Morris v. Universal Health Services

Filed 12/23/09 Morris v. Universal Health Services CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed.

Wentworth, Paoli & Purdy, William M. Paoli and Clarice J. Letizia for Plaintiff and Appellant.

Dummit, Buchholz & Trapp, Scott D. Buchholz and Kyle A. Cruse for Defendant and Respondent.

Plaintiff Birgitt Morris^[1]appeals judgment entered in favor of defendant Universal Health Services of Rancho Springs, Inc. dba Southwest Healthcare System Inland Valley Medical Center (Hospital). Judgment was entered after the trial court granted Hospitals motion for summary judgment, in which Hospital argued plaintiffs medical malpractice action had no merit as a matter of law.

Plaintiff contends she refuted Hospitals summary judgment motion by establishing that Hospital committed numerous violations of the standard of care for hospitals and that the violations resulted in delayed treatment of a nosocomial infection^[2]that caused plaintiff to become incontinent. We conclude summary judgment was properly granted due to plaintiff failing to raise a material triable issue of fact, and affirm the judgment.

1. Factual and Procedural Background

The following facts are undisputed. On October 18, 2005, Dr. Bryan Byrne performed planned surgery on plaintiff to remove a cyst of the right adnexa^[3]and eliminate her pelvic pain. According to Dr. Byrnes medical reports, he performed an exploratory laparotomy (abdomen surgery) and removed a right adnexal mass. He also removed multiple adhesions in the abdomen, bowel, adnexa, and bladder. Plaintiff was discharged from the hospital on October 21, 2005.

On October 27, 2005, plaintiff returned to the hospital emergency department (ER), complaining of abdominal pain. Dr. Brent Jacobson examined plaintiff and called Dr. Byrne, who said he would see plaintiff in the morning. Dr. Jacobson gave plaintiff antibiotics for a possible early wound infection and discharged plaintiff.

Plaintiff returned to the ER on November 1, 2005, complaining of feculent drainage from her incision. Dr. Byrne admitted plaintiff to the hospital. Dr. Michael Cross, examined plaintiff and recommended conservative treatment for a probable fistula and advised plaintiff that she likely would need additional surgery. Plaintiff was treated with antibiotics and discharged on November 4, 2005.

On November 9, 2005, plaintiff again returned to the ER for further treatment of her fistula. Dr. Byrne stated in his discharge report that plaintiff developed from her surgery incision what appeared to be a fistula. Dr. Cross and Dr. Tito Gorski evaluated and treated plaintiff with intravenous (IV) antibiotics, which was to continue after she was discharged on November 13, 2005.

On November 26, 2005, plaintiff went back to the ER complaining of increased drainage from her abdominal wound. Dr. Ryan Tran requested a surgical consult. Dr. Gorski examined plaintiff and recommended conservative treatment with antibiotics. Plaintiff received IV antibiotics. Dr. Gorski discharged plaintiff on November 27, 2005.

Again, on December 5, 2005, plaintiff returned to the ER complaining of abdominal pain and nausea. A CT scan revealed a small bowel obstruction. Plaintiff was admitted to the hospital for observation and possible surgery to repair the obstruction. On December 14, 2005, Dr. David Suh performed on plaintiff an exploratory laparotomy and small bowel resection, and repaired a fistula. Plaintiff was discharged on December 21, 2005.

In January 2007, plaintiff filed a complaint against Hospital and Dr. Gorski. Plaintiffs complaint contains a single cause of action alleging medical malpractice. Plaintiff alleges that on October 18, 2005, defendants negligently treated her for chronic pelvic pain. Defendants negligently performed surgical and post-surgical care, causing plaintiff to suffer severe infection, requiring further surgical intervention. Plaintiff alleges she sustained severe permanent injury and will incur future pain and suffering due to defendants negligence.

In December 2007, Hospital filed a motion for summary judgment asserting that plaintiff could not demonstrate one or more of the elements of medical malpractice, and plaintiff had no evidence that any act or omission by Hospital fell below the standard of care or caused plaintiffs alleged injuries. Attached in support of Hospitals summary judgment motion were copies of plaintiffs medical records. Hospital also provided a supporting declaration by Dr. Stuart Davidson.

Dr. Davidson stated in his declaration that when plaintiff was discharged on October 21, 2005, after her planned surgery, she exhibited no signs of any infection but later developed a wound infection, which resulted from a fistula that developed during the October 18 surgery. Dr. Davidson concluded there was nothing Hospital staff or non-physician employees could have done to prevent the infection beyond what was recommended by plaintiffs treating physicians. The non-physician employees complied with physician orders. Therefore no act or omission by Hospitals non-physician employees caused or contributed to plaintiffs alleged injuries.

Plaintiff filed opposition arguing, based on Dr. Sees supporting declarations, that Hospitals employees failure to follow Hospitals infection control policies and procedures caused plaintiff to become incontinent.

Hospital filed a reply brief and a supplemental declaration by Shannon Weidauer, Hospitals director of human resources. Weidauer stated in her declaration that the physicians who treated plaintiff were not Hospital employees. They were independent contractors.

On several occasions the trial court continued Hospitals motion for summary judgment to allow plaintiff to depose the Hospital director, obtain additional documents, and file supplemental opposition and supplemental declarations by Dr. See. In total, plaintiff filed three declarations by Dr. See. Dr. Sees three declarations was the only evidence presented in opposition to Hospitals summary judgment motion.

Dr. Sees First Declaration

Dr. See stated in his first declaration that Hospital employees failure after surgery to recognize the clear warning signs that a perforated bowel was the source of infection was below the standard of care and a violation of infectious disease control procedures at any licensed acute care hospital in California. Hospital failed in this regard during plaintiffs initial visit and her return visits to the hospital on October 27, 2005, November 1, 2005, November 9, 2005, November 26, 2005, and December 5, 2005.

Dr. See also concluded Hospitals employees should have followed Hospitals infection control policies and procedures and immediately instituted treatment for the infection. He claims Hospital employees failed to recognize and report the post-operative infection, notify the infectious disease control committee, and call an infectious disease specialist. As a consequence, what began as a small bowel obstruction became a perforated colon which progressed due to Hospitals negligence.

Dr. Sees Second Declaration

Dr. See states in his second declaration that under Hospitals infection control plan, one or more infection control practitioners (ICPs), who are licensed registered nurses, manage Hospitals infection control process. An ICP has authority to take immediate action to prevent and control infections. He or she also collaborates with Hospitals infection control chairman and administration, and reports to the infection control committee. The ICP interfaces with the clinical laboratory and infectious disease physicians, is part of the infection control committee, and oversees the infection control program. If Hospitals infection control program does not perform its function or does so in a manner that is below the standard of care, Hospital is liable for this failure.

Hospitals infection control committee consisted of a member of Hospitals administration, a nursing department representative, and an infection control representative. The infection control department was supposed to monitor surgical infection prevention but did not do this, and such failure was below the standard of care. Hospitals employees did not follow Hospitals infection control plan procedures. They did not assure proper care practices were maintained, including assuring that Hospitals infection control manual and policies were available at the nursing stations and department offices, and enforcing Hospitals infection control policies and procedures. If Hospital employees had followed Hospitals infection control policies and procedures, they would have reported the infection to the infection control department and committee.

Hospitals infection control plan placed the burden on the IPC, not the physician, to control outbreaks associated with infections. In the instant case, the ICP did not conduct surveillance of appropriate selection and timing of administration of prophylactic antimicrobials, make recommendations, follow up, or provide documentation regarding plaintiff. Hospital employees did not recognize the clear warning signs post-surgery, that a perforated bowel was the source of Birgett Morris infection. (Italics added.)

Dr. See concluded Hospital acted below the standard of care each time it discharged plaintiff from the hospital (1) without reporting the post operative infection to the infection control department or infection control committee; (2) without notifying the infection control department and its infection control committee, and (3) without the Infection Control Practitioner (ICP) collaborating with the Infection Control Chairman and Administration, without reporting to the infection control committee and (4) without interfacing with the Clinical Laboratory (Microbiology) and Infectious Disease Physicians, and (5) without conducting surveillance or monitoring, as required by the 2005 Infection Control Ploan[sic]. Dr. See further stated that plaintiff should have been admitted to the hospital, placed in isolation, and treated immediately for the infection.

Dr. See concluded that, within a reasonable degree of medical probability, plaintiff would not be incontinent if Hospital employees had followed the standard of care and followed its infection control plan procedures. According to Dr. See, What began as a small bowel obstruction became a perforated colon which would have never been allowed to progress if the [ICP] had been doing his or her job and following the procedures set forth in the 2005 Infection Control Plan. (Italics added.)

Dr. Sees Third Declaration

Dr. See states in his third declaration that Hospitals infection control plan was designed to require intervention in the care and treatment of patients, in order to prevent infections from spreading from patient to patient. Hospital employees charged with infection control responsibilities have duties separate from those of physicians. Had Hospitals employees followed Hospitals infection control policies and procedures, plaintiff would have been treated differently and her infection would not have progressed. In turn, she would not have become incontinent.

Dr. See noted that, according to nurse Harveys deposition testimony, citing Hospitals infection control plan, the ICP has authority to override a physicians decision. The plan states the infection control practitioner, through the chairman of the infection control committee, has been granted the authority to take immediate action to prevent and control infections. (Italics added.) This includes placing a patient in isolation. This is consistent with Hospitals policies and procedures. The nurse is responsible for identifying patients who require additional isolation precautions.

According to Dr. See, Hospitals employees were responsible for placing plaintiff on isolation precautions. Had this been done, plaintiff would not have been discharged and would have received different care and treatment. Under the plan, the ICP had authority to institute surveillance, prevention, and control measures or studies when there was reason to believe the patient or staff might be in immediate risk of acquiring a nosocomial infection. Because plaintiff had a nosocomial infection, the ICP should have placed plaintiff in isolation before she was discharged and when she returned for further care, regardless of the treatment decisions of her doctors.

According to the head of Hospitals infection control department, when a patient had such an infection, a nurse or physician would normally notify the infection control committee, which would then evaluate the patients record. Hospitals nurses should have reported plaintiffs possible nosocomial infection to the infection control committee and/or infection control department so that appropriate action could have been taken, including calling in an infectious disease consult and providing plaintiff with different care and treatment. The treating physicians relied on Hospitals employees to give them information. Hospital employees failed to recognize and chart information relating to plaintiffs possible nosocomial infection.

Dr. See provides in his third declaration a timeline summarizing each instance in which he believed Hospitals employees violated the standard of care and how plaintiffs course of treatment, in his opinion, would have been different had the infection control policies and procedures been followed.

Hospital filed written objections to each of Dr. Sees declarations, asserting as to most of Dr. Sees statements, that they lacked foundation and assumed facts not in evidence.

On October 8, 2008, the trial court heard Hospitals summary judgment motion and, following oral argument, sustained Hospitals objections to Dr. Sees declarations and granted summary judgment. Plaintiff appeals. Dr. Gorski was not a party to the summary judgment motion and is not a party to this appeal.

2. Summary Judgment Standard of Review

Summary judgment is proper where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial courts decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477, citing Code Civ. Proc., 437c, subd. (o)(2), and Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 853- 854.) Speculation and conjecture are not enough to support a judgment in favor of plaintiffs. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 828.) [W]e review the trial courts order, not its reasoning, and affirm an order if it is correct on any theory apparent from the record. [Citation.] (Fieldstone Company v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.4th 357, 372.)

3. Medical Malpractice

In plaintiffs medical malpractice action alleging Hospital through its employees committed medical malpractice, plaintiff must establish: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professionals negligence. [Citation.] (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606; see also Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 (Powell).)

Here, Hospital moved for summary judgment on the grounds that plaintiff could not establish either that it breached the duty of care or caused plaintiff injury. The trial court concluded that in moving for summary judgment, Hospital satisfied its initial burden on these issues. Thus, the burden shifted to plaintiff to raise a triable issue of material fact. Plaintiff attempted to do this by presenting three declarations by Dr. See, who opined that because Hospital employees did not follow Hospitals infection control policies and procedures, this resulted in delay in properly treating plaintiffs nosocomial infection, which, in turn, caused plaintiff to become incontinent.

4. Objections to Dr. Sees Declarations

The trial court sustained Hospitals evidentiary objections to Dr. Sees declarations. The objections were based primarily on lack of foundation and assumption of facts not in evidence. Hospital objected to most of the statements in Dr. Sees three declarations. Essentially the only statements not objected to were undisputed factual statements. Dr. Sees declarations are the only evidence plaintiff cites in support of her opposition. Because plaintiff did not challenge in her opening brief the trial courts ruling sustaining Hospitals objections to Dr. Sees declarations, plaintiff forfeited the argument. Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. To withhold a point until the closing brief deprives the respondent of the opportunity to answer it or requires the effort and delay of an additional brief by permission. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)

Plaintiff did not assert she was objecting to the trial courts ruling sustaining Hospitals objections until after Hospital argued in its respondents brief that plaintiff cannot prevail on appeal because the trial court sustained Hospitals objections to Dr. Sees declarations and therefore there was no evidence raising a triable issue of fact.

Plaintiff argues in her reply that, although she did not specifically raise the argument in her opening brief, her entire opening brief addresses the issue and thus she did not forfeit it. Plaintiff claims the purpose of her appeal was to reverse the trial courts exclusion of Dr. Sees declarations. Therefore the issue was not forfeited on appeal.

We disagree. Plaintiff does not raise or address the issue of whether the trial court properly sustained Hospitals objections to Dr. Sees declarations. Plaintiff also fails to state in her reply a good reason not raising the issue in her opening brief. It is therefore forfeited. (Campos v. Anderson, supra, 57 Cal.App.4th at p. 794, fn. 3.)

With the sustaining of Hospitals objections to Dr. Sees declarations, plaintiffs opposition is unsupported by any admissible evidence and summary judgment was thus proper.

5. Causation

Even assuming plaintiff did not forfeit her objection to the trial courts ruling sustaining Hospitals objections to Dr. Sees declarations, summary judgment was proper because Dr. Sees declarations do not sufficiently address causation, other than by providing unfounded, conclusory opinions. While Dr. See was not required to set forth in excruciating detail the factual basis for his opinions (Powell, supra, 151 Cal.App.4th at p. 125), he was required to provide minimal foundation evidence and a reasoned explanation for reaching his ultimate conclusions. (Id. at p. 126, fn. 2; Jennings v. Palomar Pomerado Health Systems, Inc. (2003)114 Cal.App.4th 1108, 1117, 1119-1120.) Dr. See did not do so.

Applying a liberal construction to Dr. Sees declarations, we conclude the declarations do not establish that Hospitals employees failure to follow Hospitals infection control policies and procedures caused plaintiffs incontinence. Dr. See simply assumes the cause from the fact of plaintiffs injury. Dr. Sees declarations were therefore insufficient to defeat Hospitals summary judgment motion. (Powell, supra, 151 Cal.App.4th at p. 129.)

Plaintiff cites Powell, supra, 151 Cal.App.4th 112, for the proposition that under the principle of liberal interpretation of Dr. Sees declarations, his opinions create triable issues of fact as to duty of care and causation, which preclude summary judgment motion. (Id. at p. 130.) But Powell is distinguishable because, unlike in the instant case, in Powell the plaintiffs physicians declaration opposing summary judgment contained a reasonable explanation as to causation based on facts which were supported by the record. (Ibid.) Here, Dr. See concludes in his declarations that Hospital employees failure to follow infection control procedures caused her incontinence, but there is no reasoned explanation as to how Dr. See reached this conclusory opinion.

There is also no reasoned explanation as to why Dr. Sees conclusion that, had Hospital employees followed Hospitals infection control policies and procedures, plaintiff would have received different treatment that would have prevented her incontinence. Plaintiffs medical records indicate that her physicians examined and treated plaintiff for infection. There is no evidence that Hospital employees would have altered such treatment by reporting and charting the infection and insisting plaintiff be placed in isolation.

In fact, Dr. Sees declarations and plaintiffs opening and reply briefs contain contradictory statements as to the course of events leading to plaintiffs incontinence. They state that plaintiffs infection caused a bowel obstruction, or vice versa, which developed into a perforation and then incontinence. They also suggest plaintiffs bowel was perforated during the initial surgery, not because of a nosocomial infection, and the perforation was the cause of incontinence and infection. Dr. See fails to provide a reasonable explanation as to how plaintiffs infection and plaintiffs incontinence were linked. While there may be uncertainty as to what caused plaintiffs incontinence, there is no admissible evidence Hospital employees were responsible for causing it due to not following Hospital infection control policies and procedures.

Even if Hospitals employees reported and charted that plaintiff had a nosocomial infection and placed her in isolation, rather than discharging her, it is speculative that her physicians would have provided her with different treatment or that such treatment would have prevented incontinence, particularly if her colon had already been perforated during her initial surgery.

Plaintiff has failed to provide evidence of liability, even assuming Hospitals employees did not fully adhere to Hospitals infectious control policies and procedures.

6. Disposition

The judgment is affirmed. Defendant is awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Miller

J.

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^[1] In the record and appellants brief, plaintiffs first name is spelled Birgitt, Birgit, Bergitt, and Bridget.

^[2] Plaintiffs expert, Jackie R. See, M.D., defines a nosocomial infection as an infection that was not present or incubating prior to the patient being admitted to the hospital, but occurred within 72 hours after admittance to the hospital.

^[3] A cyst of the right adnexal is a mass or cyst attached to the right adnexa. Adnexa are conjoined, subordinate, or associated anatomic parts, such as the uterine adnexa, which include the ovaries and fallopian tubes. The parties briefing and the record contains various undefined medical terms. To the extent we provide simplified explanations for those terms, it is by use of the online medical dictionary, Merriam-Webster Medical Dictionary [as of September 3, 2009].