United States District Court, N.D. California
ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 92, 95
William H. Orrick United States District Judge.
motions for summary judgment of defendants CALSTAR and
MEDSTAR raise an important issue: under California law, can
emergency medical personnel be found grossly negligent when
they have provided some significant amount of care while
failing to take other action that might have been more
successful? In this sad case, plaintiffs' son Andrew
Sampson died after an automobile accident. While there are
differences of opinion on a variety of facts surrounding the
care provided by CALSTAR and MEDSTAR personnel, taking the
facts in the light most favorable to plaintiffs there was no
gross negligence. I GRANT the motions.
approximately 2:20 a.m. on January 11, 2014, plaintiffs'
son Andrew was involved in a single car, rollover incident.
Second Amended Complaint (“SAC”) ¶ 12 (Dkt.
No. 49). The accident was not discovered until 4:06 a.m.
(id. ¶¶ 12-13), and at 4:07 a.m.
California Highway Patrol (CHP) was dispatched to the scene.
The reporting officer arrived at 4:14 a.m. and observed a
vehicle on its roof and Andrew lying next to the car.
Id. ¶ 13.
Ambulance Service, operated by defendant MEDSTAR, was
dispatched to the scene and arrived at 4:21 a.m. Andrew was
assessed and treated by MEDSTAR paramedic Cameron McFadden.
There is no dispute that according to the readings taken by
McFadden at the scene, Andrew was in distress (although
conscious and able to response to simple commands) and his
vital signs were deteriorating.
initial notification and confirmation from CHP that the road
near the accident site would be closed to allow for landing,
CALSTAR's helicopter was dispatched from Ukiah Municipal
Airport at 4:38 a.m. The pilot-in-command was Josh Judge and
two CALSTAR nurses - Courtney Holbrook Farris and Jaromie
Power - were aboard. The CALSTAR helicopter attempted to
land, but because of “brown out” conditions was
unable to do so. Deposition Transcript of Josh Judge at
24:2-10 (Ex. K to the Declaration of Douglas de Heras [Dkt.
No. 92-14]). In light of timing concerns, the decision was
made to abort the landing, send Andrew by MEDSTAR ground
ambulance to UVMC, and have CALSTAR meet up with the MEDSTAR
ambulance at UVMC. Judge Depo. Tr. at 46-52; Declaration of
Michael Giannini [Dkt. No. 95-1], ¶¶
contend that the decision to abort the helicopter landing (to
waive off the helicopter) and transport Andrew to UVMC by
ambulance was made by MEDSTAR paramedic McFadden. Declaration
of Jon Nevin [Dkt. No. 103], ¶ 10. Plaintiffs assert
that McFadden, prior to deciding to transport Andrew by
ground transportation to UVMC, failed to follow the Coastal
Valleys EMS Agency Protocol 7007.4 by failing to seek
guidance as to the plan of transfer with someone with higher
level medical credentials. Nevin Decl. ¶ 11. They argue
that McFadden did not, but should have, discussed the status
of Andrew's vitals/conditions and the
“appropriate” trauma center to direct Andrew to
with either the flight nurses then aboard the CALSTAR
helicopter that was in flight or with Dr. Marks at UVMC.
Nevin Decl. ¶¶ 20-223; Oppo. to MEDSTAR MSJ at 9.
MEDSTAR contends, however, that McFadden did discuss
Andrew's condition and vitals with someone at UVMC and
received approval to transport Andrew by ground to UVMC.
Deposition Testimony of Cameron McFadden at 30:3-13;
30:18-31:2; 31:9-23; 31:24-32:11; 49:11-20 (Ex C. to
Declaration of Gerald S. Richelson [Dkt. No. 104]; Ex. C to
Reply Declaration of Jianlin Song). McFadden argues that he
was required to take Andrew to UVMC in light of his unstable
vitals and that deciding to “bypass” UVMC was not
within his authority. Id.
MEDSTAR ambulance departed with Andrew at 4:42 a.m. and
arrived at Ukiah Valley Medical Center (“UVMC”)
at 5:04 a.m. The CALSTAR helicopter also headed to UVMC, and
arrived at 5:04 a.m.
was admitted to UVMC and examined by Dr. Marks at UVMC at
5:09 a.m. At UVMC, an X-ray was taken and tests administered,
and Andrew was given two units of saline. Following that
treatment, Andrew's blood pressure was normal and his
pulse improved. Marks diagnosed Andrew as suffering from
multiple fractures, blunt chest trauma, head trauma,
resulting in internal bleeding and a hemothorax (bodily fluid
collecting between the lung and chest cavity). Expert Report
of Karen V. Tomczak [Dkt. No. 99-3] at 3-4; Declaration of
Ralph W. Robinson, Ex. G [Dkt. No. 95-9]. Plaintiffs contend
that a patient with these injuries should have been intubated
to ensure a sufficient supply of oxygen until surgical
intervention. Declaration of Dr. Davis Goldschmid [Dkt. No.
104-6] ¶¶ 36, 38. Marks secured approval from a
doctor at Santa Rosa Memorial Hospital (“SRMH”),
the trauma center destination of choice according to CALSTAR
and MEDSTAR, to transfer Andrew there. Marks informed the
doctor at SRMH that Andrew had not been intubated. Deposition
Transcript of Debbie L. Marks 74, Ex. O to de Heras Decl.
[Dkt. No. 92-18].
is a dispute over the time that Andrew was discharged from
UVMH into the care of the MEDSTAR and CALSTAR personnel, as
different organizations' records show time of discharge
as either 5:22 or 5:28 or 5:37 or 5:43 a.m. There is no
dispute that Andrew was discharged for ground transportation
via the MEDSTAR ambulance to SRMH. CALSTAR flight nurses Farris
and Power boarded the ambulance to provide the medical care
for Andrew, and MEDSTAR paramedic McFadden was to assist with
the care. Nevin Decl. ¶ 15.
is also a dispute as to when the first set of vitals was
taken once Andrew was back in the ambulance and to whom those
vitals were communicated. Plaintiffs contend that at 5:22
a.m., Andrew's vitals were likely taken by McFadden (as
shown in the California EMS reports). According to that
“reading, ” Andrew's pulse and blood pressure
were deteriorating and Andrew was “unstable.”
Nevin Decl. ¶ 16; California EMS Report [Dkt. No. 95-12]
MAMC 0121. Plaintiffs allege that McFadden failed to
“sufficiently and emphatically” inform Farris and
Power as to Andrew's deteriorating condition at that
time, as evidenced by the failure of this reading to make it
into CALSTAR's records. Nevin Decl. ¶ 24; Oppo. to
MEDSTAR MSJ at 6. Defendants dispute whether these vitals
were actually taken, or if they were taken, when they were
taken. Giannini Reply Decl. ¶¶ 14-15. Defendants argue
that if these vitals were taken, it would be logical that the
CALSTAR nurses would have been aware of them given the small
space in the ambulance and the close proximity of McFadden
(who may have taken the readings but cannot remember doing
so), Farris and Power. Id. ¶ 13.
also point out that some of the equipment in the ambulance
was not working, forcing paramedic McFadden and nurses Farris
and Power to “waste precious time”
troubleshooting the equipment problem and McFadden to take
manual readings. Tomczak Decl. ¶ 8. Plaintiffs
contend that given the 5:22 a.m. reading showing that Andrew
was coding and the malfunctioning equipment, it was grossly
negligent of McFadden, Farris, and Power to depart UVMC for
SRMH rather than inform Dr. Marks and take Andrew back inside
UVMC for stabilization.
the dispute in the record over whether the 5:22 a.m. readings
were taken, the parties agree that the ambulance departed
UVMC at 5:28 a.m. Andrew was loaded and secured will
“full spinal precautions, ” oxygen was
administered using a manual mask, warming measures (blankets
and headers) were used, and intravenous fluids (saline) were
continually administered. Declaration of Robert C. Mackersie
[Dkt. No. 92-1], ¶ 19. However, within minutes of the
departure, Andrew was having trouble breathing and his pulse
was continuing to weaken. Declaration of Karen V. Tomczak
[Dkt. No. 99] ¶ 12. Andrew was intubated and, shortly
thereafter, had a cardiac arrest. CPR was initiated. CALSTAR
nurses administered epinephrine at 5:37 a.m. (just nine
minutes after departing UVMC). Instead of turning back to
UVMC, the closest emergency room, the ambulance continued on
and was eventually diverted to Healdsburg District Hospital,
where Andrew was pronounced dead at 6:18 a.m.
and MEDSTAR move for summary judgment on the remaining claims
asserted against them; (i) gross negligence and bad faith
(Third Cause of Action); (ii) wrongful death (Fourth Cause of
Action); and (iii) survival action (Fifth Cause of Action).
judgment on a claim or defense is appropriate “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). In order to
prevail, a party moving for summary judgment must show the
absence of a genuine issue of material fact with respect to
an essential element of the non-moving party's claim, or
to a defense on which the non-moving party will bear the
burden of persuasion at trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the movant has
made this showing, the burden then shifts to the party
opposing summary judgment to identify “specific facts
showing there is a genuine issue for trial.”
Id. The party opposing summary judgment must then
present affirmative evidence from which a jury could return a
verdict in that party's favor. Anderson v. Liberty
Lobby, 477 U.S. 242, 257 (1986).
summary judgment, the Court draws all reasonable factual
inferences in favor of the non-movant. Id. at 255.
In deciding a motion for summary judgment,
“[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.”
Id. However, conclusory and speculative testimony
does not raise genuine issues of fact and is insufficient to
defeat summary judgment. See Thornhill Publ'g Co.,
Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).
California law, the standard of care for emergency personnel
- including the MEDSTAR and CALSTAR personnel - is gross
negligence. See Cal. Health & Safety Code
1799.106 (providing that emergency medical personnel
“who render emergency medical services at the scene
of an emergency or during an emergency air or ground
ambulance transport 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.”). Gross
negligence is “the want of even scant care or an
extreme departure from the ordinary standard of
conduct.” See, e.g., City of Santa Barbara v.
Superior Court, 41 Cal.4th 747, 754 (2007); Cooper
v. Bd. of Med. Examiners, 49 Cal.App.3d 931, 941
where a 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. See,
e.g., Sanchez v. Kern Emergency Med. Transportation
Corp., 8 Cal.App. 5th 146, 153 (Cal.Ct.App. 2017),
as modified (Feb. 16, 2017) (relying on Powell
v. Kleinman (2007) 151 Cal.App.4th 112, 123 (2007)).
Where a moving defendant supports a motion for summary
judgment with expert declarations, plaintiff must come
forward with conflicting expert evidence. Id.
CALSTAR'S MOTION FOR SUMMARY JUDGMENT
relies on the expert declaration of Dr. Robert C. Mackersie
[Dkt. No. 92-1], a specialist in trauma surgery, professor of
surgery, and certified Advanced Trauma Life Support
instructor, to support its motion. After reviewing undisputed
facts, he opines that Farris and Power acted in good faith
and were not grossly negligent in the provision of care to
Andrew. Mackersie Decl. ¶¶ 29 a. - c. He finds that
Farris and Power provided significant medical treatment and
care to Andrew, including providing oxygen via a
non-rebreather mask, full spinal precautions for
transportation, warming measures, IV fluids, and intubation.
Mackersie Decl. ¶ 19. When Andrew went into cardiac
arrest, the nurses administered “advance cardiac life
support medications, ” performed CPR, performed
bilateral needle thoracostomies, and administered additional
IV fluids. Id. Based on performing those steps,
Mackersie opines that the care provided was not “want
of scant care” or a “gross departure” from
what a reasonably careful person would do in the same or
similar circumstances. Id. ¶¶ 27, 29.
counter with the opinion of Karen Tomczak that Farris and
Power were grossly negligent in: (i) departing UVMC while
Andrew was not stable; (ii) leaving UMVC while the monitoring
equipment in the ambulance was still not functioning; (iii)
failing to return to UVMC (a level IV trauma center) when
Andrew started coding (nine minutes after departure), and
instead continuing towards Santa Rosa, which was more than an
hour away; (iv) failing to administer any of the blood they
were provided by Dr. Marks, and instead administering more
saline contrary to normal standards; and (v) failing to
provide that saline without the pressure backs.
argues that Tomczak failed in her expert report to opine that
the treatment provided by Farris and Power was grossly
negligent and so failed to create a dispute of fact. In
opposition, plaintiffs submitted a declaration from Tomczak
that repeats essentially the conclusions from her expert
report - that the CALSTAR nurses failed to meet “the
applicable standard of care” - but expressly identifies
the standard of care as gross negligence and opines that the
nurses were grossly negligent. Tomczak asserts that each of
the five actions identified above shows that “scant
care” was provided, identifying as the “most
extreme” example the failure of Farris and Power to
return Andrew to the care of UVMC either before departing
UVMC or soon thereafter because within minutes of their
departure they admittedly recognized that Andrew was coding.
Tomczak Decl. ¶¶ 8-10, 12-13.
contends that even if the new Tomczak declaration is
admissible, it is not reliable and not persuasive because
nowhere does Tomczak address the care that was
provided to Andrew - the continued provision of oxygen via a
non-rebreather mask, continued full spinal precautions for
loading and transportation, warming measures including
blankets and heaters, continued IVs and IV fluids,
intubation, administration of medicines, and performing CPR
after the cardiac arrest - that ...