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Berry v. Martin


October 20, 2010


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


Wayne Berry underwent spine surgery at Scripps Memorial Hospital on September 26, 2007. His vision was fine before the surgery, but horrible after; he also left surgery with renal failure and impaired cognition. Berry sued his attending anesthesiologist Dr. Michael Martin as well as Scripps for negligence on the theory that these injuries are attributable to lapses in his surgical care. Now before the Court is Scripps's motion for summary judgment. Dr. Martin has not moved for summary judgment.

I. Legal Standard

Summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

All reasonable inferences are to be drawn in favor of the non-moving party. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir. 2005). Reasonable inferences are those supported by a chain of logic, rather than speculation. Juan H. v. Allen, 408 F.3d 1262, 1277 (9th Cir. 2005). The Court may not weigh the evidence or make credibility determinations. Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114, 1118 (9th Cir. 2009). Reasonable inferences are those supported by a chain of logic, rather than speculation. Juan H. v. Allen, 408 F.3d 1262, 1277 (9th Cir. 2005). In order to deny a summary judgment motion, "[t]here must be enough doubt for a reasonable trier of fact to find for [the non-moving party]." Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) (internal quotations omitted).

II. Summary of Argument

Berry's complaint doesn't allege, specifically, what happened before or during his surgery that he believes makes Scripps responsible for his loss of eyesight and other injuries. But the briefing clears it up: Berry's blood pressure prior to surgery was low, and the nurses at Scripps failed to notify his attending surgeon of that fact. As Berry's opposition brief puts it, "The one material fact in dispute is whether or not the nursing staff had a duty to notify the physician of the low blood pressure." (Doc. No. 39, p. 7.) And even that's not exactly right. The question isn't whether the nursing staff had a duty to notify, but whether their alleged breach of that duty caused a surgery to take place that otherwise wouldn't have, and from which Berry emerged the worse.

This theory of liability emerges from the deposition testimony of Berry's medical expert, Dr. Michael Wingate. It's worth reciting that testimony at some length.

Q: "And if I understand it correctly, there's only one opinion set forth within your report that indicates that there was a breach in the standard of care and that's your belief that the standard of care requires the nurses contact [sic] Dr. Tung and notify both him and Dr. Martin of the low blood pressure; is that correct?" (Wingate Dep. 149:5--11.)

A: "Yes." (Id. at 12.)

Q: "Okay. And that's all of the opinions regarding the breach in the standard of care you have as to the nursing staff; is that correct?" (Id. at 13--15.)

A: "That's my only opinion which I believe contributed to the causation of the injuries." (Id. at 16--17.)

Q: "And in terms of the issue of causation it's your belief that had the nurse notified Dr. Tung of the pre-operative blood pressure, this Plaintiff would not have sustained the injuries; is that correct?" (Id. at 153:15-18.)

A: "Yes." (Id. at 19.)

Q: "That's based on the assumption that Dr. Tung would not have taken this patient to surgery with that pre-operative blood pressure, true?" (Id. at 20--22.)

A: "Yes." (Id. at 23.)

Dr. Wingate alleges the same in a report that he provided to Berry's counsel. (Doc. No. 39-1, Ex. E.) The parties don't appear to dispute that Berry was injured during surgery. The experts on both sides conclude as much (Id. at 149:23--25; see also Mazzei report, p. 3), and a post-surgery MRI suggested that he suffered a stroke. (Doc. No. 37-4, Ex. H.) The question is whether the stroke is attributable to the failure of the Scripps nursing staff to inform Berry's attending physicians of his low blood pressure.

Scripps doesn't contest that the attending nurse didn't bring Berry's blood pressure to the attention of Dr. Martin or Dr. Tung. It certainly presents no evidence that she did, and actually concedes in its opposition brief that whether she did is "unclear." (Doc. No. 37-1, p. 6.) Equally as important, Scripps doesn't go to great lengths to contest Berry's claim that the injuries he suffered during surgery were caused by, or in some way related to, his low blood pressure. There would be no point in that, anyway, of course, because it would pit Scripps's expert against Berry's, which is the perfect instance in which summary judgment is inappropriate. What Scripps doesargue is that it wouldn't have made a difference if the nurses had reported Berry's blood pressure to Dr. Martin and to Dr. Tung because Dr. Tung testified that he would have gone forward with the surgery regardless. If this is true, it's impossible that Scripps caused Berry's injuries, and Berry's negligence claim against Scripps must fail. Here is the relevant portion of Dr. Tung's deposition:

Q: What I want to ask you, I want to give you what we call a hypothetical question and ask you a question based on these hypothetical things, and I'm just asking you for the purposes of the question to assume as being accurate. Whether they are or not is another question, but that's independent of the question.

So for purposes of a hypothetical question, in a patient such as Mr. Berry who is a 52-year-old man with a history of hypertension who is being treated with anti-hypertensive medication such as Benicar which he was receiving daily 20 milligrams per day, and that he has last taken the date prior to the surgery and who was NPO or nothing by mouth for at a minimum of six hours prior to his admission to the hospital, and then who was admitted to the hospital on the morning of September 26th for surgery consisting of removal of instrumentation exploration of fusion and extension of fusion to the L4/5 level.

If you had learned during -- or prior to the surgery that Mr. Berry's vital signs as taken by the preoperative nurse that morning were temperature 98.1 -- in fact, you know what I can do, Doctor, is direct you to a page, the last page on that exhibit. This might make it easier for you to follow.

[The pre-op surgical checklist] contains the vital signs I'm going to say to you. So following with that question, further assuming that the vital signs were temperature 98.1, pulse 67, respiratory rate 18, blood pressure 100 over 51 with an 02 saturation level of 98 percent.

And then further assume for the purposes of the question, if you look just two pages earlier on the anesthesia note, that the preinduction blood pressure by the anesthesiologist was 105 over 60 and that the anesthesiologist had cleared the patient at least from an anesthetic perspective for going forward with the surgical procedure.

If you were aware of all of those things and all of these hypothetical assumptions, is there anything about those preoperative blood pressures which would have caused you to either have not performed the surgery that day or delayed performance of the surgery to do any further investigation with regard to the blood pressure?

A: No.

Q. And why not?

A: It's normal blood pressure.

Q: And for purposes of performing this type of surgical procedure, did you have a preference from a surgical perspective as to the type of blood pressure you like to see maintained, either keep the patient higher than normal, lower than normal, or anything along that nature?

A: You mean during surgery?

Q: Correct, exactly.

A: Just their normal blood pressure.

Q: So in a patient such as Mr. Berry, a preoperative blood pressure of 100 over 51 in light of his history of hypertension and treatment with anti-hypertensive medication, that wouldn't cause you any concern in terms of proceeding with the surgery?

A: No.

Q: And the same is true with the preinduction blood pressure of 105 over 60, correct?

A: Correct.

(Tung. Dep. 21:12 -- 24:1.) Dr. Wingate even conceded that the nursing staff at Scripps would be off the hook if Dr. Tung knew of Berry's preoperative blood surgery and proceeded with surgery regardless.

Q: If the nurse notified Dr. Tung of the pre-operative blood pleasure, and he still elected to take the patient to surgery, then you would agree the nurses -- did not cause or contribute to the patient's injuries?

A: I would only agree at that point that the nurse didn't contribute then if Dr. Tung made that decision.

(Wingate Dep. 167:12--19.) Berry's response to all of this is that Dr. Tung, in his deposition, was responding to a general hypothetical that only approximated the facts of Berry's case, and for this reason his testimony can't be relied upon as proofof what he would have done had the Scripps nurses actually informed him of Berry's blood pressure.

III. Discussion

Berry accuses Scripps of negligence. Negligence requires a causal connection between allegedly negligent conduct and some resulting injury. Absent that causal connection, there's no negligence. This is the legal backdrop for Scripps's summary judgment motion. Could the alleged failure of the nurses to inform Berry's surgeon of his blood pressure have caused the surgery to go forward with undue attention to a critical medical fact?

Some of Berry's arguments miss the mark. For example, Berry asserts that his expert Dr. Leo Martin "states that he would not have proceeded if the blood pressure was that low" and "opines in no uncertain terms that had the physician known all three medications Plaintiff Wayne Berry was taking, and all other factors, the surgery would not have gone forward." (Doc. No. 39, pp. 7--8.) There are a lot of problems here. As the Court reads the statement of Dr. Leo Martin, he did not say "surgery would not have gone forward" if Dr. Tung had been better informed. What he did say is that, in his opinion, surgery shouldn't have gone forward:

In my opinion Dr. Martin did not properly evaluate Mr. Berry preoperatively. Dr. Martin should have recognized that Mr. Berry's preoperative blood pressure of 100/51 mmHg was unusually low for any frightened, middle-aged male with obesity, a smoking history, and hypertension treated with three medications . . . I cannot tell why Mr. Berry's blood pressure was so low preoperatively, but had Dr. Martin discovered that Mr. Berry's preoperative blood pressure was very much lower than normal for him, Dr. Martin should have postponed Mr. Berry's surgery until the cause of the low blood pressure was discovered. (Doc. No. 39-1, Ex. C, p. 10.) That's the first problem: Berry's characterization of Dr. Leo Martin's statement is simply inaccurate. The second problem is that Dr. Leo Martin's statement doesn't touch on the causation prong of Berry's negligence claim. It may be that he wouldn't have taken Berry into surgery, and that he believes Dr. Tung shouldn't have, but the question here is whether Dr. Tungwould have taken Berry into surgery had the nurses notified him of Berry's blood pressure.*fn1 Third, Dr. Leo Martin's statement focuses on the conduct of Berry's anesthesiologist, not the nurses who attended to him prior to surgery and whose conduct is the basis of Berry's negligence claim against Scripps. In fact, to the extent Dr. Leo Martin suggests that "Dr. Martin did not properly evaluate Mr. Berry preoperatively" it would appear that Dr. Martin, not the nursing staff, is ultimately to blame for Berry going to surgery when medical wisdom counseled otherwise. Fourth, in his own pleadings Berry makes clear that his only grievance with the nurses is that they failed to inform Dr. Tung of Berry's low blood pressure, but by Dr. Leo Martin's own testimony the blood pressure information alone wouldn't have counseled against surgery. It was the blood pressure, along with Berry's medical history, current medical state, and age, that so counseled, and there's no argument or evidence from Berry that the nurses provided everything but the blood pressure information to Dr. Tung.

Berry also misses the mark by arguing, "First and foremost, Plaintiff Wayne Berry would not be blind but for the surgery. The surgery caused the blindness. Had the surgery not gone forward, Mr. Berry would not be blind." (Doc. No. 39, p. 8.) The question isn't whether the surgery caused the blindness; it's whether the Scripps nurses are responsible for the fact that the surgery went forward, in the first place, by not raising concerns about Berry's blood pressure with Dr. Tung.

That brings the discussion to what is probably Berry's best argument: Dr. Tung's deposition testimony, in which he said he would have proceeded with surgery in spite of Berry's blood pressure, was based on a hypothetical that didn't include all of the relevant facts. In fact, Dr. Tung didn't even have an independent recollection of Berry when he was deposed. (Tung Dep. 6:14--16.) But the Court disagrees, strongly, with Berry's take on the reliability of Tung's testimony. He may have been responding to a hypothetical when he said he would have taken Berry to surgery even with knowledge of his blood pressure, but the hypothetical included a wealth of information. It included Berry's age, and the fact that he had a history of hypertension. It included one of the hypertension medications he had been taking, his daily dosage, and the last time he had taken it. It included the fact that he'd had consumed nothing by mouth for 6 hours prior to the surgery. It included the entire preoperation surgical checklist, which contained Berry's temperature, pulse, respiratory rate, and blood pressure with O2 saturation level. It also included a "preinduction blood pressure," and the fact that Berry was cleared for surgery by the anesthesiologist. (Tung Dep. 21:18--22:25.)

What facts didn't the hypothetical posed to Dr. Tung include? Berry doesn't really say. He just points back to Dr. Tung's deposition and the doctor's admission that one other medication not included in the hypothetical - triamterene hydrochlorothiazide, or HCTZ - could impact a patient's blood pressure. (Tung Dep. 24:22--25:17.) But the deposition testimony excerpted by Berry stops there. As far as the Court can tell, his attorney did not follow up and ask Dr. Tung if he would answer the hypothetical differently had he known Berry was taking HCTZ - and there's no evidence anywhere else in the record that he would have. The way the Court reads the deposition testimony, in fact, Berry's attorney was attempting to develop the argument that it was unwise to go forward with the surgery, not that Dr. Tung would not have gone forward with the surgery had he been presented with more facts about Berry's medical history.*fn2 The mere fact that the hypothetical posed to Dr. Tung omitted one anti-hypertension medication Berry had been taking is unavailing, particularly when the issue on summary judgment is whether the alleged failure of the Scripps nursing staff to report Berry's blood pressure to Tung caused surgery to go forward that otherwise wouldn't have. Berry has nothing other than metaphysical doubt with which to impeach Dr. Tung's testimony. This is insufficient to survive a motion for summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). See also Fed. R. Civ. P. 56(c)--(e).

The Court also rejects Berry's argument that Scripps has moved for summary judgment only with respect to count one of the complaint. That count, for "Negligence -Medical Malpractice," is directed at Dr. Martin and Anesthesia Medical Group, not Scripps. It is based on the allegation that Dr. Martin failed to take heed of Berry's blood pressure before and during his surgery. Count two of the complaint accuses Scrippsof negligence, so naturally that is the only count at issue on Scripps's motion for summary judgment. But this isn't a motion for partial summary judgment, as Berry suggests, because as far as Scripps is concerned it is out of this case if count two can't survive summary judgment.

Whereas Berry's claim against Scripps draws on the expert testimony of Dr. Wingate, his claim against Martin draws on the exert testimony of Dr. Leo Martin. (Doc. No. 39-1, Ex. C.)

Nor is Scripps's motion one for only partial summary judgment because it fails to address the lack of informed consent. Berry mentions informed consent in a single paragraph in his complaint (Doc. No. 1 ¶ 23) but fails to develop the claim there or in his opposition brief, focusing instead on how the Scripps nurses' alleged failure to notify Dr. Tung of his blood pressure caused a surgery to go forward that otherwise wouldn't have. Moreover, as Scripps's reply brief explains, the duty to inform a patient falls on physicians, not a hospital or its nursing staff.

IV. Conclusion

Berry's complaint against Scripps is simple. The nursing staff at Scripps failed to relay critical blood pressure information to Berry's surgeon, which in turn caused that surgeon to proceed with a surgery that was inadvisable. The response to that claim is also simple. The surgeon testified that the blood pressure was normal, anyway, and wouldn't have kept him from operating on Berry. Berry has no meaningful rebuttal to that testimony, which means there is no genuine issue as to any material fact and summary judgment is appropriate. After a thorough review of the pleadings and the record, it appears that Berry's stronger - thought not necessarily meritorious - claims are against his attending physicians Drs. Martin and Tung for seeing him through a surgery that he believes should never have been performed. The claims against Scripps, however, fall flat, and the hospital's motion for summary judgment is GRANTED. Because the Court needn't consider the testimony of Dr. William Mazzei and Timothy Luckett, RN, to reach this conclusion, it does not rule on the admissibility of their declarations.


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