MARGARET CLARK, ET AL vs. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL

Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication . . . shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, 25 Cal.4th 826, 843.)

The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th 826, 850; see Evid. Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, 25 Cal.4th 826, 851.) When the moving party is the defendant, the initial burden entails showing “that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ.

Proc., § 437c, subd. (p)(2).) Once the moving party has met its initial burden, the burden shifts to the opposing party to “show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subds. (p)(1)-(2).) “There is a genuine 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, supra, 25 Cal.4th 826, 845.)

DISCUSSION

Defendants’ Objections to Plaintiffs’ Evidence

1. Sustained. (Evid. Code, § 1200, subd. (b) [hearsay].)

2. Sustained. The declarant, one of Plaintiffs’ expert witnesses, recounts a description of the way Dr. Rosenstein handled the needle during the amniocentesis procedure and opines that such handling was “inconsistent with the standard requirement of continuous ultrasound visualization and minimal, deliberate redirection.” (DeVore Dec., p. 5, ¶ 13.) The declarant states that the account of Dr. Rosenstein’s handling of the needle is derived from “[t]he patient’s contemporaneous account” and, elsewhere in the declaration, states that this refers to a written document. (See p. 3, ¶ B, Line 18 [referring to “[t]he Clark’s contemporaneous written account”].) He does not otherwise specify what source he is referring to here.

Whatever document the phrase “contemporaneous account” refers to, Plaintiffs have not offered it into evidence, so the portion of testimony that is the subject of this objection is an expert opinion based on facts not in evidence. In Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, also a medical malpractice case, the plaintiff offered declarations from two doctors in opposition to summary judgment, just as Plaintiffs have done here. Both offered expert opinions based on facts that were not in evidence. (Ibid.) On this basis, the appellate court deemed the declarations to be “of no evidentiary value on the question of negligence or causation[.]” (Id. at p. 511.) Because this left the plaintiff without expert opinion evidence in opposition to the motion for summary judgment, the defendant’s motion for summary judgment was properly granted. (Ibid.)

In a more egregious instance of the same mistake, a defendant in a medical malpractice case moved for summary judgment based on an evidentiary showing consisting exclusively of his expert’s declaration. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741-742.) The expert rendered an opinion based on his review of the patient’s medical records and a doctor’s operative note, but the defendant did not submit these materials as evidence, instead relying on the expert witness’ description of them in his expert declaration to get them before the court. (Id. at p. 742.)

The Second District held that the expert’s declaration itself was not capable of proving the facts described in the medical records or the operative note, the expert’s declaration was therefore without an evidentiary basis in the record, and “[c]onsequently his expert medical opinion on whether defendant [] met the standard of care had no evidentiary value.” (Ibid.) The defendant’s motion for summary judgment was properly denied because he had not offered expert testimony to support his defense. (Id. at p. 743.)

This objection is SUSTAINED. (Bushling, supra, 117 Cal.App.4th 493, 511; Garibay, supra, 161 Cal.App.4th 735, 742-743.)

3. Overruled. Defendants’ objection to this material relies on an alteration Defendants made to the material when reproducing it in their evidentiary objections submission. The actual statement from Dr. DeVore’s declaration does not distinguish between the first needle and attempt and the second.

4. Sustained. (Bushling, supra, 117 Cal.App.4th 493, 511; Garibay, supra, 161 Cal.App.4th 735, 742-743.)

5. The Court does not rule on this objection because this content was not material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

6. Overruled. The declarant does not say he is quoting from the “contemporaneous account” or other material not before the Court here. The Court is required to interpret the showing of a party opposing summary judgment liberally (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838) and so will not simply assume that the expert witness is relying on material not in evidence. Defendants object that there is nothing in evidence to support the degree of pain Mrs. Clark experienced or the fact that Dr.

Rosenstein was “probing” around with the needle in the manner the expert witness describes, but they are incorrect. The expert witness describes the doctor as “probing . . . the needle around while the needle was inside Mrs. Clark’s abdomen by as much as an inch from side to side, up and down and in and out causing severe pain[.]” (Fitzgibbons Dec., ¶ 15.) This is almost exactly how Plaintiff Robert Clark described the first insertion of the needle in his verified discovery responses. (See Defendants’ Ex.

H [R. Clark’s Responses to Special Interrogatories, Set One], Response to No. 27 [describing the first insertion: “[Dr. Rosenstein] was not satisfied with the initial placement, so she visibly wiggled the needle in her hand, which by our estimate would have moved the tip of the needle as much as ~1” up/down and side to side within the abdomen/uterus area. Responding Party’s wife was in a great amount of pain during this attempt[.]”].) Regarding Defendants’ hearsay objections, an expert witness may rely on hearsay in forming his opinion, although his description of the hearsay statement may not serve as independent proof of the facts described in that statement. (Korsak v.

Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524-1525; accord Garibay, supra, 161 Cal.App.4th 735, 743.)

7. The Court does not rule on this objection because this content was not material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

8. Here, Dr. Fitzgibbons opines that Mrs. Clark’s infection “was caused by the contaminated needle from Dr. Rosenstein’s first amniocentesis attempt (contaminated by Bacteroides fragilis and Clostridium ramosum from the bowel) being reused” and thus “introduc[ing]” those bacteria “into Mrs. Clark’s amniotic fluid.” (Fitzgibbons Dec., ¶ 19.) Defendants object that there is nothing in evidence to establish that the first needle attempt perforated Ms. Clark’s bowel, so this is not competent expert testimony under Bushling and Garibay.

The Court overruled Defendants’ objection (No. 6) to expert testimony opining, based on the degree of pain Ms. Clark experienced during the first needle attempt and the way Dr. Rosenstein was moving the needle during that attempt, that the needle contacted Mrs. Clark’s bowel during the first attempt at the procedure. (Fitzgibbons Dec., ¶ 15.) Dr. Fitzgibbons further opines that the needle became “contaminated” through this contact. (Ibid.) Thus, there is in fact evidence before the Court to establish that the first needle attempt perforated Mrs.

Clark’s bowel. Overruled.

9. Overruled. Dr. Fitzgibbons opines “that it was the first attempted needle puncture that contaminated the needle with bacteria from Mrs. Clark’s bowel” and that Mrs. Clark’s infection, and the resulting death of her baby, was caused by reuse of this same needle on the second attempt at the procedure. He bases his opinion that the first needle puncture perforated Mrs. Clark’s bowel on the facts “that the needle from the first attempt was not in the amniotic sac and was being moved up and down, side to side, and in and out causing severe pain disproportionate to the procedure.” For reasons already stated, the Court disagrees with Defendants’ contention that the facts offered to support this opinion are not in evidence. Overruled.

10. Sustained. (Bushling, supra, 117 Cal.App.4th 493, 511; Garibay, supra, 161 Cal.App.4th 735, 742-743.) The Court can locate no evidence to support the assertion that Mrs. Clark had her bra and pants on when the needle was placed on her stomach.

Merits

“ ‘[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the 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 the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” [Citation.]’ ” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606 [quoting Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877].)

What adherence to the standard of care looks like under the circumstances of a case, whether the defendant’s conduct breached that standard of care, and whether such breach proximately caused the plaintiff’s injury must be established by expert testimony. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Zaragoza v. Adam (2025) 109 Cal.App.5th 113, 118-119.)

Dr. Rosenstein’s Motion

Issue No. 1 – Medical Malpractice: Breach

To prepare for the procedure, Dr. Rosenstein “sterilize[d] the patient’s abdomen” using a substance called Chlorhexidine. (Rosenstein Dec., ¶ 4; see also UMF No. 15.) Dr. Rosenstein made two attempts to extract amniotic fluid from Ms. Clark, meaning two needle insertions. (UMF No. 7.) After the first attempt, Dr. Rosenstein placed the needle on Ms. Clark’s abdomen for approximately 30 seconds to 2 minutes. (Ibid.) During this period, the needle was within the sterile field on the abdomen. (UMF No. 16; see also Rosenstein Dec., ¶ 5.) Dr. Rosenstein then used this same needle for the second attempt. (UMF No. 17.) Plaintiffs claim this conduct did not meet the standard of care.

Defendants present the expert testimony of Dr. David Miller, M.D., a licensed medical doctor board-certified in obstetrics, gynecology, and maternal fetal medicine with close to 40 years of experience. (Miller Dec., ¶ 1.) Dr. Miller reviewed Mrs. Clark’s medical records, the transcripts of her and Mr. Clark’s depositions, and Dr. Rosenstein’s declaration. (Id. at ¶ 3.) He attests that “[i]t is not uncommon for a physician to need two needle attempts for an amniocentesis[,]” and that “[t]his occurs in approximately 2-5% of cases[,]” even “in the absence of negligence.” (Id. at ¶ 6(b).)

Dr. Miller further attests that the “[s]tandard of care did not require that Dr. Rosenstein use a new needle for the second attempt because the abdomen area was appropriately sterilized beforehand and the needle remained in the sterile field at all times.” (Ibid.) Dr. Miller’s opinion is that Dr. Rosenstein’s belief that the needle was sterile at the time of the second attempt (see Rosenstein Dec., ¶ 5) was reasonable under the circumstances (id. at ¶ 6(b)). Based on Dr. Miller’s education, experience, and training, and on his review of the relevant documents, his opinion is that Dr.

Rosenstein always adhered to the standard of care in her performance of the amniocentesis procedure. (Id. at ¶ 6.) This evidence is sufficient to meet Defendants’ initial burden as to the breach issue.

In opposition, Plaintiffs offer the Declaration of Dr. Michael Fitzgibbons, a licensed medical doctor board-certified in Infectious Diseases and Internal Medicine. (Fitzgibbons Dec., ¶ 1.) Plaintiffs call upon Dr. Fitzgibbons for his expertise in “sterile techniques to be used by health care providers in amniocentesis procedures or any procedures that invade the body of the patient.” (Id. at ¶ 4.) Dr. Fitzgibbons has five decades of experience as a medical doctor in his stated specialties. (Id. at ¶ 12 & Ex.

A.) Defendants do not object to Dr. Fitzgibbons’ qualification as an expert. Dr. Fitzgibbons opines, based on his “familiar[ity] with the level of skill, knowledge and care that [a] reasonably careful doctor should possess and use in circumstances the same or similar to those presented” here, and particularly with regard to “sterile techniques,” is that “[r]emoving the needle and abandoning the amniocentesis and laying the used needle onto Mrs. Clarks stomach from Dr. Rosenstein’s first amniocentesis attempt and then reusing the same contaminated needle to puncture the skin, abdomen, uterus and amniotic sac is a breach of the standard of care.” (Id. at ¶¶ 4-5, 15.)

Defendants have not objected to this material. This is minimally sufficient to carry Plaintiffs’ burden in opposition to the motion on the issue of breach, particularly given the mandate that the Court interpret Plaintiffs’ showing liberally. (Binder, supra, 75 Cal.App.4th 832, 838.)

Contrary to Defendants’ contentions in their reply, Plaintiffs do not need to show that Dr. Rosenstein negligently perforated Mrs. Clark’s bowel during the first attempt at the procedure. (Reply, p. 3.) They can rest on negligent reuse of the needle as the breach underlying their medical negligence claim provided they can causally connect that breach (as opposed to perforation of the bowel) to Mrs. Clark’s injuries, and they will only need to cross that bridge if Defendants meet their own burden as to the causation issue.

Issue No. 2 – Medical Malpractice: Causation

“Medical negligence is fundamentally negligence,” so the “substantial factor” causation standard applicable to negligence actions generally applies to medical malpractice claims. (See Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735, 744.)

Mrs. Clark experienced cramping and pain after returning home on the day of the amniocentesis procedure. (UMF No. 19.) The next day, she was admitted to the hospital for vaginal bleeding, cramping, and a fever. (UMF NO. 22.) She was diagnosed with chorioamnionitis and spontaneously delivered her baby, stillborn, at 16 weeks and 3 days gestation. (Ibid.) Cultures of Mrs. Clark’s blood detected Bacteroides fragilis, and she was treated with antibiotics. (UMF Nos. 23-24.)

Dr. Miller, the defense expert, opines that the use of the same needle for the second attempt was not a substantial factor in Mrs. Clark’s injuries or in the death of her baby. (Miller Dec., ¶ 7 & 7(a).) He explains that it is “extremely unlikely that the needle became contaminated when it was placed on the patient’s abdomen prior to the second attempt because the abdomen was sterile and the needle remained within the sterile field at all times” and that “the blood cultures . . . did not detect any flora commonly associated with skin organisms[.]” (Id. at ¶ 7(a).) This is sufficient to carry Defendants’ burden as to the issue of causation.

Plaintiffs’ expert, Dr. Fitzgibbons, notes that blood cultures were taken from Mrs. Clark after she delivered her child, and the laboratory identified the organisms therein as Bacteroides fragilis and Clostridium ramosum. (Fitzgibbons Dec., ¶ 18.) These “are anaerobic bacteria whose ecologic niche is the human bowel.” (Ibid.) Dr. Fitzgibbons opines that the needle became contaminated through contact with Mrs. Clark’s bowel during the first attempt at the procedure. (Fitzgibbons Dec., ¶ 20.) He bases this opinion on the degree to which Dr.

Rosenstein was wiggling the needle during the first attempt, during which the needle was outside the amniotic sac, and on the degree of pain Mrs. Clark was experiencing, which in Dr. Fitzgibbons’ professional opinion was “disproportionate to the procedure.” (Ibid.) He further opines that the bacteria was introduced into Mrs. Clark’s amniotic fluid when the needle, contaminated by contact with the bowel during the first attempt, was inserted into Mrs. Clark’s amniotic sac during the second attempt. (Id. at ¶ 19.)

This is enough to create a dispute of material fact as to whether the reuse of the needle was a substantial factor in what happened to Mrs. Clark and her unborn daughter.

Defendants object that Dr. Fitzgibbons does not explain how he knows “that the infection was not introduced during the first needle attempt[,]” and therefore was unaffiliated with reuse of the needle, “if that is when the bowel was perforated.” (Defendants’ Evidentiary Objections, p. 12 [Obj. No. 8].) The significance of this is that if the first needle attempt perforated Mrs. Clark’s bowel, then, according to defense expert Dr. Miller, “the peritoneal cavity was already contaminated” on the first attempt, and the stage was set for Mrs.

Clark to develop a bacterial infection regardless of whether Dr. Rosenstein used a new needle for the second attempt. (Miller Dec., ¶ 7(a).) “[A] second needle would not have made a difference[.]” (Ibid.) Dr. Miller’s declaration is conclusory on this point, as he does not explain how a contaminated peritoneal cavity relates to chorioamnionitis or affects the amniotic fluid. (See Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [expert opinion is “conclusory” where it is “unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion”]; see also Binder, supra, 75 Cal.App.4th 832, 838 [moving party’s evidence is to be strictly construed].)

The Court is not a doctor and will not guess at what the peritoneal cavity is or how it relates to the amniotic sac. These facts are not in evidence. Dr. Fitzgibbons explains exactly how, in his opinion, bacteria were introduced into Mrs. Clark’s amniotic fluid during the second attempt specifically: The needle did not penetrate the amniotic sac in the first attempt, but instead penetrated Mrs. Clark’s bowel and became contaminated, and on the second attempt, Dr. Rosenstein took that same contaminated needle and stuck it directly into the amniotic fluid. (Fitzgibbons Dec., ¶¶ 14, 19-20.)

This is enough to create a triable issue as to causation.

Defendants also argue that Plaintiffs’ expert declarations are flawed because they rely in part on Mr. and Mrs. Clark’s (both laypersons) observations of the amniocentesis procedure and Mrs. Clark’s subjective reports of her degree of pain. Defendants protest that “[t]his is not reliable evidence to show a complication during a medical procedure[,] let alone negligence during that procedure.” (Reply, p. 4.) First, Plaintiffs are not relying on the Clarks’ observations, or Mrs. Clark’s description of her pain, to establish either “a complication” or “negligence.”

They are relying on their experts’ opinions to establish those things. Those experts’ opinions may be based on matter “of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates” (Evid. Code, § 801, subd. (b)) and healthcare providers regularly rely on a patient’s reports to form their medical opinions. Second, at summary judgment, a court does not weigh evidence (J.P. Morgan Trust Co. of Delaware v. Franchise Tax Bd. (2022) 79 Cal.App.5th 245, 262) and so is not concerned with whether it is “reliable” as opposed to whether it is admissible and competent.

Bird v. Saenz (2002) 28 Cal.4th 910 and Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926, both cited by Defendants in connection with this argument, do not suggest that an expert’s consideration of a lay patient’s subjective experience has any bearing on the admissibility of his expert opinion and in fact do not address any issue presented by the instant motion (both cases concern an element of the tort of negligent infliction of emotional distress). The analogy Defendants attempt to draw based on these cases (see Reply, p. 4) takes both cases far out of their proper context and simply does not make sense. A patient does not need to “perceive [a] breach of the standard of care” (ibid.) to offer a medical expert useful information that can help inform that expert’s opinion of whether a breach occurred.

Defendants request that if the Court determines that Plaintiffs’ opposition is sufficient to create a triable issue, it give Defendants “the opportunity to depose Dr. DeVore and Dr. Fitzgibbons regarding the foundation of their opinions pursuant to St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531[.]” Under St. Mary, “where a party presents evidence that raises a significant question relating to the foundation of an expert’s opinion filed in support of or in opposition to a motion for summary judgment or summary adjudication,” the court may allow the party to depose the expert on the subject of the foundation for his or her opinion. (50 Cal.App.4th 1531, 1534.)

For this to be proper, “[t]here must be objective facts presented which create a significant question regarding the validity of the affidavit or declaration which, if successfully pursued, will impeach the foundational basis of the affidavit or declaration in question.” (Id. at p. 1541.)

In the instant case, Defendants do not point to any objective facts undermining the foundations of Plaintiffs’ experts’ opinions, but argue more generally that “Plaintiffs’ experts rely on evidence that is unreliable, inadmissible and fundamentally incorrect.” (Reply, p. 8.) This does not meet the standard set in St. Mary’s. The Court considered each one of Defendants’ evidentiary objections carefully. It sustained their objections to Plaintiffs’ experts’ declarations wherever the declarations rendered opinions expressly based on facts not in evidence. Under the circumstances presented here, Defendants may attempt to undermine Plaintiffs’ expert witnesses at trial.

Issue No. 3: Loss of Consortium Claim

Defendants’ argument here is that this cause of action fails because the medical malpractice claim does. (See UMF Nos. 31-32.) As Plaintiffs have avoided summary adjudication of the medical malpractice claim, this argument fails.

Dr. Rosenstein’s motion for summary judgment/summary adjudication is DENIED.

The Regents’ Motion

“[A] private hospital must exercise such reasonable care toward a patient as his known condition may require[.]” (Thomas v. Seaside Memorial Hospital of Long Beach (1947) 80 Cal.App.2d 841, 847.) Exercising such reasonable care entails, among other things, “provid[ing] procedures, policies, facilities, supplies, and qualified personnel reasonably necessary for the treatment of its patients.” (CACI No. 514 [duty of hospital in a medical negligence case].)

The Regents’ liability, as opposed to Dr. Rosenstein’s, is an afterthought in Defendants’ brief. Dr. Miller offers a conclusory opinion that the Regents “provided procedures, policies, facilities, supplies and qualified personnel reasonably necessary for the treatment of its patient Ms. Clark.” (Miller Dec., ¶¶ 8 & 9(c).) Dr. Miller does not set forth any factual basis for this opinion and did not review any of the hospital’s procedures or policies in preparation to provide this opinion. (See Miller Dec., ¶ 3 [listing the materials he reviewed].)

Dr. Miller’s declaration is also not sufficient to qualify him to offer expert testimony on the sufficiency of the hospital’s policies and procedures, as opposed to Dr. Rosenstein’s adherence to the standard of care in her treatment of Mrs. Clark. (See Evid. Code, § 720.) The Regents’ motion is DENIED based on failure to meet the initial burden associated with summary judgment or adjudication.

Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444- 7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.

IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.

FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).