Isquierdo, Daleyza et al vs. Kaweah Delta Health Care District et al

On June 5, 2024, at or around 17:01, KDHCD's nursing staff notified Daleyza's provider that her abdomen was distended, she appeared uncomfortable and had not stooled since glycerin was given. It was noted that a provider was at bedside and was aware of Daleyza's distended abdomen with feeding and air residuals. (UMF No. 9.)

On June 6, 2024, at or around 19: 16, KDHCD's nursing staff notified Daleyza's provider that she was suffering from emesis, had a firm and distended abdomen, and her abdomen had increased from 24.5 to 27 centimeters in 12 hours. It was noted that a provider was at bedside to assess Daleyza and view her x-ray image. (UMF No. 10.)

On June 9, 2024, KDHCD's nursing staff notified Daleyza's provider that she had a spell that required stimulant and repositioning and that Daleyza had a smear however, no stool yet. (UMF No. 11.)

On June 11, 2024, KDHCD's nursing staff notified Daleyza's provider that her face was looking jaundice and that a transcutaneous bilirubin test resulted in a 13.3. It was noted that a provider came to Daleyza' s bedside. (UMF No. 12.)

On June 12, 2024, KDHCD's nursing staff notified Daleyza' s provider that she had a distended and firm abdomen, decreased bowel sounds, and a change in color. That same day, KDHCD's nursing staff notified Daleyza's provider that Daleyza had a low temperature and a change in her abdomen. It was noted that a physician came to Daleyza's bedside and placed new orders. (UMF No. 13.)

On June 13, 2024, KDHCD's nursing staff notified Daleyza's provider that she had continued abdomen firmness and distention, green-yellow hue to skin color, was lethargic, had amber colored urine, and her abdominal girth had increased. (UMF No. 14.)

On June 13, 2024, Daleyza was transferred to Valley Children's Hospital. (UMF No. 15.)

Kaweah thereafter presents expert opinion that KDHCD acted within the applicable standard of care in providing care and treatment to Delayza in June of 2024 and that no act or omissions by KDHGD was a substantial factor in causing Plaintiffs' alleged harm, as detailed below. (UMF Nos. 16-19.)

In opposition, the Court notes first that Plaintiffs object to declaration of Kaweah's Expert, Dr. Sonia L. Bonifacio, who opines as to the standard of care and causation of nursing, non-physician, and non-midlevel staff, citing to Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970. Additionally, Plaintiffs dispute these facts based on the declaration of Plaintiff's expert, Dr. Phillipe Friedlich and notes that Plaintiffs are not challenging the care provided by non-physician staffing, but rather that Kaweah breached its duty as a Community NICU by failing to have a pediatric surgeon available for the neonatologists to consult. (Opposition 5:18-21; Complaint P.18.)

Authority and Analysis A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. Sec. 437c(a).) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

"A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." (Code Civ. Proc. Sec. 437c(f)(1).)

If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.) "[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to" subdivision (t). (Code Civ. Proc. Sec. 437c(t).)

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. Sec. 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.)

In determining whether the facts give rise to a triable issue of material fact, "[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment..." (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) "In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true." (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.)

However, if adjudication is otherwise proper the motion "may not be denied on grounds of credibility," except when a material fact is the witness's state of mind and "that fact is sought to be established solely by the [witness's] affirmation thereof." (Code Civ. Proc. Sec. 437c(e).)

Once the moving party has met their burden, the burden shifts to the opposing party "to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Code Civ. Proc. Sec. 437c(p)(1).) "[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor." (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

"The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding." (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) "Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings." (Id.)

Medical Malpractice In a medical malpractice action, a plaintiff must establish the following elements: "(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 professional's negligence. [citations.]" (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

Applicable Standard of Care A defendant moving for summary judgment in a medical malpractice action must "present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care." (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 317.) Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert's testimony. (Id.)

Kaweah's Expert - Standard of Care; Objections In support of the motion, Kaweah provides the declaration of Sonia L. Bonifacio, M.D. The Court's review of Dr. Bonifacio's declaration and CV indicates sufficient education and experience in pediatrics and neonatal-perinatal medicine. (Declaration of Dr. Bonifacio P.P.1-3.) Dr. Bonifacio indicates retention in this matter by Kaweah's counsel to offer expert opinion as to the standard of care applicable to the treatment of Plaintiff in or around June 2024 as to Kaweah's nursing, non-physician and non-midlevel staff. (Declaration of Dr.

Bonifacio P.4.) Dr. Bonifacio notes familiarity with the standard of care applicable as to the treatment of Plaintiff in June 2024. (Declaration of Dr. Bonifacio P.P.5, 6.) Dr. Bonifacio indicates review of the complaint and pertinent medical records from Kaweah and provides a chronological factual summary of events in this case. (Declaration of Dr. Bonifacio P.P.8, 9.)

However, as noted above, Plaintiffs object to the testimony of Dr. Bonifacio as insufficient regarding nursing, non-physician, and non-midlevel staff under Lattimore, supra, 239 Cal. App. at 969-970. Lattimore states, as to an expert declaration submitted in opposition to a motion for summary judgment by a board certified doctor in family medicine and emergency medicine, that "...even if we liberally construe Dr. Turner's declaration, it does not indicate that he possesses any certification, expertise or relevant knowledge of the standards of care attributable to nurses, hospitals or hospital employees, other than physicians or surgeons." (emphasis in original) (Id.)

The Court here, as to a moving party's expert declaration, need not liberally construe the declaration and comes to the same conclusion as in Lattimore: Dr. Bonifacio has not sufficiently set out information in the declaration that substantiates expertise as to nursing, non-physician, and non-midlevel staff. Although Kaweah's reply assets this expertise, it is not supported by the declaration of Dr. Bonifacio. Therefore, the Court sustains Objection Nos. 1 through 10.

Moreover, the declaration of Dr. Bonifacio does not address the standard of care pled in the complaint, and noted in Plaintiffs' opposition, as to the breach of the standard of care regarding Kaweah's duty to have a pediatric surgeon available for the neonatologists to consult. Therefore, the Court denies the motion.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: In the Matter of Jimmy L. Dreo and Charlotte L. Dreo 1996 Living Trust