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Robert A. Rees [State Bar No. 94295] Rees Law Firm P.C. 1925 Century Park East, Suite 2000 Los Angeles, California 90067 Telephone: (310) 277-7071 Facsunile: (310) 277-7067 E-mail: robertreeslaw@att.net

Neutral Arbitrator

Claimant, vs.

ARBITRATIONNO.: 12629

AMENDED RULING ON RESPONDENTS MOTION FOR SUMMARY JUDGMENT

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I.SUMMARY OF RULING

On September 11, 2014, Respondents' motion for summary judgment came on for

hearing by telephone. Claimant ("Ms. ") appeared for herself.

, Esq. appeared for Respondents.

After reading and considering the evidence and arguments, the Arbitrator rules that

the summary judgment motion is granted. Respondents present a detailed declaration from

a qualified health care professional who has examined Ms. entire treatment record.

The evidence shows that nothing done or not done by Respondents fell below the standard

of care and nothing done or not done by Respondents caused or contributed to Ms.

medical condition. The medical records show that Ms. was generally dissatisfied

with the health care provided by Respondents. However, subjective dissatisfaction is not

sufficient to raise a disputed issue of material fact. Ms. allegations are not

supported by any evidence or analysis. Ms. has not met her burden.

AMENDED RULING ON RESPONDENTS MOTION FOR SUMMARY JUDGMENT 1

1 II.PROCEDURAL HISTORY

2 Respondents filed this motion for summary judgment on June 18, 2014. Ms.

3 filed no opposition and requested no additional time in which to file opposition.

4 On September 11, 2014, the Arbitrator heard oral argument on the motion.

5 III.FACT ALLEGATIONS AND EVIDENCE

6 Respondents rely on the declaration of , Ph.D., a nursing

7 expert. According to Nurse , Ms. appeared at the

8 (" ")on December 5, 2012 for an endoscopic procedure

9 to be performed by , M.D. ("Dr. "). At that time, Ms.

10 complained of abdominal discomfort for which she had taken Zantac and other over the

11 counter medications without obtaining relief. The purpose of the procedure was to allow

12 Dr. the oppo1tunity to visualize Ms. upper gastrointestinal tract including

13 her esophagus and stomach, to determine the cause of her complaints. [Declaration oL

, Ph.D. "( Deel.")~ 6 A] 14

15 The circumstances surrounding Ms. claim concern the placement of an

16 intravenous needle, commonly known as an IV needle, for the administration of sedation

17 and fluids immediately before and during the procedure performed by Dr.

18 Deel. ~ 6D]

19 Informed consent for the procedure was obtained by gastroenterologist, Dr.

20 The procedure indications, potential complications, including bleeding perforation,

21 infection, adverse medication reactions and alternatives were explained to the patient, who

22 indicated she understood. Ms. had an opportunity to ask questions prior to sedation

23 and prior to starting the procedure. The Anesthesiologist also explained the risks and

24 benefits regarding sedation and the type and manner to be employed, to which Ms.

25 agreed. [ Deel. ~ 6 B-C]

26 In the patient preparation area, prior to entering the O.R., nurses attempted to start a

27 routine IV line for sedation. Two different nurses made two attempts. The first nurse

28 attempted to start the IV in the back of the patient's right hand. When she could not get the

AMENDED RULING ON RESPONDENTS MOTION FOR SUMMARY JUDGMENT 2

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needle inserted, she asked a second nurse to try. The second nurse attempted the IV

insertion at a different location at the right wrist/base of the right thumb. After the first two

nurses were unsuccessful at starting the IV, a third nurse tried and was successful in placing

the IV with a 22 gauge needle in the left hand. The IV was confirmed to be running and

medications for sedation during the procedure were administered successfully.

Deel. ii 6 D]

The endoscopy procedure was uneventful. Discharge instructions were given. The

peripheral IV line in the left hand was discontinued with no redness or swelling noted and

Ms. was discharged home in stable condition. [ Deel. ir 6 E]

Ms. continues to complain of symptoms she attributes to the side effects of

11 her needle insertion. Ms. has received ongoing, considered, thoughtful evaluation of

12 her symptoms, none of which have been associated with improper care or treatment. None

13 of the treating physicians, or experts, have made any association or drawn a conclusion that

14 the IV insertion performed on this patient resulted in any ongoing problems that Ms.

15 reports. Rather the development of CRPS is the result of Ms. physiology and has

16 been effectively treated. There is nothing that Respondent nurses did or failed to do that

17 was a substantial factor in causing any harm to Ms.

18

19 A.

IV.LEGAL ANALYSIS

Standard For Summary Judgment.

. [ Deel. ir 13]

20 "The purpose of the law of summary judgment is to provide courts with a

21 mechanism to cut through the pmiies' pleadings in order to determine whether, despite their

22 allegations, trial is in fact necessary to resolve their dispute." [Aguilar v. Atlantic Richfield

23 Co. (2001) 25 Cal. 4th 826, 843] Where defendants show with supporting evidence that the

24 plaintiff has not established and cannot reasonably be expected to establish a prima facie

25 case of causation, then summary judgment is appropriate "to avoid a useless trial."

26 [Saelzler v. Advanced Group, 25 Cal. 4th 763, 768 (2001)]

27 "[F]rom commencement to conclusion, the party moving for summary judgment

28 bears the burden of persuasion that there is no triable issue of material fact and that he is

AMENDED RULING ON RESPONDENTS MOTION FOR SUMMARY JUDGMENT 3

1 entitled to judgment as a matter oflaw." [Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.

2 4th 826, 850] A moving defendant must present evidence that, ifuncontradicted, "would

3 constitute a preponderance of evidence that an essential element of the plaintiffs case

4 cannot be established ... " [Kid's Universe v. N2 Labs (2002) 95 Cal. App. 4th 870, 879]

5 Only after defendants meet this burden will the burden shift to plaintiff to prove the

6 existence of a triable issue of fact regarding that element of its cause of action. If defendant

7 fails to meet this burden, the motion must be denied. Plaintiff need not make any showing

8 at all. [Consumer Cause, Inc. v. Smile Care (2001) 91 Cal. App. 4th 454, 468]

9 The only way a cause of action "cannot be established" is if the undisputed facts

10 presented by defendant prove the contrary of plaintiffs allegations as a matter oflaw.

11 [Brantley v. Pisaro (1996) 42 Cal. App. 4th 1597] Defendant must show that "plaintiff does

12 not possess and cannot reasonably obtain needed evidence.'' [Aguilar v. Atlantic Richfield

13 Co., supra, 25 Cal.4th at 854] It is not enough for defendant to show merely that plaintiff

14 has no evidence on an element. Defendant must also produce independent evidence

15 showing plaintiff cannot reasonable obtain evidence to support his/her claim. [ Gaggero v.

16 Yura (2003) 108 Cal. App. 4th 884, 891]

17 A motion for summary judgment may be supported by declarations, deposition

18 transcripts, and matters of which judicial notice shall or may be taken. [California Code of

19 Civil Procedure, Section 437c] After a defendant makes a prima facie case for summary

20 judgment, the burden shifts to the plaintiff to present evidence that a triable issue of

21 material fact exists. [Union Bank v. Superior Court (1995) 31 Cal. App. 4th 573, 583] If the

22 opposing party does not present sufficient competent evidence, the motion will be granted.

23 [Desny v. Wilder (1956) 46 Cal. 2d 715, 725-726]

24 B. The Medical Negligence Claims.

25 The elements of an action for professional medical negligence are: (1) The defendant

26 had a legal duty to conform to a standard of conduct to protect the plaintiff, (2) the

27 defendant failed to meet this standard of conduct, (3) the defendant's failure was the

28 proximate or legal cause of the resulting injury, and (4) the plaintiff was damaged. [See

AMENDED RULING ON RESPONDENTS MOTION FOR SUMMARY JUDGMENT 4

1 CACI 500-02; Bushling v. Fremont Medical Center (2004) 117 Cal. App. 4th 493, 507]

2 The standard of care in a medical negligence action requires only that physicians and

3 surgeons execute in diagnosis and treatment that reasonable degree of skill, knowledge and

4 care ordinarily possessed and exercised by members of the medical profession under

5 similar circumstances. [Mann v. Cracchiolo (1985) 38 Cal. 3d 18, 36; CACI 501]

6 The standard of care in a medical negligence action must be established by qualified

7 expert testimony. [Stephenson v. Kaiser Foundation Hospital (1962) 203 Cal. App. 2d 631,

8 635] Moreover, when the matter in issue is within the knowledge of experts only, such as

9 medical practice, expert evidence is conclusive and may not be disregarded. [Cobbs v.

I 0 Grant (1972) Cal. 3d 229] The inherent nature of a medical malpractice action, including

11 the acceptable standard of care, is a subject matter that is beyond the competency of laymen

12 to express. [Landeros v. Flood (1976) 17 Cal. 3d 399]

13 Besides evidence that Respondents' conduct fell below the standard of care, Ms.

14 must establish causation with a reasonable degree of medical probability. [Miranda

15 v. Bomel Construction Co., Inc. (2010) 187 Cal. App. 4th 1326, 1336]

16 Respondents have met their burden here. They have provided the medical records.

17 They have provided the declaration of an expert who has reviewed and synthesized the

18 important interactions between Respondents and Ms. . The expert has concluded that

19 Respondents' conduct did not fall below the applicable standard of care and did not cause

20 any injury to Ms. . Nurse reasoning was included in her declaration .

21 Once Respondents meet their burden, Ms. must introduce expert testimony

22 based on competent evidence to raise a triable issue of disputed facts. Ms. has not

23 met this burden. Ms. has not provided any competent evidence such as expert

24 declarations to contradict Nurse and raise a triable fact issue.

25 Ms. asserts that she has not found a lawyer to take her case and that she does

26 not know how to oppose a summary judgment motion. This is not an adequate defense. As

27 the court of appeal said in Burnete v. La Casa Dana Apartments (2007)148 Cal. App. 4th

28 1262, 1267:

AMENDED RULING ON RESPONDENTS MOTION FOR SUMMARY JUDGMENT 5

I "As we have previously stated: 'We recognize the fact that [ was]

2 appearing without the benefit of legal counsel. However, we are unable to

3 ignore rules of procedure just because we are aware of that fact. 'When a litigant is

4 appearing in propria persona, he is entitled to the same, but no greater,

5 consideration than other litigants and attorneys [citations]. Further, the in propria

6 persona litigant is held to the same restrictive rules of procedure as an atto1ney

7 [citation].' (County of Orange v. Smith (2005) 132 Cal. App. 4th 1434, 1444) In other

8 words, when a litigant accepts the risks of proceeding without counsel, he or she is

9 stuck with the outcome, and has no greater opportunity to cast off an unfavorable

I 0 judgment than he or she would if represented by counsel." [Id.]

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Moreover, Ms. did not file a response to the separate statement. Failure to

comply with the requirement of a separate statement may constitute a sufficient ground, in

the court's discretion, for granting the motion. [Civ. Proc. Code§ 437c]

( e)]

Summary adjudication "may not be denied on grounds of credibility."[§ 437c, subd.

"If the moving party's evidence is not controverted, the court must ordinarily

accept it as true for purposes of the [summary adjudication] motion. In other words,

the judge generally lacks discretion to deny the motion and send the case to trial

simply to allow the opposing pai1y to cross-examine the affiants or otherwise test

their credibility.' The property managers' declarations may well be self-serving, 'but

where (as here) [they are] uncontradicted, case law establishes that such a showing

can provide the basis for summary judgment"' [Golden West Baseball Co. v. Talley

(1991) 232 Cal. App. 3d 1294, 1305; Trujillo v. First Am. Regist1y, Inc.(2007) 157

Cal. App. 4th 628, 636]

NOTHING IN THIS ARBITRATION DECISION PROHIBITS OR

RESTRICTS THE ENROLLEE FROM DISCUSSING OR REPORTING THE

Ill

AMENDED RULING ON RESPONDENTS MOTION FOR SUMMARY JUDGMENT 6

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UNDERLYING FACTS, RESULTS, TERMS AND CONDITIONS OF THIS

DECISION TO THE DEPARTMENT OF MANAGED HEALTH CARE.

4 DATED: September 23, 2014

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Robert A. Rees

AMENDED RULING ON RESPONDENTS MOTION FOR SUMMARY JUDGMENT 7