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McCormick, Barstow, Sheppard,
Wayte & Carruth LLP
Jerry D. Casheros, #203897
jerry. casheros@mccormickbarstow. com
H Annie Duong, #319953
annie. duong@mccormickbarstow. com
7647 North Fresno Street
Fresno, California 93720 E-FILED
Telephone: (559) 433-1300 10/21/2020 1:51 PM
Facsimile: (559) 433-2300 Superior Court of California
County of Fresno
Attorneys for Defendant By: I. Herrera, Deputy
SAINT AGNES MEDICAL CENTER
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
11
12 FRANK SUBIA, an individual, Case No. 19CECG02854
13 Plaintiff, DEFENDANT SAINT AGNES MEDICAL
CENTER'S MEMORANDUM OF POINTS
14 V. AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT,
15 SAINT AGNES MEDICAL CENTER, a OR IN THE ALTERNATIVE, SUMMARY
corporation; DOES 1 through 50 Inclusive, ADJUDICATION
16
Defendant. Date: January 7, 2021
17 Time: 3:30 p.m.
Denartment: 403
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McCORUICK, BARSTOW,
Sheppard, Wayte &
Carruth LLP DEFENDANT SAINTAGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7647 NORTH FRESNO STREET
FRESNO. CAS372a OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
1 TABLE OF CONTENTS
2 Page
3 I.STATEMENT OF THE CASE 1
4 II. LAW AND ARGUMENT 3
5 A. Summary Judgment Is Proper When No Triable Issue Exists As To Any
Material Fact And The Defendant Is Entitled To Judgment As A Matter Of
6 Law 3
7 B. The Gravamen of Plaintiffs Cause of Action For Premises Liability Is
Professional Negligence 4
8
C. To Establish A Cause Of Action For Medical Malpractice, A Plaintiff Must
9 Present Competent Expert Testimony On The Breach Of The Standard Of
Care 6
10
D. Saint Agnes Is Entitled to Judgment In Its Favor As To Plaintiff s Cause Of
11 Action For Professional Negligence Because Plaintiff Cannot Create Triable
Issues Of Fact As To A Breach Of The Standard Of Care 7
12
E. Alternatively, If Premises Liability Is Found To Be Separate From
13 Professional Negligence, Plaintiff Cannot Create A Triable Issue Of Fact As
To The Breach Of The Care For A Cause Of Action For Premises Liability 9
14
F. At Ail Relevant Times, Physicians Providing Treatment And Care Were
15 Independent Contractors In Relation To Saint Agnes, and Therefore, Saint
Agnes Cannot Be Held Vicariously Liable For Their Alleged Negligence 11
16
III.CONCLUSION 12
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MCCORMICK, BARSTOW, DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
Smepparo, WAYTE S
Carruth LLP SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
7647 NORTH FRESNO STREET
FRESNO, C* 63730
1 TABLE OF AUTHORITIES
2 Page
3 CASES
4 Aguilar v. Atlantic Richfield Co.
(2001)25 Cal.4th 826, 850
5
Avivi V. Centra Medico Urgente Medical Center
6 (2008) 159 CaLApp.4th 463, 467-468 6
7 Elite Shield of Cal. Life (Sl Health Ins. Co. v. Sup. Ct.
(2011) 192 Cal. App. 4th 727, 732 4
8
Burgess v. Superior Court
9 (1992)2Cal.4th 1064, 1077 6
10 Cone V. Union Oil Co.
(1954) 129 Cal.App 2d 558, 562 4
11
Contreras v. St. Luke's Hospital
12 (1978) 78 Cal. App. 3d 919, 927 7
13 Flares v. Presbyterian Intercommunity Hospital
(2016) 63 Cal.4th 75, 88-89
14
Flowers v. Torrance Memorial Hasp. Med. Ctr.
15 (1994) 8Cal.4th 992, 1001 6
16 Flowers v. Torrance Memorial Hospital Medical Center
(1994)8 Cal.4th 992,1001 6
17
Getchell v. Rogers Jewelry
18 (2012) 203 Cal.App.4"' 381, 385 9
19 Hanson v. Grade
(1999) 76 Cal.App.4th 601, 606 6
20
Holcombe v. Burns
21 (1960) 183 Cal.App.2d811, 815 9
22 Home Savings ofAmerica v. Continental Ins. Co.
(2001) 87 Cal.App.4ih 835, 841 3
23
Jambazian v. Borden
24 (1994) 25 Cal.App.4th 836, 841
25 Jennings v.Palomar Pomerado Health Systems, Inc.
(2003) 114Cal.App.4th 1108
26
Johnson v. Open Door Community Health Centers
27 (2017) 15Cal.App.5^^ 153, 160
28
MCCORMICK, BaRSTOW, DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
Sheppard, Wayte &
Carruth LLP SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
W47 NORTH FRESNO STREET
fAESNO. CAMT^
TABLE OF AUTHORITIES
(Continued)
Page
1 Jones V. Ortho Pharmaceutical Corp.
(1935) 163 Cal.App.3d396 7
2
Larson v. UHS ofRancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347 4
3
Lattimore v. Dickey
4 (2015) 239 Cal.App.4th 959, 970 7
5 Leyva v. Superior Court
(1985) 164 Cal. App. 3d. 462, 468
6
Lilienthal & Fowler v. Superior Court
7 (1993) 12 Cal. App. 4th 1848, 1854 3
8 Luders v. Pummer
(1957) 152 Cal. App. 2d 276, 279 4
9
Mayers v. Litow
10 (1957) 154 Cal.App.2d413,418 11
11 Mayers v. LitOM', supra,
154 Cal.App.2d at 417-18 11
12
Meier v. Ross General Hospital
13 (1968) 69 Cal.2d 420, 435 H
14 Miller v. Los Angeles County Flood Control Dist,
(1973) 8 Cal.3d 689, 702 6
15
Miinro V. Regents Of The University OfCalifornia
16 (1989) 215 Cal.App.3d 977, 985 '. 7
17 Nova V. Saddleback Memorial Medical Center
(2016) 4 Cal.App.5^^ 285, 292 5
18
Ortega v. Kmart Corp.
19 (2001)26 Cal. 4^'^1200, 1205 9
20 Rice V. California Lutheran Hospital
(1945) 27 Cal.2d 296, 304 11
21
Scott V. Rayhrer
22 (2010) 185 Cal.App.4th 1535, 1542-1543 6
23 Snyder v. Southern California Edison Company
(1955) 44 Cal.2d 793, 799 H
24
So V. Shin
25 (2013) 212 Cal. App. 4th 652, 666 4
26 So V. Shin (2013) 212 Cal. App. 4th 652, 666-67 4, 5
MCCORMICK, BARSTO^
Sheppard, Wavte on
Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7647 NORTH FRESNO STREET
FRESNO. OA 93770
23 SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
TABLE OF AUTHORITIES
(Continued)
Page
1 Troche v. Daily
(1990) 217 Gal. App. 3d 403, 407 3
2
Unruh'Haxton v. Regents of University ofCalifornia
3 (2008) 162 Cal.App.4th 343, 352 4
4 Wiz Technology, Inc. v. Coopers & Lybrand
(2003) 106 CaI.App.4^'^ 1, 10 4
5
6 STATUTES
7 C.C.P. § 437c(o)(2) 3
8 C.C.P. § 473c(b)(l) 4
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MCCORMICK, BARSTOW
SHEPPARD, WAYTE Q.1
Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
FRESNO. CA 93720
^3 SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
7647 NORTH FR€SNO STRCET
1 Defendant SAINT AGNES MEDICAL CENTER ("Saint Agnes") submits the
2 following Memorandum of Points and Authorities in support of its Motion for Summary Judgment,
3 Or In The Alternative, Summary Adjudication, as to the entirety of the Complaint filed by Plaintiff,
4 FRANK SUBIA, an individual ("Plaintiff), against Defendant Saint Agnes.
5 I.
STATEMENT OF THE CASE
6
7 Plaintiff filed a Complaint for Damages on or about August 6, 2019, asserting two
8 causes of action for professional negligence and premises liability against Saint Agnes for the
9 treatment and care of Plaintiff. (Complaint for Damages, SOE, Ex. "1".) Plaintiff alleges Saint
10 Agnes created a dangerous condition of urine or liquid on the restroom floor and failed to appropriate
11 measures to rectify the condition in the scope of its professional duties to Plaintiff, while admitted
12 at Saint Agnes on June 26, 2018. {Ibid.)
13 Prior to being seen at the pertinent admissions to Saint Agnes, Plaintiff had a
14 significant and well-documented medical history of injuries stemming from previous falls and
15 incidents, including a major vehicle crash resulting in 9 fractures to the ribs and a spinal injury in
16 2012, as well as falling, resulting in a lower back injury involving two lower discs. (Declaration of
17 Anne Noder, RN., T| 9, SOE "3", hereinafter referred to as "Decl. Noder".)
18 On June 25, 2018, Plaintiff presented to the emergency department at Saint Agnes
19 complaining of left shoulder pain and general weakness due to having slept wrong. (Decl. Noder ^
20 9.) The record demonstrates the medical staff quickly triaged the Plaintiff, the attending physician
21 performed a physical examination, and the Plaintiff was admitted for observation with a differential
22 diagnosis of stroke-like symptoms and myalgia. {Ibid.)
23 As part of the treatment care plan, a safety and fall assessment was performed
24 indicating the Plaintiff was at high risk for falls. {Ibid.) Accordingly, the nursing staff administered
25 fall precautions throughout the Plaintiffs admission, including a room free of clutter, use of bed
26 alarm, placing bed in low position with side rails up, non-skid footwear, and instructions for the
27 Plaintiffto not leave the bed without assistance. {Ibid.) On several occasions, however, the Plaintiff
28 refused to comply with the fall precautions including refusal to have the bed alarm activated and
McCormick, Barstow, 1
Smeppard, Wayte &
Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
7«47 NORTH FRESNO STREET
FRESNO. CA 93720
1 leaving the bed without calling for assistance. {Ibid.)
2 On June 29, 2018 at 7:30 p.m., the Plaintiff for the first time reported a fall that
3 occurred in the morning to nursing staff during the handoff procedure and report, despite having
4 many opportunities in the morning to notify the staff. {Ibid.) Immediately, nursing staff initiated
5 post-fall procedures, including a physical examination of the patient, assessing the fall and safety
6 precautions, and completing a post-fall report. {Ibid.) There were no apparent injuries or complaints
7 and the Plaintiff did not exhibit generalized weakness, confusion, disorientation, dizziness, or
8 fainting. {Ibid.) Nursing staff repeated the post-fall assessment protocol and regularly evaluated the
9 Plaintiffs condition for injuries, complaints, confusion, disorientation, dizziness, and fainting.
10 Additionally, hospital staff did not see or observe any liquid or urine in the bathroom where the
11 Plaintiff allegedly fell before or after the time period for the fall. (Declaration of MaryJane Jamito,
12 RN., T[ 6, SOE "4", hereinafter referred to as "Decl. Jamito"; Declaration of Lee Lisa Her, 8, SOE
13 "5", hereinafter referred to as "Decl. Her".)
14 At first, Plaintiffreported falling on his arms but denied falling on his hips. (Noder
15 Decl. 9.) Then, the Plaintiffreported falling while he stood and tried to reach the commode in the
16 bathroom. {Ibid.) Then the Plaintiffreported he was in the bathroom to sit on the commode when
17 he fell forward and hurt his arm. {Ibid.) Later on, Plaintiff admitted that he did not fall and prevented
18 himself from falling in the bathroom. {Ibid)
19 Despite these contradictory accounts from plaintiff, the health care providers
20 investigation his concerns rigorously. After performing multiple physical examinations and
21 diagnostic tests, including a CT head scan, MRI of brain, shoulder, and c-spine, and x-rays of the
22 chest and knee, the final diagnoses were arm pain likely due to musculoskeletal pain from trauma,
23 shoulder pain from sprain, cervical degenerative disc disease, non-consistent left-sided weakness
24 with unclear etiology likely due to the patient's exaggeration, and conversion disorder. {Ibid.)
25 Plaintiff was discharged in stable condition to a skilled nursing facility with recommendations to
26 follow up with neurology, neurosurgery, orthopedic, psychiatrist, and instructions to come back if
27 conditions worsened. {Ibid.) This Complaint followed.
28
MCCORMICK, BARSTOW,
Sheppard, WAYTE&
CARRUTH LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7647 NORTH FRESNO STREET
FRESNO. CA »720
SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
1 II.
LAW AND ARGUMENT
2
A. Summary Judgment Is Proper When No Triable Issue Exists As To Any Material Fact
3 And The Defendant Is Entitled To Judgment As A Matter Of Law
4 A defendant is entitled to summary judgment when no material issue of fact exists
5 and when the record establishes as a matter of law that the cause of action asserted against the
6 defendant cannot prevail. {Home Savings ofAmerica v. Continental Ins. Co. (2001) 87 Cal.App.4th
7 835, 841.) Section 437c of the California Code of Civil Procedure provides in pertinent part:
8 (a) Any party may move for summary judgment in any action or
proceeding if it is contended that the action has no merit or if there is
9 no defense to the action or proceeding...
***
10
11 (c) The motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any material
12 fact and that the moving party is entitled to judgment as a matter of
law.
13
14 The defendant moving for summaryjudgment bears the initial burden to show either
15 that one or more elements of the plaintiffs cause of action cannot be established, or there is a
16 complete defense to that cause of action. (C.C.P. § 437c(o)(2).) Once the defendant fulfills this
17 obligation, the burden shifts to the plaintiff to show that a triable issue of material fact remains.
18 {Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triableissue of material fact exists
19 only if the evidence would allow a reasonable judge or jury to find the underlying fact in favor of
20 the party opposing the motion and in accordance with the applicable standard of proof. {Ibid.)
21 The purpose of this procedure is to determine whether the parties possess evidence
22 requiring the weighing procedures of a trial. {Leyva v. Superior Court (1985) 164 Cal. App. 3d.
23 462, 468.) Summaryjudgment promotes the administration of justice by eliminating unmeritorious
24 claims and expedites litigation by avoiding needless trials. {Lilienthal & Fowler v. Superior Court
25 (1993) 12 Cal. App. 4th 1848, 1854; Troche v. Daily (1990) 217 Cal. App. 3d 403, 407.)
26 As such, a plaintiff cannot avoid summary judgment by merely relying upon the
27 allegations or denials of his or her pleadings in the hope that some evidence may develop in the
28 future to create a triable issue of fact; the trial court will make this determination based on its
McCORMICK, BARSTOW, 3
SHEPPARD. WArTE &
CarruTM LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7«7 NORTH FRESNO STREET
FRESNO. CA 937» SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
1 examination of the affidavits, declarations, answers to interrogatories and deposition testimony
2 provided by the parties. C.C.P. § 473c(b)(l); Johnson v. Superior Court (2006) 143 Cal.App.4th
3 297, 304.) If the moving party is entitled to summary judgment based upon its proof, the opposing
4 party can only overcome the summary judgment by introducing competent evidence to create a
5 triable issue of material fact. {Luders v. Puminer (1951) 152 Gal. App. 2d 276, 279, citing Cone v.
6 Union Oil Co. (1954) 129 Cal.App 2d 558, 562.) The opposition to summary judgment will be
7 insufficient if itis essentially conclusory, argumentative, or based on conjecture and speculation.
8 {Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4"' 1, 10.) The same rules
9 applicable to summary judgment apply equally to motions for summary adjudication. {Blue Shield
10 ofCal. Life cfe Health Ins. Co. v. Sup. Ct. (2011) 192 Cal. App. 4th 111, 732.)
11 B. The Gravamen of Plaintiffs Cause of Action For Premises Liability Is Professional
Negligence
12
13 "Professional negligence" is defined as the negligent act or omission to act by a
14 healthcare provider in the rendering of professional services, whichact or omission is the proximate
15 cause of a personal injury or wrongful death. {Unruh-Haxton v. Regents of University of California
16 (2008) 162Cal.App.4th 343, 352.)The Fourth District Courtof Appeal in Larson v. UHS ofRancho
17 Springs, Inc. (2014) 230 Cal.App.4th 336, 347, explained;
18 Despite the apparent clarity of this definition, applying it may pose
difficulties because additional claims often arise out of the same facts that
19 support a professional negligence claim, including claims for battery,
products liability, premise liability, fraud, breach of contract, and
20
intentional or negligent infliction of emotional distress. Indeed, because acts
21 supporting a negligence cause of action might also support a cause of action
for an intentional tort, the Supreme Court has not limited application of
22 MICRA provisions to causes of action that are based solely on a 'negligent
act or omission' as provided in MlCRA's definition of professional
23 negligence...Accordingly, when a plaintiff asserts a claim against a
health care provider on a legal theory other than professional
24
negligence, courts must determine whether the claim is nonetheless
25 based on the health care provider's professional negligence, which would
require application of MICRA. (Larson, supra. Emphasis added.)
26
Under California law, alleged medical negligence involves conduct engaged for the
27
purpose of delivering health care to a patient. {So v.Shin (2013) 212 Cal. App. 4th 652, 666.) In
28
MCCORMICK, BARSTOW,
SHEPPARD,WAYTES
Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7647 NORTH FRESNO STREET
FRESNO. CAU730 SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
1 Other words, conduct directly related to the professional services provided by a health care provider
2 acting in its capacity—consistent with the ordinary and usual part of medical professional services.
3 {Id. at 666-67.) This includes any act or omission by a health care provider in the maintenance
4 of equipment and premises while in the course of providing or rendering medical services.
5 {Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88-89 ("[I]f the act or
6 omission that led to the plaintiffs injuries was negligence in the maintenance of equipment that,
7 under the prevailing standard of care, was reasonably required to treat or accommodate a physical
8 or mental condition of the patient, the plaintiffs claim is one of professional negligence"); see Nava
9 V. Saddleback Memorial Medical Center (2016) 4 Cal.App.5"^ 285, 292 (applying Flores in finding
10 claim that patient fell from a negligently maintained gurney while a patient at a hospital was a
11 professional negligence claim); see also Johnson v. Open Door Community Health Centers (2017)
12 15 Cal.App.S"* 153, 160 (finding no professional negligence for plaintiffwho alleged injuries after
13 her care was completed as a result of a breach of duties owed generally to all visitors of the
14 Defendant clinic).)
15 Here, in both causes of action for Professional Negligence and Premises Liability,
16 the Complaint alleges the Plaintiff slipped and fell due to liquid/urine on the restroom floor while
17 he was a patient and admitted at Saint Agnes. (Complaint, 6, 16, 29.) Also in both, Plaintiff
18 alleges Saint Agnes owed a duty of care to keep the hospital in a reasonably safe condition due to
19 Saint Agnes' ownership, possession, control, management, and/or operation of the same.
20 (Complaint, 13, 28.) A review of the Complaint clearly reveals the causes of action for
21 Professional Negligence and Premises Liability are based on the exact same allegations. The factual
22 allegations are simple- Plaintiffallegedly fell on a liquid in the bathroom of his hospital room while
23 he was admitted as a patient at Saint Agnes in the course of receiving medical care and treatment.
24 In essence, the Plaintiff is claiming Saint Agnes breached the standard of care by failing to
25 adequately observe, monitor, or otherwise prevent Plaintiff from falling. The failure to observe,
26 monitor, orotherwise prevent falls, especially those who have been identified as a high risk for falls,
27 is an essential medical function and fits squarely within the scope of duties owed by nursing staff
28 and other medical professionals charged with providing treatment and care to patients.
McCormick, Barstow,
Shepparo, Wayte &
Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
NORTH FRESNO STREET
FRESNO. CA 9}72a
SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
1 In other words, Plaintiffs alleged fall and resulting injuries were due to a breach of
2 a duty only owed to patients admitted to the hospital by nursing staffand medical professionals^
3 not simply a duty owed to all ordinary persons by virtue of operating a facility open to the public.
4 Based on the plain language of the Complaint and the pertinent authority, the factual
5 allegations supporting the premises liability claim amount to nothing more than a professional
6 negligence claim based on a health care provider rendering professional services. Accordingly,
7 Plaintiffs Cause of Action for Premises Liability should be construed as a single, cause of action
8 for Professional Negligence.
9 C. To Establish A Cause Of Action For Medical Malpractice, A Plaintiff Must Present
Competent Kxoert Testimony On The Breach Of The Standard Of Care
10
11 In order to prevail on a professional negligence claim against a hospital, such as Saint
12 Agnes, the Plaintiff must establish allof the following prima facie elements: (1) the duty of the
13 medical professional to use such skill, prudence, and diligence as other members of his profession
14 commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection
15 between the alleged negligent conduct and the plaintiffs injury; and (4) actual loss or damage
16 resulting from the medical professional's negligence. {Hanson v. Grade (1999) 76 Cal.App.4th 601,
17 606; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077.)
18 In medical malpractice cases, expert testimony is required to prove or disprove the
19 defendant performed in accordance with the prevailing standard of care. {Flowers v. Torrance
20 Memorial Hospital Medical Center{\99A) 8 Cal.4th992, 1001;M7/er v. Los Angeles County Flood
21 Control Dist. (1973) 8 Cal.3d 689, 702.) "As a general rule, the testimony of an expert witness is
22 required in every professional negligence case to establish the applicable standard of care, whether
23 that standard was met or breached by the defendant, and whether any negligence by the defendant
24 caused the plaintiffs damages." {Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542-1543, citing
25 Flowers, supra, 8 Cal.4th 992, 1001; v. Centro Medico Urgente Medical Center (2008) 159
26 Cal.App.4th 463, 467-468 ["Both the standard of care and defendants' breach must normally be
27 established by expert testimony in a medical malpractice case."].)
28 "The standard of care [in a medical negligence setting] is a matter peculiarly within
McCormick, Barstow,
Sheppard, Wayte &
CARRUTH LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
7647 HORTH FRESNO STREET
FRESNO. CA 93720
SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
1 the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved
2 by their testimony." {Flowers, supra, 8 Cal.4th at 1001 [citations omitted].) Thus, whether in the
3 relevant circumstances the defendant violated the applicable standard of care "can only be proved
4 by opinion testimony unless the medical question is within the common knowledge of laypersons."
5 {Jambaiian v. Borden (1994) 25 Cal.App.4th 836, 841.) When the issues and particular
6 circumstances of a case are beyond the scope of knowledge of a layman, the "expert evidence is
7 conclusive and cannot be disregarded." (Ibid) In medical negligence actions, the trier of fact must
8 base [the] decision [as to standard of care] only on the testimony of the expert witnesses...who have
9 testified in this case." (CACI Nos. 501, 514.) These same standards apply with respect to hospital
10 defendants. {Conlreras v. St. Luke k Hospital (1978) 78 Gal. App. 3d 919, 927.)
11 With respect to causation, "a medical negligence plaintiff must prove that the
12 defendant's negligence was a cause-in-fact of the injury." {Jennings v. Palomar Pomerado Health
13 Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118.) Similar to the standard of care, expert testimony
14 is necessary to establish the causal link between the defendant's conduct and the injury claimed.
15 {Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970, citing Johnson v. Superior Court, supra,
16 143 Cal.App.4th 297, 305.) The causation element must be proven within a reasonable medical
17 probability based upon competent expert testimony; possibility alone is insufficient to establish a
18 prima facia case. {Lattimore, supra 239 Cal.App.4th at 920-971, quoting Jones v. Ortho
19 Pharmaceutical Corp. (1935) 163 Cal.App.3d 396.)
20 Accordingly, when a defendant moves for summary judgment and supports its
21 motion with expert testimony that his treatment and care of the allegedly injured patient was within
22 the applicable standard of care, the defendant is entitled to summary judgment unless the plaintiff
23 comes forward with competent expert evidence on the element of breach of duty. {Munro v. Regents
24 Of The University Of California (1989) 215 Cal.App.3d 977, 985.)
25 D. Saint Agnes Is Entitled to Judgment In Its Favor As To Plaintiffs Cause Of Action For
Professional Negligence Because Plaintiff Cannot Create Triable Issues Of Fact As To
26 A Breach Of The Standard Of Care
27 To support its position that Saint Agnes did not breach the applicable standard of
28 care, expert Anne Noder, RN ("Nurse Noder") has submitted a declaration filed concurrently
MCCORMICK, BARSTOW,
Shepparo, WAYTES
Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
NORTH fRESNO STREET
FRESNO. CAS3720
SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
1 herewith. Nurse Noder is a Registered Nurse with nearly 35 years of combined nursing experience
2 with specialties in treating and managing patients in the critical care and telemetry (observation)
3 units. Based upon her education, training, and professional experience, Nurse Noder is qualified to
4 render expert opinions as to the applicable standard of care for the treatment and care of patients
5 with high fall risks in the telemetry and critical care units.
6 After a review of the medical records, and other pleadings and discovery documents
7 from this matter, Nurse Noder opined Saint Agnes, its nurses, staff, and personnel, complied with
8 the standard of care in all respects with regard to the treatment and care provided to Plaintiff during
9 the pertinent admission to Saint Agnes. (Decl. Noder, ^ 13.) Nurse Noder opined the initial
10 admission on June 25, 2018 was appropriate where the patient was quickly triaged, promptly
11 evaluated by a physician, underwent multiple diagnostic tests, and was admitted for observation.
12 {Ibid.) The nursing staff promptlyprocessed the patient for admission and appropriately determined
13 the patient was a fall risk. {Ibid.) Nurse Noder further opined that the nursing staff fully appreciated
14 the Plaintiffs fallrisk and appropriately applied the proper safety and fall precautions during the
15 admission including ensuring the room was free of clutter, adequate lighting, bed placed in
16 locked/low position with side rails up, bed alarm active, call light in reach, non-skid footwear, and
17 instructions forthe patient to not getout of bed without assistance. {Ibid.) After the fall was reported
18 hours later, nursing staff immediately assessed the patient for injuries, investigated the
19 circumstances of the fall, ensured proper safety and precautions were in place, and re-assessed the
20 patient multiple times until the patient was discharged instable condition. {Ibid.) Further, the patient
21 was not a candidate for restraints and the application would have been inappropriate as there were
22 no physician-authorized orders. {Ibid.)
23 This shifts the burden as to the breach of the standard of care to the Plaintiff.
24 Accordingly, Saint Agnes has met its burden on the standard of care as to Plaintiffs
25 Causes of Action for Professional Negligence and Premises Liability. Therefore, unless Plaintiff
26 submits competent and sufficient evidence otherwise, Saint Agnes is entitled to summary judgment,
27 or in the alternative, summary adjudication, as to either of Plaintiffs causes of action as to the
28 standard of care.
McCORMiCK, BARSTOW,
Smepparo, Wayte &
Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION
7U7 NORTH FRESNO STREET
FRESNO. CA Mm
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McCormick, Barstow, Sheppard, Wayte & Carruth LLP Jerry D. Casheros, #203897 jerry. casheros@mccormickbarstow. com H Annie Duong, #319953 annie. duong@mccormickbarstow. com 7647 North Fresno Street Fresno, California 93720 E-FILED Telephone: (559) 433-1300 10/21/2020 1:51 PM Facsimile: (559) 433-2300 Superior Court of California County of Fresno Attorneys for Defendant By: I. Herrera, Deputy SAINT AGNES MEDICAL CENTER 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 12 FRANK SUBIA, an individual, Case No. 19CECG02854 13 Plaintiff, DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS 14 V. AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, 15 SAINT AGNES MEDICAL CENTER, a OR IN THE ALTERNATIVE, SUMMARY corporation; DOES 1 through 50 Inclusive, ADJUDICATION 16 Defendant. Date: January 7, 2021 17 Time: 3:30 p.m. Denartment: 403 18 19 20 21 22 23 24 25 26 27 28 McCORUICK, BARSTOW, Sheppard, Wayte & Carruth LLP DEFENDANT SAINTAGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN 7647 NORTH FRESNO STREET FRESNO. CAS372a OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 1 TABLE OF CONTENTS 2 Page 3 I.STATEMENT OF THE CASE 1 4 II. LAW AND ARGUMENT 3 5 A. Summary Judgment Is Proper When No Triable Issue Exists As To Any Material Fact And The Defendant Is Entitled To Judgment As A Matter Of 6 Law 3 7 B. The Gravamen of Plaintiffs Cause of Action For Premises Liability Is Professional Negligence 4 8 C. To Establish A Cause Of Action For Medical Malpractice, A Plaintiff Must 9 Present Competent Expert Testimony On The Breach Of The Standard Of Care 6 10 D. Saint Agnes Is Entitled to Judgment In Its Favor As To Plaintiff s Cause Of 11 Action For Professional Negligence Because Plaintiff Cannot Create Triable Issues Of Fact As To A Breach Of The Standard Of Care 7 12 E. Alternatively, If Premises Liability Is Found To Be Separate From 13 Professional Negligence, Plaintiff Cannot Create A Triable Issue Of Fact As To The Breach Of The Care For A Cause Of Action For Premises Liability 9 14 F. At Ail Relevant Times, Physicians Providing Treatment And Care Were 15 Independent Contractors In Relation To Saint Agnes, and Therefore, Saint Agnes Cannot Be Held Vicariously Liable For Their Alleged Negligence 11 16 III.CONCLUSION 12 17 18 19 20 21 22 23 24 25 26 27 28 MCCORMICK, BARSTOW, DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN Smepparo, WAYTE S Carruth LLP SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 7647 NORTH FRESNO STREET FRESNO, C* 63730 1 TABLE OF AUTHORITIES 2 Page 3 CASES 4 Aguilar v. Atlantic Richfield Co. (2001)25 Cal.4th 826, 850 5 Avivi V. Centra Medico Urgente Medical Center 6 (2008) 159 CaLApp.4th 463, 467-468 6 7 Elite Shield of Cal. Life (Sl Health Ins. Co. v. Sup. Ct. (2011) 192 Cal. App. 4th 727, 732 4 8 Burgess v. Superior Court 9 (1992)2Cal.4th 1064, 1077 6 10 Cone V. Union Oil Co. (1954) 129 Cal.App 2d 558, 562 4 11 Contreras v. St. Luke's Hospital 12 (1978) 78 Cal. App. 3d 919, 927 7 13 Flares v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88-89 14 Flowers v. Torrance Memorial Hasp. Med. Ctr. 15 (1994) 8Cal.4th 992, 1001 6 16 Flowers v. Torrance Memorial Hospital Medical Center (1994)8 Cal.4th 992,1001 6 17 Getchell v. Rogers Jewelry 18 (2012) 203 Cal.App.4"' 381, 385 9 19 Hanson v. Grade (1999) 76 Cal.App.4th 601, 606 6 20 Holcombe v. Burns 21 (1960) 183 Cal.App.2d811, 815 9 22 Home Savings ofAmerica v. Continental Ins. Co. (2001) 87 Cal.App.4ih 835, 841 3 23 Jambazian v. Borden 24 (1994) 25 Cal.App.4th 836, 841 25 Jennings v.Palomar Pomerado Health Systems, Inc. (2003) 114Cal.App.4th 1108 26 Johnson v. Open Door Community Health Centers 27 (2017) 15Cal.App.5^^ 153, 160 28 MCCORMICK, BaRSTOW, DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN Sheppard, Wayte & Carruth LLP SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION W47 NORTH FRESNO STREET fAESNO. CAMT^ TABLE OF AUTHORITIES (Continued) Page 1 Jones V. Ortho Pharmaceutical Corp. (1935) 163 Cal.App.3d396 7 2 Larson v. UHS ofRancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347 4 3 Lattimore v. Dickey 4 (2015) 239 Cal.App.4th 959, 970 7 5 Leyva v. Superior Court (1985) 164 Cal. App. 3d. 462, 468 6 Lilienthal & Fowler v. Superior Court 7 (1993) 12 Cal. App. 4th 1848, 1854 3 8 Luders v. Pummer (1957) 152 Cal. App. 2d 276, 279 4 9 Mayers v. Litow 10 (1957) 154 Cal.App.2d413,418 11 11 Mayers v. LitOM', supra, 154 Cal.App.2d at 417-18 11 12 Meier v. Ross General Hospital 13 (1968) 69 Cal.2d 420, 435 H 14 Miller v. Los Angeles County Flood Control Dist, (1973) 8 Cal.3d 689, 702 6 15 Miinro V. Regents Of The University OfCalifornia 16 (1989) 215 Cal.App.3d 977, 985 '. 7 17 Nova V. Saddleback Memorial Medical Center (2016) 4 Cal.App.5^^ 285, 292 5 18 Ortega v. Kmart Corp. 19 (2001)26 Cal. 4^'^1200, 1205 9 20 Rice V. California Lutheran Hospital (1945) 27 Cal.2d 296, 304 11 21 Scott V. Rayhrer 22 (2010) 185 Cal.App.4th 1535, 1542-1543 6 23 Snyder v. Southern California Edison Company (1955) 44 Cal.2d 793, 799 H 24 So V. Shin 25 (2013) 212 Cal. App. 4th 652, 666 4 26 So V. Shin (2013) 212 Cal. App. 4th 652, 666-67 4, 5 MCCORMICK, BARSTO^ Sheppard, Wavte on Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN 7647 NORTH FRESNO STREET FRESNO. OA 93770 23 SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF AUTHORITIES (Continued) Page 1 Troche v. Daily (1990) 217 Gal. App. 3d 403, 407 3 2 Unruh'Haxton v. Regents of University ofCalifornia 3 (2008) 162 Cal.App.4th 343, 352 4 4 Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 CaI.App.4^'^ 1, 10 4 5 6 STATUTES 7 C.C.P. § 437c(o)(2) 3 8 C.C.P. § 473c(b)(l) 4 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCCORMICK, BARSTOW SHEPPARD, WAYTE Q.1 Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN FRESNO. CA 93720 ^3 SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 7647 NORTH FR€SNO STRCET 1 Defendant SAINT AGNES MEDICAL CENTER ("Saint Agnes") submits the 2 following Memorandum of Points and Authorities in support of its Motion for Summary Judgment, 3 Or In The Alternative, Summary Adjudication, as to the entirety of the Complaint filed by Plaintiff, 4 FRANK SUBIA, an individual ("Plaintiff), against Defendant Saint Agnes. 5 I. STATEMENT OF THE CASE 6 7 Plaintiff filed a Complaint for Damages on or about August 6, 2019, asserting two 8 causes of action for professional negligence and premises liability against Saint Agnes for the 9 treatment and care of Plaintiff. (Complaint for Damages, SOE, Ex. "1".) Plaintiff alleges Saint 10 Agnes created a dangerous condition of urine or liquid on the restroom floor and failed to appropriate 11 measures to rectify the condition in the scope of its professional duties to Plaintiff, while admitted 12 at Saint Agnes on June 26, 2018. {Ibid.) 13 Prior to being seen at the pertinent admissions to Saint Agnes, Plaintiff had a 14 significant and well-documented medical history of injuries stemming from previous falls and 15 incidents, including a major vehicle crash resulting in 9 fractures to the ribs and a spinal injury in 16 2012, as well as falling, resulting in a lower back injury involving two lower discs. (Declaration of 17 Anne Noder, RN., T| 9, SOE "3", hereinafter referred to as "Decl. Noder".) 18 On June 25, 2018, Plaintiff presented to the emergency department at Saint Agnes 19 complaining of left shoulder pain and general weakness due to having slept wrong. (Decl. Noder ^ 20 9.) The record demonstrates the medical staff quickly triaged the Plaintiff, the attending physician 21 performed a physical examination, and the Plaintiff was admitted for observation with a differential 22 diagnosis of stroke-like symptoms and myalgia. {Ibid.) 23 As part of the treatment care plan, a safety and fall assessment was performed 24 indicating the Plaintiff was at high risk for falls. {Ibid.) Accordingly, the nursing staff administered 25 fall precautions throughout the Plaintiffs admission, including a room free of clutter, use of bed 26 alarm, placing bed in low position with side rails up, non-skid footwear, and instructions for the 27 Plaintiffto not leave the bed without assistance. {Ibid.) On several occasions, however, the Plaintiff 28 refused to comply with the fall precautions including refusal to have the bed alarm activated and McCormick, Barstow, 1 Smeppard, Wayte & Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 7«47 NORTH FRESNO STREET FRESNO. CA 93720 1 leaving the bed without calling for assistance. {Ibid.) 2 On June 29, 2018 at 7:30 p.m., the Plaintiff for the first time reported a fall that 3 occurred in the morning to nursing staff during the handoff procedure and report, despite having 4 many opportunities in the morning to notify the staff. {Ibid.) Immediately, nursing staff initiated 5 post-fall procedures, including a physical examination of the patient, assessing the fall and safety 6 precautions, and completing a post-fall report. {Ibid.) There were no apparent injuries or complaints 7 and the Plaintiff did not exhibit generalized weakness, confusion, disorientation, dizziness, or 8 fainting. {Ibid.) Nursing staff repeated the post-fall assessment protocol and regularly evaluated the 9 Plaintiffs condition for injuries, complaints, confusion, disorientation, dizziness, and fainting. 10 Additionally, hospital staff did not see or observe any liquid or urine in the bathroom where the 11 Plaintiff allegedly fell before or after the time period for the fall. (Declaration of MaryJane Jamito, 12 RN., T[ 6, SOE "4", hereinafter referred to as "Decl. Jamito"; Declaration of Lee Lisa Her, 8, SOE 13 "5", hereinafter referred to as "Decl. Her".) 14 At first, Plaintiffreported falling on his arms but denied falling on his hips. (Noder 15 Decl. 9.) Then, the Plaintiffreported falling while he stood and tried to reach the commode in the 16 bathroom. {Ibid.) Then the Plaintiffreported he was in the bathroom to sit on the commode when 17 he fell forward and hurt his arm. {Ibid.) Later on, Plaintiff admitted that he did not fall and prevented 18 himself from falling in the bathroom. {Ibid) 19 Despite these contradictory accounts from plaintiff, the health care providers 20 investigation his concerns rigorously. After performing multiple physical examinations and 21 diagnostic tests, including a CT head scan, MRI of brain, shoulder, and c-spine, and x-rays of the 22 chest and knee, the final diagnoses were arm pain likely due to musculoskeletal pain from trauma, 23 shoulder pain from sprain, cervical degenerative disc disease, non-consistent left-sided weakness 24 with unclear etiology likely due to the patient's exaggeration, and conversion disorder. {Ibid.) 25 Plaintiff was discharged in stable condition to a skilled nursing facility with recommendations to 26 follow up with neurology, neurosurgery, orthopedic, psychiatrist, and instructions to come back if 27 conditions worsened. {Ibid.) This Complaint followed. 28 MCCORMICK, BARSTOW, Sheppard, WAYTE& CARRUTH LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN 7647 NORTH FRESNO STREET FRESNO. CA »720 SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 1 II. LAW AND ARGUMENT 2 A. Summary Judgment Is Proper When No Triable Issue Exists As To Any Material Fact 3 And The Defendant Is Entitled To Judgment As A Matter Of Law 4 A defendant is entitled to summary judgment when no material issue of fact exists 5 and when the record establishes as a matter of law that the cause of action asserted against the 6 defendant cannot prevail. {Home Savings ofAmerica v. Continental Ins. Co. (2001) 87 Cal.App.4th 7 835, 841.) Section 437c of the California Code of Civil Procedure provides in pertinent part: 8 (a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or if there is 9 no defense to the action or proceeding... *** 10 11 (c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material 12 fact and that the moving party is entitled to judgment as a matter of law. 13 14 The defendant moving for summaryjudgment bears the initial burden to show either 15 that one or more elements of the plaintiffs cause of action cannot be established, or there is a 16 complete defense to that cause of action. (C.C.P. § 437c(o)(2).) Once the defendant fulfills this 17 obligation, the burden shifts to the plaintiff to show that a triable issue of material fact remains. 18 {Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triableissue of material fact exists 19 only if the evidence would allow a reasonable judge or jury to find the underlying fact in favor of 20 the party opposing the motion and in accordance with the applicable standard of proof. {Ibid.) 21 The purpose of this procedure is to determine whether the parties possess evidence 22 requiring the weighing procedures of a trial. {Leyva v. Superior Court (1985) 164 Cal. App. 3d. 23 462, 468.) Summaryjudgment promotes the administration of justice by eliminating unmeritorious 24 claims and expedites litigation by avoiding needless trials. {Lilienthal & Fowler v. Superior Court 25 (1993) 12 Cal. App. 4th 1848, 1854; Troche v. Daily (1990) 217 Cal. App. 3d 403, 407.) 26 As such, a plaintiff cannot avoid summary judgment by merely relying upon the 27 allegations or denials of his or her pleadings in the hope that some evidence may develop in the 28 future to create a triable issue of fact; the trial court will make this determination based on its McCORMICK, BARSTOW, 3 SHEPPARD. WArTE & CarruTM LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN 7«7 NORTH FRESNO STREET FRESNO. CA 937» SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 1 examination of the affidavits, declarations, answers to interrogatories and deposition testimony 2 provided by the parties. C.C.P. § 473c(b)(l); Johnson v. Superior Court (2006) 143 Cal.App.4th 3 297, 304.) If the moving party is entitled to summary judgment based upon its proof, the opposing 4 party can only overcome the summary judgment by introducing competent evidence to create a 5 triable issue of material fact. {Luders v. Puminer (1951) 152 Gal. App. 2d 276, 279, citing Cone v. 6 Union Oil Co. (1954) 129 Cal.App 2d 558, 562.) The opposition to summary judgment will be 7 insufficient if itis essentially conclusory, argumentative, or based on conjecture and speculation. 8 {Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4"' 1, 10.) The same rules 9 applicable to summary judgment apply equally to motions for summary adjudication. {Blue Shield 10 ofCal. Life cfe Health Ins. Co. v. Sup. Ct. (2011) 192 Cal. App. 4th 111, 732.) 11 B. The Gravamen of Plaintiffs Cause of Action For Premises Liability Is Professional Negligence 12 13 "Professional negligence" is defined as the negligent act or omission to act by a 14 healthcare provider in the rendering of professional services, whichact or omission is the proximate 15 cause of a personal injury or wrongful death. {Unruh-Haxton v. Regents of University of California 16 (2008) 162Cal.App.4th 343, 352.)The Fourth District Courtof Appeal in Larson v. UHS ofRancho 17 Springs, Inc. (2014) 230 Cal.App.4th 336, 347, explained; 18 Despite the apparent clarity of this definition, applying it may pose difficulties because additional claims often arise out of the same facts that 19 support a professional negligence claim, including claims for battery, products liability, premise liability, fraud, breach of contract, and 20 intentional or negligent infliction of emotional distress. Indeed, because acts 21 supporting a negligence cause of action might also support a cause of action for an intentional tort, the Supreme Court has not limited application of 22 MICRA provisions to causes of action that are based solely on a 'negligent act or omission' as provided in MlCRA's definition of professional 23 negligence...Accordingly, when a plaintiff asserts a claim against a health care provider on a legal theory other than professional 24 negligence, courts must determine whether the claim is nonetheless 25 based on the health care provider's professional negligence, which would require application of MICRA. (Larson, supra. Emphasis added.) 26 Under California law, alleged medical negligence involves conduct engaged for the 27 purpose of delivering health care to a patient. {So v.Shin (2013) 212 Cal. App. 4th 652, 666.) In 28 MCCORMICK, BARSTOW, SHEPPARD,WAYTES Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN 7647 NORTH FRESNO STREET FRESNO. CAU730 SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 1 Other words, conduct directly related to the professional services provided by a health care provider 2 acting in its capacity—consistent with the ordinary and usual part of medical professional services. 3 {Id. at 666-67.) This includes any act or omission by a health care provider in the maintenance 4 of equipment and premises while in the course of providing or rendering medical services. 5 {Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88-89 ("[I]f the act or 6 omission that led to the plaintiffs injuries was negligence in the maintenance of equipment that, 7 under the prevailing standard of care, was reasonably required to treat or accommodate a physical 8 or mental condition of the patient, the plaintiffs claim is one of professional negligence"); see Nava 9 V. Saddleback Memorial Medical Center (2016) 4 Cal.App.5"^ 285, 292 (applying Flores in finding 10 claim that patient fell from a negligently maintained gurney while a patient at a hospital was a 11 professional negligence claim); see also Johnson v. Open Door Community Health Centers (2017) 12 15 Cal.App.S"* 153, 160 (finding no professional negligence for plaintiffwho alleged injuries after 13 her care was completed as a result of a breach of duties owed generally to all visitors of the 14 Defendant clinic).) 15 Here, in both causes of action for Professional Negligence and Premises Liability, 16 the Complaint alleges the Plaintiff slipped and fell due to liquid/urine on the restroom floor while 17 he was a patient and admitted at Saint Agnes. (Complaint, 6, 16, 29.) Also in both, Plaintiff 18 alleges Saint Agnes owed a duty of care to keep the hospital in a reasonably safe condition due to 19 Saint Agnes' ownership, possession, control, management, and/or operation of the same. 20 (Complaint, 13, 28.) A review of the Complaint clearly reveals the causes of action for 21 Professional Negligence and Premises Liability are based on the exact same allegations. The factual 22 allegations are simple- Plaintiffallegedly fell on a liquid in the bathroom of his hospital room while 23 he was admitted as a patient at Saint Agnes in the course of receiving medical care and treatment. 24 In essence, the Plaintiff is claiming Saint Agnes breached the standard of care by failing to 25 adequately observe, monitor, or otherwise prevent Plaintiff from falling. The failure to observe, 26 monitor, orotherwise prevent falls, especially those who have been identified as a high risk for falls, 27 is an essential medical function and fits squarely within the scope of duties owed by nursing staff 28 and other medical professionals charged with providing treatment and care to patients. McCormick, Barstow, Shepparo, Wayte & Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN NORTH FRESNO STREET FRESNO. CA 9}72a SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 1 In other words, Plaintiffs alleged fall and resulting injuries were due to a breach of 2 a duty only owed to patients admitted to the hospital by nursing staffand medical professionals^ 3 not simply a duty owed to all ordinary persons by virtue of operating a facility open to the public. 4 Based on the plain language of the Complaint and the pertinent authority, the factual 5 allegations supporting the premises liability claim amount to nothing more than a professional 6 negligence claim based on a health care provider rendering professional services. Accordingly, 7 Plaintiffs Cause of Action for Premises Liability should be construed as a single, cause of action 8 for Professional Negligence. 9 C. To Establish A Cause Of Action For Medical Malpractice, A Plaintiff Must Present Competent Kxoert Testimony On The Breach Of The Standard Of Care 10 11 In order to prevail on a professional negligence claim against a hospital, such as Saint 12 Agnes, the Plaintiff must establish allof the following prima facie elements: (1) the duty of the 13 medical professional to use such skill, prudence, and diligence as other members of his profession 14 commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection 15 between the alleged negligent conduct and the plaintiffs injury; and (4) actual loss or damage 16 resulting from the medical professional's negligence. {Hanson v. Grade (1999) 76 Cal.App.4th 601, 17 606; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077.) 18 In medical malpractice cases, expert testimony is required to prove or disprove the 19 defendant performed in accordance with the prevailing standard of care. {Flowers v. Torrance 20 Memorial Hospital Medical Center{\99A) 8 Cal.4th992, 1001;M7/er v. Los Angeles County Flood 21 Control Dist. (1973) 8 Cal.3d 689, 702.) "As a general rule, the testimony of an expert witness is 22 required in every professional negligence case to establish the applicable standard of care, whether 23 that standard was met or breached by the defendant, and whether any negligence by the defendant 24 caused the plaintiffs damages." {Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542-1543, citing 25 Flowers, supra, 8 Cal.4th 992, 1001; v. Centro Medico Urgente Medical Center (2008) 159 26 Cal.App.4th 463, 467-468 ["Both the standard of care and defendants' breach must normally be 27 established by expert testimony in a medical malpractice case."].) 28 "The standard of care [in a medical negligence setting] is a matter peculiarly within McCormick, Barstow, Sheppard, Wayte & CARRUTH LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN 7647 HORTH FRESNO STREET FRESNO. CA 93720 SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 1 the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved 2 by their testimony." {Flowers, supra, 8 Cal.4th at 1001 [citations omitted].) Thus, whether in the 3 relevant circumstances the defendant violated the applicable standard of care "can only be proved 4 by opinion testimony unless the medical question is within the common knowledge of laypersons." 5 {Jambaiian v. Borden (1994) 25 Cal.App.4th 836, 841.) When the issues and particular 6 circumstances of a case are beyond the scope of knowledge of a layman, the "expert evidence is 7 conclusive and cannot be disregarded." (Ibid) In medical negligence actions, the trier of fact must 8 base [the] decision [as to standard of care] only on the testimony of the expert witnesses...who have 9 testified in this case." (CACI Nos. 501, 514.) These same standards apply with respect to hospital 10 defendants. {Conlreras v. St. Luke k Hospital (1978) 78 Gal. App. 3d 919, 927.) 11 With respect to causation, "a medical negligence plaintiff must prove that the 12 defendant's negligence was a cause-in-fact of the injury." {Jennings v. Palomar Pomerado Health 13 Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118.) Similar to the standard of care, expert testimony 14 is necessary to establish the causal link between the defendant's conduct and the injury claimed. 15 {Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970, citing Johnson v. Superior Court, supra, 16 143 Cal.App.4th 297, 305.) The causation element must be proven within a reasonable medical 17 probability based upon competent expert testimony; possibility alone is insufficient to establish a 18 prima facia case. {Lattimore, supra 239 Cal.App.4th at 920-971, quoting Jones v. Ortho 19 Pharmaceutical Corp. (1935) 163 Cal.App.3d 396.) 20 Accordingly, when a defendant moves for summary judgment and supports its 21 motion with expert testimony that his treatment and care of the allegedly injured patient was within 22 the applicable standard of care, the defendant is entitled to summary judgment unless the plaintiff 23 comes forward with competent expert evidence on the element of breach of duty. {Munro v. Regents 24 Of The University Of California (1989) 215 Cal.App.3d 977, 985.) 25 D. Saint Agnes Is Entitled to Judgment In Its Favor As To Plaintiffs Cause Of Action For Professional Negligence Because Plaintiff Cannot Create Triable Issues Of Fact As To 26 A Breach Of The Standard Of Care 27 To support its position that Saint Agnes did not breach the applicable standard of 28 care, expert Anne Noder, RN ("Nurse Noder") has submitted a declaration filed concurrently MCCORMICK, BARSTOW, Shepparo, WAYTES Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN NORTH fRESNO STREET FRESNO. CAS3720 SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 1 herewith. Nurse Noder is a Registered Nurse with nearly 35 years of combined nursing experience 2 with specialties in treating and managing patients in the critical care and telemetry (observation) 3 units. Based upon her education, training, and professional experience, Nurse Noder is qualified to 4 render expert opinions as to the applicable standard of care for the treatment and care of patients 5 with high fall risks in the telemetry and critical care units. 6 After a review of the medical records, and other pleadings and discovery documents 7 from this matter, Nurse Noder opined Saint Agnes, its nurses, staff, and personnel, complied with 8 the standard of care in all respects with regard to the treatment and care provided to Plaintiff during 9 the pertinent admission to Saint Agnes. (Decl. Noder, ^ 13.) Nurse Noder opined the initial 10 admission on June 25, 2018 was appropriate where the patient was quickly triaged, promptly 11 evaluated by a physician, underwent multiple diagnostic tests, and was admitted for observation. 12 {Ibid.) The nursing staff promptlyprocessed the patient for admission and appropriately determined 13 the patient was a fall risk. {Ibid.) Nurse Noder further opined that the nursing staff fully appreciated 14 the Plaintiffs fallrisk and appropriately applied the proper safety and fall precautions during the 15 admission including ensuring the room was free of clutter, adequate lighting, bed placed in 16 locked/low position with side rails up, bed alarm active, call light in reach, non-skid footwear, and 17 instructions forthe patient to not getout of bed without assistance. {Ibid.) After the fall was reported 18 hours later, nursing staff immediately assessed the patient for injuries, investigated the 19 circumstances of the fall, ensured proper safety and precautions were in place, and re-assessed the 20 patient multiple times until the patient was discharged instable condition. {Ibid.) Further, the patient 21 was not a candidate for restraints and the application would have been inappropriate as there were 22 no physician-authorized orders. {Ibid.) 23 This shifts the burden as to the breach of the standard of care to the Plaintiff. 24 Accordingly, Saint Agnes has met its burden on the standard of care as to Plaintiffs 25 Causes of Action for Professional Negligence and Premises Liability. Therefore, unless Plaintiff 26 submits competent and sufficient evidence otherwise, Saint Agnes is entitled to summary judgment, 27 or in the alternative, summary adjudication, as to either of Plaintiffs causes of action as to the 28 standard of care. McCORMiCK, BARSTOW, Smepparo, Wayte & Carruth LLP DEFENDANT SAINT AGNES MEDICAL CENTER'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN ALTERNATIVE, SUMMARY ADJUDICATION 7U7 NORTH FRESNO STREET FRESNO. CA Mm 1 E. Alternatively, If Premises Liability Is Found To Be Separate From Professional Negligence, Plaintiff Cannot Create A Triable Issue Of Fact As To The Breach Of The 2 Care F