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Sanchez v. Kern Emergency Medical Transportation Corp.

California Court of Appeals, Fifth District

January 13, 2017

ABRAHAM SANCHEZ, JR., Plaintiff and Appellant,
v.
KERN EMERGENCY MEDICAL TRANSPORTATION CORPORATION, Defendant and Respondent.

          Part. Pub. Order 2/2/17

         APPEAL from a judgment of the Superior Court of Kern County No. S-1500-CV-270098. Sidney P. Chapin, Judge.

          Rodriguez & Associates, Daniel Rodriguez, Joel T. Andreesen, Chantal Trujillo; Esner, Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiff and Appellant.

          Sclar Adler, Matthew Banashek and Michael W. Irving for Defendant and Respondent.

          OPINION

          HILL, P.J.

         Plaintiff appeals from a summary judgment entered against him in his action arising out of injuries he sustained during a high school football game. Defendant provided ambulance services at the game; the crew of the standby ambulance assessed plaintiff's condition and summoned a transport ambulance to take plaintiff to the hospital. A short time later, plaintiff's condition deteriorated and the transport ambulance upgraded the call to a lights and siren emergency. At the hospital, plaintiff was diagnosed with and treated for a subdural hematoma. Plaintiff alleged the standby ambulance crew was grossly negligent in not properly assessing plaintiff's condition and immediately transporting him to the hospital in the standby ambulance. Defendant's motion for summary judgment was based on evidence its personnel were not grossly negligent in their assessment or care of plaintiff, and there was no evidence the brief delay caused by transferring plaintiff from one ambulance to the other caused any increase in the severity of his injuries. The motion was supported by extensive expert declarations. The trial court sustained objections to some of the opinions in the expert declaration submitted by plaintiff in opposition. It found there was no triable issue of material fact regarding causation and granted defendant's motion. We find no error and therefore affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On October 2, 2009, plaintiff sustained an injury to his head while playing in a high school football game. The coaches, noticing he was unsteady when he walked, examined him. Plaintiff complained of head pain and winced when a coach shined a flashlight in his eyes. The coaches waved over the standby ambulance and its crew, paramedic Aaron Moses and emergency medical technician (EMT) Ben Armstrong. The ambulance and crew arrived within two minutes.

         Moses first contacted plaintiff at approximately 21:25.[1] Plaintiff was sitting upright on a table at the sideline of the field; he responded to Moses's questions. Moses testified he assessed plaintiff using the Glasgow Coma Scale, a clinical tool designed to assess coma and impaired consciousness. The patient is given a score for each of three categories of responses: eye opening response, verbal response, and motor response. Moses stated he assessed plaintiff with the highest total score possible, 15 out of 15, because of his responses to Moses. Plaintiff asserted Moses either did not assess plaintiff's condition correctly or did not assess his condition at all, based on the symptoms plaintiff exhibited. Nonetheless, Moses told plaintiff he should go to the hospital and plaintiff agreed.

         At 21:30, Moses radioed dispatch for a backup ambulance to transport plaintiff to the hospital Code 2 (immediate response without lights and siren).[2] The standby crew applied spinal precautions, which were appropriate under the circumstances. They then loaded plaintiff into the ambulance and drove to the northeast corner of the field to meet the transport ambulance. The transport ambulance arrived at the football field at 21:34. The transport ambulance crew, paramedic Benjamin Ferguson, EMT William Hendricks, and EMT/paramedic trainee Ryan Rice, made first contact with plaintiff at 21:38. By 21:42, the transport ambulance was leaving the football field on its way to the hospital. Between 21:43 and 21:48, the transport ambulance crew upgraded the call to a Code 3, a lights and siren emergency. They transported plaintiff to Kern Medical Center (KMC), a distance of approximately 31 miles, in 30 minutes. The emergency room personnel took custody of plaintiff at 22:13.

         After a computerized tomography (CT) scan, plaintiff was diagnosed with a right-sided subdural hematoma. At 23:00, he was administered mannitol to reduce brain swelling. At 23:42, he was taken to the operating room where, at 00:35 on October 3, 2009, he underwent craniotomy surgery to relieve his brain hemorrhage. At some point, plaintiff suffered a posterior artery stroke.

         In this action, plaintiff sued Kern Emergency Medical Transportation Corporation doing business as Kern Ambulance Service (defendant) and others for his injuries. He alleged defendant was grossly negligent (the standard of care applicable to paramedics and EMTs pursuant to Health & Saf. Code, § 1799.106) in the care and treatment it rendered to him; defendant failed to properly assess him and failed to recognize he had sustained a traumatic brain injury that required immediate, urgent transport to a trauma center. Defendant allegedly wasted time and did not immediately, urgently or rapidly transport plaintiff to a trauma center, as a proximate cause of which his brain injury was made worse. Plaintiff conceded the crew of the transport ambulance did not act in bad faith or with gross negligence in treating him; he also conceded the hospital personnel were not negligent in their care of plaintiff.

         Defendant moved for summary judgment, asserting there was no evidence to support plaintiff's allegations of gross negligence or causation of any damages. It argued Moses properly evaluated plaintiff's condition and could not have immediately transported plaintiff to the hospital in the standby ambulance Code 3 because plaintiff did not meet Kern County's criteria for activating the trauma system (i.e., transporting plaintiff Code 3) until he was placed in the transport ambulance and his condition deteriorated. Using a timeline, defendant also argued that the delay caused by using two ambulances was only two and-one-half minutes, which did not harm plaintiff or increase his injuries. Additionally, it argued that, even if the delay was as much as 30 minutes, plaintiff could not demonstrate the delay caused him any injury, or increased the injury he suffered, because the medical literature indicates there is no evidence such a brief delay in treatment correlates with a worse outcome for the patient.

         Plaintiff opposed the motion, arguing Moses failed to assess plaintiff's condition, or failed to properly assess it, and his resultant failure to rapidly transport plaintiff to the hospital was a substantial factor in causing his brain injury to be more extensive or severe. In support, he submitted expert declarations, including the declaration of Dr. Fardad Mobin, a neurological surgeon. Without addressing any of the medical literature presented by defendant, Mobin opined, among other things, that had plaintiff “been transported immediately upon Moses' initial contact at 9:25 p.m., there would have been a decrease in brain swelling, and thereby pressure, because the administration of Mannitol would have occurred much sooner.” Defendant objected to portions of Mobin's declaration.

         The trial court granted defendant's motion for summary judgment, after sustaining some of defendant's objections to Mobin's declaration and overruling others. It concluded plaintiff “failed to proffer substantial, admissible evidence from which a trier of fact could find in his favor on a necessary element of causation of injury.” Plaintiff appeals from the judgment subsequently entered.

         DISCUSSION

         I. Standards

         A. Review of motion for summary judgment

         We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has met his or her burden of showing a cause of action has no merit if the defendant has shown that one or more elements of the plaintiff's cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) “[T]he defendant bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. [Citation.] If the defendant carries the burden of production, the burden shifts to the plaintiff to make his or her own prima facie showing of the existence of a triable issue of fact.” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103 (McGonnell).) “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, at p. 850, fn. omitted.) The evidence in favor of the party opposing the motion must be liberally construed, and all doubts concerning the evidence must be resolved in favor of that party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

         On appeal, we “‘must assume the role of the trial court and redetermine the merits of the motion' using the same standards required below.” (Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th 170, 175.)

         B. Claims against emergency medical personnel

         Providers of emergency medical services, including paramedics and EMTs, “shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.” (Health & Saf. Code, § 1799.106, subd. (a).) Gross negligence is defined as the lack of even scant care or an extreme departure from the ordinary standard of conduct. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754.)

         “Whenever the plaintiff claims negligence in the medical context, the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123 (Powell).) “‘“When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.”'” (Ibid.)

         II. Request for Judicial Notice

         “The reviewing court may take judicial notice of any matter specified in [Evidence Code] Section 452.” (Evid. Code, § 459, subd. (a).) Defendant requested judicial notice of several items that were not before the trial court. It cited Evidence Code section 452, subdivision (h), as the basis of its request. That subdivision grants the court discretion to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) It is intended to encompass facts that are widely accepted and easily verified.

         The items identified by defendant in its motion as “Scientific Literature” and “Attorney Correspondence” do not constitute “[f]acts and propositions that are not reasonably subject to dispute, ” (Evid. Code, § 452, subd. (h)) nor has defendant established their “reasonably indisputable accuracy.” (Ibid.) Further, they are not necessary to the resolution of this appeal. (Health First v. March Joint Powers Authority (2009) 174 Cal.App.4th 1135, 1137, fn. 1.) The “Notice of CCP 998 Cost Award and Revised Judgment” appears to be a court record subject to judicial notice under Evidence Code section 452, subdivision (d), but it is not relevant or necessary to the resolution of this appeal. (People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6 [judicial notice limited to relevant matters].) Accordingly, the request for judicial notice is denied.

         III. Evidentiary Objections

         In the trial court, each party submitted expert declarations addressing the issues of breach of duty and causation. Defendant objected to portions of the expert declaration of Mobin, submitted by plaintiff. The trial court sustained some of the objections. Plaintiff contends the declaration established the prerequisites to admission of the evidence it contained, and none of the objections should have been sustained.

         A. Standard of review

         We review the trial court's ruling on the admissibility of expert testimony for abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 (Sargon).) A court abuses its discretion if its ruling is “‘so irrational or arbitrary that no reasonable person could agree with it.'” (Ibid.) “When applying the deferential abuse of discretion standard, ‘the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.'” (In re C.B. (2010) 190 Cal.App.4th 102, 123.) “It is the appellant's burden on appeal to show the trial court abused its discretion.” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957.)

         B. Expert declarations

         “If a witness is testifying as an expert, his testimony in the form of an opinion ...


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