ELSHEIKH VS. CHILDREN’S HOSPITAL OF ORANGE COUNTY

The elements of a claim for medical negligence are (1) the duty of a professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between negligent conduct and resulting injury; and (4) actual loss or damage resulting from professional’s negligence. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463.)

“The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen.” (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) “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.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.)

Summary of Facts:

This action arises from the treatment of minor Plaintiff Soliman by Defendants in 2023 for Kawasaki disease, a childhood disease causing blood vessel inflammation. Plaintiffs allege Defendants’ failure to adequately diagnose and treat Soliman resulted in complications including lifelong damage to his coronary arteries. (Complaint, ¶ 58.)

As to Defendant Dr. Weiner, Plaintiff alleges Plaintiff Soliman was brought to Dr. Weiner on 10/18/23 for an urgent visit to evaluate possible Kawasaki disease. (¶ 21.) Dr. Weiner conducted an ecg the same day and recommended Plaintiffs go to CHOC for emergency evaluation. (¶¶ 22-23.) After two admissions at CHOC, Dr. Weiner saw Soliman again on 11/3/23 at which time Dr. Weiner found Soliman had signs related to being weaned off steroids but “his cardiac status appears un-involved...” (¶ 39.) Soliman’s symptoms worsened and he returned to CHOC, where echocardiograms were conducted between 11/8-11/14 which were interpreted by Defendants Dr.

Weiner and Dr. Gandy as within normal limits. (¶ 47.) Unsatisfied with treatment, Plaintiffs transferred Soliman to Rady Children’s Hospital in San Diego, where they were advised that Dr. Weiner and other Defendants who had treated Soliman in Orange County had failed to promptly detect and treat Soliman’s symptoms including blood clots. (¶¶ 49, 57.)

In the complaint filed 10/1/24, Plaintiffs allege claims for (1) Medical Negligence, (2) Negligent Infliction of Emotional Distress (NIED), (3) Emergency Medical Treatment and Labor Act (EMTALA) violation, and (4) California Evidence Code 1158

violation. Only the first two claims are pending as to moving Defendant.

Application:

Defendant moves for summary judgment as to Plaintiffs’ claim for medical negligence and NIED on the grounds that he complied with the applicable standard of care and Plaintiffs cannot establish their claim for NIED against Dr. Weiner. (Notice, p. 2.)

Issue One – Medical Negligence Standard of Care:

Defendant contends his care of Plaintiff Soliman at all times met the standard of care. (Undisputed Material Fact [UMF 1].) Plaintiffs dispute this on the grounds that, “Dr. Weiner failed to timely recognize and appropriately treat recrudescent, treatment resistant Kawasaki disease, most critically on November 3, 2023, when Soliman presented with recurrent fever, conjunctivitis, and rising inflammatory markers following prior hospitalization and treatment.” (Plaintiff’s Response to UMF 1.)

Defendant presents the declaration of David Ferry, M.D., who opines that Dr. Weiner complied with the standard of care for a pediatric cardiologist, including (1) promptly performing an echocardiogram (ecg) and recommending immediate hospital admission on 10/18/23, (2) obtaining and evaluating ecgs during Soliman’s hospitalizations at CHOC, (3) coordinating care including higher-dose steroids and further testing based on Soliman’s recurrent symptoms on 11/3/23, (4) appropriately interpreting the ecgs between 10/19 and 11/14, and (5) participating in a multidisciplinary team and relying on the radiologist’s interpretation of CT angiography and hematologists’ anticoagulation management. (Ferry Decl., ¶ 92.)

In opposition, Plaintiffs submit the declaration of Elizabeth Vickers Saarel, M.D., who opines Dr. Weiner breached the standard of care due to his failure to escalate care on 11/3/23. This included failure to immediately initiate cyclosporine (an immunomodulatory therapy) to reduce inflammation, which likely led to formation of aneurysm and thrombi resulting in permanent coronary artery damage. (Saarel Decl., ¶¶ 34-47.)

In reply, Defendants object to Dr. Saarel’s declaration as conclusory and lacking foundation while disregarding the clinical facts known to Dr. Weiner at the time including “stable presentation, normal echocardiogram, infectious disease consultation, and close followup plan.” (Opp. at p. 2.)

The declaration of Dr. Saarel is sufficient to create a material dispute of fact as to whether Dr. Weiner’s treatment, including failure to initiate cyclosporine or otherwise escalate care on 11/3/23, was in violation of the standard of care and caused Soliman’s

injuries. Therefore, the motion is denied as to Plaintiffs’ medical negligence claim.

Issue Two – NIED Claim:

Code of Civil Procedure section 437c(f) states in part:

“(1)A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (2) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. [. . .]”

“It is elemental that a notice of motion must state in writing the ‘grounds upon which it will be made.’ (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 311(a); Silva v. Holland (1888) 74 Cal. 530, 532, 16 P. 385.) Only the grounds specified in the notice of motion may be considered by the trial court. This rule has been held to be especially true in the case of motions for summary adjudication of issues.” (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545 [cleaned up].)

“[I]t is improper to grant summary adjudication absent a motion therefor. Therefore, because Wilton did not move in the alternative for summary adjudication of specified issues, we will not address whether Wilton may have prevailed on some issues in this case.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 949 [cleaned up].)

Here, Defendant’s notice of motion seeks only summary judgment, and does not specifically include a request for summary adjudication in the alternative. (Notice, pp. 1-2.) Therefore, because the motion is denied as to Plaintiffs’ first cause of action, the Court cannot address the merits of the second claim at this time.

Therefore, the motion is denied as to the second cause of action for NIED.