Ruling
The estate of Shirley Brinson Orndorff et al. vs Timothy Bechtel et al.
Sep 12, 2023 |
STK-CV-UMM-2018-0009452
TENTATIVE RULING: There are two motions on calendar. The first-filed motion is the Motion for Summary Judgment/Adjudication filed by Defendant, Timothy Bechtel, M.D. (Dr. Bechtel) as to the Third Amended Complaint filed against him. Thereafter, Plaintiffs, the Estate of Shirley Brinson Orndorff and Tyrone Orndorff, filed a Motion to strike Supplemental Expert Witness. Both motions shall be separately addressed in this Tentative Ruling. Overview of the Case There is a convoluted procedural history to this case. Generally speaking, the case involves the medical care given to Shirley Orndorff for a colostomy takedown (reversal) by Dr. Timothy Bechtel at St. Joseph’s Hospital (St. Joseph’s). According to Plaintiffs in this action, “over the [course of] seven months, Shirley Orndorff had a stormy hospital course.” Ultimately, “[o]n or about September 11, 2017, ... [Mrs.] Orndorff, facing long term pain-and-suffering, loss of dignity and independence from her condition, decided to withdraw from parental nutrition and go into comfort care. On September 16, 2017, she expired.” 3rd Amended Complaint, Factual Background, ¶¶6-7. Overview of the Legal Claims In a case such as this one, there are certain causes of action that may only be asserted by the heirs, and there are different causes of action that must be brought by the estate of the deceased. The seminal case is Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1262-1266 which explained: I. Wrongful Death “At common law, personal tort claims expired when either the victim or the tortfeasor died. [Citation.] Today, a cause of action for wrongful death exists only by virtue of legislative grace. [Citations.] The statutorily created ‘wrongful death cause of action does not effect a survival of the decedent's cause of action[.] [Instead,] it “gives to the representative a totally new right of action, on different principles.” [Citation.]’ [Citation.]” (Armijo v. Miles (2005) 127 Cal.App.4th 1405, 1424, 26 Cal.Rptr.3d 623.) The cause of action “for wrongful death belongs ‘not to the decedent [or prospective decedent], but to the persons specified’ [by statute]. [Citation.]” (Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 860–861, 97 Cal.Rptr.2d 240, fn. omitted.) It is a new cause of action that arises on the death of the decedent and it is vested in the decedent's heirs. (Grant v. McAuliffe (1953) 41 Cal.2d 859, 864, 264 P.2d 944.) A cause of action for wrongful death is thus a statutory claim. (Code Civ. Proc., §§ 377.60–377.62.) Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death. (Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, 335, 25 Cal.Rptr.3d 478.) Persons with standing to bring a wrongful death claim are enumerated at Code of Civil Procedure section 377.60, which provides in pertinent part: “A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: (a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.” “The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs. [Citations.]” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 891, p. 350.) The wrongful death statute “limits the right of recovery to a class of persons who, because of their relation to the deceased, are presumed to be injured by his [or her] death [citation] and bars claims by persons who are not in the chain of intestate succession. [Citations.]” (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 789, fn. 6, 6 Cal.Rptr.3d 650.) Damages awarded to an heir in a wrongful death action are in the nature of compensation for personal injury to the heir. (McKinney v. California Portland Cement Co. (2002) 96 Cal.App.4th 1214, 1231–1232, 117 Cal.Rptr.2d 849.) “A plaintiff in a wrongful death action is entitled to recover damages for his own pecuniary loss, which may include (1) the loss of the decedent's financial support, services, training and advice, and (2) the pecuniary value of the decedent's society and companionship—but he may not recover for such things as the grief or sorrow attendant upon the death of a loved one, or for his sad emotions, or for the sentimental value of the loss. [Citations.]” (Nelson v. County of Los Angeles, supra, 113 Cal.App.4th at p. 793, 6 Cal.Rptr.3d 650; Code Civ. Proc., § 377.61.) “The damages recoverable in [wrongful death] are expressly limited to those not recoverable in a survival action under Code of Civil Procedure section 377.34. [Citations.]” (Wilson v. John Crane, Inc., supra, 81 Cal.App.4th at p. 861, 97 Cal.Rptr.2d 240; Code Civ. Proc., § 377.61.) II. Survivor Claims Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. (Grant v. McAuliffe, supra, 41 Cal.2d at p. 864, 264 P.2d 944.) The survival statutes do not create a cause of action. Rather, “[t]hey merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.” (Ibid.) A cause of action that survives the death of a person passes to the decedent's successor in interest and is enforceable by the “decedent's personal representative or, if none, by the decedent's successor in interest.” (Code Civ. Proc., § 377.30.) In the typical survivor action, the damages recoverable by a personal representative or successor in interest on a decedent's cause of action are limited by statute to “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” (Code Civ. Proc., § 377.34, italics added.) But there is at least one exception to the rule that damages for the decedent's predeath pain and suffering are not recoverable in a survivor action. Such damages are expressly recoverable in a survivor action under the Elder Abuse Act if certain conditions are met. Specifically, Welfare and Institutions Code section 15657 provides for heightened remedies, including recovery for the decedent's predeath pain, suffering, and disfigurement, to a successor in interest to a decedent's cause of action “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse ... in addition to all other remedies provided by law.” (See Welf. & Inst. Code., § 15657, subds. (a) & (b).) The ability of the decedent's successor in interest to recover damages for the decedent's predeath pain, suffering, or disfigurement under this section specifically trumps the general prohibition on such recovery provided at Code of Civil Procedure section 377.34. (Welf. & Inst. Code, § 15657, subd. (b).) But it is also expressly subject to the dollar amount limitation of Civil Code section 3333.2—a maximum of $250,000 for noneconomic losses in an action for injury against a health care provider based on professional negligence. (Ibid.) Thus, under the Elder Abuse Act, where neglect or abuse of an elder or dependent adult is reckless or done with oppression, fraud, or malice such that the statutory prerequisites are satisfied, damages for the victim's predeath pain, suffering, or disfigurement are recoverable in a survivor action pursued by the victim's personal representative or successor in interest, notwithstanding the usual prohibition on such recovery under Code of Civil Procedure section 377.34. (Welf. & Inst. Code, § 15657.) This statutory rule of law does not affect or expand the type of damages recoverable by a decedent's heir in a wrongful death action in which that plaintiff seeks compensation for his or her own injuries, which are separate and distinct from the decedent's predeath injuries for which compensation is sought in a survivor action. Indeed, ..., no section of the Elder Abuse Act, or any part of its legislative history, suggests otherwise. Importantly, this action is a consolidated case. This case is the lead case (CV-2018-9452) and is filed by the Estate of Shirley Brinson and by her surviving spouse, Tyrone Orndorff (“the Orndorff Case”). Originally, the Orndorff case alleged negligence (as a survivor action by the estate) and loss of consortium (by Tyrone as surviving spouse). A separate lawsuit was filed by Tyrone and also by Mrs. Orndorff’s son (Brad English) and her daughter (Denise Nickolas). See, San Joaquin Case # CV-2018-15212 (“the Nickolas Case”). In the Nickolas Case, Denise Nickolas and Brad English alleged negligence (a wrongful death cause of action) and all three Plaintiffs; that is, by Denise Nickolas, Brad English, and Tyrone Orndorff, alleged elder abuse against St. Joseph’s. As discussed earlier, the elder abuse cause of action in the Nickolas Case cannot be maintained by the heirs; it must be brought as a survivor action. See, Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1265 [“It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event.”]. This, however, was rectified by the consolidation. A “consolidation order in effect [brings] about a merger of the two actions into one....” (Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1395–1396.) “There are two types of consolidation: a complete consolidation resulting in a single action, and a consolidation of separate actions for trial.” (Id. at 1396.) Under complete consolidation, which is what occurred with the actions here, “the pleadings are regarded as merged.” (Ibid.) Thus, “ ‘the allegations of the various complaints may be taken together and treated as one pleading’ and ‘for the purposes of all further proceedings, the cases are to be treated as if the causes had been united originally.’ ” (Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 701; citations omitted.) In November, 2022, Plaintiffs filed a motion for leave to file a 3rd Amended Complaint. The motion was granted. Motion for Summary Judgment/Adjudication Today, by way of a motion for summary judgment/adjudication, Defendant, Timothy Bechtel, M.D. (“Dr. Bechtel”), challenges the 3rd Amended Complaint filed against him which alleges causes of action for: 1) negligence; 2) loss of consortium; 3) elder abuse; and, 4) failure to [get] informed consent. Standard of Review Summary judgment is appropriate 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 judgment as a matter of law. Code Civ. Proc., § 437c, subd. (c). “ ‘A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action].... Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action.... [The Court] must determine whether the facts as shown by the parties give rise to a triable issue of material fact.... In making this determination, the moving party's affidavits are strictly construed while those of the opposing party are liberally construed.’ ... [The Court accepts] as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's 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, 603–604. “A party may move for summary adjudication as to one or more causes of action within an action, ... if the party contends that the cause of action has no merit, .... A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, ....” California Code of Civil Procedure, §437c, subd. (f)(1). A motion for summary adjudication proceeds “in all procedural respects as a motion for summary judgment.” CCP §437c, subd. (f)(2). After due consideration of the written arguments submitted, and for the reasons set forth hereafter, IT IS HEREBY ORDERED that the motion for summary judgment is denied. IT IS HEREBY FURTHER ORDERED that the motion for summary adjudication be granted as to the elder abuse cause of action and denied as to the negligence, loss of consortium and failure to [get] informed consent causes of action. Evidentiary Rulings In opposing the motion for summary judgment/adjudication, Plaintiffs objected to statements made in the Declaration of Robert Mackersie, M.D., the expert witness for Dr. Bechtel. Plaintiffs object to three separate statements on the grounds that the statements are legal conclusions or otherwise, conclusionary. IT IS HEREBY ORDERED that Objections 1 and 3 are overruled. Dr. Mackersie’s statements regarding whether the “tracheostomy was elective” (Objection 1) and whether “Dr. Bechtel was ... required to offer a subtotal colectomy with an ileorectal anastomosis instead of a simply colostomy takedown” (Objection 3) are both statements reflecting his expert opinion on the respective matters. Dr. Mackersie has the education, training and/or experience which enables him to express an expert opinion on the matters. Any challenge to Dr. Mackersie’s statements goes to the weight of the statements and not to the admissibility of the statements. Objection 2 challenges Dr. Mackersie’s statement that Dr. Bechtel did not maintain a “custodial or substantial caretaking relationship with decedent.” Objection 2 is overruled in part and sustained in part. Objection 2 is sustained to the extent it states a legal conclusion but is overruled to the extent it is a description of the services rendered by Dr. Bechtel to decedent. In his Reply, Dr. Bechtel lodged objections to evidence submitted by Plaintiff in support of his opposition. After due consideration of the objections, IT IS HEREBY ORDERED that Objections 1 through 23 [all of the objections] are overruled. More particularly, Objections 1 -3, 6-7 are overruled because the challenge goes to the weight of the statements; i.e., the propriety of the Plaintiff’s interpretation of the excerpts; the medical records themselves are admissible. The second Objection 3 [misnumbered] and Objections 19 and 21 are overruled because the depositions have been authenticated by the Declaration of John Cruikshank III, para. 4, 9 and 10. The 3rd Objection 3 [misnumbered] and Objections 4-5, 20, 22-23 are overruled because the statements are made of the deponents own personal knowledge; any objection goes to the weight of the excerpted statement, not its admissibility. Regarding Objections 8, 15-18 are overruled because the declarants have laid the foundation for their expert opinions and any challenge to their opinions goes to weight and not admissibility. Finally, regarding Objections 9-14, the objections are overruled as moot because the statements were not submitted to the Court and so, they were not considered. Facts Many of the underlying facts are undisputed. They are as follows: · In October 2016, Shirley Brinson Orndorff (decedent) was 83 years old. Fact 1, undisputed. Background to the Surgery at Issue – Colostomy Takedown · Dr. Jennifer McNeil testified that in 2015, decedent had constipation issues; she had difficulty having bowel movements. Deposition of McNeill, page 72:17-23. · On October 17, 2016, Dr. Bechtel performed an exploratory laparotomy and a diverting colostomy, and he created a mucous fistula due to a large bowel obstruction. Fact 2, undisputed. · The hospital course was complicated by a subcutaneous tunneling between the cutaneous opening of the mucous fistula and the midline wound as well as an incisional wound infection. Fact 3, undisputed. · On November 2, 2016, Dr. Bechtel performed a washout and debridement of the abdominal incisional wound. Fact 4, undisputed. · On December 19, 2016, Dr. Bechtel performed a sigmoidoscopy and noted scattered diverticula. Fact 5, undisputed. · In March 2017, decedent and Plaintiff, Tyrone Orndorff, requested the colostomy be taken down. Fact 6, undisputed. Discussions Prior to Colostomy Takedown · Plaintiff, Tyrone Orndorff, testified that Dr. Bechtel told decedent and him around the time of the colostomy that “Shirley was healthy, she is fine [and] he sees no problem with the reversal [in three months;] she just needed to get stronger. ... It took us three months. So, November, December, January is when she got stronger. The three months. And then in February, I believe, ... we went in to see him to plan for the surgery.” Deposition of Tyrone Orndorff, Vol. 3, 94:1-3, 12-15. · Tyrone Orndorff and decedent explained that the colostomy was a significant impediment to their very active lifestyle. Fact 8, undisputed. · Dr. Bechtel testified that when the request was made to do the colostomy takedown, he “did not feel she was a good candidate for it and [he] explained this to the family and [he] recommended against taking it down. [¶] [Decedent and Tyrone Orndorff] explained to [Dr. Bechtel] that [decedent] was very active, the colostomy was a significant problem. He accepted that and after getting to know her and her husband, [he] ... saw why [the colostomy] would be an impediment to their lifestyle and after explaining the risks, [he] agreed to proceed. [He] agreed to proceed based on a couple things. The colostomy was functioning so there was adequate colonic motility proximal to the colostomy to generate output. Distally the endoscopy that [he] performed did not show an obstructive process so [his] feeling was at that point that there was potentially something around the rectosigmoid area that either was chronically kinking or twisting or had some process there but [he] felt confident that if [he] resected the remnant rectosigmoid and then brought down what was functioning colon proximally that it would adequately function.” Deposition of Dr. Bechtel Vol. 1 39:5-40:1. · Dr. Bechtel felt that a subtotal colectomy with an ileorectal anastomosis would have left decedent in the same problematic scenario as prior to the takedown as it would have continued to limit her activity. Fact 12, undisputed. The Colostomy Takedown and Subsequent Procedures · On March 16, 2017, Dr. Bechtel performed a takedown of the colostomy and mucous fistula with a primary anastomosis and extensive lysis of adhesions. Fact 13, undisputed. · The small bowel was run in its entirety. Fact 14, undisputed. · There were no enterotomies or deserosalization. Fact 15, undisputed. · There were no complications noted during the procedure. Fact 16, undisputed. · Decedent was followed on a daily basis by surgery and she complained of worsening and persistent pain in her abdomen. Fact 17, undisputed. · On March 22, 2017, Dr. Bechtel performed a sigmoidoscopy due to a colonic obstruction. Fact 18, undisputed. · On March 23, 2017. Dr. Bechtel performed an exploratory laparotomy, a subtotal colectomy, a repair of the small bowel, lysis of adhesions and placement of a temporary abdominal closure device. Fact 19, undisputed. · Dr. Bechtel noted the colon appeared very dilated, thinned and mildly ischemic. Fact 20, undisputed. · Multiple perforations were noted. Fact 21, undisputed. · A large amount of adhesions were noted. Fact 22, undisputed. · Dr. Bechtel noted and repaired a small tear in the bowel. Fact 23, undisputed. · Decedent remained “nothing by mouth” with an NG tube in place. Fact 24, undisputed. · Decedent received TPN and multiple courses of antibiotics. Fact 25, undisputed. · On March 25, 2017, Dr. Bechtel performed a re-exploration laparotomy, a small bowel resection, and a temporary abdominal closure. Fact 26, undisputed. · Andrew Huber, M.D., assisted in the procedure. Dr. Huber noted the remaining small intestine appeared appropriately healthy. Facts 27 and 28, undisputed. · On March 31, 2017, Dr. Bechtel performed a re-exploration laparotomy, a small bowel resection, an ileostomy formation, and a temporary abdominal closure. Fact 29, undisputed. · On April 3, 2017, Dr. Bechtel performed a re-exploration laparotomy, a repair of a previous small bowel enterotomy repair, and placement of temporary abdominal closure device. Fact 30, undisputed. · On April 7, 2017, Dr. Bechtel performed a re-exploration of the abdomen with the resection of the terminal small bowel and resection of the ileostomy, the creation of a new ileostomy, a temporary abdominal closure, and a washout of the abdominal cavity. Fact 31, undisputed. · On April 9, 2017, Dr. Bechtel performed a re-exploration laparotomy, a repair of enterotomy, and the placement of an ABThera wound VAC system. Fact 32, undisputed. · On April 11, 2017, Dr. Bechtel performed a re-exploration laparotomy, a repair of enterotomy, a closure of the rectal stump, and a placement of temporary abdominal wound closure. Fact 33, undisputed. · On April 15, 2017, Tarig Samarkandy, M.D., performed an abdominal wash out and a repair of enterotomies. Fact 34, undisputed. · Plaintiff, Tyrone Orndorff, was informed of the procedure and consented on decedent’s behalf. Fact 35, undisputed. · On April 17, 2017, Dr. Samarkandy performed an abdominal washout and partial closure of the wound. Fact 36, undisputed. · On April 21, 2017, Dr. Bechtel performed a wash out of the abdomen. Fact 37, undisputed. · On April 23, 2017, Dr. Bechtel performed a re-exploration of the abdomen, an abdominal wash out, and a partial closure of the midline wound. Fact 38, undisputed. · On April 23, 2017, James Morrissey, M.D., performed a tracheostomy. Fact 39, undisputed. · On April 25, 2017, Dr. Bechtel performed an abdominal washout and partial closure of the wound. Fact 40, undisputed. · On May 4, 2017, Dr. Bechtel performed a re-exploration, a washout and a temporary closure. Fact 41, undisputed. · The fistula was revisualized but no new fistulas or other abnormalities were seen. Fact 42, undisputed. · On May 8, 2017, Dr. Bechtel performed a re-exploration of decedent’s open abdomen and a partial closure of the abdomen with sutures and a closure device. Fact 43, undisputed. · On May 10, 2017, Dr. Bechtel performed a re-exploration of the open abdomen and partial closure of the wound. Fact 44, undisputed. · On May 12, 2017, Dr. Bechtel performed a washout and partial closure of the abdominal wall. Fact 45, undisputed. · On May 15, 2017, Dr. Bechtel performed a re-opening of the recent laparotomy incision, an evacuation of blood in decedent’s abdomen, and an abdominal washout. Fact 46, undisputed. · On May 16, 2017, Dr. Bechtel performed a washout of decedent’s abdomen and partial closure of the wound. Fact 47, undisputed. · The abdominal wound continued to drain substantial amounts of fluid and was not healing, despite diligent wound care. Fact 172, undisputed. · Dr. Bechtel did not have an ongoing responsibility for decedent’s basic needs. See, Declaration of Robert Mackersie, M.D., ¶6. Plaintiff’s cited evidence to dispute the statement does not show or suggest that Dr. Bechtel had a role in providing to decedent a “ ‘basic need’ of the type an able-bodied and fully competent adult would ordinarily be capable of managing on his or her own.” See, Kruthanooch v. Glendale Adventist Medical Center (2022) 83 C.A.5th 1109, 1128 citing Oroville Hospital v. Superior Court (2022) 74 C.A.5th 382, 405. Care for Decedent Assumed by Dr. McNeil/Palliative Care Initiated · Jennifer McNeil, M.D., assumed decedent’s care on June 13, 2017. Fact 48, undisputed. · At some point during her care by Dr. McNeil, decedent asked about euthanasia. Dr. McNeil interpreted her statement to mean that decedent wanted to end her life, or have medical staff end her life on earth. Dr. McNeil told her that she does not do that and would not do that. Deposition of McNeil 55:8-18. · Dr. McNeil testified that decedent was not interested in escalating care or trying rehab. Deposition of McNeil 56:12-25. S · Dr. McNeil requested a consultation by Steven Goldman, M.D., a palliative care specialist. Fact 111, undisputed. · On September 9, 2017, Dr. Goldman consulted with decedent. Fact 112, undisputed. · On September 9, 2017, Dr. Goldman discussed options for care with decedent and her family. Fact 113, undisputed. · Decedent made “clear and unequivocal in her statements that she was tried, does not want to continue living her life as it has been, and that she wants comfort measures implemented.” Fact 114, undisputed. · During the discussion, Dr. Goldman noted plaintiff (Tyrone Orndorff) was “demonstrating extreme emotional difficulty in accepting this, as was anticipated.” Fact 115, undisputed. · The family insisted that treatment be continued until September 11, 2017. Fact 116, undisputed. · Comfort care was initiated on September 11, 2017. Fact 117, undisputed. · Decedent died on September 16, 2017. Fact 118, undisputed. Disputed Facts 1. Whether Dr. Bechtel explained the risks associated with the colostomy takedown? According to Dr. Bechtel, he did. He testified that he initially did not feel that decedent was a good candidate for the colostomy reversal and he explained this to decedent and Tyrone Orndorff. Deposition of Dr. Bechtel, Vol. 1, 39:5-7. After further discussions with decedent and Tyrone Orndorff, he agreed to the reversal and explained to both decedent and Tyrone Orndorff the usual risks of infection. See, Deposition of Bechtel, Vol. 1, 40:2-4. According to Tyrone Orndorff, Dr. Bechtel did not explain the risks of surgery. See, Deposition of Orndorff, Vol 3, 95:6-19 [Q. Did Dr. Bechtel explain the risks of the surgery to you and your wife in – at that February 2017 appointment? A. No. He simply said that Shirley was in very good health. She was strong. And that, ‘I’m glad to see you doing well. When you come back, it will be a planned surgery. ...’”]. 2. Whether Dr. Bechtel’s care and treatment of Decedent was within the standard of care? According to Dr. Bechtel, his care and treatment of decedent was at all times within the standard of care. See Declaration of Robert Mackersie, M.D., ¶¶1-4. Dr. Mackersie testifies: “[I]t is my opinion that Dr. Bechtel was within the standard of care at all times. Specifically, it is my opinion that given the decedent’s and plaintiff’s insistence upon the colostomy takedown and the relative good health of the decedent at the time, it was within the standard of care for Dr. Bechtel to proceed with the March 16, 2017 colostomy takedown. It is also my opinion that it is unlikely there was any unappreciated perforation of decedent’s bowels during the procedure, as Dr. Bechtel described running the small bowel in its entirety, which did not reveal any injury, enterotomies, or deserosalization. Based on the pathology report of the resected colon, it is likely that the two identified perforations that showed transmural necrosis resulted from inadequate blood flow and not from any unrecognized enterotomies that occurred at the initial operation. It was within the standard of care to continue with re-explorations, as there was no reasonable alternative to diagnose and repair areas of recurrent small bowel leakage. Likewise, Dr. Bechtel was not responsible for placing a tracheostomy. The tracheostomy was essentially elective, and as such any delay in its placement had no bearing on decedent’s outcome. I am therefore of the opinion to a reasonable degree of medical probability Dr. Bechtel was not negligent and did not fall below the standard of care in his care and treatment of decedent.” According to Tyrone Orndorff, Dr. Bechtel breached the applicable standard of care. In support of his position, Plaintiff submits the Declaration of Haroon M. Mojaddidi, M.D., in which he testifies: “Based on my review of the records, my knowledge, my education, training, and experience as well as the review of the standard of care both globally and in this community, the timing of the tracheostomy was not within the standard of care. Tracheostomy is indicated for patients who are anticipated to require ongoing intubation and ventilator dependence such as Shirley Orndorff required given her septic state and the need for multiple operations and washouts. Timing of tracheostomy can be as early as a week after endotracheal intubation to no later than 3 weeks of endotracheal intubation, as anything past week weeks can lead to multiple complications, inclusive but not exclusive of direct laryngeal trauma causing inflammation, ulceration, paralysis, stenosis and dysphagia. It is my opinion that the tracheostomy, while not emergent, was surely not a truly elective operation as opined by Dr. Mackersie. The tracheostomy was needed to prevent long-term damage but also an essential component to weaning her off the ventilator. Given the morbid clinical state of Shirley Orndorff after her second and third operation, it is reasonable to assume that she would be ventilator dependent and/or require multiple operations and thus would benefit from tracheostomy care at that time rather than waiting till 4/23/27. It is unclear from the records about who is ultimately responsible for tracheostomy placement regarding the standard of practice at St. Joseph’s Hospital, but the documentation of the pulmonologist/critical care physicians seems to indicate that Dr. Bechtel needed to at least give clearance to or provide such care as documented by daily progress notes from 4/10/17 – 4/22/17 that states he wanted to defer tracheostomy for now. In his deposition, Dr. Bechtel states that he wanted palliative care to address the issue of tracheostomy, but he did not seek palliative care evaluation prior to many operations he had performed and would continue to perform despite their futility.” Ibid @ ¶¶16-19. Plaintiff also cites to the Declaration of Alessio Pigazzi, M.D., as evidence that Dr. Bechtel breached the applicable standard of care. Plaintiff specifically cites to paragraph 15 of the declaration. Unfortunately, Plaintiff did not submit paragraph 15 for the Court’s review. The Court was only provided with paragraphs 22 and 23 which statements relate to the informed consent cause of action. The statements, however, also indicate a breach of the standard of care. Dr. Pigazzi testifies: “It is my opinion that Dr. Bechtel did not give proper informed consent by not offering as an alternative a subtotal colectomy with Ileorectal anastomosis. Before the colostomy reversal Ms. Orndorff had two hospitalizations for large bowel obstruction that failed prevention by medical therapeutics. The second hospitalization necessitated an emergency colostomy with mucus fistula performed by Dr. Bechtel. It was not unexpected that she would become constipated again after the ostomy reversal and that there would be a failure of the anastomosis. The majority of patients who have Ileorectal anastomosis are continent, unlike ostomy patients. They can live satisfactory and active lives.” Ibid @ ¶22. 3. Whether any act of omission by Dr. Bechtel was a substantial factor in causing Plaintiff or decedent alleged harm? According to Dr. Bechtel, no act or omission by him was a substantial factor in causing either Plaintiff or decedent harm. In support, he cites the Declaration of Robert Mackersie, M.D., in which Dr. Mackersie testifies: “I am also of the opinion that no act or omission by Dr. Bechtel was a substantial factor in causing decedent’s death. Specifically, it is not clear what caused the colon or small bowel perforation, and it is unlikely that the sigmoidoscopy, performed without insufflation, caused or contributed to the perforations. It is also my opinion that the advancement of decedent’s diet was unlikely to have played a role in decedent’s outcome. Finally, it is my opinion that decedent would have survived had she not asked for comfort care. It would have been necessary to wait at least six to nine months before performing surgery so close to the abdomen. Ultimately, decedent’s demise was the result of her choice to be transferred to comfort care. It is therefore my opinion to a reasonable degree of medical probability that no act or omission by Dr. Bechtel was a substantial factor in decedent’s death.” Ibid @ ¶5. According to Plaintiff, the acts and omissions of Dr. Bechtel were a substantial cause of decedent’s decision to enter palliative care which, in turn, led to her death. In support, Plaintiff points to the deposition testimony of Steven R. Goldman, M.D., in which he testifies: “A. [I have no opinions regarding the propriety of the care provided by Dr. Bechtel.] Q. At the time you were treating Ms. Orndorff, was it your opinion that the complications that she sustained from the colostomy reversal was one of the causes for her to enter into palliative care? A. Yes. Q. And ... was her hospital course a reason why she decided to enter palliative care? THE WITNESS: ... I’m not sure that the hospital course – other than the fact that the course in the hospital did not provide her with the benefits that she had hoped for, in that sense, I would say yes, the hospital course was a factor in her entering palliative care.” Deposition of Dr. Goldman 39:11-40:13. Plaintiff also cites to the Declaration of Alessio Pigazzi, M.D., as evidence that an act or omission by Dr. Bechtel caused Plaintiff or decedent harm. Plaintiff specifically cites to paragraph 21 of the declaration. Unfortunately, Plaintiff did not submit paragraph 21 for the Court’s review. Additional Facts Additional facts were cited by Plaintiff in opposition to the motion for summary judgment/adjudication and the following additional facts are supported by the submitted evidence: · Before the colostomy reversal, Shirley Orndorff had two hospitalizations from large bowel obstruction that failed prevention by medical therapeutics. See, Plaintiff’s Exhibit I [2015 medical records]. · There was consideration to give Shirley Orndorff a subtotal colectomy at her first hospitalization for large bowel obstruction. See, Plaintiff’s Exhibit I [2015 medical records]. · At the preop visit, Dr. Bechtel told Shirley Orndorff that she was strong and that they would proceed with the colostomy reversal. Deposition of Tyrone Orndorff 95:9-19. · Dr. Bechtel deferred suggestions/recommendations for a tracheostomy. See, Plaintiff’s Exhibit A [2017 medical records]. Analysis As noted above, there are four causes of action alleged against Dr. Bechtel: 1) negligence; 2) loss of consortium; 3) elder abuse; and, 4) failure to [get] informed consent. The Court shall address each cause of action in order. Negligence In order to prevail on a cause of action for negligence; and more particularly, professional negligence [medical malpractice], the plaintiff must establish: “(1) the medical professional's duty ‘to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise,’ (2) a breach of that duty, (3) an injury caused by the professional's negligence, and (4) resulting damages.” See, Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877. As reflected in the discussion above, there is conflicting evidence as to two of the elements necessary to the professional negligence cause of action in this case; that is, whether Dr. Bechtel breached his duty and whether the actions or omissions of Dr. Bechtel were a substantial cause of Plaintiff’s and/or decedent’s damages. Regarding the issue of breach, the Declaration of Robert Mackersie, M.D., constitutes expert witness testimony that the care and treatment provided by Dr. Bechtel to decedent was at all times within the applicable standard of care; in other words, there was no breach. Ibid @ ¶¶1-4. Dr. Mackersie opines that Dr. Bechtel “was not responsible for placing a tracheostomy” and “[t]he tracheostomy was essentially elective, ....” Ibid @ ¶4. According to the Declaration of Haroon M. Mojaddidi, M.D. (Plaintiff’s expert witness), “the timing of the tracheostomy was not within the standard of care” and “the documentation of the pulmonologist/critical care physicians seems to indicate that Dr. Bechtel needed to at least give clearance to or provide such care as documented by daily progress notes from 4/10/17 – 4/22/17 that states he wanted to defer tracheostomy for now.” Ibid @ ¶¶17-18. According to Dr. Pigazzi, Dr. Bechtel breached his duty of care when he “did not [get] proper informed consent by not offering as an alternative a subtotal colectomy with Ileorectal anastomosis.” Declaration of Alessio Pigazzi, M.D., ¶22. Regarding the issue of causation, Dr. Mackersie testified that in his professional and expert opinion, “no act or omission by Dr. Bechtel was a substantial factor in causing decedent’s death. ... Ultimately, decedent’s demise was the result of her choice to be transferred to comfort care.” Ibid @ ¶5. Dr. Goldman, on the other hand testified that “the complications that [decedent] sustained from the colostomy reversal was one of the causes for her to enter into palliative care” which ultimately led to her demise. Deposition of Dr. Goldman 39:11-40:13. Accordingly, there are triable issues of material fact as to the elements of breach and causation and so, summary adjudication of the negligence cause of action is denied. Loss of Consortium In order to prevail on a cause of action for loss of consortium, the plaintiff must establish: “(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; [¶] (2) a tortious injury to the plaintiff's spouse; [¶] (3) loss of consortium suffered by the plaintiff; and [¶] (4) the loss was proximately caused by the defendant's act.” (Citation.) ... ‘A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.’ (Citation.) ... ” Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927–928. Insofar as there are triable issues of material fact relative to the negligence cause of action, there are also the same triable issues of material fact relative to this cause of action for loss of consortium. Accordingly, summary adjudication of the loss of consortium cause of action is denied. Elder Abuse In order to prevail on a cause of action for elder abuse, the plaintiff must establish “that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b); Delaney v. Baker (1999) 20 Cal.4th 23, 3); (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 85, 90; Benun v. Superior Court (2004) 123 Cal.App.4th 113, 116; Mack v. Soung (2000) 80 Cal.App.4th 966, 972–973); and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) (Welf. & Inst. Code, §§ 15610.07, subd. (b); 15610.57, subd. (b), 15657; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783, 786; Delaney, at pp. 31–32). The plaintiff must also [establish] ... that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Welf. & Inst. Code, §§ 15610.07, subds. (a), (b), 15657; Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 664; Berkley v. Dowd (2007) 152 Cal.App.4th 518, 529.)” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406–407. It is well-settled that “a substantial caretaking or custodial relationship ... is a prerequisite for recovery for neglect” under the Elder Abuse and Dependent Adult Civil Protection Act. Kruthanooch v. Glendale Adventist Medical Center (2022) 83 C.A.5th 1109, 1116; see also Winn v. Pioneer Medical Group, Inc. (2016) 63 C.4th 148, 152 [“the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient”]. “It is the nature of the elder or dependent adult’s relationship with the defendant – not the defendant’s professional standing – that makes the defendant potentially liable for neglect.” Winn, supra @ 152. The Third District Court of Appeal in Oroville Hospital v. Superior Court (2022) 74 C.A.5th 382, 405 explained: “It must be determined, on a case-by-case basis, whether the specific responsibilities assumed by a defendant were sufficient to give rise to a substantial caretaking or custodial relationship.” For example, the wound care involved in Oroville involved a wound that had become infected to the point where the defendant developed sepsis. An operation on the wound became necessary. As such, the Oroville Court found that the wound care in that case was not the type of care that would be regarded as a “basic need” such that “an able-bodied and fully competent adult would ordinarily be capable of managing on his or her own.” Oroville, supra @ 405. The Oroville Court concluded, therefore, that the relationship between the hospital and decedent was “not the type of arrangement the Legislature was addressing in the Elder Abuse Act.” Ibid @ 406. Similarly, the treatment and wound care provided by Dr. Bechtel to decedent in this case is not in the realm of “a ‘basic need’ of the type an able-bodied and fully competent adult would ordinarily be capable of managing on his or her own.” Oroville, supra @ 405. Instead, Dr. Bechtel’s care of decedent required specialized training and licensing and was limited to performing surgical procedures. Dr. Mackersie testified that based upon his review of the case and upon his education, training and experience, “[a] custodial relationship requires a physician to assume responsibility for a patient’s most basic needs, such as eating, bathing and toileting. In this case, Dr. Bechtel operated on decedent multiple times .... [T]he care Dr. Bechtel rendered to decedent did not involve his providing direct assistance with her daily basic needs. ... Dr. Bechtel’s treatment involved the episodic rendering of complex medical and surgical procedures ....” Declaration of Mackersie, ¶6. Plaintiff’s offered evidence confirms the nature of the care and services provided by Dr. Bechtel to decedent insofar as the deposition testimony cited by Plaintiff confirms that Dr. Bechtel performed several operations on decedent and the cited medical records reflect that Dr. Bechtel made the medical decision to defer a tracheostomy. Thus, like Oroville, the undisputed evidence shows that “the relationship at issue here is not the type of arrangement the Legislature was addressing in the Elder Abuse Act;” he did not provide the kind of services to decedent that can be regarded as a “basic need” such that “an able-bodied and fully competent adult would ordinarily be capable of managing on his or her own.” Oroville, supra @ 405. Accordingly, Plaintiff is unable to establish all the elements necessary to the elder abuse cause of action and therefore, summary adjudication of the elder abuse cause of action is granted in favor of Dr. Bechtel. Failure to Give Informed Consent The informed consent cause of action is a species of negligence. The informed consent doctrine imposes upon a physician the duty of disclosure as part of his or her duty of care. The doctrine of informed consent is imposed “so that patients might meaningfully exercise their right to make decisions about their own bodies.” Arato v. Avedon (1993) 5 Cal.4th 1172, 1183. The “touchstone of the physician's duty of disclosure is the patient's need for ‘adequate information to enable an intelligent choice.’” Ibid @ 1186. In other words, “a physician is under a legal duty to disclose to the patient all material information—that is, ‘information which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject a recommended medical procedure’—needed to make an informed decision regarding a proposed treatment.” Ibid @ 1186-1187; see also, BAJI No. 6.11. Here, Plaintiff has submitted evidence which raises a triable issue of material fact as to whether full disclosure of all material information was given by Dr. Bechtel to Plaintiff and/or decedent. More particularly, Dr. Bechtel testified that he gave all the necessary explanations regarding the procedure and also explained the usual risks of infection. See, Deposition of Bechtel, Vol. 1, 39:5-7; 40:2. Plaintiff, on the other hand, testified that Dr. Bechtel did not explain the risks of the surgery. Deposition of Tyrone Orndorff, Vol. 3, 95:6-19. Accordingly, there is a triable issue of material fact as to whether Dr. Bechtel breached his duty to fully disclose all material information – that is, whether Dr. Bechtel disclosed all the risks associated with the colostomy takedown. For this reason, summary adjudication of the informed consent cause of action is denied. Motion to Strike Supplemental Expert Witness The motion to strike supplemental expert witness is brought by Plaintiff and seeks to exclude the designation of Dr. Timothy Albertson as an expert witness for Dr. Bechtel in this case. Both parties agree that on May 22, 2023, the parties exchanged their expert witness disclosures. Dr. Bechtel listed Dr. Mackersie as his expert and disclosed that Dr. Mackersie is board certified in surgery and will testify concerning the standard of care, causation, and the nature and extent of damages. On June 7, 2023, Dr. Bechtel supplemented his initial expert witness disclosure and advised that he also retained Dr. Albertson as his expert. Dr. Bechtel stated that Dr. Alberston is board certified in emergency medicine, critical care medicine, pulmonology and toxicology and will testify concerning the standard of care, causation and the nature and extent of damages. California Code of Civil Procedure §2034.280 specifically governs supplemental expert witness lists and it reads, in pertinent part: (a) Within 20 days after the exchange described in Section 2034.260 [exchange of expert witness declaration], any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject. The premise of Plaintiff’s motion to strike Dr. Bechtel’s supplemental expert is that Dr. Bechtel already has Dr. Mackersie designated as an expert to testify on the standard of care, causation, and the nature and extent of damages in this case. Plaintiff maintains that there is no “new subject” for which the supplemental expert witness is necessary. As Dr. Bechtel explains it, he filed the motion for summary judgment/adjudication based upon the testimony of Dr. Mackersie. Dr. Bechtel was served with Plaintiff’s opposition to the motion of summary judgment/adjudication and the expert witness testimonies of Dr. Pigazzi regarding the surgical aspects of the case and Dr. Mojaddidi regarding the “surgical critical care” of decedent and realized that one basis for the negligence and elder abuse causes of action was the delayed placement of the tracheostomy during the surgical critical care treatment of decedent. See, Opposition, page 2:11-12. “Surgical critical care” is defined as “a specialty of surgery and a primary component of general surgery related to the care of patients with acute, life-threatening or potentially life-threatening surgical conditions.” The American Board of Surgery, “Specialty of Surgical Critical Care Defined”; https://www.absurgery.org/default.jsp?aboutsccdefined. Dr. Bechtel states that upon coming to that realization, he decided Dr. Mackersie was an appropriate expert witness regarding general surgery and that “an intensivist;” that is, a surgical critical care expert witness, was necessary to counter the testimony of Dr. Mojaddidi on the subject of the surgical critical care provided to decedent. Plaintiff disputes this and points to the fact that in his declaration, Dr. Mackersie testified that the decision to delay her tracheostomy was within the standard of care. Motion to Strike, page 7, 9-11. After due consideration of the motion to strike, IT IS HEREBY ORDERED that the motion is denied. As Dr. Bechtel points out, Dr. Mackersie and Dr. Albertson are medical doctors with differing areas of expertise. Any opinion of Dr. Mackersie regarding the delayed tracheostomy would be limited. Dr. Albertson, on the other hand, will provide testimony on the tracheostomy as part of decedent’s surgical critical care. Thus, the Court finds that Dr. Bechtel has satisfied all the statutory requirements of CCP §2023.280 – the supplemental list was done within 20 days of the original exchange and the added expert witness will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange and no other expert witness has been previously retained to testify on that particular subject. Plaintiff’s reliance upon Basham v. Babcock (1996) 44 C.A.4th 1717 is misplaced. In Basham, supra, the expert witness was being “substituted.” Here, Dr. Albertson is named to “supplement” the existing expert witness list. Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 498 explains that “the plain language of section 2034.210, ... requires only that a party designate the experts it expects to call at trial. ... [In enacting CCP §2034.210,] the Legislature contemplated that when a party designates an expert, it is possible the other side might want to designate a rebuttal expert on the same topic.” CCP §2034.210 gives a party the right to do so. Ibid. And that is what has occurred in this case. Pursuant to CRC, rule 3.1312(a) and CCP §1019.5(a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Erin Guy Castillo Judge, San Joaquin County Superior Court
