Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV025469
CANTIL-SAKAUYE, J.
Lola Juarez suffered a massive stroke after she refused blood thinners; she passed away three months later. Her adult children brought suit against several persons and entities involved in Juarez’s care, alleging professional negligence, wrongful death and elder abuse. The adult children, plaintiffs, appeal from a judgment in favor of one doctor, Sherry Han, after the defense motion for summary adjudication was granted. Plaintiffs contend there is a triable issue of fact whether Juarez wanted to discontinue the blood thinner Lovenox. They contend defendant’s evidence on this issue was unreliable and the trial court erred in relying on inadmissible hearsay. We find undisputed evidence Juarez refused all blood thinners and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Lola Juarez was 89 years old. On September 27, 2003, Juarez, accompanied by her daughter, went to a clinic operated by Kaiser. She was diagnosed as having gastroenteritis and admitted to Dameron Hospital.
Juarez had suffered for several years from atrial fibrillation, a condition that may cause the formation of blood clots. At the hospital, she was given Cardizem to control her heart rate and Lovenox, a blood thinner. On September 29, Dr. Sherry Han saw Juarez. After discussing the medications with Juarez, Han ordered the Lovenox discontinued.
A few days later, Juarez was discharged from the hospital and transferred to Valley Gardens, a long-term care facility. Later that same day, Juarez suffered a stroke caused by a blood clot. She died in January 2004.
Juarez’s children, Terrylyn and Richard McCain, brought suit for damages for wrongful death and elder abuse against Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Dameron Hospital, Valley Gardens, other health care facilities, and various doctors, including Han. The first amended complaint alleged one cause of action for professional negligence against Han. The amended complaint alleged Han and others breached their duty of care to Juarez “by failing to appropriately test, monitor and diagnose her condition, by failing to appropriately prescribe medication to prevent clot formation, by inappropriately discontinuing medication to prevent clot formation, by discharging Ms. Juarez from Dameron Hospital without appropriately prescribing medication for Ms. Juarez to prevent clot formation while she was a patient at Valley Gardens, and by other acts of negligence which are presently unknown to plaintiffs at this time.” The complaint further alleged this negligence was a substantial factor in causing the stroke that led to Juarez’s death.
Plaintiffs subsequently filed a second amended complaint. There was no change in the allegations against Han in this later complaint.
Han (and others) moved for summary judgment or summary adjudication. Han asserted that when she told Juarez she was taking a blood thinner, Juarez became upset and wanted the blood thinner stopped. Han explained to Juarez the risks of stopping the blood thinner, but Juarez was very determined and did not change her mind. Based on Juarez’s request, Han discontinued the Lovenox. Since a person has the right to determine whether to submit to medical treatment, Han argued the cause of action for professional negligence failed due to informed consent.
In support of the motion, Han provided excerpts from her deposition. Han testified, when she saw Juarez, Juarez was sleepy, but easily arousable. She was weak, but had no complaints. Han explained Juarez’s condition and the medications she was receiving. Han told Juarez that because she was dehydrated, she was getting IV fluid; her urinary tract infection was being treated with antibiotics. Han said a new medicine, Cardizem, had been started the day before, as well as a blood thinner, Lovenox, by injection. Han recommended Juarez also take the blood thinner, Coumadin, orally. Juarez was upset that she was [being given] a blood thinner. She said her daughter was an M.D. and would not want her to take Coumadin, so she would not take it. Juarez also decided not to take the Lovenox. Juarez had no objection to the Cardizem.
Han testified it was her usual practice to tell patients with atrial fibrillation that there was an increased risk of stroke and the blood thinner would help prevent strokes. Juarez did not change her mind after being advised of the risk. Han discontinued the Lovenox based on Juarez’s request.
When Han told Juarez’s daughter that Juarez had refused Coumadin, the daughter agreed with her mother. Juarez was using herbal medications instead of a blood thinner. The daughter said there should be no blood thinners, but it was okay to continue the Cardizem for heart rate control until her mother got home. Han did not think that was the best choice, but respected the decision. In her discussions, Han did not differentiate between Coumadin and Lovenox, but spoke simply of blood thinners. Juarez was clear that she wanted the blood thinners stopped.
Han prepared a progress record for Juarez on September 29, the day Han saw Juarez. It indicated a rapid atrial fibrillation started the day before and her heart rate was still high. The dosage of Cardizem was increased. Han’s note further states: “pt [patient] states that her daughter is M.D. She has been refusing Coumadin. Unable to reach daughter will D.C. [discontinue] Lovenox.”
In her deposition, Terrylyn McCain testified her mother was independent and made her own medical decisions; she never handled her mother’s medical condition. She said her mother consulted her about homeopathics, but she had Kaiser for conventional medicine. Juarez was concerned about taking Coumadin when she lived alone.
In opposition to the motion for summary judgment or summary adjudication, plaintiffs disputed that Juarez made her own medical decisions, but provided no evidence in support of this assertion. They objected that the statements attributed to Juarez were inadmissible hearsay and Han’s testimony and observations were inherently unreliable because they were not charted. They disputed that Han met the standard of care.
Plaintiffs provided excerpts of a deposition of Khin Yi, M.D., who had originally prescribed the Lovenox. Yi testified if a patient rejects a medication, the doctor writes a note and has the patient sign a form indicating she is acting against medical advice.
In her deposition, Terrylyn McCain testified she never told her mother not to take Cardizem, Coumadin or Lovenox.
Plaintiffs also provided the declaration of James Shepard, M.D., who opined that it was beneath the standard of care to discontinue Lovenox simply because Juarez refused Coumadin and the daughter could not be reached. Shepard believed there was time to contact the daughter and Lovenox should have been ordered while Juarez was in the hospital and the nursing home.
Han objected to this declaration, on the basis it was not based on the facts that Juarez refused medicine. The trial court sustained the objection to this portion of Shepard’s declaration.
At the hearing on the motion, plaintiffs argued there was a factual issue whether Juarez had refused Lovenox. The progress note did not indicate she had and Juarez did not sign a form indicating she acted against medical advice.
The trial court found Juarez wanted treatment with blood thinners to cease and it did at her request. Summary adjudication was granted as to Han and judgment was granted in her favor.
DISCUSSION
I. Standard of Review
The standard of review for summary judgment is well established. The motion “shall be granted if all 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 moving defendant has met its burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (o).)
We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Lackner v. North (2006) 135 Cal.App.4th 1188, 1196.) In determining whether there is a triable issue of material fact, we consider all the evidence set forth by the parties except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
“In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)
II.
Han Established that Juarez Refused Blood Thinners
Plaintiffs’ case against Han for professional negligence was based on Han’s discontinuing the Lovenox and failing to prescribe a blood thinner for Juarez. Han’s defense was that Juarez refused to take a blood thinner.
An adult “in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 242.) A competent adult has the right to refuse medical treatment. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 530.) As part of the physician’s overall obligation to the patient, “is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.” (Cobbs v. Grant, supra, at p. 243.)
Han provided evidence, excerpts of her deposition testimony, that she discussed blood thinners with Juarez and the risks involved if Juarez did not take them. Juarez was adamant that she did not want the blood thinners.
Plaintiffs contend this evidence was untrustworthy because Han had to be “led” in her deposition to testify that Juarez refused Lovenox as well as Coumadin. Indeed, plaintiffs allege “[t]his testimony has all the hallmarks of having been fabricated specifically for creating a defense to allegations that Dr. Han negligently ordered the Lovenox discontinued.” We disagree.
Han’s deposition is adequate to support summary adjudication. Deposition testimony is proper evidence to support a motion for summary adjudication. (Code Civ. Proc., § 437c, subd. (b)(1).) Summary adjudication “may not be denied on grounds of credibility.” (Code Civ. Proc., § 437c, subd. (e).) Even evidence that is self-serving will support summary adjudication if uncontroverted. (Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 636.)
Under subdivision (e) of Code of Civil Procedure section 437c, a trial court has discretion to deny summary adjudication “where the only proof of a material fact offered in support of the summary [adjudication] is an affidavit or declaration made by an individual who was the sole witness to that fact.” Here Han’s evidence was not a declaration or affidavit, but deposition testimony where plaintiffs had the right to cross-examine Han. In any event, subdivision (e) only grants the court discretion to deny the motion; the court retains discretion to grant the motion. (Trujillo v. First American Registry, Inc., supra, 157 Cal.App.4th at p. 636.) Plaintiffs have failed to show an abuse of discretion. Han’s deposition testimony is corroborated by her progress note, indicating she spoke with Juarez about the medications and Juarez refused blood thinners.
Plaintiffs contend the progress note, which specifies Han discontinued Lovenox only because Juarez refused Coumadin and Han could not contact the daughter, does not corroborate Han’s testimony that Juarez wanted Lovenox discontinued. Instead, plaintiffs assert, the progress note contradicts Han’s testimony.
In reviewing a motion for summary adjudication, we draw all reasonable inferences from the evidence in favor of the party opposing the motion. (Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 963.) Han’s failure to specify the refusal of Lovenox in her progress note is explained by her testimony that she spoke of blood thinners generally, rather than Coumadin and Lovenox separately. It is not reasonable that a physician who was recommending a second blood thinner, here Coumadin, for a patient with atrial fibrillation would discontinue the first, Lovenox, without reason. While the progress note does not detail the entire conversation with Juarez, the reasonable inference is that Han discussed blood thinners generally with Juarez and she did not want them. As pointed out by Han at oral argument, this view of the progress note is corroborated by the physician order that indicates Juarez refused Lovenox. It states: “discontinue Lovenox. (pt. refuses).”
Plaintiffs contend the trial court erred in relying on inadmissible hearsay. They assert, as they did in their response to the separate statement of undisputed facts, that Juarez’s alleged statement that she did not want Lovenox was hearsay. They contend the statement was not admissible under Evidence Code section 1220 because Juarez was not a party to the action. Assuming the statement was “offered to prove the truth of the matter stated” (Evid. Code, § 1200, subd. (a)) and thus was hearsay, it was admissible under Evidence Code section 1227, as the statement by a deceased offered against the plaintiff in a wrongful death action.
Evidence Code section 1220 provides: “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.”
As is relevant here, Evidence Code section 1227 states “Evidence of a statement by the deceased is not made inadmissible by the hearsay rule if offered against the plaintiff in an action for wrongful death brought under Section 377 of the Code of Civil Procedure.”
Han established that Juarez refused blood thinners.
III.
Plaintiffs Failed to Show a Triable Issue As to Whether Juarez Refused Blood Thinners
Plaintiffs contend there was evidence that created a triable issue of fact as to whether Juarez refused to take Lovenox. First, Juarez agreed to take Lovenox when it was prescribed by Yi and Han could not provide a reason why Juarez would change her mind. That Juarez initially agreed does not mean she never changed her mind. Further, the record suggests a reason: Juarez was feeling better the next day. Han testified Juarez said her abdominal pain was better and plaintiffs’ expert declared Juarez’s condition had “improved substantially” on September 29.
Plaintiffs also cite to evidence that Juarez and her daughter were only concerned about Juarez taking blood thinners at home where she was not monitored; it was okay to take them in the hospital. This conversation, as reported by Han in her deposition, occurred after Juarez had the stroke and the daughter asked for an explanation. Plaintiffs provided no evidence that anyone told Han the concern over blood thinners was limited to home use when Han honored Juarez’s request to stop the medication.
Finally, plaintiffs contend the absence of a signed form that Juarez was refusing blood thinners against medical advice creates a triable issue as to whether she actually refused Lovenox. Another physician, Yi, testified there are such forms and a patient who refuses medicine should sign one. Plaintiffs contend the absence of a business record of an asserted act may be used to prove nonoccurrence of an act. (Evid. Code, § 1272.)
“Section 1272 of the California Evidence Code provides that evidence of the absence from the records of a business is admissible upon the proof of certain foundational facts relevant to the trustworthiness of the records from which the entry is absent.” (People v. Dickinson (1976) 59 Cal.App.3d 314, 318-319.) First, the proponent of the evidence must show that it was the regular course of business to make such records and to retain them. (Evid. Code, § 1272, subd. (a).) Second, the sources of information and method and time of preparation of the business records must be such that the absence of a record is a trustworthy indication that the act did not occur. (Evid. Code, § 1272, subd. (b).)
Plaintiffs failed to establish the foundation facts necessary to use the absence of a record to show an act did not occur. While Yi testified there is a form available when a patient refuses medicine, she did not testify the form was required or part of the regular course of business at the hospital. There was no evidence that Han was familiar with such forms or that her failure to complete one was a trustworthy indication that the alleged refusal did not occur.
Plaintiffs failed to show a triable issue of fact as to whether Juarez refused Lovenox.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.