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Electronically Filed
1 CAROLYN L. NORTHROP, Bar No. 237989 4/2/2021 3:04 PM
SCHUERING ZIMMERMAN & DOYLE
Superior Court of California
2 400 University Avenue
Sacramento, CA 95825-6502 County of Stanislaus
3 (916) 567-0400 Clerk of the Court
FAX 568-0400 By: Kimberly Mean, Deputy
4
5 Attorneys for Defendant, DOCTORS MEDICAL
CENTER OF MODESTO, INC.
6
7
SUPERIOR COURT OF CALIFORNIA, COUNTY OF STANISLAUS
8
9
KEVIN O'GRADY, CATHERINE O'GRADY, Case No.: CV-19-000798
10 SHAWN O'GRADY, RYAN O'GRADY, Consolidated with CV- 19-002689
11 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
12 vs. DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION
13 COUNTY OF STANISLAUS, et al., FOR SUMMARY JUDGMENT
Defendants
14 Date: July 8, 2021
CATHERINE O'GRADY, Time: 8:30 a.m.
KEVIN O'GRADY,
O'GRADY, RYAN O'GRADY, Dept: 24
15 SHAWN
Judge: Hon. Sonny S. Sandhu
16 Plaintiffs, Complaint Filed: 05/10/19
Trial Date: Not Scheduled
17 vs.
18 CORIZON HEALTH, INC., CORRECTIONAL
MEDICAL SERVICES, INC., PRISON
19 HEALTH SERVICES, INC., CALIFORNIA
FORENSIC MEDICAL GROUP, INC.,
20 DOCTORS MEDICAL CENTER OF
MODESTO, and DOES 1 to 1 00, Inclusive,
21
Defendants.
22
23 III
24 ///
25 ///
26 III
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
I. INTRODUCTION 1
II. FACTUAL BACKGROUND 1
III. DEFENDANT, DMC, MAY FILE A MOTION FOR SUMMARY JUDGMENT...3
IV. PLAINTIFFS' COMPLAINT IS WITHOUT MERIT AND THE MOTION FOR
SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE NO TRIABLE
ISSUE OF MATERIAL FACT EXISTS AND DEFENDANT, DMC, MET THE
STANDARD OF CARE AND WAS NOT THE CAUSE OF ANY INJURY TO
PLAINTIFFS ,4
A. Expert testimony is required to establish the standard of care ,5
B. DMC met the standard of care 6
C. No act or omission by DMC was the cause or a substantial factor of any injury
to Plaintiffs, 8
D. Plaintiffs' own discovery responses indicate that they have no contentions of .
negligence against DMC 9
V. CONCLUSION 10
Ml
TABLE OF CONTENTS
TABLE OF AUTHORITIES
CASES: PAGE:
Alefv. Alia Bates Hospital
(1992) 5 Cal.App4th 208,215 6
Allen v. Leonard
(1969) 270 Cal.App.2d 209, 215 5
Barber v. Marina Sailing
(1985) 36 Cal.App.4th 558, 562 4
Brantly v. Pisaro
(1996)42 Cal.App.4th 1592, 1596 4
Bromme v. Pavitt
(1992) 5 Cal.App.4th 1487, 1498 8
Bucquet v. Livingston
(1978) 57 Cal.App.3d 914, 921 4,8
Budd v. Nixon
(1971) 6 Cal.3d 195,200 8
Burgess v. Superior Court
(1992) 2 Cal.4th 1064, 1081 5
Engelking v. Carlson
(1939) 13 Cal.2d 216, 221 5
Huffman v. Lundquist
(1951)37 Cal.2d 465,474, 475 5
Jones v. Ortho Pharmaceutical
(1985) 163 Cal.App.3d 396, 403 8
Landeros v. Flood
(1976) 17 Cal.3d 399,410 5,6
Lattimore v. Dickey
(2015) 239 Cal.App.4th 959, 968 4
Leslie G. v.Perry & Associates
(1996) 43 Cal.App.4th 472, 482 3,4
|H|
TABLE OF AUTHORITIES
CASES: PAGE:
McMannis v. San Diego Postal Credit Union
(1998)61 Cal.App.4th 547 3,10
Munro v. Regents of University of California
(1989)251 Cal.App.977, 984 5
Simmons v. West Covina Med. Ctr.
(1989) 212 Cal.App.3d 696, 701-703 4,8
Simone v. Sabo
(1951) 37 Cal.2d 253, 257 6
Sinz v. Owens
(1949)33 Cal.2d 749, 753 5
Stephenson v. Kaiser Foundation Hospitals
(1962) 203 Cal.App.2d 631, 636 5
Union Bank v. Superior Court
(1995) 31 Cal.App.4th 573, 590 9
STATUTES. Etc.: PAGE:
Code of Civil Procedure
§473
Subdivision c(b)(l) 9
Subdivision c(c) 3
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TABLE OF AUTHORITIES
1 Defendant, DOCTORS MEDICAL CENTER OF MODESTO, INC. (hereinafter
2 "DMC") hereby submits itsMemorandum of Points and Authorities in support of its
3 Motion for Summary Judgment as to Plaintiffs' Complaint.
4 I.
5 INTRODUCTION
6 On May 10, 2019, Plaintiffs, KEVIN O' GRADY, CATHERINE O'GRADY, SHAWN
7 O'GRADY, and RYAN O'GRADY, filed a Complaint alleging a single cause of action for
8 general negligence (professional medical negligence) for the wrongful death of
9 Decedent, Kevin M. O'Grady, against DMC. Separate Statement of Undisputed Material
10 Facts (hereinafter "SUMF"), 1. Plaintiffs, KEVIN O'GRADY and CATHERINE O'GRADY,
11 are Decedent's parents. SUMF, 2-3. Plaintiffs, SHAWN O'GRADY and RYAN O'GRADY,
12 are Decedent's brothers. On July 24, 2019, the Court sustained DMC's Demurrer
13 without leave to amend as to Plaintiffs' SHAWN O'GRADY and RYAN O'GRADY. As
14 such, the only remaining Plaintiffs in this matter are KEVIN O'GRADY and CATHERINE
15 O'GRADY. DMC has a supportive expert opinion that it met the standard of care and is
16 not a cause of Decedent, Kevin M. O'Grady's death and thereby not a cause of any
17 injury to Plaintiffs. Either standard of care or causation is sufficient by itself to defeat
18 Plaintiffs' claims. As there is no triable issue of material fact related to standard of care
19 or causation, summary judgment must be granted in favor of DMC and against
20 Plaintiffs.
21 II.
22 FACTUAL BACKGROUND
23 On May 22, 2018, at or about 10:45 a.m., Decedent was transferred to DMC via
24 ambulance from Stanislaus County Jail after being found slumped over in a
25 wheelchair, non-responsive, and with shallow respirations and dilated pupils. SUMF,
26 4-5. In the days prior, Decedent had been showing signs of altered mental status and
l
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
1 falling, which required him to be placed in the wheelchair for safety reasons. SUMF,
2 6. Prior to Decedent's transfer to DMC, Decedent was administered Narcan and he
3 became more responsive and was speaking to the emergency medical services
4 (paramedics) staff when they arrived. SUMF, 7-8.
5 Upon arrival to DMC's emergency room, Decedent presented with signs of
6 multiple organ failure, septic shock and possible necrotizing fasciitis of his right
7 deltoid. SUMF, 9-11. Decedent's urine screen was positive for amphetamines and
8 opioids. SUMF, 12-13. Decedent was intubated and resuscitated in the emergency
9 room. SUMF, 14-15. While in the Emergency Room, his heart rate was 147, his blood
10 pressure was 85/61 and his pH level was 6.63 and 6.8. SUMF, 16-18.
11 A CT scan of his right shoulder showed a large gas-filied open wound lateral
12 aspect of the upper arm extending to the skin into the lateral deltoid muscle with
13 diffuse soft tissue edema throughout the upper arm and chest wall regions. SUMF, 19.
14 An emergent incision and drainage of Decedent's right deltoid was immediately
15 performed in the emergency department. SUMF, 20. Decedent was diagnosed with
16 severe septic shock, acute hypoxemic respiratory failure, necrotizing fasciitis, acute
17 renal failure and hyperkalemia and was admitted to the ICU. SUMF, 21-26.
18 Decedent was noted to be critically ill with life threatening organ failure. SUMF,
19 27. The orthopedic surgeon, Dr. Trzeciak, confirmed that Decedent had necrotizing
20 fasciitis and severe septic shock. SUMF, 28-29. Decedent was emergently taken to
21 the operating room to debride the right shoulder and anterior chest wall. SUMF, 30.
22 Dr. Trzeciak specifically noted that Decedent was in a dire situation and at
23 severe risk of losing his life due to his septic shock. SUMF, 31 . He further noted that
24 even after thorough incision and drainage and surgical degloving, Decedent's
25 infection may still not be able to be controlled. SUMF, 32. Dr. Trzeciak noted that
26 Decedent would likely need multiple surgeries and very involved care from all teams
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
1 given the state of his health. SUMF, 33. Decedent was consistently monitored and his
2 vitals were observed overnight. SUMF, 34.
3 The following day, on May 23, 2018, Decedent was seen by Dr. Ramanjeet
4 Singh in the ICU. SUMF, 35. He noted that Decedent's condition had worsened
5 overnight and had become more acidotic and hypotensive. SUMF, 36-38. He noted
6 that Decedent's pupils were non-responsive and that he remained critically ill with life
7 threatening organ failure. SUMF, 39-40.
8 Despite aggressive therapy, Decedent's condition continued to deteriorate and
9 he went into cardiac arrest. SUMF, 41 . At approximately 10:55 a.m., a code blue was
10 called. SUMF, 42. Despite the performance of CPR for 30 minutes, unfortunately
11 Decedent was pronounced dead at approximately 11:17 a.m. SUMF, 43.
12 III.
13 DEFENDANT. PMC. MAY FILE A MOTION FOR SUMMARY JUDGMENT
14 A motion for summary judgment should be granted in the event "there is no
15 triable issue as to any material fact." Cal. Code of Civ. Proc. §473c(c). Where the
16 moving party is a defendant, it must demonstrate that no genuine issue of material
17 fact as to the nonexistence of one or more essential elements of the plaintiffs cause
18 of action exists. McMannis v. San Diego Postal Credit Union (1998) 61 CaI.App.4th 547.
19 A defendant may also obtain summary judgment by establishing that no triable issue
20 of fact exists as to the existence of each element of one or more of its affirmative
21 defenses. Ibid. A moving defendant need not support its motion with evidence which
22 negates an essential element of the plaintiffs case. Leslie G. v. Perry & Associates
23 (1996) 43 Cal.App.4th 472, 482. Instead, the moving defendant may demonstrate
24 factually that plaintiffs case lacks evidentiary support. Ibid.
25 Once the defendant has met its burden of proof, the burden shifts to the
26 opposing plaintiff. McMannis, supra, 61 Cal.App.4th 547. The plaintiff then must show
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
1 that a triable issue of one or more material facts exists as to that cause of action.
2 Barber v. Marina Sailing (1985) 36 Cal.App.4th 558, 562. In making this showing, the
3 plaintiff must set forth specific facts showing the existence of a triable issue of
4 material fact. Ibid. The plaintiff must make an affirmative showing, with specific
5 facts, that a genuine issue of material fact exists as to all matters of which plaintiff has
6 the burden of proof. Brandy v. Pisaro (1996) 42 Cal.App.4th 1592, 1596. If the plaintiff
7 is unable to meet her burden of proof by providing evidence of the essential elements
8 of her case, all other facts are rendered immaterial. Leslie G., supra , 43 Cal.App.4th
9 472, 482.
IV.
10
11 PLAINTIFFS* COMPLAINT IS WITHOUT MERIT AND THE MOTION FOR SUMMARY
JUDGMENT SHOULD BE GRANTED BECAUSE NO TRIABLE ISSUE OF MATERIAL
12 FACT EXISTS AND DEFENDANT. PMC. MET THE STANDARD OF CARE AND WAS
NOT THE CAUSE OF ANY INJURY TO PLAINTIFFS.
13
14 "The elements of the cause of action for wrongful death are the tort
15 (negligence or other wrongful act), the resulting death, and the damages, consisting
16 of the pecuniary loss suffered by the heirs." Lattimore v. Dickey (2015) 239
17 Cal.App.4th 959, 968. In the context of a medical provider, the plaintiffs must establish
18 the following prima facie elements: the duty of the profession to use such skill,
19 pmdence, and diligence as other members of his profession commonly possess and
20 exercise; a breach of that duty; a proximate causal connection between the negligent
21 conduct and the resulting injury; and an actual loss or damage resulting from the
22 professional negligence. Simmons v. West Covina Med. Ctr (1989) 212 Cal.App.3d
23 696, 702; Bucquet v. Livingston (1978) 57 Cal.App.3d 914, 921. Plaintiffs must not only
24 show the health care providers' treatment fell below the applicable standard of care,
25 but also that the breach of that standard was the actual cause of the plaintiffs' injury.
26 Bucquet, supra, 57 Cal.App.3d at 921.
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
1 Negligence on the part of a health care provider will not be presumed, it must
2 be affirmatively proved. Huffman v. Lundquist (1951) 37 Cal.2d 465, 474; Engelking v.
3 Carlson (1939) 13 Cal.2d 216, 221. The standard of care refers to the "average" level of
4 competence existing among similar medical professionals. Allen v. Leonard (1969)
5 270 Cal.App.2d 209, 215. The plaintiffs must establish that the physician's care and
6 treatment fell below the "standard of care." That standard is met when the physician
7 exercises that reasonable degree of skill, knowledge, and care ordinarily possessed
8 and exercised by members of the medical profession under similar circumstances.
9 Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1081 . A mere error of judgment, in
10 the absence of a want of reasonable care and skill in the application of the doctor's
11 medical learning to the case presented, will not render a physician responsible for
12 untoward consequences in the patient's condition. Huffman, supra , 37 Cal.2d at 475.
13 A doctor is not a "warrantor of cures" and is not required to guarantee that untoward
14 results will not occur. Stephenson v. Kaiser Foundation Hospitals (1962) 203
15 Cal.App.2d 631,636.
16 A. Expert testimony is required to establish the standard of care.
17 Any violation of the standard of care must be premised upon competent expert
18 testimony when issues are addressed that are not a matter of common knowledge.
19 Munro v. Regents of University of California (1989) 251 Cal.App.977, 984. In Landeros
20 v. Flood (1976) 17 Cal.3d 399, 410, the court held:
21 The standard of care against which the acts of a physician
are to be measured is a matter particularly within the
22
knowledge of experts; it presents the basic issue in a
23 malpractice action and can only be provided by their
testimony, unless the conduct required by the particular
24 circumstances is within the common knowledge of the
layman. Ibid, citing Sinz v. Owens (1949) 33 Cal.2d 749, 753.
25
26 ///
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
1 Because of the specialized knowledge necessary to evaluate acts or omissions
2 of medical practitioners, the determination of whether or not certain acts or
3 omissions are within the standards of practice must be left to the determination of
4 experts within the profession. Landeros v. Flood, supra, 1 7 Cal.3d at 4 1 0; Simorte v.
5 Sabo (1951) 37 Cal.2d 253, 257.
6 The standard of care in a medical malpractice case requires medical service
7 providers to act with the same reasonable degree of skill, knowledge, and care as
8 members of their professions in similar situations. Alefv. Alta Bates Hospital (1992) 5
9 Cal.App.4th 208, 2 1 5. The standard of care against which the acts or omissions of a
10 medical practitioner are measured is determined by the knowledge of experts within
11 the profession, except when the conduct in question is a matter of common
12 knowledge of a layperson. Alef, supra, 5 Cal.App.4th at 215.
13 B. DMC met the standard of care.
14 Expert witness testimony is supportive of DMC and the care it provided to
15 Decedent, Kevin M. O'Grady, on May 22 and May 23, 2018. DMC's care is supported by
16 Dr. Peter C. Benson, who is board certified in emergency medicine, with a
17 subspecialty in emergency medical services. Dr. Benson earned his medical degree
18 from Tufts University School of Medicine in 1998. He completed an emergency
19 medicine residency at the University of Southern California in 2005. Dr. Benson has
20 been practicing emergency medicine for thirty years and continues to treat patients in
21 an emergency medicine setting. He has significant experience treating patients
22 similar to Decedent over the years of his practice in emergency medicine. In the last
23 five years, he has substantial professional experience providing emergency medicine
24 services within an emergency room setting, including patients similar to Decedent,
25 Kevin M. O'Grady. Dr. Benson is familiar with the standard of care as it existed in
26 2018. He has had the opportunity to review the pleadings and medical records of
6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
1 Decedent from DMC, the radiology films of Decedent from DMC, Plaintiffs' KEVIN
2 O'GRADY and CATHERINE O'GRADY's responses to Special Interrogatories, Set One,
3 from DMC, and Plaintiff, KEVIN O'GRADY's responses to Request for Production of
4 Documents, Set One, from DMC, and the deposition transcripts of Carolyn Sosa, Maria
5 Marroquin, David Martinez, Brandon Vales, Juan Macias, Chance Caetano, and
6 Fernando Velasco.
7 Based upon Dr. Benson's education, training, and experience, and review of
8 the relevant documents, it is Dr. Benson's opinion that DMC met the standard of care
9 with regard to the care and treatment provided to Decedent, Kevin M. O' Grady, on
10 May 22, 2018 through May 23, 2018. SUMF 44-45. Decedent presented to DMC in an
11 essentially dire state. SUMF, 46. He was already in life-threatening multi-organ failure
12 and had necrotizing fasciitis of his right deltoid prior to admission. SUMF, 47. Upon
13 arrival to the emergency room at DMC and admission into ICU, Decedent was
14 appropriately monitored. SUMF, 48. Further, Decedent was timely provided care as
15 evidenced by the emergent incision and drainage performed in the emergency
16 department following his CT scan. SUMF, 49. In addition, a timely request for an
17 immediate orthopedic consult was placed and Decedent was emergently taken to the
18 OR for a more thorough incision and drainage. SUMF, 50.
19 Despite the efforts of the emergency and orthopedic staff and consistent
20 monitoring by nursing staff at DMC, Decedent continued to deteriorate and developed
21 cardiac arrest and was pronounced deceased at 11:17 a.m. on May 23, 2018. SUMF,
22 51. Therefore, Dr. Benson has opined that DMC, the emergency room nurses, and
23 agents and employees, met the standard of care at all times with regard to the care
24 and treatment provided to Decedent, Kevin M. O'Grady, May 22, 2018-May 23, 2018.
25 SUMF, 52.
26 III
7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
C. No act or omission by DMC was the cause or a substantial factor of
1 any injury to Plaintiffs.
2 In order to maintain a viable cause of action for medical negligence against
3 DMC, Plaintiffs must plead and prove:
4 " '(1) the duty of the professional to use such skill, prudence,
and diligence as other members of his profession commonly
5 possess and exercise; (2) a breach of that duty; (3) a
proximate causal connection between the negligent
6 conduct and the resulting injury; and (4) actual Toss or
damage resulting from the professional's negligence.'"
7 CSimmons v. West Covina Medical Clinic (1989) 212
Cal.App.3d 696, 701-702, citing Buddv. Nixon (1971) 6 Cal.3d
8 195, 200, emphasis added)
9 The plaintiffs must show a causal connection between the negligent act or
10 omission and the plaintiffs injury. Bucquet v Livingston (1976) 57 Cal.App.3d 914, 921.
11 A mere possibility is not legally sufficient. Ibid. Competent evidence must support
12 that the specific breach in the standard of care was "probably" the cause of a specific
13 injury. Jones v. Ortho Pharmaceutical (1985) 163 Cal. App. 3d 396, 403. In order to
14 establish causation to a reasonable medical probability, plaintiff must demonstrate
15 that defendant's negligence, by itself, was sufficient to bring about the injury, i.e., that
16 the injury was more likely than not the result of negligence. Bromme v. Pavitt (1992)
17 5 Cal.App.4th 1487, 1498. "A less than 50-50 possibility that defendant's omission
18 caused the harm does not meet the requisite reasonable medical probability test of
19 proximate cause." Simmons, supra , 212 Cal.App.3d at 702-03. The law is settled that
20 causation must be proven within a reasonable probability based upon competent
21 expert testimony. Bromme, supra, 5 Cal.App.4th 1487, 1498.
22 Expert witness testimony is supportive of DMC, which to a reasonable degree
23 of medical probability, no act or omission of DMC was a cause of or substantial factor
24 in any injury to Decedent, Kevin M. O'Grady. Dr. Benson has opined to a reasonable
25 degree of medical probability that no act or omission by DMC, by and through its
26 agents and employees, including, but not limited to nursing staff, was a cause or
8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
1 substantial factor in any injury to Decedent, Kevin O'Grady. Decedent presented to
2 DMC in an essentially moribund state. SUMF, 53. Upon his presentation to DMC,
3 Decedent's pH acid level was so severe that it would have been almost impossible for
4 Decedent to recover from his infection. SUMF, 54. Further, his heart rate and blood
5 pressure indicate that Decedent was already in decompensated shock. SUMF, 55.
6 Decedent received all of the appropriate care and treatment from DMC; however,
7 nothing would have altered the ultimate outcome of Decedent's death. SUMF, 56.
8 Therefore, Dr. Benson has opined to a reasonable degree of medical probability that
9 no act or omission by DMC was a cause or substantial factor in any injury to Decedent,
10 Kevin M. O'Grady. SUMF, 57.
11 no
D. Plaintiffs' own discovery responses indicate that they have
12 contentions of negligence against DMC.
Code of Civil Procedure, Section 437c(b)(l) specifically provides that a motion
13
for summary judgment can be supported by answers to interrogatories. Further, a
14
defendant may rely on a plaintiffs factually devoid answers to interrogatories as an
15
evidentiary basis in the separate statement of undisputed facts where those answers
16
contained no evidence to support a theory of liability. Union Bank v. Superior Court
17
18 (1995) 31 Cal.App.4th 573, 590. Further, factually devoid answers to interrogatories
are sufficient to shift the burden to plaintiffs to show there was a triable issue of fact.
19
20 Ibid.
Here, Plaintiffs were specifically asked to state all specific acts or omissions of
21
22 DMC which they contend were negligent or otherwise tortious, as well as state all
23 facts in support of those contentions, identify all witnesses with knowledge of the
facts that support those contentions, and identify all documents that support those
24
contentions. See Exhibits "A" and "B" to the Declaration of Carolyn L. Northrop, filed
25
herewith. In response to those interrogatories, both Plaintiffs, KEVIN O'GRADY and
26
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
1 CATHERINE O'GRADY, served verified responses under oath that there were no acts
2 or omissions of DMC that they contend were negligent or otherwise tortious and
3 further responded "Not applicable" to the interrogatories seeking all facts, witnesses,
4 and documents that support their contentions. See Exhibits "C" and "D" to the
5 Declaration of Carolyn L. Northrop, filed herewith. As such, Plaintiffs have specifically
6 established that DMC was not negligent and they have no evidence to support any
7 breach of duty. SUMF, 58-59. As such, there is no triable issue of material fact for an
8 essential element of Plaintiffs' wrongful death claim and summary judgment must be
9 entered in favor of DMC.
10 V.
11 CONCLUSION
12 Defendant, DMC, has established that it met the standard of care in the care
13 and treatment provided to Decedent, Kevin M. O'Grady, May 22, 2018-May 23, 2018.
14 Decedent presented to DMC in an essentially dire state, in life-threatening multi-organ
15 failure and had necrotizing fasciitis of his right deltoid prior to admission. SUMF, 46
16 and 47. Upon arrival to the emergency room at DMC and admission into ICU,
17 Decedent was appropriately monitored and was timely provided care. There were no
18 acts or omissions that breached the standard of care. There were no acts or
19 omissions that were a cause or substantial factor in any injury to Decedent, Kevin M.
20 O'Grady. Expert testimony establishes that DMC met the standard of care and that
21 DMC was not a cause of any injury. When there is no genuine issue of material fact as
22 to one or more of the essential elements of plaintiffs claims, the defendant is entitled
23 to summary judgment. McMannis, supra, 61 Cal.App.4th 547. Here, Plaintiffs, KEVIN
24 O'GRADY and CATHERINE O'GRADY, will be unable to prevail on two essential prongs
25 of their cause of action for negligence and judgment must be granted in DMC's favor.
26 III
10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT
1 WHEREFORE, DMC respectfully requests the Court to grant Defendant, DMC's
2 Motion for Summary Judgment and enter judgment as a matter of law in favor of DMC
3 and against Plaintiffs.
4 Dated: April 2, 2021
SCHUERING ZIMMERMAN & DOYLE, LLP
5
6 at
By.
CAROLYFvJ-t. NORTHkOP U
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Attorneys for Defendant, DOCTORS MEDICAL
CENTER OF MODESTO, INC.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOCTORS MEDICAL
CENTER OF MODESTO, INC.'S MOTION FOR SUMMARY JUDGMENT