DIANE HIRSCH AN INDIVIDUAL BY AND THROUGH HER SUCCESSOR IN INTEREST SCOTT ROSEN, et al. vs DIGNITY HEALTH, et al.

2024CUPP020455: DIANE HIRSCH AN INDIVIDUAL BY AND THROUGH HER SUCCESSOR IN INTEREST SCOTT ROSEN, et al. vs DIGNITY HEALTH, et al.

direct the judge’s attention to the evidence on which the party is relying to show that there is a disputed issue of material fact. (Eddins v. Redstone (2005) 134 Cal.App.4th 290, 318.) It is not the judge’s responsibility to search for his evidence in the opposing party’s papers. (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 75.) Because no evidentiary support has been provided for Defendant’s dispute as to these additional facts, the Court treats them as established for purposes of this motion.

Legal Standards on Summary Judgment

The legal standards on summary judgment are well established and they are not repeated here.

Objections

The following objections by Defendant are OVERRULED: Objections 1-5. The statements which are the subject of the objections are not speculative and adequate foundation has been laid.

The following objections by Plaintiffs are OVERRULED: Objections 1-10. Each objection is directed to a material fact proffered by Defendant. Objections are to be directed to evidence, not facts. (Cal. Rule of Court, rule 3.1354; Code Civ. Proc § 437c (c).)

Material Facts

For the limited purpose of ruling on this motion, the Court makes the following findings regarding Defendant’s Undisputed Material Facts (“UMF”) and Plaintiffs’ Additional Material Facts (“AMF”):

Defendant’s Material Facts Which are Undisputed and Established 1-5, 7-8, 10 (established except as to assertion re Dr. Allen’s notes re the results of the CT of the abdomen and pelvis), 11-16, 17 (established except as to the statement that it is “unclear” whether water enema was obtained), 18-20, 22, 24, 26-30, 33 (established except for Dr. Harjani’s plan re bowel regimen), 34-41, 43 (established except for Dr. Harjani’s plan re bowel regimen), 44, 46 (established except for the characterization of Dr. So’s plan as an “aggressive bowel regimen”), 48, 51-59, 62-63, 65, 77-78, 89-90, and 95.

As to Nos. 6 and 74 (established only that these are Dr. Harjani’s contentions) As to Nos. 66-73 and 75-76 (established only that these are Dr. Martin’s opinions) As to Nos. 80-88 (established only that these are Dr. Kamangar’s opinions) As to Nos. 92-100 (established only that these are Dr. Luthringer’s opinions and observations)

Defendant’s Material Facts Which are Disputed and Established 9, 23, 25, 42, 45, 47, 49, 50, and 60

Defendant’s Material Facts Which are Disputed and Not Established 6, 10 (disputed re characterization of Dr. Allen’s notes re the CT of the abdomen and pelvis), 17 (disputed as to the statement that it was unclear if water enema was obtained as no record shows it was), 21, 31, 32, 33 (disputed as to Dr. Harjani’s plan re bowel regimen), 43 (disputed as to Dr.

2024CUPP020455: DIANE HIRSCH AN INDIVIDUAL BY AND THROUGH HER SUCCESSOR IN INTEREST SCOTT ROSEN, et al. vs DIGNITY HEALTH, et al.

Harjani’s plan re bowel regimen), 46 (disputed as to the characterization of Dr. So’s plan as an “aggressive bowel regimen”), 61, 64, 79 and 91

As to Nos. 6 and 74 (disputed that Dr. Harjani’s contentions are correct.) As to Nos. 66-73 and 75-76 (disputed as to the correctness of Dr. Martin’s opinions) As to Nos. 80-88 (disputed as to the correctness of Dr. Kamangar’s opinions) As to Nos. 92-100 (disputed as to the correctness of Dr. Luthringer’s opinions and observations)

Plaintiffs’ Additional Material Facts Which are Established

102-110, 111 (established with the exception that patient reported abdominal pain, not “significant” abdominal pain), 112-138

Additional facts 139-141 are not material.

Ruling on the Motion

The standard of care in malpractice cases is established. “A physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.” (Landeros v. Flood (1976) 71 Cal.3d 399, 408.) This standard of care is a matter “peculiarly within the knowledge of experts” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) “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.’ [Citations.]” (Munro v.

Regents of University of California (1989) 215 Cal.App.3d 977, 984–985; (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123 (“Powell”).)

“Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. [Citation]. ‘[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony.’” (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603.) While the issue of proximate cause ordinarily is a question of fact, “it becomes a question of law when the facts of the case permit only one reasonable conclusion.” (Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.)

In the context of a motion for summary judgment, to meet a party’s burden of production that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the declaration of the defendant's expert must “be detailed and with foundation.” (Powell, supra, 151 Cal.App.4th at 125 citing to Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524 (“Kelley”).) “In contrast . . . the declaration of the plaintiff's expert in opposition to the defendant's summary judgment motion[,] . . . did not have to be detailed, was entitled to all favorable inferences and was deemed sufficient to defeat the summary judgment motion.” (Ibid, citing to Hanson v. Grode (1999) 76 Cal.App.4th 601, 607-608, as modified (Nov. 29, 1999)) (italics in original).

2024CUPP020455: DIANE HIRSCH AN INDIVIDUAL BY AND THROUGH HER SUCCESSOR IN INTEREST SCOTT ROSEN, et al. vs DIGNITY HEALTH, et al.

There are conflicting expert opinions regarding whether Dr. Harjani’s actions met the standard of care or caused or substantially contributed to Plaintiffs’ decedent’s death. (UMF Nos. 64, 66-73, 75-76, 79-88, 91-100; AMF Nos. 126-138.)

Defendant’s expert, Dr. Martin opines that Ms. Hirsch was critically ill due to severe pulmonary disease and her clinical course and deterioration are medically explained by overwhelming pulmonary infection and respiratory failure (UMF No. 66); that where there was an absence of signs suggesting an acute abdominal pathology, Dr. Harjani appropriately prioritized Ms. Hirsch’s critical respiratory status while continuing the bowel regimen in place (UMF Nos. 67-70, 72); that Dr. Harjani did not deviate from the standard of care in managing Ms. Hirsch’s bowel function (UMF Nos. 64, 73); and that fecal impaction was not the cause of and did not substantially contribute to Ms. Hirsch’s death. (UMF Nos. 71, 75.)

Defendant’s expert, Dr. Kamangar provides similar opinions. (UMF Nos. 80-81.) Dr. Kamangar also opines that Ms. Hirsch’s hemodynamic collapse is best explained by her underlying cardiopulmonary physiology. (UMF Nos. 83-84.) She opines that any ischemic changes identified in the bowel on postmortem examination are consistent with terminal hypoperfusion (UMF Nos. 85, 88); that Dr. Harjani did not deviate from the standard of care in managing Ms. Hirsch’s bowel function (UMF No. 79); and that fecal impaction was not the cause of and did not substantially contribute to death (UMF Nos. 79, 86-88.)

Defendant’s expert Dr. Luthringer opines that Dr. Harjani’s alleged breaches of the standard of care did not cause or substantially contribute to death. (UMF Nos. 91, 100.) He interprets the autopsy findings in the context of the premortem clinical record and concludes that Ms. Hirsch’s death is best explained by severe pulmonary infection and its complications (UMF Nos. 92, 98); and that there is no clinicopathologic evidence of bowel perforation, stercoral colitis, ischemic colitis or peritonitis to support the idea that fecal impaction was a primary driver of death. (UMF Nos. 93, 98.) To the extent ischemic changes were identified in the bowel on autopsy, Dr Luthringer opines that this does not establish a pre-existing ischemic bowel condition. (UMF No. 94.)

Dr. Martin and Dr. Luthringer dispute the conclusions in the autopsy report attributing death to constipation and fecal impaction as unsupported by the clinical record. (UMF Nos. 76, 96-97.)

In direct contrast, Plaintiffs’ expert, Dr. McIlraith opines that while Ms. Hirsch had empyema and abscess cavities in the left upper lobe of her lung, she was responding to treatment and improving. (UMF Nos. 66, 98.) By the time Dr. Harjani assumed her care, Ms. Hirsch, who was a high risk patient, was exhibiting clear indicators of worsening fecal impaction and her condition progressed toward stercoral colitis by March 10, 2023. (AMF No. 135) Abdominal symptoms were documented throughout the course of Ms.

Hirsch’s hospitalization, including a white blood cell count of 53,000, CT imaging showing moderate to marked colonic fecal retention, abdominal tenderness, hypoactive bowel sounds, constipation, paradoxical diarrhea suggestive of overflow around an impaction, restlessness, confusion, clamminess, and complaints of stomach pain. (UMF Nos. 67, 76, 93. 94, 97.) Once Mrs. Hirsch’s fecal impaction was identified, at least through CT, Dr. Harjani had a duty to initiate timely and appropriate treatment.

This included ordering and monitoring the completion of interventions such as enemas, stool softeners, laxatives, or manual

2024CUPP020455: DIANE HIRSCH AN INDIVIDUAL BY AND THROUGH HER SUCCESSOR IN INTEREST SCOTT ROSEN, et al. vs DIGNITY HEALTH, et al.

disimpaction, and escalating care if initial measures were ineffective. Although an X-ray was taken, this would have been insufficient to evaluate bowel wall inflammation, ischemia, mural thickening, or other findings associated with stercoral colitis. (UMF NO. 81.) Dr. McIlraith opines that Dr. Harjani should have recognized Ms. Hirsch’s ongoing and worsening symptoms as well as the fact that there was no indication that the nursing staff was carrying out the enemas previously ordered by Dr. So. (UMF Nos. 67-71.)

Even when Dr. Harjani documented abnormal abdominal findings, Ms. Hirsch’s treatment plan remained unchanged. (AMF No. 135) Dr. Harjani’s failure to properly review the nursing notes, vital signs, intake and output records, and documented assessments, and to recognize, treat and closely monitor the severity of Mr. Hirsch’s condition, which called for invasive intervention, including urgent gastrointestinal evaluation, fell below the standard of care and was a substantial factor in causing her deterioration and death. (AMF Nos. 127, 128, 130, 131, and 132.)

Dr. McIlraith opines that the autopsy findings confirm the severity and consequences of Mrs. Hirsch’s untreated fecal impaction. The autopsy confirmed severe constipation with impaction of the rectum, multiple baseball to softball sized fecaliths, ischemic ulcers, green exudate, and findings consistent with ischemic infarction to the rectum secondary to fecal impaction. (UMF Nos. 74, 84-85; AMF Nos. 136, 137.) Dr. McIlraith opines that the clinical record is consistent with bowel necrosis and ischemic infarction causing unresolved fecal impaction and progressing stercoral colitis. (UMF No. 75) He opines that Dr.

Harjani’s actions in failing to appropriately respond to Ms. Hirsch’s worsening condition as stated above, fell below the standard of care and was a substantial factor in causing her deterioration and ultimate death (UMF Nos. 64, 72-73, 76, 78-79, 81, 86-88, 91, 100, 126, 135.)

Defendant argues that Dr. McIlraith’s declaration is conclusory and lacks reasoned justification. “‘Cases dismissing expert declarations in connection with summary judgment motions do so on the basis that the declarations established that the opinions were either speculative, lacked foundation, or were stated without sufficient certainty.’” Sanchez v. Kern Emergency Med. Transportation Corp. (2017) 8 Cal.App.5th 146, 155–56, as modified (Feb. 16, 2017) (“Sanchez”) citing to Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 718.)

The court in Hanson, supra, described an opposing physician declaration to be sufficient as follows:

We find Dr. Reynolds's declaration more than adequate to satisfy Hanson's burden on summary judgment. Relying on Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 7 Cal.Rptr.2d 101, defendants disparage the portion of the declaration containing subparagraphs, quoted above, because of its frequent use of the word “should.” To be sure, “professional prudence is defined by actual or accepted practice within a profession, rather than theories about what ‘should’ have been done.” (Id. at p. 282, 7 Cal.Rptr.2d 101; see also Landeros v.

Flood (1976) 17 Cal.3d 399, 410, 131 Cal.Rptr. 69, 551 P.2d 389.) However, there is nothing theoretical about the Reynolds declaration in this regard; rather, specific factual breaches of duty are clearly asserted. For example, defendants failed to investigate bleeding at the time of the surgery, which investigation may have led them to perform a laminectomy. Once Hanson was in the recovery room, defendants failed to return him to surgery to determine why he had symptoms of nerve injury. Moreover, in a later portion of the declaration Reynolds states that defendants' failure to diagnose epidural hematoma prior to discharge from the hospital fell

2024CUPP020455: DIANE HIRSCH AN INDIVIDUAL BY AND THROUGH HER SUCCESSOR IN INTEREST SCOTT ROSEN, et al. vs DIGNITY HEALTH, et al.

below the applicable standard of care. Accordingly, triable issues were raised by Hanson on the element of breach of duty.

Defendants fare no better on the element of causation. Reynolds states that Hanson suffered nerve damage during the surgery and that the care defendants provided was a cause of his injuries. Although the style of the Reynolds declaration is at times a bit obtuse, Hanson is entitled to all favorable inferences that may reasonably be derived from that declaration. These inferences include a reading of the declaration to state that the nerve damage Hanson suffered during surgery was caused by the conduct of defendants, which conduct fell below the applicable standard of care. Nothing more was needed.

(Hanson, supra, 76 Cal.App.4th at 607-608.)

As set forth above, the opposing declaration of Dr. McIlraith, meets the requirements of Hanson to raise triable issues of material fact regarding whether Dr. Harjani’s treatment and care of Plaintiffs’ decedent met the standard of care and whether his actions substantially contributed to or caused Ms. Hirsch’s death. Dr. McIlraith’s declaration provides an explanation as to how the acts or omissions of Defendant were a substantial cause of Ms. Hirsch’s eventual death.

Because there are triable issues of material fact regarding whether Defendant Harjani complied with the applicable standard of care and whether his actions or omissions caused or contributed to Mrs. Hirsch’s death, the motion for summary judgment is DENIED.

Plaintiffs shall give notice.

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