Hernandez v. Qureshi CA2/5 ( 2020 )

Filed 8/19/20 Hernandez v. Qureshi CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
EDY HERNANDEZ, individually B290866
and as Guardian Ad Litem for Elias
Hernandez et al., (Los Angeles County
Super. Ct. No. BC620654)
Plaintiffs and Appellants,
v.
AZMATH QURESHI, M.D. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Marc D. Gross, Judge. Affirmed in part and
reversed in part.
Law Offices of Ashton Watkins and Ashton R. Watkins for
Plaintiffs and Appellants.
Carroll, Kelly, Trotter, Franzen & McBride, Mark V.
Franzen, Jennifer L. Sturges and David P. Pruett for Defendants
and Respondents.
__________________________
Marleny Escobar was 34 years old when she died of
hemophagocytic lymphohistiocytosis (HLH), a rare
immunodeficiency disease. She was diagnosed and died shortly
after she gave birth to her second son. Two years after her death,
her husband and sons sued Dr. Azmath Qureshi, the doctor who
provided Escobar with prenatal care, and alleged that Dr.
Qureshi’s failure to investigate Escobar’s symptoms of HLH
during her pregnancy fell below the standard of care and caused
her premature death.
The court granted judgment on the pleadings as to husband
on the ground his claim was time-barred. Dr. Qureshi then
moved for summary judgment against the remaining plaintiffs on
the element of causation. Dr. Qureshi argued that Escobar’s
symptoms did not meet the criteria for an HLH diagnosis while
she was pregnant and, therefore, Dr. Qureshi could not have
provided Escobar with any treatment. In opposition, plaintiffs
submitted a declaration by an obstetrician/gynecologist opining
that if Dr. Qureshi had taken steps to investigate and treat
Escobar’s symptoms while pregnant, it was more likely than not
Escobar would have survived.
The trial court struck the declaration of plaintiffs’ expert on
the ground he did not have any experience treating patients with
HLH. The court further concluded that, even if the expert’s
declaration were admissible, it failed to raise a triable issue of
material fact as to causation because the expert did not opine
that Escobar’s “chance of survival would have been greater than
50% if Defendants had acted differently.”
Plaintiffs appealed. They challenge the trial court’s order
granting judgment on the pleadings as to husband’s claim. They
further argue the trial court erred in striking their expert’s
2
declaration and concluding plaintiffs failed to raise a triable issue
of material fact as to causation. We agree the trial court properly
granted judgment on the pleadings. We find error with the trial
court’s striking of plaintiffs’ expert’s declaration and the court’s
conclusion the declaration failed to raise a triable issue of fact.
We reverse the summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with our standard of review of orders granting
summary judgment, we will recite the facts in the light most
favorable to plaintiffs as the nonmoving parties. (Light v.
Department of Parks & Recreation (2017) 14 Cal. App. 5th 75, 81.)
1. The Illness and Death of Marleny Escobar
On October 29, 2013, Escobar attended her first prenatal
appointment with defendants. She was ten weeks pregnant, and
weighed 176 pounds. She complained of pain with urination and
blood in her urine, and was prescribed a medicine for urinary
tract infections. Lab results showed a low white blood cell count,
and low platelet counts which were flagged on the report as
abnormal.
Starting in December 2013 or January 2014, Escobar began
to have daily fevers. On January 16, 2014, Escobar presented
with a temperature of 102, a sore throat, congestion, cough and
an earache. Dr. Qureshi prescribed her an antibiotic. Although
Escobar was five months pregnant, she had not gained any
weight since her initial appointment with defendants.
The following month, on March 4, 2014, Escobar had a
temperature of 100.4 and complained of a cough. She reported
drinking 10 to 12 glasses of water a day and experiencing a
strong urge to urinate, while only urinating small amounts. She
had lost 10 pounds, and said that being sick had caused her not
3
to eat. A urinalysis showed abnormal levels of proteins, ketones
and bilirubin. Lab results showed that her white blood cell count
remained abnormally low. Dr. Qureshi prescribed her an
antibiotic, and did not order any additional work-up of the white
blood cell count.
On March 18, 2014, Escobar was admitted to the hospital
for the early onset of labor. She arrived at the hospital with a
temperature of 101.8. Ultrasound examinations showed an
enlarged fatty liver and gallstones. Routine lab work showed her
white blood cell count was still abnormally low, and she had
“severely deranged liver function.” Her urine was dark with
abnormal levels of electrolytes.
Escobar gave birth the following day, March 19, 2014, to a
healthy boy. She was then transferred to Long Beach Memorial
Medical Center into Dr. Jennifer McNulty’s care. Dr. McNulty
consulted several specialists about Escobar’s case. Within a
week, the doctors were considering HLH as a diagnosis. Three
days later, she was started on treatment for HLH.
Escobar died the following month on April 17, 2014.
Autopsy findings confirmed her diagnosis of HLH and a fungal
infection throughout her body.
2. The Complaint
In May 2016, Escobar’s husband and sons filed a complaint
for wrongful death alleging medical malpractice by Dr. Qureshi,
her medical practice, and Elizabeth Bolanji, a nurse (collectively,
defendants). The complaint alleged that Escobar exhibited
symptoms of HLH when she received prenatal care with
defendants, and defendants’ failure to provide her with proper
treatment fell below the standard of care, causing her death.
4
3. Motion for Judgment on the Pleadings
Defendants moved for judgment on the pleadings as to
husband’s individual claim for wrongful death. They argued
husband’s claim was time-barred because he discovered Escobar’s
injury when she died in April 2014, and under the one-year
statute of limitations, he only had until April 2015 to file his
claims. The complaint was filed a year later.
In opposition, husband argued that the statute of
limitations did not begin to run until he began to suspect medical
malpractice when his pastor suggested he speak to an attorney in
July 2015. He then timely filed the complaint within a year.
Defendants replied by referencing husband’s statements during
discovery in which he admitted he suspected as early as March
2014 that defendants had failed to correctly diagnose Escobar.
The trial court granted the motion, relying on the principle
that plaintiffs were required to conduct a reasonable
investigation after becoming aware of an injury, and are charged
with knowledge of information that would have been revealed
from such an investigation. (Fox v. Ethicon Endo-Surgery, Inc.
(2005) 35 Cal. 4th 797, 808 (Fox).) The court observed that
husband did not “point to anything he learned in July 2015 that
caused him to ask his pastor if the doctor may have done
something wrong.”
4. Defendants Move for Summary Judgment
In September 2017, defendants moved for summary
judgment on the ground that plaintiffs could not prove
causation.1 Defendants’ motion was supported by the expert
1 Dr. Qureshi and her medical practice moved for summary
judgment, and the court granted Bolaji’s joinder.
5
testimony of Dr. Kenneth McLain, a pediatrician with a specialty
in hematology and oncology. As part of his practice, Dr. McLain
treated children with HLH.
Dr. McLain opined that “no act or omission on the part of
Dr. Qureshi caused or contributed to the death of Ms. Escobar.”
To “meet the criteria for [an] HLH diagnosis,” a patient’s “ferritin
level must be above 3,000,” and before Escobar was hospitalized,
her ferritin level never rose above 3,000. Thus, “even if
additional blood work had been performed during Ms. Escobar’s
pregnancy, she would not have met the criteria for a diagnosis of
HLH.” “By the time HLH was diagnosable in Ms. Escobar . . .
she would not have survived the disease process.”
5. Plaintiffs’ Opposition
Plaintiffs’ opposition to the motion for summary judgment
was supported by the expert declaration of Dr. Paul Sinkhorn, an
obstetrician/gynecologist. Dr. Sinkhorn’s opinions were based on
his medical experience and review of Dr. McLain’s medical
articles on HLH.
In response to Dr. McClain’s opinion that Escobar could not
have been diagnosed with HLH prior to her hospitalization, Dr.
Sinkhorn opined that she could have still received treatment for
HLH even without a diagnosis. Dr. Sinkhorn cited to research
stating that “treatment is appropriate for some who do not meet
the strict diagnostic criteria but for whom there is a high degree
of clinical suspicion for HLH,” and “therapy may be necessary
before a firm diagnosis is in hand.”
Dr. Sinkhorn opined that had Escobar received earlier
treatment for HLH, “more probably than not” she would have
been able to arrest or slow down “her disease process.” He cited
to research stating that “[p]rompt initiation of treatment for HLH
6
is essential to the survival of affected patients,” and “[s]urvival
can be dramatically increased with HLH-specific therapy.”
Dr. Sinkhorn also opined that even before any suspicion of
an HLH diagnosis was possible, had Escobar’s doctors treated her
elevated liver enzymes and her neutropenia, such interventions
could have enabled Escobar “to fight her disease process before
her immune system was fully defeated.”
Dr. Sinkhorn concluded that Dr. Qureshi and her staff’s
failure to address Escobar’s symptoms of “systemic illness”
throughout her pregnancy “led to an unchecked progression of
her disease until 3/18/14, when she went into preterm labor and
was noted to have an extremely dangerous neutropenia that was
now resistant to treatment, and that ultimately led to
disseminated infection, multiple organ failure, and death.” “Dr.
Qureshi’s negligent act or omission . . . was a substantial factor in
causing Decedent’s death.”
6. Dr. Qureshi’s Reply and Evidentiary Objection
In reply, defendants claimed Dr. Sinkhorn’s declaration
was defective because it did not state Escobar would have had a
better than 50 percent chance of surviving HLH had Dr. Qureshi
acted differently. Dr. Qureshi argued that “Plaintiffs are not
entitled to recovery based upon a mere possibility that Decedent’s
chance of survival would have improved if HLH had been
diagnosed earlier. Dr. Sinkhorn’s declaration does not satisfy
Plaintiffs’ burden of production because, at best, his opinion is
that Decedent would have had an increased chance of survival
but falls well short of the requirement that Decedent have a
better than 50 percent chance of survival.”
Dr. Qureshi also objected to Dr. Sinkhorn’s declaration on
the ground it lacked foundation because Dr. Sinkhorn had no
7
expertise in “the diagnosis or treatment of HLH.” The trial court
sustained the objection, concluding that “[a]bsent a showing of
expertise concerning HLH, e.g., what causes HLH, how HLH is
treated, the progression of HLH, and the prognosis of a patient
with HLH, Dr. Sinkhorn failed to establish he is qualified to
refute Dr. McLain’s opinions.” The court struck Dr. Sinkhorn’s
declaration in its entirety.
7. The Granting of Summary Judgment
The court granted summary judgment concluding that
“plaintiffs necessarily failed to meet their burden of raising a
triable issue of material fact in light of the lack of admissibility of
the Declaration of Sinkhorn.” In the alternative, the court
concluded that Dr. Sinkhorn’s declaration, even if admissible, did
not raise a triable issue of fact as to causation because Dr.
Sinkhorn did not “establish Decedent had a greater than 50%
chance of survival if Defendants had done something differently.”
Dr. Sinkhorn’s opinion that “an earlier diagnosis would have
given Decedent an ‘improved chance for survival and wellness,’ ”
was insufficient to show that her “chance of survival would have
been greater than 50% if Defendants had acted differently.” He
“never actually opines that any different action on the part of
Defendants would have given [the decedent] a greater than 50%
chance of survival.”
Plaintiffs timely appealed.
8
DISCUSSION
1. The Trial Court Properly Granted the Motion for
Judgment on the Pleading because the Complaint’s
Allegations Demonstrate Husband’s Action is Barred
by the One-Year Statute of Limitations
Plaintiffs argue the trial court erred in granting judgment
on the pleadings on statute of limitations grounds. They contend
the statute of limitations did not begin running at the time of
Escobar’s death because husband had no suspicion of wrongdoing
prior to talking with his pastor in July 2015. Lastly, plaintiffs
claim they can amend their complaint to show husband did not
have reason to suspect defendants of wrongdoing until July 2015.
We find no error.
“In an action for injury or death against a health care
provider based upon such person’s alleged professional
negligence, the time for the commencement of action shall be
three years after the date of injury or one year after the plaintiff
discovers, or through the use of reasonable diligence should have
discovered, the injury, whichever occurs first.” (Code Civ. Proc.,
§ 340.5.) “The term ‘injury’ means both the plaintiff’s physical
condition and its negligent cause; thus, once a plaintiff knows, or
by reasonable diligence should have known, he or she has been
harmed through professional negligence, the one-year limitations
period begins to run. [Citation.]” (Jefferson v. County of Kern
(2002) 98 Cal. App. 4th 606, 610.)
For purposes of Code of Civil Procedure section 340.5, a
plaintiff “is ‘charged with “presumptive” knowledge of his
negligent injury, and the statute commences to run, once he has
“ ‘notice or information of circumstances to put a reasonable
person on inquiry, or has the opportunity to obtain knowledge
9
from sources open to his investigation . . . .’ ” [Citation.] Thus,
when the plaintiff’s “reasonably founded suspicions [have been
aroused],” and he has actually “become alerted to the necessity
for investigation and pursuit of [his] remedies,” the one-year
period for suit begins. [Citation.]’ ” (Artal v. Allen (2003)
111 Cal. App. 4th 273, 279.) A plaintiff “need not know the
‘specific “facts” necessary to establish’ the cause of action; rather,
he may seek to learn such facts through the ‘process
contemplated by pretrial discovery’; but, within the applicable
limitations period, he must indeed seek to learn the facts
necessary to bring the cause of action in the first place—he
‘cannot wait for’ them ‘to find’ him and ‘sit on’ his ‘rights’; he
‘must go find’ them himself if he can and ‘file suit’ if he does
[citation].” (Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 398.)
We review the pleadings de novo to determine whether the
trial court erred in granting the motion. (O’Neil v. General
Security Corp. (1992) 4 Cal. App. 4th 587, 594, fn. 1.) As to the
right to amend following a grant of a motion for judgment on the
pleadings, the abuse of discretion standard applies. (Virginia G.
v. ABC Unified School Dist. (1993) 15 Cal. App. 4th 1848, 1852.) A
trial court abuses its discretion in granting a motion for judgment
on the pleadings without leave to amend where the complaint
“does not show on its face that it is incapable of amendment.”
(Ibid.)
Here, the trial court found that the one-year limitations of
Code of Civil Procedure section 340.5 commenced with Escobar’s
death. The court reasoned that a plaintiff must conduct an
investigation after becoming aware of an injury, and is charged
with knowledge of information that would have been revealed by
such an investigation. (Fox, supra, 35 Cal.4th at p. 808.)
10
Husband did not allege any facts showing he had conducted a
reasonable investigation after learning of his wife’s death, or
“point to anything he learned in July of 2015 that caused him to
ask his pastor if the doctor may have done something wrong.”
The complaint alleged facts showing husband was on
inquiry notice of his cause of action against defendants at the
time of Escobar’s death. Six months before her death, she
experienced “warning signs of symptoms of illness . . . . [She] had
multiple illness[es] during her pregnancy . . . [and] developed
daily fevers of 101–102. Despite these warning signs, Defendants
. . . failed to conduct further testing or follow up lab work or refer
Decedent to another physician for evaluation, diagnosis or
treatment.” Based on these allegations that wife suffered obvious
symptoms during pregnancy that defendants did not treat,
husband “either had or reasonably should have ‘become alerted to
the necessity of investigation and pursuit of [his] remedies.’
[Citation.]” (Graham v. Hansen (1982) 128 Cal. App. 3d 965, 975.)
Plaintiffs contend they can allege facts showing husband
did not have “reason to know that Defendants caused Ms.
Escobar’s death until July 2015.” However, plaintiffs do not state
what those facts are and have, therefore, failed to show how they
would amend to show husband’s inability to have made earlier
discovery despite reasonable diligence. They do not, for example,
address husband’s statements during discovery that he suspected
as early as March 2014 that defendants had failed to correctly
diagnose Escobar.
As the complaint showed on its face that it was barred by
the statute of limitations and plaintiffs have not shown how they
11
could amend to cure this defect, we conclude the trial court
properly granted the motion without leave to amend.2
2. Expert Declarations
a. Law on Expert Testimony
“A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his
testimony relates.” (Evid. Code, § 720, subd. (a).) “ ‘[T]he
determinative issue in each case is whether the witness has
sufficient skill or experience in the field so his testimony would
be likely to assist the jury in the search for truth.’ [Citation.]”
(Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal. App. 4th
1102, 1115.) “It is the jury’s role to decide the weight to accord to
the expert testimony and ‘courts must . . . be cautious in
excluding expert testimony’ so as not to usurp that role.
[Citation.]” (People v. Veamatahau (2020) 9 Cal. 5th 16, 35, fn. 6.)
The trial court acts as a gatekeeper to exclude improper
expert opinion. “The goal of trial court gatekeeping is simply to
exclude ‘clearly invalid and unreliable’ expert opinion. [Citation.]
In short, the gatekeeper’s role ‘is to make certain that an expert,
2 Defendants also contend that plaintiffs’ appeal from the
order granting judgment on the pleading is untimely because
they should have appealed within 60 days of the order granting
the motion. However, an order on a motion for judgment on the
pleading is not appealable; any appeal must be taken from the
judgment itself. (Ellerbee v. County of Los Angeles (2010)
187 Cal. App. 4th 1206, 1212–1213.) There was no separate
judgment entered against husband. The appeal was timely when
measured by the date of the judgment entered following the grant
of summary judgment.
12
whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in
the relevant field.’ [Citation.]” (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal. 4th 747, 772
(Sargon) (emphasis added).)
“ ‘[W]ork in a particular field is not an absolute prerequisite
to qualification as an expert in that field.’ [Citation.] For
example, ‘[q]ualifications other than a license to practice
medicine may serve to qualify a witness to give a medical
opinion.’ [Citations.] The determinative factor is whether the
expert ‘has sufficient skill or experience in the field so that his [or
her] testimony would be likely to assist the jury in the search for
the truth.’ [Citation.] The degree of expertise goes to the weight
of the expert's testimony, not its admissibility. [Citation.]”
(Chavez v. Glock, Inc. (2012) 207 Cal. App. 4th 1283, 1318–1319
(Chavez); see also Brown v. Colm (1974) 11 Cal. 3d 639, 645
[referring to the “unmistakable general trend in recent years . . .
toward liberalizing the rules relating to the testimonial
qualifications of medical experts”].)
“It is true . . . that the question whether a witness qualifies
as an expert is a matter addressed in the first instance to the
sound discretion of the trial court. [Citation.] It is also
elementary, however, that the court will be deemed to have
abused its discretion if the witness has disclosed sufficient
knowledge of the subject to entitle his opinion to go before the
jury.” (Chavez, supra, 207 Cal.App.4th at p. 1319; People v.
Lucas (2014) 60 Cal. 4th 153, 226.) “ ‘The discretion of a trial
judge is not a whimsical, uncontrolled power, but a legal
discretion, which is subject to the limitations of legal principles
13
governing the subject of its action, and to reversal on appeal
where no reasonable basis for the action is shown.’ [Citation.]”
(Sargon, supra, 55 Cal.4th at p. 773.)
b. The Trial Court Erred in Striking Dr.
Sinkhorn’s Declaration
Plaintiffs contend the trial court erred in striking Dr.
Sinkhorn’s declaration because he was qualified to testify about
whether defendants’ acts or omissions were a substantial factor
in causing Escobar’s death. Defendants argue the trial court
properly found that Dr. Sinkhorn lacked an adequate foundation
to testify about causation because he had never “seen, diagnosed,
or treated a case of HLH.” We conclude the trial court abused its
discretion in striking Dr. Sinkhorn’s declaration.
Defendants cite to Bushling v. Fremont Medical Center
(2004) 117 Cal. App. 4th 493 in support of their argument that Dr.
Sinkhorn lacked the qualifications to opine on causation.
Bushling is inapposite; that case did not address the issue of
whether an expert was qualified to testify. Instead, Bushling
examined the substance of certain medical experts’ opinions on
causation, concluding that their opinions were speculative and
not supported by any factual basis. (Id. at p. 511.)
Dr. Sinkhorn had experience in the subject matter at
hand—the field of obstetrics medicine. He had practiced as an
obstetrician-gynecologist for over thirty years and was a professor
at several local medical schools. In preparation for his testimony,
he reviewed Escobar’s medical records, Dr. McLain’s declaration,
and medical publications by Dr. McClain on the diagnosis and
treatment of HLH. Based on Dr. Sinkhorn’s personal experience
as a medical practitioner, his knowledge of Escobar’s medical
condition, and his review of professional studies about her
14
specific disease, he was qualified to opine on whether defendants’
actions or omissions caused Escobar’s death from HLH. This is
not a case where we can say the expert’s opinion was “clearly
invalid and unreliable” and would be unlikely to assist the jury in
its fact-finding mission. (Sargon, supra, 55 Cal.4th at p. 772.)
Admittedly, there were gaps in Dr. Sinkhorn’s expertise. He had
not treated an HLH patient. However, he was an expert in
obstetrics and was qualified to testify about the symptoms
presented by Escobar, and the effect a lack of treatment of those
symptoms had on her health. What he lacked in HLH experience
he filled in by relying on Dr. McCain’s own studies.3 The
different qualifications of the two medical experts – Dr. McCain
was not an obstetrician and did not treat pregnant women – goes
to the weight that the trier of fact might assign to their opinions.
The trial court erred in concluding Dr. Sinkhorn was
unqualified as an expert witness, and striking his declaration.
c. The Court Properly Overruled the Objection to
Dr. McLain’s Qualifications
Plaintiffs contend the trial court erred in overruling their
objection to Dr. McClain’s declaration. They argue he was not
qualified to opine on the standard of care because he had no
expertise in obstetrics or gynecology. However, Dr. McClain only
opined on causation, not the standard of care. Plaintiffs do not
dispute that Dr. McClain had expertise in the diagnosis and
treatment of HLH patients. He, therefore, was qualified to opine
on whether any actions or omissions by defendants caused
3 It is established law that an expert may base his or her
testimony upon a review of professional studies. (Sargon, supra,
55 Cal.4th at p. 772; Miller v. Silver (1986) 181 Cal. App. 3d 652,
659.)
15
Escobar’s treatment for HLH to be delayed and her to die
prematurely. The trial court did not abuse its discretion in
overruling plaintiffs’ objection to Dr. McClain’s declaration based
on lack of foundation.
3. Summary Judgment
Defendants moved for summary judgment on lack of
causation.4 On appeal from a grant of summary judgment in a
medical malpractice wrongful death action, lack of causation
presents the question of whether a decedent would have had a
greater than 50 percent chance of survival but for the
malpractice. (Bromme v. Pavitt (1992) 5 Cal. App. 4th 1487, 1492–
1493 (Bromme).) In the context of the present appeal, it is:
Would Escobar have had a greater than 50 percent chance of
survival if defendants taken steps to address her symptoms of
HLH prior to her hospitalization in March 2014. We analyze
plaintiffs’ claim of error in two steps: first, we consider whether
defendants carried their initial burden to show the absence of a
triable issue of material fact, and second, if defendants carried
their burden, we decide whether plaintiffs’ showing was sufficient
4 Appellants’ Opening Brief also addressed whether
defendants’ conduct breached the standard of care. In their
Respondents’ Brief, defendants pointed out that their motion was
limited to causation and argued that plaintiffs had impermissibly
commingled the two points. In their Reply Brief, plaintiffs
occasionally refer to standard of care but present no argument on
the point. This is understandable. Because defendant’s motion
for summary judgment did not address whether defendants had
breached the standard of care, plaintiffs were under no obligation
to rebut it. (See Brantley v. Pisaro (1996) 42 Cal. App. 4th 1591,
1594.) Our opinion focuses on the sole ground of defendants’
motion for summary judgment—that no triable issue of fact
exists as to causation.
16
to carry their burden of a prima facie showing of the existence of
a triable issue of fact.
a. Standard of Review
The trial court must grant a summary judgment motion if
“all the papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” (Code Civ. Proc., § 473c, subd. (c).)
“There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) A moving
party bears the initial burden of producing evidence to make a
prima facie showing that no triable issue of material fact exists.
(Ibid.) A defendant moving for summary judgment must produce
evidence showing that the plaintiff cannot establish at least one
element of each of its causes of action. (Id. at p. 854.) The
burden of production then shifts to the party opposing summary
judgment who must produce evidence to make a prima facie
showing that a triable issue of material fact exists. (Id. at
p. 850.)
“Because of the severity of the consequences of summary
judgment, we carefully scrutinize the moving party’s papers and
resolve all doubts regarding the existence of material, triable
issues of fact in favor of the party opposing the motion.
[Citation.]” (Connelly v. County of Fresno (2006) 146 Cal. App. 4th
29, 36.) “ ‘ “[T]he moving party’s affidavits are strictly construed
while those of the opposing party are liberally construed.” . . .
We accept as undisputed facts only those portions of the moving
party’s evidence that are not contradicted by the opposing party’s
17
evidence . . . .’ [Citation.]” (Cheyanna M. v. A.C. Nielsen Co.
(1998) 66 Cal. App. 4th 855, 861.)
b. Causation in Wrongful Death Actions
Code of Civil Procedure section 377.60 provides: “A cause
of action for the death of a person caused by the wrongful act or
neglect of another may be asserted by . . . [¶] [t]he decedent’s . . .
children . . . .” “ ‘The elements of the cause of action for wrongful
death are the tort (negligence or other wrongful act), the
resulting death, and the damages, consisting of the pecuniary
loss suffered by the heirs. [Citations.]’ [Citation.]” (Quiroz v.
Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1263.)
Additionally, “the plaintiff [in a wrongful death action] must
prove the defendant’s conduct was a substantial factor in causing
the decedent’s death.” (Bromme, supra, 5 Cal.App.4th at
p. 1507.)
In the medical malpractice context, “the element of
causation is satisfied when a plaintiff produces sufficient
evidence ‘to allow the jury to infer that in the absence of the
defendant’s negligence, there was a reasonable medical
probability that the [patient] would have obtained a better result.
[Citations.]’ [Citation.]” (Espinosa v. Little Co. of Mary Hospital
(1995) 31 Cal. App. 4th 1304, 1314–1315 (Espinosa).) “Causation
is generally a question of fact for the jury, unless reasonable
minds could not dispute the absence of causation.” (Lombardo v.
Huysentruyt (2001) 91 Cal. App. 4th 656, 666.)
“Where the alleged negligence relates to the failure to
diagnose and treat a potentially terminal condition, a plaintiff
fails to satisfy the requisite causation if the evidence shows the
decedent did not have a greater than 50 percent chance of
survival had the defendant properly diagnosed and treated the
18
condition.” (Bromme, supra, 5 Cal.App.4th at pp. 1492–1493.)
“ ‘While there is no judicially approved definition of what is a
substantial factor for causation purposes, it seems to be
something which is more than a slight, trivial, negligible, or
theoretical factor in producing a particular result.’ [Citation.]”
(Espinosa, supra, 31 Cal.App.4th at p. 1314.)
“The law is well settled that in a personal injury action
causation must be proven within a reasonable medical
probability based upon competent expert testimony. Mere
possibility alone is insufficient to establish a prima facie case.
[Citations.] That there is a distinction between a reasonable
medical ‘probability’ and a medical ‘possibility’ needs little
discussion. There can be many possible ‘causes,’ indeed, an
infinite number of circumstances which can produce an injury or
disease. A possible cause only becomes ‘probable’ when, in the
absence of other reasonable causal explanations, it becomes more
likely than not that the injury was a result of its action. This is
the outer limit of inference upon which an issue may be
submitted to the jury. [Citation.]” (Jones v. Ortho Pharm. Corp.
(1985) 163 Cal. App. 3d 396, 402–403.)
c. Defendants’ Initial Burden in Moving for
Summary Judgment
Plaintiffs contend the trial court erred in concluding
defendants met their initial burden as moving parties for
summary judgment. Plaintiffs argue Dr. McClain “failed to set
forth any reasoned analysis of his opinion that Defendants did
not cause Ms. Escobar’s death.” We disagree.
Dr. McClain opined that a diagnosis of HLH requires a
ferritin level of above 3,000. According to Dr. McClain, Escobar
could not have been diagnosed with or treated for HLH prior to
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her hospitalization because “she did not meet the criteria for an
HLH diagnosis” as her ferritin level was under 3,000 when she
was in defendants’ care. This analysis supported Dr. McClain’s
conclusion that no act or omission by Dr. Qureshi caused or
contributed to Escobar’s death. This was a reasoned analysis,
supported by the facts of the case, and not the “naked” conclusion
plaintiffs assert.
This evidence was sufficient to meet defendants’ initial
burden of proof to show a prima facie case that plaintiffs could
not establish causation.
d. Plaintiffs’ Burden in Opposing Summary
Judgment
Plaintiffs contend the trial court erred in concluding they
did not raise a triable issue of material fact as to causation. They
argue Dr. Sinkhorn’s declaration adequately stated Dr. Qureshi’s
negligence was a substantial factor in causing Escobar’s death.
Defendants contend Dr. Sinkhorn failed to state whether earlier
treatment for HLH “would have had a medical probability of
averting Ms. Escobar’s death.” Reading the declarations
liberally, as we must, we conclude that Dr. Sinkhorn’s
declaration created a triable issue of material fact that
defendants’ negligence caused Escobar’s death.
The trial court concluded that Dr. Sinkhorn “never actually
opines that any different action on the part of Defendants would
have given [Escobar] a greater than 50% chance of survival.” But
Dr. Sinkhorn did state that had Dr. Qureshi conducted an
investigation and work-up of Escobar’s symptoms “in November
or December 2013, it is more likely than not that an early
diagnosis could have been made and appropriate therapy
instituted by January 2014.” Had Escobar received such an
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“earlier diagnosis and earlier treatment,” “more probably than
not” Escobar would have had a “better chance at arresting or
ameliorating her disease process.” Dr. Sinkhorn cited to research
finding that patients who receive the recommended regimen of
treatment for HLH have “a median survival of 54 percent at 6.2
years.”
In response to Dr. McLain’s conclusion that Escobar could
not have been treated for HLH prior to her hospitalization
because her ferritin levels were below 3,000, Dr. Sinkhorn cited
to research stating that treatment is appropriate for some
patients who “do not meet the strict diagnostic criteria.” Dr.
Sinkhorn also attested that defendants should have treated some
of Escobar’s symptoms, and such measures would have
strengthened Escobar’s immune system. This would have
enabled her body to fight the HLH. Instead, by doing nothing,
Escobar’s illness progressed to the point where her neutropenia
was “resistant to treatment” when she was finally admitted to
the hospital. The impairment of Escobar’s immune system
“predispose[d]” her to the fungal infection that was one of the
causes of her death. Had Escobar either been treated earlier for
HLH or had her observable symptoms during her pregnancy been
reasonably addressed, she would have more likely than not
survived.
These opinions did not posit “some theoretical possibility
the negligent act could have been a cause-in-fact of a particular
injury.” (Jennings v. Palomar Pomerado Health Systems, Inc.
(2003) 114 Cal. App. 4th 1108, 1117.) Rather, Dr. Sinkhorn’s
declaration, “entitled to all favorable inferences that may
reasonably be derived from that declaration,” was sufficient to
raise a triable issue of fact as to whether Escobar’s chance of
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surviving was more than 50 percent had Dr. Qureshi properly
taken steps to investigate her symptoms. (Hanson v. Grode
(1999) 76 Cal. App. 4th 601, 607–608.)
Defendants contend that Dr. Sinkhorn did not raise a
triable issue of material fact because he made only “conclusory
assertions,” and failed to provide any “factual description to
suggest how or when defendants would have acted to have
prevented the death of Ms. Escobar.” On the contrary, Dr.
Sinkhorn set forth four specific actions defendants should have
taken that would have prevented Escobar’s death.
First, when defendants learned Escobar had a
“significantly depressed” white blood cell count in October 2013,
“along with a low platelet count and a borderline absolute
neutrophil count,” they should have referred her “to a specialist
(internist, perinatologist, or hematologist) capable of performing
a full diagnostic work-up” or, “at the very least . . . ordered a
repeat CBC with manual differential to confirm or negate the
abnormal findings.” Had they done so, “the pertinent
contributing abnormalities could have been addressed much
earlier by targeted therapies, and these treatments would have
had a significantly higher chance of amelioration or arrest of
progression, with an attendant lowering of her chance of fatality.”
Second, when Escobar registered a fever of 102 on
January 16, 2014 and upper respiratory symptoms, Escobar
“should have been sent for a CBC and chest X-ray. . . . If a CBC
would have been done at this time, it is more likely than not that
leukopenia would again have been noted.”
Third, defendants should have observed and recorded
Escobar’s daily fevers from January through March 2014, and
ordered a work-up. Had they done so, her continued neutropenia
22
would have been discovered. These were missed opportunities for
Escobar to have her symptoms treated.
Fourth, two weeks before Escobar’s hospitalization, when
she presented with a cough, fever, an abnormally low white blood
cell count, and abnormal levels of protein, ketones and bilirubin
in her urine, defendants should have referred her to a specialist.
Had they done so, “it is more probable than not that Mrs. Escobar
would have had a better chance of disease amelioration . . . .”
These were not expert opinions “based on assumptions of
fact without evidentiary support [citation], or on speculative or
conjectural factors” lacking foundation. (Jennings, supra,
114 Cal.App.4th at p. 1117.) Instead, Dr. Sinkhorn’s opinion was
supported by clear, reasoned explanations. Thus plaintiffs met
their prima facie burden of showing triable issues of fact as to
causation, and the motion for summary judgment should have
been denied.
DISPOSITION
The summary judgment is reversed. The court’s order
granting judgment on the pleadings is affirmed. Appellants to
recover their costs on appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
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