Ramirez v. On Assignment

























Filed 2/6/13 Ramirez v. On Assignment CA2/8

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT




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HERMINIA RAMIREZ et al., Plaintiffs and Appellants, v. ON ASSIGNMENT, INC., et al., Defendants and Respondents.

B238388 (Los Angeles County Super. Ct. No. NC051507)

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Roy
L. Paul, Judge. Affirmed.



Law Offices of Philip P. DeLuca and
Philip P. DeLuca for Plaintiffs and Appellants.



Ericksen Arbuthnot, Mark L. Kiefer,
Kathleen E. Wilcox and Gregory Mase for Defendants and Respondents.





_____________________________



This appeal arises from a href="http://www.fearnotlaw.com/">wrongful death action based on medical
malpractice which is alleged to have occurred in the course of treating a
gunshot victim in a hospital emergency room. This appeal concerns an emergency room
nurse. The trial court granted the
nurse’s motion for summary judgment,
and entered summary judgment accordingly.
We affirm.

FACTS

On July 28, 2007, an assailant shot Julio Ramirez in the left thigh
and lower leg. After the shooting, paramedics transported Ramirez to Long Beach
Memorial Medical Center (LBMMC). Ramirez
arrived at LBMMC’s emergency room at about 11:45 p.m. Defendant and respondent Lynn Witte, R.N.,
attended Ramirez in the emergency room.href="#_ftn1" name="_ftnref1" title="">>[1] Atul Gupta, M.D., was the primary emergency
room doctor.href="#_ftn2" name="_ftnref2"
title="">[2] Based on a lack of pulse in Ramirez’s lower
leg and severe bleeding from his gunshot wounds, Dr. Gupta ordered an on-call
vascular surgeon to be summoned.
However, there were significant delays in his arrival at the
hospital. Ramirez was not taken from the
emergency room to an operating room until about 2:45 a.m. on July 29, 2007. He died
during surgery at about 7:00 a.m. on July 29, 2007. Further facts
will be noted below in addressing the summary judgment in favor of Nurse Witte
that is challenged on this appeal.

Ramirez’s
mother and minor children (collectively Plaintiffs) filed a wrongful death
action. Plaintiffs’ operative pleading
eventually became their Second Amended Complaint (SAC), which they filed in
December 2008. Plaintiffs’ SAC alleges
Ramirez “unnecessarily bled to death” as a result of a negligent delay in
getting him into surgery. The SAC
contains no specific allegations as to Nurse Witte or any other nurse. Plaintiffs added Nurse Witte as a defendant
in August 2010 by filing a DOE amendment.href="#_ftn3" name="_ftnref3" title="">>[3]


In June 2011, Nurse Witte filed a href="http://www.fearnotlaw.com/">motion for summary judgment (MSJ). Witte’s MSJ was supported by a declaration
from Tammi McConnell, R.N., as an expert on the standard of care. Nurse McConnell’s declaration included her
opinion that the nursing medical treatment which Nurse Witte provided to
Ramirez in the LBMMC emergency room did not fall below the required standard of
care. Nurse McConnell explained and
opined: “The primary responsibility [of
a nurse] with a critical patient is to directly care for that patient’s needs
and [to] monitor that patient’s condition, which Nurse Witte did.” Further, “ . . . Nurse
Witte did not breach any standard of care by failing to go up the chain of
command to have a supervisor see to it that the vascular surgeon was being
contacted more frequently –– Dr. Gupta had already assumed that function, and
repeatedly informed Nurse Witte that he was on top of this issue.”

Plaintiffs filed an opposition to Nurse Witte’s MSJ in
August 2011. Plaintiffs’ opposition was
supported by a declaration from Patricia Reigers, R.N., as an expert on the
standard of care. In her declaration,
Nurse Reigers explained that Nurse Witte had expressly stated concern to Dr.
Gupta at 1:00
a.m. that Ramirez “was going
to die if he did not get help or surgery,” but “never personally called a
surgeon or inquired to the unit secretary the status of a surgeon’s
arrival.” And further: “It was negligent and below the community
standard of care of California Licensed Registered Nurses
[for] . . . Witte . . . to fail to act
as a [sic] patient who was obviously
dying while under her care and going up the hospital chain of command to seek a
surgeon for this patient immediately to attempt to control his bleeding.”

Nurse Witte filed objections to Nurse Reigers’s declaration
submitted in support of Plaintiffs’ opposition to the MSJ, both in its entirety
and as to specific parts. As to the
objection to the declaration in its entirety, Nurse Witte argued that while
Nurse Reigers was a qualified nurse,
she was not a qualified emergency room
nurse. Thus, she was not competent
to offer an expert opinion on the standard of care in the setting presented in
Plaintiffs’ case.

At a hearing on September 1, 2011, the trial court directed the parties to submit further briefing and
supporting evidence as appropriate addressing the issue of Nurse Witte’s duty
of care. The parties complied. At a further hearing on October
20, 2011, the trial court
sustained Nurse Witte’s objection to the entirety of Nurse Reigers’s
declaration in support of Plaintiffs’ opposition to the MSJ, and then granted
the MSJ. On November
2, 2011, the trial court
signed and entered a formal order granting Nurse Witte’s MSJ and summary
judgment in favor of Nurse Witte.

Plaintiffs filed a timely notice of appeal.

DISCUSSION

Plaintiffs
contend the summary judgment in favor of Nurse Witte must be reversed because
there is evidence in the record showing she violated her duty to act as a
patient advocate for the decedent, Ramirez.
Plaintiffs acknowledge that Nurse Witte submitted an expert’s
declaration from Nurse McConnell, but claim that, because they submitted an
expert’s declaration from Nurse Reigers, there is conflicting evidence, making
this an improper case for granting a MSJ.
Plaintiffs’ argument does not persuade us to reverse summary judgment in
favor of Nurse Witte.

In their
opening brief on appeal, Plaintiffs acknowledge that the “direct nursing care”
provided by Nurse Witte was “within the acceptable standard of care,” but argue
her “indirect care was not acceptable” because she acted “below the standard of
care of Registered Nurses practicing in the community.” Plaintiffs argue Nurse Witte should have
acted as a “patient advocate” – by “initiating action to improve the health
care or change decisions which were not in the best interest of Mr.
Ramirez.” Plaintiffs argue Nurse Witte
acted substandardly in that she “did not go up the hospital chain of command by
calling in the house R.N. supervisor to take command of calling physicians on a
more frequent basis than was [being] done by the unit secretaries or contacting
other qualified physicians in a more timely manner.”

The problem
with Plaintiffs’ arguments on appeal is that they ignore, and do not challenge,
the trial court’s evidentiary ruling to sustain Nurse Witte’s objection to
Nurse Reigers’s entire expert declaration in support of the opposition to the
MSJ. “On appeal after a motion for
summary judgment has been granted, we review the record de novo, considering
all the evidence set forth in the moving and opposition papers >except that to which objections have been
made and sustained.” (>Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334, italics added; and see also State
Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1035
[accord].) In short, unless a prevailing
argument is made on appeal that a trial court’s evidentiary ruling was
incorrect, we must disregard evidence as to which an objection was made and
sustained.

Plaintiffs have
not challenged – and therefore cannot prevail on – the trial court’s
evidentiary rulings concerning Plaintiffs’ evidence below. In light of the principles guiding our
review, we are reviewing an order granting a MSJ that was not opposed with
conflicting evidence. Because Nurse
Witte’s MSJ showed that she did not act below the required standard of care,
and because there is no evidence showing there is a dispute of material fact
about Nurse Witte’s standard of care, we affirm the summary judgment in favor
of Nurse Witte.

We agree with
Plaintiffs that a trial court may not weigh the evidence like a factfinder when
ruling on a MSJ. Further, that summary
judgment is a drastic remedy, and that a trial court is required to liberally
construe opposition papers. The problem
with these standardized rules set forth by Plaintiffs is that they do not
defeat Nurse Witte’s MSJ because there was no evidence admitted in opposition
to her MSJ. We also agree with
Plaintiffs that a trial court may not grant a MSJ where there is “valid,
conflicting expert testimony” regarding the issues of duty, breach and
causation. However, as we have noted,
there is no conflicting expert testimony
here because the trial court sustained Nurse Witte’s objection to Nurse
Reigers’s expert declaration in its entirety.





DISPOSITION

The
judgment is affirmed. Each party to bear
its own costs on appeal.





BIGELOW,
P. J.



We concur:



FLIER,
J.





GRIMES,
J.