he could have contracted the virus. We also note that Ms. Kesslers laboratory reports were simply attached to her attorneys declaration without any foundation for these reports. The record does not suggest that the omission of these foundational facts was ever raised by respondents and it appears that the trial court treated these matters as not being in dispute.
"[W]e believe that under the proper circumstances, the parties should be allowed to depose an expert who supplies a declaration or affidavit in support of or in opposition to summary judgment or summary adjudication where there is a legitimate question regarding the foundation of the opinion of the expert." (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1540.)
Additionally, there is nothing to support Dr. Duviviers opinion that because Ms. Kessler currently tested negative for the Hepatitis C virus she was not infected 10 years earlier. In his supplemental declaration, Dr. Shulman stated, "[C]urrent negative testing for Hepatitis C antibody does not guarantee that Mrs. Kessler was free of Hepatitis C infection in 1989. It is known that some individuals with Hepatitis C will clear their infection and their Hepatitis C antibody test will revert to negative (so called anti-HCV seroreversion). In some Hepatitis C cases, the viremia and the anti-HCV goes away, making it possible for an individual to be infectious at the time considered for a blood donation, yet negative 10 years later. Consequently, the fact that the antibodies are not present today, does not mean that they were not present in 1989." Dr. Duvivier had an opportunity to address this and other causation issues in his own supplemental declaration, but failed to do so. Moreover, Dr. Duvivier testified in his deposition that he based his opinion that Ms. Kessler did not have Hepatitis C in 1989 on his experience that once a patient has the virus, "its very rare" not to test positive in the future. But nowhere does Dr. Duvivier actually dispute the statements made by Dr. Shulman. Dr. Duvivier also agreed that risks associated with directed donor donation were about the same as random, community acquired donation.
Furthermore, there is also nothing in Dr. Duviviers declarations or elsewhere in the record to support a factual finding that Ms. Kessler was a compatible or suitable donor for her son. Dr. Duvivier testified that he based his opinion that had Ms. Kesslers blood been used her son would not have become infected on the "assumption" that she was compatible. The basis for his assumption was that "[i]ts more likely that shes going to be compatible since its her son." But he also testified that he did not know what criteria are used for platelet donation or whether Ms. Kessler would have met them, and he did not know whether she had sufficient platelets making other donors unnecessary or any other risk factors to make her unsuitable as a donor. Thus, the factual predicates necessary for this opinion simply were not established.
Dr. Duvivier also stated in his supplemental declaration that "[t]here was adequate time to screen, test and process Ms. Kesslers platelets for transfusion into [appellant]." But he testified during his deposition that it usually takes 24 hours to process platelets for a transfusion, and he agreed that appellant was at risk for spontaneous bleeding during that time. He further agreed that had appellants blood counts continued to drop, waiting an additional day to administer a transfusion would have increased appellants risk of hemorrhage to "80 to 90 percent." Dr. Duvivier also testified that had Ms. Kessler donated platelets for the first transfusion on May 1, she would not have been able to donate again for another month, and he did not know what the probability would be that her platelets would have eliminated the need for appellants second transfusion.
"`[E]xpert opinions . . . are worth no more than the reasons and factual data upon which they are based." (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607 quoting Griffith v. County of Los Angeles (1968) 267 Cal.App.2d 837, 847.) "`The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed." (Bay Area Rapid Transit Dist. v. Superior Court (1996) 46 Cal.App.4th 476, 482.) "[A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment." (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.)
We conclude that Dr. Duviviers declarations did not establish within a reasonable medical probability that respondents failure to inform Ms. Kessler of the procedure of directed donation caused appellant to contract Hepatitis C, as it was never established by appellant that even had Ms. Kessler been informed of the alternative procedure she could have provided a safe source for the transfusion under the circumstances here. At best, Dr. Duviviers declarations suggest the possibility that appellant would not have been harmed. But a mere possibility is insufficient to meet a partys burden in a malpractice action. (Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 402.)
Consideration of All Evidence
Troubled by the fact that Dr. Duviviers original declaration did not offer any evidence or support for his opinions on causation, the trial court gave appellant an opportunity to file a supplemental declaration by his expert. Appellant did in fact submit a supplemental declaration by Dr. Duvivier, which the trial court found to be equally insufficient in addressing the issue of causation. Appellant contends the trial court erred in considering all of the evidence on the issue of causation when such evidence or issues were not raised in Dr. Groncys moving papers or separate statement, but in the reply papers. We find no merit to this contention.
This contention does not apply to the motion for summary judgment filed by Dr. Caroe and the hospital, as they raised these issues in their moving papers.
To support his position, appellant relies on San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, in which the defendant moving for summary judgment submitted a supplemental declaration containing "new facts" with its reply. (Id. at p. 312.) The trial court considered this evidence and granted summary judgment, which the appellate court reversed. Appellant here claims the San Diego court relied on the "Golden Rule" set forth in United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 that "if it is not set forth in the separate statement, it does not exist." To the contrary, the San Diego court specifically rejected this rule, holding instead that "in ruling on a motion for summary judgment, a trial court must consider all the evidence submitted, except the court may ignore evidence not disclosed in moving partys separate statement of undisputed facts." (San Diego, supra, at p. 315.) As the court noted, the summary judgment statute is permissive: "The failure to comply with this requirement of a separate statement may in the courts discretion constitute a sufficient ground for denial of the motion." (Code Civ. Proc., § 437c, subd. (b), italics added.) "Whether to consider evidence not referenced in the moving partys separate statement rests with the sound discretion of the trial court, and we review the decision to consider or not consider this evidence for an abuse of that discretion." (San Diego, supra, at p. 316.)
Here, the issues raised in Dr. Shulmans supplemental declaration do not necessarily constitute "new facts," but highlight the deficiencies in Dr. Duviviers original declaration. For example, Dr. Shulman points out that there was no guarantee that Ms. Kessler could have been the sole donor or that her blood products would have been immediately available. Appellant presented no evidence that Ms. Kessler was a compatible donor for her son or that her blood products could have been processed in time for a donation. Without any evidence or foundational basis for concluding that Ms. Kessler was an appropriate donor, there is no support for Dr. Duviviers conclusion that had her blood been used appellant would not have contracted the Hepatitis C virus.
This is not a situation in which the party opposing summary judgment had no opportunity to respond to issues raised in a reply. Indeed, after reviewing the initial round of pleadings and concluding that appellant had not raised a triable issue of material fact, the trial court gave appellant an opportunity to amend Dr. Duviviers declaration, which appellant did.
We also note that Dr. Shulmans supplemental declaration appears to have been necessitated in part by Dr. Groncys misunderstanding of the nature of appellants claim, as evidenced in her moving papers. In his initial declaration, Dr. Shulman opined that Dr. Groncys ordering of blood transfusions was within the standard of care. But appellant clarified in his opposition that the issue was whether Dr. Groncy breached her duty by failing to offer Ms. Kessler the option of direct donation. Thus, to the extent that Dr. Shulmans supplemental declaration contained "new facts," the court did not abuse its discretion in considering this evidence under these circumstances. "In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . ." (Code Civ. Proc., § 437c, subd. (c).) Appellant failed to raise a triable issue of material fact that any act or failure to act on the part of respondents caused him injury. Because respondents need only demonstrate that one element of appellants claim cannot be established (Code Civ. Proc., § 437c, subd. (o)(2)), we need only address the issue of causation.
DISPOSITION
The judgments are affirmed. Respondents to recover their costs on appeal.
We concur: BOREN, P.J. and ASHMANN-GERST, J.