San Antonio Regional Hospital v. Super. Ct.

• Court: California Court of Appeal
• Decided: May 28, 2024
• Docket: E082481
• Status: Published

Opinion

Filed 5/3/24; Certified for Publication 5/28/24 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

SAN ANTONIO REGIONAL HOSPITAL, E082481 Petitioner, (Super.Ct.No. CIVSB2217117) v. OPINION THE SUPERIOR COURT OF SAN BERNARDINO COUNTY,

Respondent;

JOSEPH MUSHARBASH, Individually and as Successor in Interest, etc.

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Jeffrey Erickson,

Judge. Petition granted.

Horvitz & Levy, Scott P. Dixler, Jason Y. Siu; Davis, Grass, Goldstein & Finlay,

Jeffery W. Grass, and Evelin Duenas for Petitioner.

No appearance for Respondent.

Calderwood Law Group and Steven F. Calderwood, for Real Party in Interest.

1 In this wrongful death case arising from alleged medical malpractice, the

defendant hospital seeks a writ of mandate directing the trial court to grant it summary

judgment. The hospital argues the plaintiff’s only expert lacks the requisite skill or

experience to opine on the standard of care or causation elements of the plaintiff’s claim,

so there are no triable issues of fact. We agree and therefore grant the petition.

I. BACKGROUND

Real party in interest Joseph Musharbash sued petitioner San Antonio Regional

Hospital, among others, after his adult son Michael died while being treated for a

traumatic brain injury at the hospital. Michael was treated first in the hospital’s

emergency room and then in the intensive care unit. His treatment included several

surgeries attempting to relieve intercranial pressure; first, an “external ventricular drain,”

and later a craniectomy. Musharbash’s complaint alleges the hospital provided

inadequate care by failing to properly evaluate Michael’s injuries and “undertake

appropriate courses of action.” In interrogatories, Musharbash stated the hospital was

liable for Michael’s death because “surgical intervention” was only belatedly performed,

and because nursing staff failed to adequately monitor Michael, inform his doctors of his

status, and advocate for the need for earlier surgical intervention. In briefing after our

order to show cause, Musharbash specifies it is now “undisputed that the care and

treatment of decedent in the Emergency Department at [the hospital] adhered to the

2 standard of care,” and that his claim focuses on treatment provided after he was moved to 1 the hospital’s intensive care unit.

The hospital moved for summary judgment, based in part on the declarations of

two doctors who opined that Michael had received adequate treatment. In opposition,

Musharbash submitted a single expert declaration, by Rhona Wang, a certified registered

nurse anesthetist. Wang declared that she was qualified to opine on Michael’s care

because she had been employed as a nurse and nurse anesthetist since 2002 for several

Los Angeles hospitals. She had provided anesthesia to “neuro/trauma patients” and had

worked in various cardiac-related observation and intensive care units. She opined:

“Based on my education, training, and experience, and my review of the records in this

case, to a reasonable degree of medical probability, there was a delay in the performance

of the [external ventricular drain] and/or craniectomy, delays in contacting physicians

regarding changes in [Michael’s] clinical status, and/or actions or inactions by healthcare

providers at [the hospital] in implementing treatment modalities, which were a substantial

factor in causing or contributing to [Michael’s] death.”

The trial court found Wang’s declaration demonstrated triable issues about the

standard of care and causation elements of Musharbash’s claim, and it denied the

hospital’s motion for summary judgment. Defendants timely petitioned for writ relief,

and we issued an order to show cause.

1 Earlier, including in his opposition to the hospital’s motion for summary judgment, Musharbash took the position that the emergency room care, too, was inadequate.

3 II. DISCUSSION

Musharbash does not contest that the hospital met its initial burden of production,

shifting the burden to him to present evidence establishing a triable issue of material fact.

(See Code Civ. Proc., § 437c, subd. (p)(2).) Thus, our question is whether Wang’s

declaration raises any triable issues as to whether doctors or nurses at the hospital were

negligent in treating Musharbash’s son. It does not.

A court must grant summary judgment if there is no triable issue of material fact

and the moving party is entitled to judgment in its favor as a matter of law. (Code Civ.

Proc., § 437c, subd. (c).) A party challenging denial of summary judgment may do so by

writ petition. (Id., subd. (m)(1).) “‘Where the trial court’s denial of a motion for

summary judgment will result in trial on nonactionable claims, a writ of mandate will

issue.’” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1259-1260.) We

review a trial court’s decision on summary judgment de novo, determining independently

whether the undisputed material facts support summary judgment. (Id. at p. 1260; Intel

Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)

The tort of medical malpractice underlies Musharbash’s wrongful death claim.

(See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263 [“‘The elements

of the cause of action for wrongful death are the tort (negligence or other wrongful act),

the resulting death, and the damages”].) “The elements of a cause of action for medical

malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of

the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate

4 causal connection between the negligent conduct and the injury; and (4) resulting loss or

damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

“The first element, standard of care, is the key issue in a malpractice action and

can only be proved by expert testimony, unless the circumstances are such that the

required conduct is within the layperson’s common knowledge.” (Lattimore v. Dickey

(2015) 239 Cal.App.4th 959, 968 (Lattimore).) Proving the third element, causation, also

requires “‘competent expert testimony.’” (Miranda v. Bomel Construction Co., Inc.

(2010) 187 Cal.App.4th 1326, 1336 (Miranda); accord, Salasguevara v. Wyeth

Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385 (Salasguevara) [“medical causation

can only be determined by expert medical testimony”].)

In our order to show cause, we invited the parties to discuss Health and Safety

Code, section 1799.110’s “preclusive effect on the testimony of expert witnesses.” That

statute states: “In any action for damages involving a claim of negligence against a

physician and surgeon providing emergency medical coverage for a general acute care

hospital emergency department, the court shall admit expert medical testimony only from

physicians and surgeons who have had substantial professional experience within the last

five years while assigned to provide emergency medical coverage in a general acute care 2 hospital emergency department.” (Health & Saf. Code, § 1799.110, subd. (c).)

“Furthermore, [Health and Safety Code,] section 1799.110, subdivision (c) applies to any

2 When we issued our order to show cause, Musharbash had not yet clarified he no longer asserts any claims based on treatment provided in the hospital’s emergency room.

5 suit involving a claim of negligent emergency treatment by a hospital emergency room

physician whether or not that physician is named as a defendant.” (Jutzi v. County of Los

Angeles (1987) 196 Cal.App.3d 637, 646-647 (Jutzi).) There is, however, some case law

holding this subdivision applies only to testimony about the standard of care, and does

not apply to testimony about causation or damages. (See Stokes v. Baker (2019) 35

Cal.App.5th 946, 966.)

The parties dispute whether this statutory limitation applies only to expert

testimony about care provided in the hospital’s emergency department, or whether it

extends also to expert testimony about care provided in the intensive care unit. There is

some authority in support of both positions. In Jutzi, supra, 196 Cal.App.3d at p. 647,

the court focused on whether the treatment rendered constituted emergency medical care,

rather than what hospital department provided the care. Other cases have disagreed,

finding the statute applies whenever “an emergency room physician treats a patient in a

general acute care hospital emergency department,” and no matter the nature of the

treatment. (James v. St. Elizabeth Community Hospital (1994) 30 Cal.App.4th 73, 80;

accord Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1762.) Relatedly, there

is room for argument about how to define the terms “emergency room physician” and

“emergency medical coverage.” (See Miranda v. National Emergency Services, Inc.

(1995) 35 Cal.App.4th 894, 899 [considering whether defendant doctors “were providing

‘emergency medical coverage’ . . . at the time the asserted negligence occurred” and

whether plaintiff’s expert had statutorily required expertise].)

6 We need not resolve this thicket of interpretive questions. We focus instead on the

generally applicable rules about admissibility of expert testimony. An expert is qualified

to testify where she possesses special skill or experience in her field “‘so that [her]

testimony [is] likely to assist the jury in the search for the truth.’” (Lattimore, supra, 239

Cal.App.4th at p. 969.) Expert testimony is properly excluded as speculative where the

expert lacks expertise over the subject matter of the litigation. (E.g., Sargon Enterprises,

Inc. v. University of Southern California (2012) 55 Cal.4th 747, 759.)

As Musharbash emphasizes, “[q]ualifications other than a license to practice

medicine may serve to qualify a witness to give a medical opinion.” (People v. Catlin

(2001) 26 Cal.4th 81, 131-132 (Catlin); accord People v. Villarreal (1985) 173

Cal.App.3d 1136, 1142 [“Because of the dramatic growth of diverse interdisciplinary

studies in recent times, often individuals of different nonphysician professions are called

upon to give medical opinions or at least opinions involving some medical expertise”],

disapproved on another point by In re Cabrera (2023) 14 Cal.5th 476.) Nevertheless,

there must be some aspect of the expert’s qualifications or experience to show the expert

has competencies “beyond common experience” that bear on the relevant factual

questions. (Evid. Code, § 801, subd. (a).)

For example, Catlin considers the qualifications of a clinical toxicologist, called to

testify that a murder victim died of poisoning by an agricultural chemical called paraquat.

(Catlin, supra, 26 Cal.4th at p. 131.) The expert, though lacking a medical degree, had

“advanced training in occupational medicine, physiology, and pharmacology, and had

7 worked in the area of agricultural poison toxicology for 18 years.” (Id. at p. 132.) He

also had extensive “specialized experience in paraquat toxicology”; he had worked “at a

health center operated by the sole distributor of paraquat in the United States,” “consulted

and advised physicians in many cases of paraquat poisoning,” “participated in many

research projects and in biannual conferences on the subject of paraquat toxicology,” and

“provided laboratory services to analyze human tissue samples connected with incidents

of paraquat poisoning.” (Ibid.) Our Supreme Court found the trial court did not abuse its

discretion in allowing the expert to opine about the victim’s cause of death and related

medical topics, even though he lacked a medical degree and was not trained in pathology.

(Ibid.)

Wang’s qualifications are not analogous to those of the expert in Catlin. The

gravamen of Musharbash’s lawsuit is that Michael died because of delays in surgical

intervention. (See Lattimore, supra, 239 Cal.App.4th at p. 967 [in ruling on summary

judgment, court first identifies issues as framed by pleadings].) Nothing in Wang’s

declaration establishes that her experience as a nurse anesthetist or trauma unit nurse

gave her the specialized knowledge required to opine on the standard of care applicable

to an intensive care unit neurosurgeon deciding whether a severe traumatic brain injury

requires immediate surgical intervention, or whether that standard of care was breached.

(See id. at p. 968 [“In those cases where a medical specialist is alleged to have acted

negligently, the ‘specialist must possess and use the learning, care and skill normally

possessed and exercised by practitioners of that specialty under the same or similar

8 circumstances’”].) The declaration includes no facts indicating Wang is competent to

determine when surgical treatment is warranted for a brain injury. That is simply not her

job as a nurse; it is undisputed that nurses are not ultimately responsible for deciding the 3 best course of treatment. And nothing in the record shows she has otherwise acquired

expertise in pathologies of the brain and treatment techniques equivalent to that of a

neurosurgeon.

For similar reasons, Wang’s declaration does not establish she is competent to

opine on causation. (See Miranda, supra, 187 Cal.App.4th at p. 1336; Salasguevara,

supra, 222 Cal.App.3d at p. 385.) In this case, causation includes both whether any

delayed nurse communications affected any neurosurgeon’s treatment decisions, and

whether any delay in surgical treatment was a substantial factor in Michael’s death.

Wang’s declaration lacks any basis to conclude she is competent to opine on either issue.

Of course, a nurse has some basis to opine on when and how a nurse should communicate

with doctors regarding patient care. The perspective of the doctor, however, is required

to opine as to the role such communications play in the doctor’s decision making process,

both in general and in this case, and whether a decision to operate earlier likely would

have led to a different outcome for Musharbash’s son.

3 In his opposition to the hospital’s separate statement, Musharbash asserts nurses are obligated to perform other tasks, including coordinating care and carrying out orders, but he does not expressly dispute the hospital’s proffered fact that nurses “do not make treatment decisions.”

9 Since Wang was Musharbash’s only proffered expert, her lack of competence to

opine on the applicable standard of care and causation is fatal to his claim. The trial court

should have granted summary judgment for the hospital.

III. DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to vacate its

order denying petitioner’s motion for summary judgment and to enter a new order

granting the motion for summary judgment.

Petitioner to recover the costs of this petition.

RAPHAEL J.

We concur:

MILLER Acting P. J.

FIELDS J.

10 Filed 5/28/24 CERTIFIED FOR PUBLICATION

SAN ANTONIO REGIONAL HOSPITAL,

Petitioner, E082481

v. (Super.Ct.No. CIVSB2217117)

THE SUPERIOR COURT OF SAN BERNARDINO COUNTY,

JOSEPH MUSHARBASH, Individually and as Successor in Interest, etc.

Requests having been made to this court pursuant to California Rules of Court, rule 8.1120(a) for publication of a nonpublished opinion heretofore filed in the above- entitled matter on May 20, 2024 and May 22, 2024, and it appearing that the opinion meets the standard for publication as specified in California Rules of Court, rule 8.1105(c),

IT IS ORDERED that said opinion be certified for publication pursuant to California Rules of Court, rule 8.1105(b). The opinion filed in this matter on May 3, 2024, is certified for publication.

CERTIFIED FOR PUBLICATION

RAPHAEL J. We concur:

FIELDS J. MAILING LIST FOR CASE: E082481 San Antonio Regional Hospital v. The Superior Court; Joseph Musharbash

Superior Court Clerk San Bernardino County 8303 N. Haven Avenue Rancho Cucamonga, CA 91730

Jason York Hoo Siu Horvitz & Levy LLP 505 Sansome Street, Suite 1550 San Francisco, CA 94111-3149

Scott Philip Dixler Horvitz & Levy LLP 3601 West Olive Avenue, 8th Floor Burbank, CA 91505

Jeffrey W. Grass Davis, Grass, Goldstein & Finlay 3281 East Guasti Road, Suite 350 Ontario, CA 91761

Evelin Duenas Davis, Grass, Goldstein & Finlay 3281 East Guasti Road, Suite 350 Ontario, CA 91761

Steven Farrell Calderwood Calderwood Law Group P.O. Box 1128 Yorba Linda, CA 92885-1128