Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, Stephen D. Petersen, Judge. Los Angeles County Super. Ct. No. LC066821
Law Offices of Howard A. Kapp and Howard A. Kapp for Plaintiff and Appellant.
Callahan, McCune & Willis and O. Brandt Caudill, Jr., for Defendant and Respondent Deborah Anderson.
Fonda & Fraser and Stephanie Charles for Defendant and Respondent Kiran Kamat.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
On April 16, 2003, 24-year-old Tamara Martinez (decedent), who had a lengthy history of mental illness and psychiatric hospitalizations, fell to her death from a high rise building. It is unknown whether her death was a suicide or an accident. Plaintiff Chloe I. Moch, decedent’s minor daughter, by her father and guardian ad litem, Jason Moch (Jason), decedent’s fiancé, thereafter instituted this wrongful death action against defendants Deborah Anderson, Ph.D., a psychologist, and Kiran Kamat, M.D., a psychiatrist, alleging that decedent died as a result of their professional negligence.
Defendants successfully moved for summary judgment, and the trial court entered judgments in their favor. In this appeal by plaintiff, we affirm the judgment in favor of Dr. Kamat, but reverse the judgment in favor of Dr. Anderson.
FACTS
Decedent began therapy with Dr. Anderson on April 7, 2003. Thus, at the time of her death on April 16, decedent had been a patient of Dr. Anderson for only nine days, having participated in only five psychotherapy sessions.
During treatment, decedent told Dr. Anderson that she had been functioning well since September 2002 and that she had been at Cedars Sinai the previous week for two days of treatment. Decedent further “admitted that she set up scenarios where she placed herself in potentially dangerous situations for the purpose of being rescued so that she would feel cared for.” Dr. Anderson learned about a few of these events, characterized as suicide attempts by some providers. Decedent “did not discuss her many hospitalizations, resisted disclosure and minimized her history.”
Dr. Anderson determined that decedent would benefit from a psychiatric consult. Toward that end, she gave decedent the names of several psychiatrists before decedent informed Dr. Anderson that she was enrolled in Northridge Hospital’s Partial Hospitalization Program and had been referred to Dr. Kamat through that program. Decedent saw Dr. Kamat only once, on April 14, 2003, as part of the hospital’s program. At their meeting, Dr. Kamat prescribed ten 0.5 milligram tablets of Xanax. Decedent was to take three pills per day. Based upon his evaluation of decedent, Dr. Kamat knew that she was at high risk for impulsive behavior and that she suffered from a severe personality disorder.
As part of the program, decedent signed a suicide contract providing as follows: “I Tamara Martinez agree that I will not make any attempts to hurt myself. If I have any suicidal or self-destructive thoughts I will contact my therapist at Northridge Hospital Medical Center — outpatient services at (818) 885-5348.”
On April 15, 2003, decedent called Dr. Anderson while she drove from Los Angeles to her home in Valencia. Decedent told Dr. Anderson that she had taken six Xanax tablets that day. Dr. Anderson did not know if decedent took all six at once or took them at different times during the day. Believing it “potentially dangerous” for decedent to be driving on the freeway, Dr. Anderson suggested that she get off the road even though decedent appeared to be alert and fully responsive.
Decedent also reported to Dr. Anderson that she had seen Dr. Kamat the previous day and had concealed a history of overuse of prescription drugs. Dr. Anderson emphasized to decedent the importance of being truthful with Dr. Kamat.
On the evening of April 15, 2003, Jason accompanied decedent to her appointment with Dr. Anderson. Decedent did not say anything to Jason that led him to believe she had been drinking. Jason also did not have any concern that decedent was suicidal. She had not expressed a desire that day to harm herself.
When decedent arrived at Dr. Anderson’s office for her appointment, she was early and stated she might go outside to smoke. A little later, decedent called Dr. Anderson and said she was outside the building and could not get back inside. Dr. Anderson went outside to find decedent and ran into Jason, whom she recognized from pictures decedent had shown her. Jason, who was going to accompany decedent to her appointment, contacted decedent by phone and discovered that decedent was on the roof. Dr. Anderson and Jason proceeded to the roof where they found decedent sitting on a ledge. Decedent stated that she had intended to travel to the ground floor but ended up on the penthouse level of the building. Decedent appeared sleepy and confused but did not express a desire to harm herself. In Dr. Anderson’s view, decedent could not have fallen or jumped off the building due to the existence of an eight-to-ten foot wall that extended above the ledge. Dr. Anderson did not smell any alcohol on decedent’s breath but perceived her to be “a little disoriented.”
During the therapy session that followed, decedent informed Dr. Anderson that she had taken a total of six Xanax tablets that day. Dr. Anderson obtained decedent’s consent to contact Dr. Kamat “in order to coordinate [their] efforts and to address the medication issues.” Dr. Anderson also obtained decedent’s authorization to contact Jason “in order to enlist his support and assistance.”
Jason was present while Dr. Anderson spoke to decedent. After decedent gave Dr. Anderson permission to talk to Dr. Kamat and Jason, they began to discuss her treatment contract. Decedent appeared sleepier at that point, rested her head on Jason’s shoulder and eventually fell asleep.
When Dr. Anderson left her office that evening, she saw decedent and Jason in the parking lot. They were arguing. After Jason declined her offer of assistance, Dr. Anderson told Jason that if decedent was not agreeable about going home or if her condition deteriorated, he should call 911 or take her to the hospital. Decedent told Jason to leave her alone, that she wanted to smoke and did not want to go to the hospital.
According to Jason, he put decedent in a chair, wheeled her to the elevator, dragged her down a flight of stairs to his car. Jason claimed that Dr. Anderson was with him and that after attempting to get decedent into his car, he told Dr. Anderson “I’ll take care of it from here. Just let me take care of it,” after which Dr. Anderson left.
The next morning, April 16, Dr. Anderson called Northridge Hospital in an effort to contact Dr. Kamat. It was her intention to discuss decedent’s misuse of her medication and to coordinate decedent’s care. In particular, Dr. Anderson sought to discuss “whether [decedent] could continue to be managed on an outpatient basis or whether consideration should be given to hospitalizing her on a voluntary basis” even though decedent had expressed no suicidal ideation to Dr. Anderson.
Dr. Anderson spoke to registered nurse Pilar Sergis, described the nature of the problem and asked her to page Dr. Kamat. Nurse Sergis refused and would not provide Dr. Kamat’s office number.
According to Nurse Sergis, between 10:15 and 10:30 a.m. on April 16, she learned from a co-worker named Jill that Dr. Anderson had called. Around 10:40 a.m. Nurse Sergis called Dr. Anderson and stated, “‘I understand you have had an emergency crisis with Tamara Martinez.” Nurse Sergis added, “I expected her to be here in the program. Do you have any idea where she is?” Dr. Anderson did not answer, stating, instead, that she needed to speak with Dr. Kamat about decedent’s medication. When Nurse Sergis inquired what the problem was, Dr. Anderson again asked to speak to Dr. Kamat. Nurse Sergis explained that Dr. Kamat would be there momentarily. Dr. Anderson advised that she would be in session with patients and that Dr. Kamat could reach her at ten minutes to the hour and at 11 a.m., 12 noon, 1 p.m., 2 p.m. and after 2:30 p.m.
Nurse Sergis again inquired regarding decedent’s whereabouts, explaining that she had failed to come to the program. Dr. Anderson said she needed to go and needed to speak with Dr. Kamat. Nurse Sergis asked if Dr. Anderson would tell decedent to call her if she heard from her, explaining there had been no answer at decedent’s house.
Shortly after speaking with Dr. Anderson, Nurse Sergis told Dr. Kamat what had transpired, gave him a written message and asked him to call Dr. Anderson. Nurse Sergis observed Dr. Kamat pick up the telephone receiver. She then left. When she saw Dr. Kamat around lunchtime, she asked if he had heard from Dr. Anderson. Dr. Kamat said he had not.
Dr. Anderson had several telephone conversations with decedent throughout the day. Although decedent was distressed, she did not talk about suicide or harming herself while she was at home. In fact, she scheduled a therapy session for the following day, April 17, to discuss her distress-related issues in greater detail.
During an afternoon telephone conversation with decedent, Dr. Anderson explained that her medication problem should be discussed with Dr. Kamat. Decedent refused Dr. Anderson’s advice and rescinded her authorization to permit Dr. Anderson to confer with Dr. Kamat. Inasmuch as decedent informed Dr. Anderson that she had discarded the medicine bottle and had no intention of hurting herself, Dr. Anderson did not believe decedent to be in imminent danger. Decedent did not get out of bed until 3:00 p.m. and did not leave the apartment until about 6:00 p.m.
On the evening of April 16, 2003, decedent called Dr. Anderson and told her that she was on the roof of a nearby building. Decedent could not identify the particular building. Based on decedent’s description, however, Dr. Anderson believed it was the building across the street. Decedent agreed to go to the hospital voluntarily and conversed on her cell phone with Dr. Anderson until the connection was lost. Decedent had threatened to hurt herself if Dr. Anderson called the police. Believing she had no choice but to notify the police, Dr. Anderson called them and requested assistance in locating and reaching decedent. While Dr. Anderson spoke with the officers who arrived at the scene, decedent fell to her death. Dr. Anderson did not know if decedent jumped intentionally or fell accidentally.
PROCEDURAL BACKGROUND
Plaintiff, along with Debra Weinman and the Estate of Tamara Martinez (who are not parties to this appeal), filed a complaint for damages against defendants, Northridge Hospital Medical Center and Catholic Healthcare West, alleging two causes of action for negligence and survivorship.
Dr. Anderson filed a motion for summary judgment, claiming she was entitled to judgment in her favor. Dr. Kamat joined in Dr. Anderson’s motion and filed a summary judgment motion of his own.
Dr. Anderson supported her motion for summary judgment with her own declaration and that of licensed psychologist Janet Lynne Sonne, Ph.D. Dr. Kamat’s motion was supported by the declaration of board certified psychiatrist Lester Zackler, M.D. Plaintiff’s opposition to the motions was supported by the declaration of Bruce Fishman, M.D., who was neither a psychiatrist nor a psychologist. Plaintiff also filed written objections to evidence offered by both defendants, and defendants, in turn, objected to Dr. Fishman’s declaration on the ground that he failed to demonstrate his competency to testify as to the standard of care of a psychiatrist or psychologist.
At the hearing on defendants’ motions for summary judgment, plaintiff asked the trial court to rule on her evidentiary objections. The court overruled them. Defendants did not secure a ruling on their objections.
The trial court rejected as conclusionary and speculative the assertion that decedent would have agreed to voluntary hospitalization and would not have died if Drs. Anderson and Kamat had spoken to one another on April 16. At the commencement of the hearing, the court observed: “The motions themselves establish a prima facie case for judgment. Assuming that Dr. Fishman establishes a triable issue that Dr. Kamat was below the standard of care in failing to speak with Dr. Anderson on the 16th, after Dr. Anderson’s calls, yet Dr. Fishman’s assumption, I think, is incorrect that had the two spoken on the 16th, the result would have been that the decedent would have agreed to voluntary hospitalization or some more successful treatment plan.
“Dr. Fishman’s conclusion to the contrary is conclusionary and speculative both as a matter of evidence admissibility and substantive proof of causation. By the time such a suggestion could have been made to the decedent on the 16th, she was reluctant to the idea of seeing Dr. Kamat and also, apparently, to any hospitalization. Thus, the theoretical chain of causation advanced by Dr. Fishman is broken. [¶] . . . [¶]
“Similarly, with respect to Dr. Anderson, assuming arguendo that Dr. Fishman might establish a breach of care — a breach of the standard of care in failing to talk to Dr. Kamat or to suggest hospitalization more often to the decedent, there is no triable issue on causation because the decedent refused to go to the hospital the night of the 15th.
“The morning of the 16th, she did not go to the hospital, as scheduled, and she later refused Dr. Anderson’s suggestion that she go to the hospital and talk[] to Dr. Kamat. Suggesting that she might have changed her mind if Drs. Kamat and Anderson had engaged in discussion is speculative under those circumstances.”
In its minute orders the court found that the motions were well taken. It continued: “Tamara Martinez, now deceased, refused to go to the hospital the night of April 15, 2003, did not go to the hospital as scheduled on April 16, 2003, and later refused Dr. Anderson’s advise that she go to the hospital and talk to Dr. Kamat. Suggesting that she might have changed her mind if Dr. Anderson and Dr. Kamat had talked is speculative.” Finding no triable issue of material fact, the court granted defendants’ motions and thereafter entered judgments in their favor.
DISCUSSION
Standard of Review
As observed in Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326, “[s]ummary judgment should be granted if no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The burden of persuasion is on the party moving for summary judgment. When the defendant is the moving party, the defendant must show the action has no merit. That showing is made if the defendant either negates an element of the plaintiff’s cause of action or establishes that a complete defense exists. The burden then shifts to the plaintiff to show that a triable issue of material fact exists with respect to the cause of action or defense. [Citation.] On appeal, we review the record and the trial court’s decision de novo.” (At p. 330.)
Elements of a Medical Malpractice Claim
A cause of action for medical malpractice requires proof of four elements. They are: “(1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. [Citation.]” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)
Whether a professional duty of care exists is a question of law for the court alone to resolve. (Rostai v. Neste Enterprises, supra, 138 Cal.App.4th at p. 337; Padgett v. Phariss (1997) 54 Cal.App.4th 1270, 1279.) “Existing case law provides that a psychotherapist or other mental health care provider has a duty to use a reasonable degree of skill, knowledge and care in treating a patient, commensurate with that possessed and exercised by others practicing within that specialty in the professional community. [Citations.] ‘If those who are caring for and treating mentally disturbed patients know of facts from which they could reasonably conclude that the patient would be likely to self-inflict harm in the absence of preventative measures, then those caretakers must use reasonable care under the circumstances to prevent such harm from occurring.’ [Citations.] This duty exists whether the patent is hospitalized at the time or not.” (Kockelman v. Segal (1998) 61 Cal.App.4th 491, 505.)
The determination of the standard necessary to fulfill a professional duty, however, is a question of fact. (Padgett v. Phariss, supra, 54 Cal.App.4th at p. 1279.) “Because the standard of care in a medical malpractice case is a matter ‘peculiarly within the knowledge of experts’ [citation], expert testimony is required to ‘prove or disprove that the defendant performed in accordance with the [prevailing] standard [] of care’ unless the negligence is obvious to a layperson. [Citation.] However, the expert testimony must be based on such matter as may be reasonably relied upon by an expert in forming an opinion on the subject. [Citation.] With regard to a standard of care derived from a professional practice ‘the induction of a rule from practice necessarily requires the production of evidence of an ascertainable practice.’ [Citation.]” (Johnson v. Superior Court, supra, 143 Cal.App.4th at p. 305.)
Causation, too, is a question of fact, which may be resolved as a question of law only if the facts are undisputed and permit only one reasonable conclusion. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1528.) In order to demonstrate causation, “a ‘plaintiff must show that the defendant’s act or omission was a “substantial factor” in bringing about the injury.’ [Citation.] ‘“[T]he actor’s negligent conduct is not a substantial factor in bringing about harm . . . if the harm would have been sustained even if the actor had not been negligent.”’ [Citation.]” (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1535-1536.)
In this case, there is no dispute that defendants are mental health care professionals who owed decedent a duty of due care. (Kockelman v. Segal, supra, 61 Cal.App.4th at p. 505.) In their respective motions for summary judgment, both defendants claimed they did not breach their duty of care. Dr. Kamat further argued that any breach of his duty was not a cause of Martinez’s death. Having set forth the bases for defendants’ motions, we turn to the question of the propriety of the trial court’s rulings.
Dr. Kamat’s Motion for Summary Judgment
The basis of plaintiff’s claim against Dr. Kamat is that he should have returned Dr. Anderson’s telephone call made the morning of April 16. Had he done so, defendants would have had the opportunity to discuss decedent’s care, including voluntary hospitalization. If decedent had been hospitalized, she would not have died.
In support of his motion, Dr. Kamat presented the expert declaration of Dr. Zackler, a board certified psychiatrist. After setting forth decedent’s medical history and the standard of care for assessing whether a patient is suicidal, Dr. Zackler set forth in factual detail the reasons underlying his opinion that Dr. Kamat’s treatment of decedent was consistent with the standard of care in the community. Dr. Zackler further observed that the standard of care does not require a physician to stop what he is doing in order to return a telephone call. Had it been an emergency, Dr. Anderson would have called 911. Dr. Zackler also noted that the standard of care did not require a psychiatrist to second guess a psychologist.
Based upon his education, experience and background, Dr. Zackler opined “that at all times and in every respect,” the treatment decedent received from Dr. Kamat “was consistent with the standard of care in the community,” that there was “no causative link” between Dr. Kamat’s treatment or lack thereof on April 14, 2003 and her death two days later, and that there was “no causative link” between defendants’ failure to communicate with one another during business hours on April 16, 2003, and decedent’s tragic death that night. The trial court therefore properly concluded that Dr. Kamat met his initial burden under Code of Civil Procedure section 437c and that the burden shifted to plaintiff to proffer evidence sufficient to raise a triable issue of material fact as to breach and causation.
Plaintiff attempted to meet her burden with the declaration of Dr. Fishman. Dr. Kamat argues that Dr. Fishman, who never claimed to have treated psychiatric patients or practiced psychiatry, was incompetent to offer an expert opinion on the standard of care governing a psychiatrist’s treatment and the issue of causation. Although Dr. Kamat objected to Dr. Fishman’s competency in the trial court, Dr. Kamat did not secure a ruling on his objection and thus failed to preserve his objection for appellate review. (Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, 569.) On appeal, therefore, we presume that his objection was impliedly overruled, that Dr. Fishman was considered competent to render an expert opinion and that the trial court considered his declaration. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 575.)
Assuming for the sake of argument that Dr. Fishman’s declaration was sufficient to raise a triable issue of fact as to whether Dr. Kamat breached his duty of due care, summary judgment for Dr. Kamat nevertheless was proper, in that plaintiff failed to demonstrate the existence of a triable issue as to causation. It is well established that “[w]here an expert bases his conclusion upon . . . factors which are speculative, remote or conjectural, . . . the expert’s opinion cannot rise to the dignity of substantial evidence.” (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135; accord Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. (2006) 136 Cal.App.4th 1409, 1415-1416.) Dr. Fishman’s opinions that “there is absolutely no reason to assume that [decedent] would have refused a recommendation from Drs. Anderson and/or Kamat for in-patient hospitalization” and that decedent would be alive and health today” if the physicians had spoken with one another on August 16th were speculative at best and consequently were not sufficient to raise a triable issue of material fact as to causation. Inasmuch as Dr. Kamat established an entitlement to judgment as a matter of law on plaintiff’s claims by negating the element of causation and plaintiff failed to raise a triable issue of material fact as to causation, the trial court properly granted Dr. Kamat’s motion for summary judgment and entered judgment in his favor.
Dr. Anderson’s Motion for Summary Judgment
Although Dr. Anderson’s notice of motion for summary judgment states that her motion is made on the ground that she “was not negligent and did not cause the injuries alleged by plaintiff[] in this complaint,” and she argued in her memorandum of points and authorities that there was no causal connection between her treatment and decedent’s death, nowhere in her separate statement of undisputed material facts does she attempt to set forth facts negating the causal connection between a breach of her professional duty of due care, if any, and decedent’s death. In fact, Dr. Anderson’s expert did not address the issue of causation.
As we have previously observed: “[A]ll material facts must be set forth in the separate statement. ‘This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist. Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement.’ [Citations.]” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337, superseded by statute on another point, as stated in Certain Underwriters at Lloyd’s of London v. Superior Court (1997) 56 Cal.App.4th 952, 957, fn. 4.)
In this case, Dr. Anderson only presented evidence designed to negate the breach of her duty of due care. She did not present evidence designed to negate the element of causation or to establish plaintiff’s inability to establish a causal connection between decedent’s death and any breach by Dr. Anderson of her duty of care. The trial court therefore improperly relied upon the lack of causation to grant Dr. Anderson’s motion for summary judgment. The question remaining is whether Dr. Anderson nevertheless was entitled to summary judgment on the ground that she was not negligent—i.e., her treatment of decedent did not fall below the standard of reasonable care applicable to psychologists. The answer is no.
Suffice it to say that Dr. Anderson’s expert, Dr. Janet Sonne, made a prime facie showing that Dr. Anderson complied with the applicable standard of care when treating decedent, thereby shifting the burden to plaintiff to present evidence establishing a triable issue of material fact. As previously noted, plaintiff’s evidence consisted of the declaration of her expert, Dr. Fishman. Dr. Anderson, like Dr. Kamat, objected to Dr. Fishman’s declaration on competency grounds but failed to preserve the objection by asking the court to rule on it. (Woodridge Escondido Property Owners Assn. v. Nielsen, supra, 130 Cal.App.4th at p. 569.) In the absence of a ruling, we presume that her objection impliedly was overruled and that the trial court considered Dr. Fishman’s declaration. (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 670, fn. 1; Demps v. San Francisco Housing Authority, supra, 149 Cal.App.4th at p. 575.)
With respect to Dr. Anderson, Dr. Fishman’s declaration does establish the existence of a triable issue of material fact as to whether she breached her duty of due care. Based on decedent’s medical history and her conduct and condition on April 15, 2003, Dr. Fishman opined that the standard of care required Dr. Anderson to recommend voluntary hospitalization on that day.
Inasmuch as Dr. Fishman’s opinion on the issue of breach is sufficient to raise a triable issue of material fact as to whether Dr. Anderson’s treatment of decedent fell below the standard of care applicable to psychologists and Dr. Anderson failed to present evidence entitling her to judgment in her favor on the issue of causation or any other basis, summary judgment in favor of Dr. Anderson therefore was improper.
The judgment in favor of Dr. Kamat is affirmed. The judgment in favor of Dr. Anderson is reversed and the matter is remanded for further proceedings. The parties are to bear their own costs on appeal.
We concur: MALLANO, Acting P. J., VOGEL, J.