Opinion
A111586
12-11-2006
LINDA TAYLOR, as Conservator, etc., Plaintiff and Appellant, v. MILES F. ADLER et al., Defendants and Respondents.
Plaintiff and appellant Linda Taylor, as Conservator of the Person and Estate of Glenda Ann Bevil, appeals the dismissal of her medical malpractice action against defendants and respondents Miles F. Adler, M.D., Chaplin L. Liu, M.D., and Jeffrey Mandel, M.D., after the trial court granted respondents motions for summary judgment. Appellant contends the court erroneously disallowed all of her evidence and weighed the evidence rather than determining that disputed factual issues defeated the motions for summary judgment. We reject Taylors contentions and affirm.
Appellant has filed a dismissal of her appeal against defendant and respondent Parkview Convalescent Center (Parkview).
Background
Appellants factual statement includes facts not supported by citation to the appellate record. Such unsupported facts will be disregarded. (Cal. Rules of Court, rule 14(a)(2)(C); Banning v. Newdow (2004) 119 Cal.App.4th 438, 452-453.)
In the fall of 2001, Adler, an internist/gastroenterologist, became Bevils primary physician. At that time, Bevil had a history of "congestive [heart] failure, problems with renal insufficiency, chronic anemia secondary to diabetic renal disease, peripheral neuropathy, retinopathy, chronic pain, medication abuse and essential hypertension." Between mid-2001 and April 2002, she was hospitalized approximately every two to four weeks. During her hospital stays, she was followed by numerous physicians.
On April 18, 2002, Bevil, then age 51, was seen in the San Leandro Hospital (SLH) emergency room complaining of chest pain and was admitted to the hospital by Adler, who believed she had an acute urinary tract infection. While hospitalized she was treated for cellulitis of her legs by podiatrist Eric Nelson and for "staph aureus sepsis" by infectious disease specialist Jeffrey Silvers. On May 1, she was discharged by Adler and transferred to the Transitional Care Unit for rehabilitation.
On May 7, 2002, Bevil was admitted to SLH for severe hyperkalemia. That same day, Adler referred Bevil to internist/nephrologist Liu for a renal consultation. Liu assumed Bevils care, and Adler no longer treated her.
On June 2, 2002, Bevil went to the SLH emergency room complaining of shortness of breath. She was admitted by Dr. Haseeb Al-Mufti with a diagnosis of congestive heart failure. On June 8, she was discharged home by Liu.
On June 10, 2002, Bevil was seen in the SLH emergency room complaining of severe foot pain with ulcerations and neuropathy and chest pain, and was admitted by Liu. While hospitalized, she was followed by numerous consulting physicians. Nelson debrided her leg and foot ulcerations, surgeon Brent Vernon evaluated her right hip and leg pain for possible infection, infectious disease specialist Benedict Villanueva evaluated her for possible infection, and orthopedist Carolyn Hutchinson evaluated her for possible hip avascular necrosis.
On July 8, 2002, while hospitalized at SLH, a decubitus ulcer of Bevils coccyx was noted. The ulcer treatment plan included "dry, sterile dressing, duoderm, steristrips, peri-care moisture barrier, and [an] enterostomal therapist (ET) consult[ation]." The ulcer condition was followed by Liu and infectious disease specialists, and on July 18, an ET consultation was performed.
On July 19, 2002, Bevil was discharged from SLH and transferred to Parkview, a skilled nursing facility. The SLH discharge summary by Liu noted the following diagnoses upon discharge: "(1) Severe right thigh phlegmon with severe fever. [¶] (2) severe chronic renal failure due to diabetic nephropathy on dialysis. [¶] (3) Severe anemia due to chronic renal failure and diabetes, on dialysis and EPO. [¶] (4) Severe hypertension due to renal failure. [¶] (5) Diabetic retinopathy with worsening vision. [¶] (6) Diabetic peripheral vascular disease with diabetic nephropathy with ulceration and cellulitis, improved. [¶] (7) Gastroesophageal reflux and gastroparesis due to diabetes. [¶] (8) History of staph aureus sepsis. [¶] (9) Stage 4 decubitus ulcer. [¶] (10) Hypothyroidism." Lius follow-up orders for the decubitus ulcer included a low air mattress and pressure-relieving cushion for dialysis, Panafil ointment and an ET nurse follow-up.
At Parkview, Bevil was under the care of Mandel. Upon admission to Parkview, Bevils decubitus ulcer measured "15 x 13 x 5" centimeters, and progress notes from Parkview noted a "foul odor" from the ulcer. On August 8, 2002, due to Bevils fever and an elevated white blood cell count, Mandel ordered her transferred from Parkview to St. Rose Hospital (St. Rose) to rule out osteomyelitis. Her Parkview discharge summary noted that her decubitus ulcer was worsening and her condition was "poor."
Neither St. Rose nor any of its personnel were parties to this action.
On August 9, 2002, Bevil was transferred to St. Rose. Upon admission her Stage IV sacral decubitus ulcer was noted to be "8 x 4" centimeters with "necrotic, devitalized tissue and bone exposed." Initial laboratory tests did not reveal the source of Bevils infection. She underwent surgery at St. Rose for debridement of the decubitus ulcer, and a CT scan showed a gas forming abscess. On August 15, part of her coccyx, which appeared to be affected and exposed, was removed, a colostomy was performed to prevent stool from contaminating the wound, and further debridement of the wound was performed.
On October 3, 2002, Bevils wound was not healing and she was discharged from St. Rose and transferred back to SLH where wound care and plastic surgery services were available.
The Complaint
On December 10, 2004, Taylor filed the operative fourth amended complaint against respondents and others for negligence and "fraud-misrepresentation." Since appellant does not raise any claim on appeal that summary judgment on the fraud cause of action was improperly granted, we consider the fraud cause of action abandoned. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
SLH was a named defendant but is not a party to this appeal.
The negligence cause of action contains the following allegations: Adler and Liu breached the duty of care by failing to properly ensure that the staff of SLH and Parkview "could and would" provide Bevil proper care. As a result of Adler and Lius failure to provide proper care and medical equipment for Bevil, she developed a bed sore which developed into a Stage IV decubitus ulcer. Adlers negligence in placing Bevil under Lius care resulted in her developing a bed sore. Adler and Liu failed to properly ensure that Mandel and the staff at Parkview could provide Bevil with proper care. Parkviews staff under Mandels direction, failed to bathe, cleanse and rotate Bevil and change her clothes, and failed to prevent her bed sore from becoming infected and developing into a Stage IV decubitus ulcer. Bevil developed a Stage IV decubitus ulcer and infection as a result of Adlers and Lius placement of Bevil under the care of Parkview and Mandel. As a result of respondents failure to provide Bevil adequate care, she has undergone numerous surgeries, including a colostomy, and has remained in skilled nursing facilities.
Summary Judgment Motions
After Parkview moved for summary judgment and alternatively for summary adjudication of issues, Adler and Liu made a similar motion, and Mandel joined in Parkviews motion.
In support of their summary judgment motion, Adler and Liu submitted the declaration of internal medicine physician Steven Fugaro, who, after reviewing the relevant medical records and deposition transcripts, opined that Adler and Liu met the applicable standard of care in their evaluation and ongoing care of Bevil and did not negligently cause her injury. In particular, Fugaro opined that Adlers transfer of Bevils care to internist/nephrologist Liu was reasonable and within the standard of care, especially due to Bevils chronic renal failure. Since Bevils care was transferred to another internist, the standard of care did not require that Adler, as Bevils primary care physician, continue to treat her. Fugaro also opined that Lius treatment methods for Bevils decubitus ulcer were routinely utilized, within the standard of care, and not contrary to good medical practice. According to Fugaro, a decubitus ulcer presents an inherent risk of hospitalization even when, as here, the patient was carefully followed by the attending physician and her treatment was in accord with proper practice. Fugaro also stated that when a patient is transferred from a hospital to a convalescent center, the standard of care does not require that the attending physician (here Liu) supervise the care provided at the convalescent center.
The declaration of Stephen M. Grossman, a doctor of internal medicine, subacute care, and geriatric medicine, was submitted in support of Parkviews summary judgment motion. After reviewing the relevant medical records, Grossman opined that Parkview appropriately treated Bevils ulcer, including keeping it clean and dry and rotating Bevil, and aggressively treated and worked to heal the wound. Grossman opined that nothing the Parkview staff did or failed to do caused Bevils decubitus ulcer to become infected or the need for surgical debridement. He further opined that the cause of the infection was Bevils underlying medical problems and peripheral vascular disease which resulted in reduced blood flow to the area of the ulcer and inhibited healing. He opined that Bevils underlying, complex medical condition would not permit the wound to heal, resulting in the need for surgical debridement. Grossman also opined that the colostomy was performed to promote healing of the ulcer, and without the colostomy regular bowel movements would have inhibited healing given the proximity of the ulcer to Bevils anus.
Parkview also submitted the declaration of registered nurse consultant Susan Acquisto in support of its summary judgment motion. Acquisto stated that during the course of Bevils stay at Parkview, her Stage IV decubitus ulcer worsened, but despite the worsening of the wound, Parkview met the standard of care relative to wound care and took appropriate preventative measures to avoid further skin breakdown. Acquisto also opined that Parkview aggressively treated and worked to heal the wound. She concluded that the care provided to Bevil at Parkview met the standard of care relative to wound care.
In support of his summary judgment motion, Mandel submitted the declaration of family practice and geriatric medicine physician Norman P. Woods and relied on the declarations of Grossman and Acquisto submitted on behalf of Parkview. After reviewing the complaint, the relevant medical records and Parkviews summary judgment motion, Woods opined that Mandels compliance with the standard of care was evidenced by his appropriate chart documentation, timelines of response to Parkview staff, appropriate treatment plan for Bevils medical problems, including decubitus ulcer care, and appropriate response to her change in condition and laboratory results, resulting in her transfer and referral to St. Rose. Woods opined that at no time did Mandel deviate from the appropriate standard of care, and nothing that Mandel did or failed to do caused Bevils decubitus ulcer to become infected. Instead, the cause of the infection was her multiple medical problems that contributed to her poor healing and susceptibility to infection. Woods also opined that nothing Mandel did or failed to do caused the need for surgical debridement. According to Woods, Bevils underlying complex medical condition would not permit the wound to heal, necessitating surgical debridement, and the colostomy was performed to promote post-debridement healing of the ulcer. Woods concluded that in all respects, Mandel complied with the standard of care, and Mandels conduct did not cause or contribute to any of Bevils alleged injuries.
Mandel also submitted Taylors deposition testimony which provided that no one in her family had ever met or spoken with Mandel.
In opposition to the summary judgment motions, Taylor submitted the declaration of physician Toni D. Daniels, who stated she was "aware" of the standard of care for physicians, hospitals and nursing facilities in caring for patients with diabetes, diabetes-related ailments, hypertension-related ailments and severe chronic renal failure and pressure sores, including bedsores, decubitus ulcers and ischemic ulcers that can lead to tissue damage and other ailments. Daniels stated that anyone with a Stage IV decubitus ulcer requires medical care by those skilled in wound care. Daniels opined that poor hygiene, dehydration and immobility are contributing causes of decubitus ulcers, and as a diabetic, Bevil was more susceptible to such ulcers and required greater attention and preventive care. Daniels stated that such preventive care would consist of changing Bevils position every two hours, quickly removing dead tissue and providing appropriate antibiotics and nutrition. Daniels stated it was not noted in the progress notes that these precautions took place. Daniels stated that "Parkview should have provide[d] relief from pressure," and "prevent[ed] bacterial contamination by appropriate cleaning of the wound surface (she was left lying for hours in a `diaper)." Daniels stated that the "parties involved" failed to prevent the ulcer from forming and healing, and opined that respondents failed to abide by the standard of care in treating Bevil and "neglected to take the necessary precautions for a patient like Bevil because they had [too] many other things to do." The curriculum vitae attached to Danielss declaration stated that between 1999 and 2000 she was in private practice in "Anesthesiology and House Physician — Hospitalist," between 1997 and 1998 she was a "locum tenens" at San Leandro Vesper Hospital and an anesthesiologist, and currently practices addiction medicine.
The declaration of Bevils and appellants sister, Patricia Morgan, was also submitted in opposition to the summary judgment motions. Morgan stated upon Bevils July 2002 admission to SLH, Adler and Liu agreed, without consulting or obtaining consent from Bevil that Liu would become her treating physician. Morgan also stated prior to Bevils admission to Parkview, she (Morgan) and Taylor were present at the intake interview with Parkviews Shirley Marshall. Marshall told Morgan that as long as Bevils wound was not healing, Blue Cross would cover Bevils medical expenses while she resided at Parkview. Marshall also represented that Parkview specialized in wound care and that Mandel was Parkviews Medical Director and would be personally overseeing Bevils medical care and treatment. Based on these representations, Bevil agreed to stay at Parkview and authorized Blue Cross to pay for her stay there. Morgan stated that when she visited Bevil at Parkview, she never saw Mandel providing Bevil medical care. Morgan also stated that while Bevil was at Parkview she had a strong body odor and wore "previously worn pajamas without being bathed." Bevil also wore a diaper instead of being taken to the bathroom by Parkview nursing staff. Other family members informed Morgan that Bevil was being transported to dialysis in dirty pajamas and with body odor. Morgan stated she filed a formal grievance on August 8, 2002. Morgan declared that Bevil constantly complained about her poor treatment at Parkview, and that its medical staff did nothing to relieve her severe "backside" pain. Morgan also declared that, in August 2002, a Blue Cross peer review nurse requested photographs of Bevils wound and informed Taylor by phone that she ordered Parkview to "rush" Bevil to the St. Rose emergency room due to the severity of the wound. The St. Rose emergency room physician, Dr. Dang, informed Bevils family that it was the worst bed sore he had ever seen and it was infected with her feces.
Appellants declaration in opposition to the summary judgment motions contained statements nearly identical to that of Morgan regarding Bevils body odor, dirty pajamas and complaints of poor treatment while at Parkview. It contained identical statements regarding the Blue Cross nurse and St. Roses Dr. Dang.
Mandel submitted a reply declaration stating he was not the medical director of Parkview between July 19 and August 9, 2002, when Bevil was under his care.
Respondents objected to all of the evidence submitted by appellant. They asserted that Danielss declaration contained no facts establishing her qualifications to render an opinion on the standard of care applicable to an internist, to a skilled nursing facility or a family practice specialist caring for patients in a skilled nursing facility. In addition, it was asserted that Danielss declaration was conclusory and lacked a factual basis for the conclusion that Mandel, Liu and Adler breached the standard of care. Moreover, Adler and Liu argued that Danielss declaration failed to address whether Adler and Lius conduct was the cause of Bevils injuries.
Respondents also objected to the declarations of Morgan and appellant on the grounds they lacked foundation and were irrelevant. In particular, respondents asserted: (1) Morgan and appellant had no personal knowledge of Bevils beliefs, and their own beliefs as to whether Adler was Bevils primary care physician are irrelevant. (2) Taylor and Morgan stated no facts to establish their personal knowledge that Bevil was under Adlers care in July 2002, and offered no facts establishing their medical qualification to offer opinions regarding causation and the standard of care applicable to respondents. (3) Taylor and Morgans statements regarding their failure to observe Mandel treating Bevil are irrelevant. (4) Taylors and Morgans statements regarding Bevils statements about her care are inadmissible hearsay. Statements attributed by Taylor and Morgan to Dr. Dang are inadmissible hearsay and are irrelevant to respondents motions. Statements by Taylor and Morgan attributed to unidentified doctors are inadmissible hearsay.
At the hearing on the summary judgment motions, appellants counsel argued Daniels was qualified to render an opinion on the issue of standard of care because she was a hospitalist, "which means she practices hospital medicine." Citing a medical journal, appellants counsel stated that hospitalists "usually take over the care from the time a patient is admitted to the time a patient is discharged." She also said hospitalists do not usually have a particular specialty area of practice, but "do the same things as many primary physicians used to do." Appellants counsel stated that Daniels was a "house physician," which she said was defined differently from a hospitalist. Appellants counsel also explained that as a "locum tenens," Daniels served as a temporary physician, filling in, i.e., when a hospital physician goes on vacation. Appellants counsel conceded that Danielss declaration did not address appellants claims against Adler and Liu, but appeared to argue Adler negligently transferred Bevils care to Liu without notice to Bevil.
In granting respondents motions for summary judgment, the court concluded that appellant failed to raise a triable issue of fact as to Adler and Lius breach of the applicable standard of care and causation of Bevils injuries. The court agreed with respondents objections to Danielss declaration and disregarded it. Alternatively, the court ruled that even if considered, Danielss declaration failed to address the conduct of Liu or Adler and whether Liu or Adlers conduct caused Bevils injuries. The court also ruled that appellant failed to raise a triable issue of fact as to negligence or fraud against Parkview, granted Mandels joinder in Parkviews motion, and sustained the evidentiary objections to the declarations of appellant and Morgan.
Discussion
Appellant contends the trial court erred in granting summary judgment against her claims for negligence (medical malpractice) against Liu, Adler and Mandel.
I. Standard of Review
We review summary judgment rulings de novo to determine whether the moving party has met its burden of persuasion that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When the defendant is the moving party, the defendant must show either (1) that the plaintiff cannot establish one or more elements of a cause of action, or (2) that there is a complete defense. If that burden of production is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc., § 437c, subds. (c) & (o)(2).) "All doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. [Citation.]" (Ingham v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, 1049.)
II. Summary Judgment Was Properly Granted on the Negligence Claim
At trial, a plaintiff claiming medical malpractice must prove by a preponderance of the evidence that (1) the defendants were negligent, i.e., breached the applicable standard of care, (2) the plaintiff was harmed, and (3) the defendants negligence was a substantial factor in causing plaintiffs harm. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 507.)
Respondents summary judgment motions focused on two elements of appellants cause of action—breach of the standard of care and causation. Declarations submitted by medical experts (doctors and a nurse) stated that at all times while caring for Bevil, respondents evaluation and treatment of her and particularly of her decubitus ulcer were within the standard of care. Moreover, the doctors declared that nothing that Mandel did or failed to do caused Bevils decubitus ulcer to become infected or contributed to that infection. Instead, the medical experts opined that Bevils infection was the result of her multiple medical problems which contributed to poor healing and susceptibility to infection. In addition, the medical records submitted by respondents were consistent with their supporting declarations. This showing shifted the burden to appellant to demonstrate the existence of a triable issue of fact. " `When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. [Citations.]" (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)
For the first time on appeal, appellant argues that expert testimony was not required to establish respondents negligence because "[p]ressure sore injuries and their cause are in the realm of common knowledge," and "Bevils injury is the type of injury within the common knowledge of a layperson." She also argues for the first time on appeal that she did not need to submit expert testimony on her malpractice claim because the doctrine of res ipsa loquitur applies. Because appellant failed to raise these issues below and they involve factual issues, they will not be considered on appeal. (See Estate of Westerman (1968) 68 Cal.2d 267, 279; Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) [¶] 8:240, p. 8-139.)
In any event, the issues of whether respondents conduct met the applicable standard of care for prevention and treatment of decubitus ulcers and whether their conduct caused injury are not within the common knowledge of a layperson. While a layperson may understand that a hospitalized patient may suffer from decubitus ulcers, issues related to their prevention, causation and treatment, particularly in a case such as this where the patient has a chronic and complex set of other medical problems are sufficiently beyond common knowledge that a plaintiff must present expert witness testimony to prove a breach of the standard of care and that the breach caused the plaintiffs injury. (Bushling v. Fremont Medical Center, supra, 117 Cal.App.4th at p. 509; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117-1118.)
A. Adler and Liu
The only expert presented by appellant on the issues of the standard of care and causation was Daniels, and appellant conceded below that Danielss declaration testimony did not address the negligence claims against Adler and Liu. Notwithstanding this concession, we note that Danielss declaration states that the "parties involved" failed to prevent the formation and healing of Bevils decubitus ulcer, their treatment of Bevil failed to abide by the standard of care, and they "neglected to take the necessary precautions for a patient like Bevil because they had [too] many other things to do." Even assuming Daniels was qualified to render an opinion on whether Adler and Liu met the standard of care and caused Bevils injuries, Danielss conclusory statements are without evidentiary support and reasoned explanation (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564) and do not specifically address Liu and Adler. Consequently, as the trial court concluded, Danielss declaration was of no evidentiary value on the questions of Adler and Lius negligence and causation of Bevils injuries.
In addition, the declarations by Morgan and appellant failed to raise a triable issue of fact as to Adler and Liu. Their statements that Adler and Liu agreed that Liu would become Bevils treating physician and that Bevils family "believed" that Adler was still Bevils primary care physician upon Bevils July 2002 admission to Parkview are unsupported by facts establishing personal knowledge. (Evid. Code, § 702.) In addition, Morgan and appellant offered no facts establishing their qualification to offer an expert opinion controverting Fugaros opinion that Adlers transfer of Bevils care to Liu was reasonable.
Since appellant presented no proper expert testimony to controvert the prima facie showing made by Adler and Liu, summary judgment was properly granted as to them.
B. Mandel
Danielss declaration also failed to raise a triable issue of fact as to Mandels breach of the standard of care and whether such a breach caused Bevils injuries. Assuming Daniels was qualified to render an opinion on these two issues, her conclusory statements are without evidentiary support and reasoned explanation. "A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that experts opinion will assist the trier of fact. [Citation.] Even so, the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an experts opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]" (Bushling v. Fremont Medical Center, supra, 117 Cal.App.4th at p. 510.)
Danielss declaration sets out, more than once, Danielss opinion that Mandels treatment of Bevil failed to conform to the standard of care. However, the declaration never provides any factual basis for these conclusions. The declaration recites the appropriate preventive care for a diabetic patient such as Bevil and states that the progress notes do not recite that such precautions took place. However, her declaration does not state that the progress notes should contain such information, and does not discuss, much less critique the treatment information contained in other Parkview medical records, like the "Weekly Pressure Healing Assessment," submitted in support of Mandels motion. Further, the declaration never cites any facts establishing that Mandels care was deficient or caused Bevils injuries. In addition, Danielss declaration provides no evidentiary support for the statement that Bevil was "left lying for hours in a `diaper. " Because the opinions lack a factual basis, they have no evidentiary value. (Bushling v. Fremont Medical Center, supra, 117 Cal.App.4th at p. 511.)
The declarations of Morgan and appellant do not raise a triable issue of fact as to Mandels breach of the standard of care or causation of Bevils injuries. Their statements that Bevil had a strong body odor, was wearing previously worn pajamas without being bathed, and was wearing a diaper, do not alone controvert any of the expert medical testimony and evidence presented in support of Mandels summary judgment motion. Moreover, Morgans declaration statement that other family members informed her that Bevil was being transported to dialysis in dirty pajamas is inadmissible hearsay. (Evid. Code, § 1200.)
We conclude that appellants evidence in opposition to Mandels summary judgment motion failed to raise a triable issue of fact and summary judgment was properly granted.
Disposition
The summary judgments in favor of Adler, Liu and Mandel are affirmed. Costs on appeal to respondents.
We concur.
JONES, P.J.
GEMELLO, J.