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Sampson v. Ukiah Valley Medical Center

United States District Court, N.D. California

May 5, 2017

ALAN SAMPSON, et al., Plaintiffs,
v.
UKIAH VALLEY MEDICAL CENTER, et al., Defendants.

          ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 92, 95

          William H. Orrick United States District Judge.

         The 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.

         BACKGROUND

         At 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.

         Ukiah 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.

         Following 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], ¶¶ 16-17.[1]

         Plaintiffs 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.[2] Id.

         The 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.

         Andrew 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].

         There 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.[3] 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.[4]

         There 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.[5] 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.

         Plaintiffs 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.[6] 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.

         Despite 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.

         CALSTAR 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).

         LEGAL STANDARD

         Summary 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).

         On 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).

         Under 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 (Cal.Ct.App. 1975).

         Generally, 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.

         DISCUSSION

         I. CALSTAR'S MOTION FOR SUMMARY JUDGMENT

         CALSTAR 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.

         Plaintiffs 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.[7]

         CALSTAR 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.

         CALSTAR 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 ...


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