California Court of Appeals, First District, Fifth Division
Certified for publication 6/19/13 (order attached)
Superior Court of the County of Alameda, No. RG09470457, Robert Freedman, Judge.
Law Office of Tesfaye W. Tsadik, Tesfaye W. Tsadik and Alan S. Levin, M.D., for Plaintiffs and Appellants.
Burke, Williams & Sorenson, LLP, Eric A. Gale and Feldman Gale, Todd M. Malynn for Defendants and Respondents.
Plaintiffs are the five adult children and mother of the decedent, Patricia Amonoo, who died following cardiac pacemaker surgery in 2008. Plaintiffs sued St. Jude Medical, Inc. (St. Jude), Jeremy Kosel (collectively, defendants), and others involved in the surgery for, among other things, wrongful death as a result of defendants’ negligence. The trial court granted St. Jude’s motion for summary judgment, concluding defendants did not owe Amonoo a duty of care “with respect to the acts or omissions that allegedly caused her injury and death” and that plaintiffs “lack[ed] evidence that any acts or omissions by Kosel breached his duty of care under the circumstances or proximately caused the injury or death.”
Plaintiffs appeal. They contend the court erred by granting summary judgment because: (1) they did not have a sufficient opportunity to conduct discovery to oppose the motion; (2) defendants did not satisfy their initial burden of production; (3) they raised a triable issue of material fact regarding whether defendants negligently undertook a duty to monitor Amonoo during or after the surgery; and (4) the court improperly relied on Kennedy v. Medtronic (Ill.App. 2006) 851 N.E.2d 778 (Kennedy).
FACTUAL AND PROCEDURAL BACKGROUND
Dr. La Viola, an employee of Permanente Medical Group (Kaiser), implanted the cardiac pacemaker in Amonoo on October 29, 2008, at Dameron Hospital in Stockton. St. Jude sold the pacemaker leads that Dr. La Viola prescribed and implanted in Amonoo. Kosel, a St. Jude employee, supplied the pacemaker leads and was present during Amonoo’s surgery to operate St. Jude’s pacing system analyzer (PSA), a device used to test the status and level of function of the pacemaker and leads. The implantation of the pacemaker perforated the right atrium and ascending aorta of Amonoo’s heart, causing “‘cardiac tamponade[, ]’” or the accumulation of blood around her heart. Amonoo died shortly after the surgery.
In August 2009, plaintiffs filed a wrongful death and survival action against Dr. La Viola, Kaiser, Dameron Hospital Association (Dameron), and various doe defendants. Plaintiffs alleged “[t]he infliction of the cardiac perforations themselves may or may not constitute medical negligence. But negligence is clear in that Defendants’ contemporaneous and post-operative monitoring of Ms. Amonoo must have been casual in the extreme for them to have failed to recognize and, for a considerable length of time, remained entirely unaware of, such substantial perforations... and such major internal bleeding. Had defendants recognized what was happening at any time during the first hour after the perforations occurred, and taken appropriate measures, Ms. Amonoo’s chances of survival would have been very good.” Plaintiffs alleged “each defendant was the employer, employee, coworker, supervisor... of each of the other defendants, and was at all such times acting within the course and scope of such capacity or relationship, and each of the defendants is legally responsible... for each of the wrongful acts and omissions alleged herein, and legally caused the injuries and damages to plaintiffs....”
Plaintiffs named St. Jude and Kosel as doe defendants in June 2010.
Defendants’ Summary Judgment Motion
In 2011, defendants moved for summary judgment. They argued: (1) they did not owe a legal duty to provide medical care to Amonoo; (2) Kosel did not assume a legal duty to provide medical care to Amonoo or to monitor her medical condition for a complication of surgery; and (3) there was no evidence Kosel was negligent, or that any such negligence caused Amonoo’s death. Defendants claimed they “owed no legal duty to surgically implant a pacemaker lead or diagnose a patient’s medical condition, or to monitor a patient’s medical condition for the purpose of diagnosing a complication from surgery.” According to defendants, Dr. La Viola selected the pacemaker and leads he wanted to implant. Kosel did not implant the leads, nor did he direct or instruct Dr. La Viola how or where to implant them. Kosel operated the PSA and reported the readings to Dr. La Viola when Dr. La Viola tested the pacemaker for signal strength. Kosel did not undertake any responsibility to monitor Ms. Amonoo during or after the surgery, because such monitoring would have been outside the scope of his employment as a sales representative for St. Jude. Defendants argued they were added as doe defendants “solely because Mr. Kosel was in the operating room during Ms. Amonoo’s surgery, which is standard procedure and required by Kaiser....”
Kosel submitted a declaration in support of defendants’ motion for summary judgment. In it, he averred: (1) he supplied the pacemaker that was sold to Dameron and “prescribed by Ms. Amonoo’s physician to treat her heart condition;” (2) as medical device vendors, “neither St. Jude nor its sales employees are licensed to practice medicine” and the practice of medicine would be outside the scope of his employment as a sales representative for St. Jude; (3) St. Jude sales representatives do not provide “post-operative medical care.... [they] support physicians by supplying measurements retrieved from devices;” and (4) he “did not voluntarily assume any duty to provide medical care to Ms. Amonoo, including post-operative care to discern whether she was suffering from any internal injury resulting from her surgery.”
Defendants also submitted the deposition testimony of Dr. La Viola and Lee Vang, the “circulating nurse.” Dr. La Viola testified Kosel “is positioned watching a machine, and when I want to test the lead, then he will read the machine and give me numbers that I will use to know whether or not I am in a good place.” When asked whether Kosel’s job was to identify the location of the “distress in the patient’s heart, ” Dr. La Viola responded, “No. His job is to read this machine that is called the [PSA], and when I hook up my lead to this machine, it will give numbers, and then he reports the numbers to me.... What he’s doing really does not have anything to do with the location but rather on the strength of ...