Opinion
G031033.
10-28-2003
PHYLLIS J. MAURICE et al., Plaintiffs and Appellants, v. WINSTON CHUNG, Defendant and Respondent.
Horton Barbaro & Reilly, Jay Cordell Horton and Susan B. Ghormley for Plaintiffs and Appellants. Thelen Reid & Priest, Curtis A. Cole and Jason W. Crowell; Ryan, Datomi & Flores, Richard J. Ryan and Jennifer M. Renaud for Defendant and Respondent.
Phyllis J. Maurice appeals the judgment in favor of Winston Chung, M.D., (Chung) in her wrongful death/medical malpractice lawsuit after Chungs motion for summary judgment was granted. Chung contends the appeal is untimely. We conclude the appeal is timely and summary judgment was improper. Accordingly, we reverse.
The plaintiffs are Maurice and her children, Paula Larson and Michael Maurice. For convenience we will refer to them collectively and in the singular as the Plaintiff.
I
Background Facts
On January 23, 2000, the Plaintiffs husband, 60-year-old Paul Maurice, fell off his bicycle after he had fainted. He was admitted to the Los Alamitos Hospital emergency room, where the emergency room physician, Charles Rennie III, M.D., diagnosed him with pelvic and clavicle fractures. Maurice did not exhibit signs of head injury. Rennie did not notice there was some damage to Maurices bike helmet. Rennie did not order a CT scan of the head. Maurice was admitted to the hospital for a "syncopal" workup.
"Syncopal" pertains to fainting or a temporary loss of consciousness. (3 Schmidts Attorneys Dict. (1992) page S-307.)
At 2:00 p.m., the hospital notified Chung, an internist, of Maurices admission and Chung took over Maurices care. Chung examined Maurice and found him to be alert and oriented. Maurice did not complain of headache, dizziness, blurry vision, and had no slurred speech. When the examination was completed around 4:00 p.m., Chung ordered neurological and orthopedic consultations and a CT scan to rule out neurological lesions. Chung left the hospital.
At approximately 7:11 p.m., Maurices condition deteriorated rapidly. He vomited, was bradycardic (slow heartbeat), and in an altered mental state. Chung was informed and he returned to the hospital. Chung observed Maurice to be neurologically unresponsive with anisocoria (unequal diameter of pupils) and a dilated right pupil. Chung transferred Maurice to the ICU, where he was intubated. Chung ordered a "STAT" (emergency) CT scan, which revealed a hemorrhage on the right side of Maurices brain. He notified neurology and neurosurgery consults regarding Maurices condition at approximately 8:45 p.m. Dr. Ivar Szper, a neurosurgeon, performed emergency surgery on Maurice at approximately 10:40 p.m.
Maurices condition continued to decline. When he was declared clinically brain dead a few days later, his family took him off life support. The Plaintiff filed the instant wrongful death/medical malpractice action against the hospital, Rennie, and Chung.
Summary Judgment Motion
Chung filed a motion for summary judgment on the grounds there were no triable issues of fact on the elements of breach of the applicable standard of care and causation.
The hospitals and Rennies summary judgment motions were denied. On October 15, 2002, we stayed trial pending this appeal.
Chungs Evidence
Chungs motion was supported by copies of the medical records and a declaration from his medical expert, Dr. Michael Wiener, a physician who completed his internship and residency in internal medicine and who was a board certified neurologist. Dr. Wiener stated he was familiar with the standard of care applicable to internists and neurologists as it related to head trauma and intracerebral hemorrhages. He had reviewed all of the hospital medical records, the autopsy reports, and the Plaintiffs deposition.
Dr. Wiener described the medical records as showing that prior to Maurices accident, he had no history of syncopal episodes or of cardiac, pulmonary, or neurological events. When he was admitted to the emergency room he was conscious, coherent, and oriented. He did not complain of a headache, numbness, weakness, or change in speech, and he was "neurologically asymptomatic." Chungs examination notes, dictated at 4:06 p.m., noted Maurice displayed no neurological symptoms. Chung ordered neurological and orthopedic consults and a CT scan to rule out neurological lesions. When the nurse completed her assessment of Maurice at 4:10 p.m., he was "awake, alert, oriented, responsive, with normal speech." Hospital staff informed Chung shortly after 7:00 p.m., that Maurices condition was deteriorating.
Dr. Wiener opined the medical care Chung provided Maurice met or exceeded the applicable standard of care. Before 7:11 p.m., "Maurice exhibited no focal or gross neurological deficits and his complaints in no way suggested an intracranial hemorrhage. Therefore, prior to approximately 7:11 p.m., the standard of care did not require Dr. Chung to order an emergent or `STAT CT Scan." Dr. Wiener also opined that "to a reasonable medical probability," no action or inaction by Chung caused or contributed to Maurices injuries because the intracranial hemorrhage was an "acute event" that occurred around 7:11 p.m., and there was no intracranial bleed or lesion before that time. Therefore, Dr. Wiener concluded a CT scan performed before 7:11 p.m., would not have shown an intracranial bleed or lesion.
The Plaintiffs Evidence
The Plaintiffs opposition to Chungs motion for summary judgment was supported by a declaration from their medical expert, Dr. Lloyd Dayes, a neurosurgeon. Dr. Dayes reviewed the hospital records, the autopsy report, and the portion of Maurices wifes deposition in which she testified she had informed a nurse about alterations in Maurices "speech and motor function." Dr. Dayes also had reviewed the declaration of another of the Plaintiffs experts, Dr. Glen Shook.
Dr. Shook, an emergency medical doctor, opined that Rennie, the emergency room physician who first examined Maurice had been negligent in failing to order a CT scan in the emergency room. Dr. Shook explained Maurice had suffered an initial syncopal episode that resulted in his fall from the bike. A CT scan should have been ordered in the emergency room to ascertain if the "loss of consciousness after trauma [was] due to the initial syncopal event or due to intercranial injury, or both . . . ." A CT scan ordered in the emergency room is always performed on a stat or expedited basis, and Dr. Shook opined "to a reasonable medical probability" a CT scan performed between 1:00 p.m. and 2:00 p.m., would have revealed an expanding cerebral hematoma or intracranial hemorrhage.
Unlike Dr. Wiener, Dr. Dayes did not state he was familiar with the standard of care applicable to internists and or neurologists. Rather, he declared he had "experience participating in workups for unexplained syncopy and [was] familiar with the standard of care applicable thereto." Dr. Dayes concurred with Dr. Shook that a CT scan "should have been ordered out of the emergency room," but "[f]ailing that . . . the physician initially managing the patient for syncopal workup should have ordered the CT . . . on an expedited if not STAT basis." (Italics added.)
Dr. Dayes opined "to a reasonable degree of medical probability" that Maurice suffered at least two different cerebral bleeds, the first of which may have caused him to blackout and fall off the bicycle. Dr. Dayes believed a CT scan done "between [noon] and [2 p.m.] . . . would have shown the initial bleed and possibly the developing subsequent bleed[,]" allowing time for successful surgical intervention. The only statement in Dr. Dayes declaration that specifically referred to Chung was that "[a]ccording to [the neurologists] note, he was not contacted until 3 hours after [Maurice] went decerabrate or comatose. In my opinion, the standard of care under the circumstances would require a call for a neurological consult far earlier than was done by Dr. Chung in this case[.]"
Evidentiary Objections
Chung objected that Dr. Dayes declaration lacked foundation. He argued Dr. Dayes, a neurologist, was not qualified to opine on the standard of care applicable to an internist conducting a syncopal workup. He also objected the declaration lacked adequate factual foundation for the opinions expressed.
The Orders and Judgment
On March 6, 2002, the court issued its minute order granting Chungs motion for summary judgment. The court sustained Chungs foundational objections to Dr. Dayes declaration.
On May 13, the court signed the order granting Chungs summary judgment motion. On June 6, the trial court signed and filed the judgment. Chungs counsel served the Plaintiffs attorney with a notice of the ruling on the motion for summary judgment on June 7. Chungs respondents brief attaches as an exhibit a proof of service indicating defense counsel served a "Notice of Entry of Judgment" on June 11, but the document itself is not part of the record. On August 8, the Plaintiff filed her notice of appeal.
II
Chung contends the notice of appeal was untimely. He is incorrect.
The issue was actually raised by the Plaintiff in her "motion to determine timeliness of appeal" filed before the briefing was completed. She apparently was alerted by Chungs counsel that Chung intended to argue the notice of appeal was untimely. We ordered that the motion would be decided in conjunction with the appeal.
A party must file a notice of appeal on or before the earliest of the following: (1) 60 days after the superior court clerk mails a notice of entry of judgment or a file-stamped copy of the judgment; (2) 60 days after the party filing the notice of appeal serves or is served by a party with a notice of entry of judgment or a file-stamped copy of the judgment; or (3) 180 days after the entry of the judgment. (California Rules of Court, rule 2(a)(2); Warmington Old Town Associates, L.P. v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840, 848.)
The court signed and filed the judgment on June 6, 2002. The record on appeal does not indicate that either the superior court clerk or Chung served a notice of entry of judgment or a file-stamped copy of the judgment on the Plaintiff. Therefore, the Plaintiff had 180 days from June 6 to file her notice of appeal, and the notice filed on August 8 was timely. Even if we accepted the proof of service of a notice of entry of judgment attached to Chungs respondents brief as proof that notice of entry of judgment was in fact served by Chung on June 11, the notice of appeal was still timely filed within 60 days.
Chung attempts to tie the time to appeal to the courts May 13 order granting his summary judgment motion. He argues that because the order mandated that "judgment be entered in favor of [Chung] and against [the Plaintiff]," we should construe the order granting his motion as the entry of judgment. Chung gave the Plaintiff written notice of the order on June 7, which he argues triggered the 60-day period for filing a notice of appeal and renders the August 8th notice of appeal one day late. We reject this contention for the simple reason that "an order granting summary judgment is not an appealable order; the appeal must be taken from the subsequent judgment. [Citations]." (Berman v. City of Daly City (1993) 21 Cal.App.4th 276, 279, fn. 1; Code Civ. Proc., § 904.1.) The order granting summary judgment was not the judgment. The judgment was entered on June 6, and the Plaintiffs notice of appeal was timely.
III
The Plaintiff contends the trial court erred in granting Chungs motion for summary judgment. We agree.
"Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc., § 437c, subd. (a).) The trial court must grant summary judgment if the papers and affidavits submitted, combined with "all inferences reasonably deducible from the evidence" and uncontradicted by other inferences or evidence, show "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).)
"`The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial. [Citation.] . . . Once the moving party has met its burden, the opposing party bears the burden of presenting evidence that there is any triable issue of fact as to any essential element of a cause of action. [Citation.]" (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.)
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) In determining whether there is a triable issue as to any material fact, "`"the moving partys affidavits are strictly construed while those of the opposing party are liberally construed." . . . We accept as undisputed facts only those portions of the moving partys evidence that are not contradicted by the opposing partys evidence. . . . In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. [Citation.]" (Hanson v. Grode (1999) 76 Cal.App.4th 601, 604.)
In a medical malpractice case, 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 professionals negligence." [Citations.]" (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)
Chungs motion for summary judgment sought to establish there was no triable issue as to breach of duty or causation. Dr. Wiener opined Chung fulfilled the standard of care expected of an internist and the treatment he received from Chung was not a cause of his death.
Dr. Dayes declaration in opposition contained two statements indicating Chungs treatment could have failed to meet the standard of care. The first was Dr. Dayes statement that a CT scan "should have been ordered out of the emergency room," but "[f]ailing that . . . the physician initially managing the patient for syncopal workup should have ordered the CT . . . on an expedited if not STAT basis." Chung argues this statement cannot reasonably be construed as referring to him, since he was not the physician initially managing the syncopal workup. Rather, he urges, the statement refers to Rennie, the emergency room physician. But Dr. Dayes declaration states in earlier part that after being seen in the emergency room, Maurice was "admitted to the telemetry unit of the hospital for a syncopal workup." Furthermore, it is undisputed that Chung was the physician who undertook Maurices care when he was admitted. Accordingly, the statement can reasonably be construed as referring to Chung.
The second statement made by Dr. Dayes indicating Chung might have been negligent was that he erred by not calling for neurological consult far earlier. Because we conclude the first statement is sufficient to establish a material issue of fact on breach of duty, we need not consider whether this statement does as well.
Dr. Dayes declaration also contained evidence establishing a material issue of fact regarding causation. He opined "to a reasonable degree of medical probability" that Maurice suffered at least two different cerebral bleeds, the first of which may have caused him to blackout and fall off the bicycle. Dr. Dayes believed a CT scan done between noon and 2:00 p.m., would have shown the initial bleed and possibly the second developing bleed, allowing ample time for successful surgical intervention. Chung again argues this statement cannot link causation to anything that he did or failed to do in treating Maurice since he did not examine Maurice until after 2:00 p.m. But again, giving the declaration a liberal interpretation, it can be construed as creating a material issue of fact on causation as to Chung. If a CT scan done before 2:00 p.m., would have shown the initial bleed and developing bleed, certainly one performed after 2:00 p.m., would have as well.
Having concluded Dr. Dayes declaration created a material issue of fact regarding breach of duty and causation, we turn to Chungs specific evidentiary objections to the declarations. Chung first argued Dr. Dayes, a neurosurgeon, was not qualified to opine on the standard of care owed by an internist conducting a syncopal workup. The trial court agreed. We conclude this evidentiary ruling was an abuse of discretion. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 140, fn. 3.)
Mann v. Cracchiolo (1985) 38 Cal.3d 18, is controlling. There, the defendant contended the plaintiffs expert witness, a surgeon, was not qualified to testify as to the standard of care owed by a radiologist. The court stated it would not establish a hard and fast rule for the admissibility of expert testimony; rather, the determination would be predicated upon whether the witness had sufficient skill or experience in the field. (Id. at p. 38.) The court held it would admit the plaintiffs experts testimony because he was most likely familiar with the standard of care exercised by radiologists in reading X-rays and preparing reports. (Id. at p. 38; see also Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385.)
Like the plaintiffs in Mann, the Plaintiff here brought in an expert to opine on the standard of care owed by a physician conducting an examination for unexplained syncope. Although Dr. Dayes is not an internist, he is a neurosurgeon who has participated in workups for unexplained syncope and is familiar with the applicable standard of care. Accordingly, he demonstrated sufficient competency to admit his declaration regarding the standard of care owed by Chung when conducting a syncopal workup of a patient.
Chung also raised foundational objections to Dr. Dayes declaration on the grounds his opinions were not supported by facts. Virtually all of the objections are based on Dr. Dayes having inaccurate information regarding whether symptoms developing after Chungs initial examination were reported to Chung, and the timeliness of his ordering a neurological consultation upon learning of Maurices rapid decline after 7:00 p.m. But because we reverse based on Dr. Dayes statement Chung should have ordered the CT scan on an expedited or STAT basis at the outset, we consider only the specific objections as they relate to that statement. Chungs objection was that Dr. Dayes statement "the physician initially managing the patient for syncopal workup should have ordered the CT . . . on an expedited if not STAT basis," did not refer to Chung. But as explained above, we conclude that under a liberal interpretation, the statement can be construed as referring to him.
We are not unsympathetic to Chungs complaints about Dr. Dayes declaration. It is far from a model of perfection. But Chungs reliance on Kelley v. Trunk (1998) 66 Cal.App.4th 519 and its suggestion that an experts declaration must set forth the factual basis for opinions in "excruciating detail" is misplaced. (See Hanson v. Grode, supra, 76 Cal.App.4th at p. 608, fn. 6.) Kelley v. Trunk, supra, 66 Cal.App.4th 519, concerned the sufficiency of the expert declaration filed by the defendant physician in support of summary judgment. It did not concern the adequacy of the opposition.
Under the rules of liberal construction applicable to opposing papers, Dr. Dayes declaration passes muster. It sets forth a specific factual breach of duty (failing to call for an expedited or STAT CT scan) and a specific factual causal link to Maurices death (there were two bleeds; a CT scan performed earlier would have shown the first bleed and possibly the developing second bleed). "Counter-affidavits and declarations need not prove the oppositions case; they suffice if they disclose the existence of a triable issue. [Citations.]" (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065.) Dr. Dayes declaration disclosed the existence of a triable issue and accordingly, the trial court erred by granting summary judgment.
The judgment is reversed. The stay previously imposed on the trial in the underlying action is dissolved. The Appellant is awarded costs on appeal.
WE CONCUR: SILLS, P. J., and RYLAARSDAM, J.