Domby v. Moritz

Filed 3/5/08 Domby v. Moritz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

D050165

(Super. Ct. No. GIC852977)

Plaintiff and Appellant,

ANDRE W. DOMBY,

ARTHUR S. MORITZ,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Linda B

Quinn, Judge. Affirmed.

In this medical malpractice case we affirm a summary judgment granted in favor

of a physician who practices as a “hospitalist,” a relatively new medical specialty. In

general, a hospitalist acts as a patient’s primary care physician while the patient is

receiving inpatient care at a hospital. Here, the hospitalist admitted a cardiac patient into

the intensive care unit (ICU) of a hospital with the understanding her cardiac care would

be the responsibility of the cardiology physicians who were treating the patient’s existing

cardiac condition. Following the patient’s admission to the ICU, the patient experienced

further cardiac difficulty and ICU nurses contacted a cardiologist on three occasions and

provided the patient with the treatment ordered by the cardiologist. The ICU nurses did

not contact the hospitalist until, early in the morning following the patient’s admission,

the patient’s heart stopped. The hospital staff was unable to revive the patient and the

patient died shortly before the hospitalist was able to return to the hospital.

In response to a malpractice action brought against the hospitalist, the

cardiologists and the hospital by the patient’s heirs, the hospitalist moved for summary

judgment. The hospitalist relied on the declarations of an expert who stated that in

relying on the cardiologists to treat the patient’s cardiac condition and in relying on the

ICU staff to contact the cardiologists in the event the patient’s condition changed, the

hospitalist acted within the standard of care for his specialty and that in any event the

hospitalist’s care did not cause the patient’s death.

In opposing the hospitalist’s motion, the plaintiff relied on the declarations of a

physician who believed the hospitalist should have taken steps to insure the cardiologists

placed an intravenous pacemaker in the patient. According to the plaintiff’s expert, the

intravenous pacemaker would have saved the patient’s life. The hospitalist objected to

the expert’s declarations on the grounds they were conclusory and speculative. The trial

court sustained the hospitalist’s objections to the expert’s declarations and granted the

hospitalist’s motion.

As we explain more fully below, the trial court acted properly in sustaining the

hospitalist’s objections to the declarations submitted by the plaintiff’s expert. The

declarations did not offer any reasoned explanation for the expert’s conclusion greater

participation by the hospitalist would have caused the patient’s cardiologists to treat the

patient differently or more aggressively or that such treatment would have saved her life.

In light of the fact the plaintiff did not provide the trial court with any admissible expert

evidence, there was no dispute in the record the hospitalist acted within the standard of

care for his specialty. Given that record, the trial court was required to grant the

hospitalist’s motion for summary judgment.

FACTUAL AND PROCEDURAL SUMMARY

In early 2005 Helen Domby (Helen) was a 67-year-old cardiac patient who

suffered from high blood pressure for which she was prescribed a daily dose of 100

milligrams of Atenolol, a so-called beta blocker. She was also treated with a blood

thinner, coumadin. Her cardiac condition was being treated by Dr. Brian Jaski, a

cardiologist.

At some point during the afternoon or evening of January 11, 2005, Helen took her

blood pressure. Helen discovered her blood pressure was high and that she had a rapid

pulse. She called her primary care physician who told her to take another dose of

Atenolol. Shortly after taking the additional Atenolol, Helen felt light-headed and

fainted. Helen’s husband, plaintiff and appellant Andre W. Domby (Andre), thought she

might be having a stroke and took her to the emergency room at Sharp Memorial

Hospital (Sharp).

In the emergency room Helen was examined and treated by Dr. Bradley Zlotnick.

Dr. Zlotnick found Helen was suffering from bradycardia, a slow heart rate. As anti-

dotes to the Atenolol, Dr. Zlotnick gave Helen Glugagon and atropine.

In the course of treating Helen, Dr. Zlotnick also contacted one of Dr. Jaski’s

cardiology partners, Dr. John Gordon. Dr. Gordon instructed Dr. Zlotnick to put an

external pacemaker on Helen prophylactically in the event Helen’s heartbeat dropped.

Dr. Gordon also asked Dr. Zlotnick to contact defendant and respondent Dr. Arthur S.

Moritz, a hospitalist who works at Sharp, and ask Dr. Moritz to admit Helen to Sharp’s

ICU. Because Helen had responded to the treatment provided by Dr. Zlotnick, Dr.

Gordon did not believe that any further intervention was necessary or advisable.

However, Dr. Gordon advised Dr. Zlotnick that if her status changed he was available

and would be happy to see her. According to Dr. Zlotnick, the pacemaker was on when

Helen was in the emergency room and when she was admitted to the ICU.

At the request of Dr. Zlotnick, Dr. Moritz examined Helen at approximately 7:40

p.m. on the evening of January 11. Dr. Moritz found that she was alert and conversive

and that the external pacemaker was turned off. He found that her vital signs were stable

and that she was able to maintain normal blood pressure and pulse on her own.

Dr. Moritz admitted Helen to the ICU. Dr. Moritz understood from Dr. Zlotnick

that Dr. Gordon would oversee Helen’s cardiac needs while she was in the hospital.

Nonetheless, given Helen’s medical history and her condition, Dr. Moritz believed that at

some point during Helen’s stay in the hospital, her cardiologist would consider placing an

internal pacemaker in her heart. Accordingly, Dr. Moritz ordered that she be given fresh

frozen plasma as a means of increasing her ability to form blood clots and that an internal

pacemaker be placed by her bedside. After examining Helen and providing orders for her

care, at approximately 8:15 p.m. Dr. Moritz dictated her history and the results of his

physical examination.

Sharp’s records indicate that at 10:30 p.m. a nurse in the ICU contacted a

cardiology fellow, Dr. Palmer, who was taking calls for Dr. Gordon. The nurse reported

to Dr. Palmer that Helen’s heart rate dropped to 30 to 40 beats per minute when the

external pacemaker was not on and that Helen stated “I don’t feel good.” Dr. Palmer told

the nurse he would contact Dr. Gordon and develop a treatment plan for Helen. Dr.

Palmer contacted the ICU at 1:45 a.m. and told the nurse to turn off the external

pacemaker and turn it back on if Helen’s heart rate dropped below 35 beats per minute.

The cardiologists took no steps which indicated that they planned to place the internal

pacemaker in Helen. At 3:20 a.m. the cardiologist ordered the ICU to begin giving Helen

normal saline at a rate of 60 milliliters per hour. Again, there is nothing in the record

which indicates that at that point the cardiologists planned to place an internal pacemaker

on an urgent basis.

At 4:30 a.m. the ICU nurse called Dr. Moritz and told him Helen was

unresponsive, had little or no blood pressure and that medical personnel were attempting

to save her life. Dr. Moritz came to the hospital as quickly as he could, but Helen died by

the time he arrived.

As we indicated at the outset, Helen’s husband Andre filed a malpractice action

against Dr. Moritz, the hospital and the cardiologist. Dr. Moritz filed a motion for

summary judgment. Dr. Moritz’s motion for summary judgment was supported by a

declaration from Dr. Paul Wagner, who is board certified in internal medicine and a

practicing hospitalist. According to Dr. Wagner, Dr. Moritz acted properly in examining

Helen, determining if she needed cardiac care, and in relying on the nurses in the ICU to

notify Helen’s cardiologist if there was a change in Helen’s condition. According to Dr.

Wagner, Dr. Moritz’s reliance on the cardiologists to respond to any changes was

appropriate and met the standard of care for hospitalists. Because Dr. Moritz was not

called until Helen was in cardiac arrest, Dr. Wagner further opined that Dr. Moritz’s care

was not a cause of her death.

In responding to Dr. Moritz’s motion for summary judgment, Andre filed a

declaration from Dr. Philip C. Mathis. Dr. Mathis is board certified in internal and

emergency medicine and practices emergency medicine in San Diego County. According

to Dr. Mathis, Dr. Moritz failed to meet the standard of care because Dr. Moritz failed to

communicate directly with the cardiologists responsible for Helen’s care and failed to

ensure that a cardiologist examined Helen on the evening of her admission. Dr. Mathis

also believed that had an intravenous pacemaker been placed in Helen’s heart, she would

not have died.

Dr. Moritz objected to Dr. Mathis’s declaration on the grounds his opinion was not

supported by a reasoned explanation of why the underlying facts led to the conclusion he

reached, as required by the holdings in Jennings v. Palomar Pomerado Health Systems,

Inc. (2003) 114 Cal.App.4th 1108, 1117 (Jennings), and Bushling v. Fremont Medical

Center (2004) 117 Cal.App.4th 493, 510 (Bushling). Dr. Moritz argued that Dr. Mathis

improperly speculated as to how the cardiologists who were treating Helen would have

reacted in the event Dr. Moritz contacted them directly.

The trial court issued a tentative ruling in which it sustained Dr. Moritz’s objection

to Dr. Mathis’s declaration and proposed to grant Dr. Moritz’s motion for summary

judgment. Thereafter, at the initial hearing on the motion for summary judgment, the

trial court continued the matter and permitted Andre to submit a supplemental declaration

from Dr. Mathis. In his supplemental declaration, Dr. Mathis faulted Dr. Moritz for

failing to recognize that Helen’s condition was serious, for failing to convey that fact to

her cardiologists, and for failing to ensure that they placed an intravenous pacemaker in

her heart. “It is my opinion that had Dr. Moritz not fallen below the standard of care and

recognized how seriously ill Mrs. Domby really was, and relayed this information to any

reasonable cardiologist acting within the standard of care in the community, the

cardiologist would have come in directly, evaluated Mrs. Domby and placed a temporary

transvenous pacemaker. This would have saved Mrs. Domby’s life. These medical

mistakes, actions and inactions by Dr. Moritz, contributed directly to Mrs. Domby’s

death.”

Dr. Mortiz objected to Dr. Mathis’s supplemental declaration on the same grounds

he objected to Dr. Mathis’s original declaration: that it did not set forth a reasoned

explanation for his conclusion and was based on speculation. Dr. Moritz also submitted a

declaration from Dr. Gordon, the cardiologist who was consulted by the emergency room

physician. In his declaration Dr. Gordon stated that at the time Helen was in the

emergency room, placement of a pacemaker did not seem necessary or advisable because

her ability to clot blood was diminished therapeutically.

The trial court sustained Dr. Moritz’s objections to Dr. Mathis’s supplemental

declaration and granted his motion. Following entry of judgment, Andre filed a timely

notice of appeal.

DISCUSSION

In general, summary judgment may be granted only when a moving party is

entitled to a judgment as a matter of law. (Code Civ. Proc,, § 437c, subd. (c).) Where the

motion is brought by a defendant, the defendant bears the burden of persuasion that ” ‘one

or more elements of’ the ’cause of action’ in question ‘cannot be established,’ or that ‘there

is a complete defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,

850 (Aguilar).) However, a defendant is not required to conclusively negate an element

of the plaintiff’s cause of action. Rather, in accordance with federal law, “All that the

defendant need do is to ‘show [] that one or more elements of the cause of

action . . . cannot be established’ by the plaintiff. [Citation.] 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?for example, that the plaintiff cannot prove element X. Although he

remains free to do so, the defendant need not himself conclusively negate any such

element?for example, himself prove not X.” (Aguilar, supra, 25 Cal.4th at pp. 853-854,

fns. omitted.)

Thus, “[i]f a party moving for summary judgment in any action . . . would prevail

at trial without submission of any issue of material fact to a trier of fact for determination,

then he should prevail on summary judgment. In such a case . . . the ‘court should grant’

the motion ‘and avoid a . . . trial’ rendered ‘useless’ by nonsuit or directed verdict or

similar device.” (Aguilar, supra, 25 Cal.4th at p. 855.)

We review orders granting summary judgment de novo. (Alexander v.

Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.)

The record here shows that Dr. Moritz met his initial burden on summary

judgment. A plaintiff in a medical malpractice case must show that the defendant did not

meet the applicable standard of care and that this failure harmed the plaintiff. (See

Bushling, supra, 117 Cal.App.4th at p. 507.) By way of Dr. Wagner’s declaration, Dr.

Moritz produced evidence that in treating Helen he met the applicable standard of care

for hospitalists1 and that in any event Dr. Moritz’s care did not cause her death. Thus Dr.

Wagner’s declaration, if it was not contradicted, entitled Dr. Moritz to an order granting

his motion for summary judgment. (See Bushling, supra, 117 Cal.App.4th at p. 511.)

1
A hospitalist, such as Dr. Moritz, is responsible for supervising and coordinating a
patient’s medical care while the patient is in a hospital. (See Robert M. Wachter and Lee
Goldman L (1996) Vol. 335, pp. 514-517, “The Emerging Role of Hospitalists in the
American Health Care System,” New England Journal of Medicine.)

As we have noted, Andre attempted to rebut Dr. Wagner’s declaration by filing

declarations executed by Dr. Mathis. Dr. Moritz then objected to Dr. Wagner’s

declarations and, as we explain, the trial court properly sustained Dr. Moritz’s objections.

In Jennings, supra, 114 Cal.App.4th at pages 1117-1118, we summarized

limitations on admissible expert testimony. “[E]ven when the witness qualifies as an

expert, he or she does not possess a carte blanche to express any opinion within the area

of expertise. [Citation.] For example, an expert’s opinion based on assumptions of fact

without evidentiary support [citation], or on speculative or conjectural factors [citation],

has no evidentiary value [citation] and may be excluded from evidence. [Citations.]

Similarly, when an expert’s opinion is purely conclusory because unaccompanied by a

reasoned explanation connecting the factual predicates to the ultimate conclusion, that

opinion has no evidentiary value because an ‘expert opinion is worth no more than the

reasons upon which it rests.’ [Citation.]

“Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is

an inherent corollary to the foundational predicate for admission of the expert testimony:

will the testimony assist the trier of fact to evaluate the issues it must decide? (Summers

v. A. L. Gilbert Co. [1999] 69 Cal.App.4th 1155 at pp. 1168-1169 [expert opinion

admitted if it will assist jury and will be excluded when it ‘would add nothing at all to the

jury’s common fund of information’].) Therefore, an expert’s opinion that something

could be true if certain assumed facts are true, without any foundation for concluding

those assumed facts exist in the case before the jury, does not provide assistance to the

jury because the jury is charged with determining what occurred in the case before it, not

hypothetical possibilities. [Citation.] Similarly, an expert’s conclusory opinion that

something did occur, when unaccompanied by a reasoned explanation illuminating how

the expert employed his or her superior knowledge and training to connect the facts with

the ultimate conclusion, does not assist the jury. In this latter circumstance, the jury

remains unenlightened in how or why the facts could support the conclusion urged by the

expert, and therefore the jury remains unequipped with the tools to decide whether it is

more probable than not that the facts do support the conclusion urged by the expert. An

expert who gives only a conclusory opinion does not assist the jury to determine what

occurred, but instead supplants the jury by declaring what occurred.” (Jennings, supra,

114 Cal.App.4th at pp. 1117-1118.)

In Jennings the plaintiff alleged he developed an abdominal infection outside his

peritoneal cavity because the defendant left a retractor within the cavity following

surgery. In support of this theory he offered the testimony of an infectious disease

expert, Dr. Miller, who assumed, although he had no basis upon which to make the

assumption, that the retractor was contaminated. “[Dr. Miller’s] explanation was, in

essence, that because the retractor was left in place and was probably contaminated, and a

nearby area later became infected, ‘[i]t just sort of makes sense. We have that ribbon

retractor and [it’s] contaminated, he’s infected.’ [The expert’s] opinion on the causal

linkage between the retained retractor within the peritoneal wall and an infection outside

the peritoneal wall was therefore based on an ipso facto explanation.” (Jennings, supra,

114 Cal.App.4th at p. 1115.) The trial court sustained the defendant’s objection to this

testimony and on appeal we affirmed. “Although Dr. Miller testified the retractor was a

cause-in-fact of the infection, his conclusion was unaccompanied by any reasoned

explanation supporting his opinion. [Citations.] . . . . That opinion is too conclusory to

support a jury verdict on causation. [Citation.]” (Id. at pp. 1120-1121, fn. omitted.)

The court in Bushling, supra, 117 Cal.App.4th at page 510, discussed a similarly

inadmissible expert opinion. In Bushling the plaintiff woke up from gall bladder surgery

with pain in his left shoulder which was subsequently diagnosed as suprascapular

neuropathy. In his malpractice action against the hospital where the gall bladder

procedure was performed and the surgeon and anesthesiologist who were in attendance,

the plaintiff argued his shoulder injury was the result of some negligence on their part. In

their respective motions for summary judgment, the defendants submitted the

declarations of an expert anesthesiologist, a surgeon and the orthopedic surgeon who

treated the plaintiff’s injury. The declarations stated nothing in the hospital’s records

indicated that plaintiff’s surgery caused his shoulder injury and further that the type of

injury the plaintiff suffered often occurs for no apparent reason and in the absence of any

negligence. In opposing the defendant’s motion, the plaintiff submitted the declarations

of an anesthesiologist and orthopedic surgeon who believed that it was more likely than

not that the injury occurred because the plaintiff was either dropped during surgery or

was not properly positioned. The trial court found the plaintiff’s declarations were not

sufficient to rebut the defense declarations and granted the defendant’s respective motions

for summary judgment. The Court of Appeal affirmed.

With respect to the plaintiff’s expert declarations, the court in Bushling stated: “In

this case, [both experts] were of the opinion that plaintiff’s injury was caused by

defendants’ negligence in that ‘more probably than not,’ plaintiff had been dropped, his

arm had been improperly positioned during surgery, or his arm had been stretched. The

difficulty that plaintiff encounters in his attempt to avoid summary judgment by relying

on [his experts] opinions is that there is no evidence that plaintiff was dropped, that he

was improperly positioned, or that his arm was stretched during the procedure or

recovery. The doctors assume the cause from the fact of the injury. [The experts’]

opinions are nothing more than a statement that the injury could have been caused by

defendants’ negligence in one of the ways they specify. But, ‘an expert’s opinion that

something could be true if certain assumed facts are true, without any foundation for

concluding those assumed facts exist’ [citation], has no evidentiary value. [Citation.].”

(Bushling, supra, 117 Cal.App.4th at pp. 510-511.)

Dr. Mathis’s declarations suffer from the defect identified in Jennings and

Bushling. First, he speculates Helen died because she did not receive an intravenous

pacemaker. As Dr. Moritz points out, there is no evidence in the record as to the cause of

Helen’s death. We also note that in light of Helen’s depressed blood clotting ability, there

is no evidence that such a procedure could have been safely performed. From his

assumptions as to the cause of death and the safety of placing an intravenous pacemaker,

Dr. Mathis reasons backwards to find that the failure to have an intravenous pacemaker

was caused by Dr. Moritz’s failure to communicate directly with Helen’s cardiologists. In

light of the fact that there is no dispute the cardiologists responded more than once to

calls from the ICU about Helen’s condition during the course of the evening and did not

attempt to place an intravenous pacemaker, Dr. Mathis’s conclusion that any information

Dr. Moritz could have provided to the cardiologists would have altered their treatment of

Helen following her admission is still further speculation. Importantly, nothing in the

record indicates Dr. Moritz should have or could have overridden the instructions of

Helen’s treating cardiologist. We can only conclude that Dr. Gordon, who ordered the

external pacemaker be used prophylactically, expected Helen might need the assistance

of the external pacemaker and that her need for it during the course of the evening did not

change his conclusion that it was not appropriate, given her medications, to place an

internal pacemaker in her. Thus, it is difficult to conclude that even if the pacemaker was

on at the time Dr. Moritz examined Helen earlier in the evening and he communicated

that fact to Dr. Gordon, Dr. Gordon would have done anything differently.

In sum, like the inadmissible expert opinions in Jennings and Bushling, Dr.

Mathis’s opinion assumes facts?the cause of death and the impact Dr. Moritz’s

communication might have had?and from those facts concludes a breach of duty and

causation. Because there is no evidence in the record which supports Dr. Mathis’s

assumptions, as in Jennings and Bushling, the experts’ opinions are entirely speculative

and would be of no assistance to a trier of fact. Thus the trial court properly sustained Dr.

Moritz’s objection.

Andre did not present any admissible evidence as to either the standard of care or

causation. Thus he failed to meet his burden on a motion for summary judgment and the

trial court properly granted Dr. Moritz’s motion. (Bushling, supra, 117 Cal.App.4th at p.

511.)

Judgment affirmed. Respondent to recover his costs.

I CONCUR:

I concur in the result.

McCONNELL, P. J.

HUFFMAN, J.

BENKE, J.