Opinion
A100861.
7-23-2003
DONALD L. BARKER et al., Plaintiffs and Appellants, v. THOMAS CHAPPELL et al., Defendants and Respondents.
Plaintiff Donald L. Barker is the widowed husband of decedent Alta Lee Barker. Plaintiffs Donna L. Zehner and Lisa N. Barker are the daughters of decedent. Plaintiffs bring this appeal from the judgment entered against them and in favor of defendants County of Alameda (hereafter Highland Hospital) and Thomas Chappell, M.D., after the trial court granted defendants motion for summary judgment. We affirm.
BACKGROUND
This is a wrongful death action brought by the family of a patient who died after she refused oxygen therapy to treat reversible complications to her breathing following multiple back surgeries at Highland Hospital. Plaintiffs first cause of action for wrongful death asserts a claim of alleged professional negligence by her surgeon, Dr. Chappell. The second cause of action for wrongful death asserts claims of professional negligence against Highland Hospital based on the theory of respondeat superior for the actions of Dr. Chappell and on the alleged general negligence of Highland Hospital staff. The complaint also included two other causes of action that plaintiffs have since abandoned and are no longer part of this appeal.
The complaint alleged a third cause of action for negligent infliction of emotional distress, which was rejected as part of the summary judgment ruling and which plaintiffs acknowledge in their reply brief is foreclosed by the Supreme Courts recent decision in Bird v. Saenz (2002) 28 Cal.4th 910. A fourth cause of action alleging violation of the Unruh Act was stricken pursuant to stipulation.
Before the events that led to the present lawsuit, decedent had undergone numerous prior back surgeries to treat back pain due to osteoporosis, causing spinal failure and nerve compression. By the time decedent first saw Dr. Chappell at the Highland clinic in 1995, she had already undergone six surgeries to her lumbar spine. Dr. Chappell performed back surgeries on decedent in that year, and again in 1997, to fuse various segments of her spine that had broken down above earlier fusion sites. Each surgery provided her with some pain relief for a period of time.
In late 1997, decedent developed a pathologic fracture and an acute backward curvature of her spine (kyphosis) above her most recent fusion site. On January 21, 1998, she was admitted to Highland Hospital under a plan to receive a single surgery to decompress the spinal cord and correct the new deformity. Soon after her preoperative admission to the hospital, decedent reported experiencing a "pop" in her back with increased pain, and she lost all remaining function in her lower extremities. Plaintiffs asserted that the "pop" occurred when Dr. Chappell and another physician negligently transferred decedent from a gurney to a bed. Immediately after this transfer, decedent said she could no longer feel or move her legs. Dr. Chappell suspected that her back had fractured during the transfer because of the temporal relationship between the transfer and decedents loss of sensation in her legs. (For purposes of the summary judgment motion, defendants conceded that this transfer may have caused decedents paralysis.)
According to Dr. Chappell, the paralysis required immediate surgery to attempt to correct it. He performed emergency surgery on January 21, 1998, to decompress the spinal cord. The surgery was performed from the front and required that the surgeon collapse one lung to work on her back through the chest. Although the procedure successfully decompressed the spinal cord, decedent did not recover her lower extremity function.
On January 23, 1998, Dr. Chappell performed a separate surgery, this time through decedents back, to fuse her spine at the thoracic 11-12 level. Following the latter surgery, decedent developed reversible respiratory complications requiring oxygen therapy. On January 25, 1998, decedent began refusing the oxygen treatments for her respiratory complications. By 4:30 p.m. on January 27, 1998, decedent was refusing all medical treatment, and stated that she just wanted to die. Decedent received assurances from Dr. Teehee that her complications were temporary and reversible with medical treatment, who informed her she risked death if she discontinued her treatment. Nevertheless, after consulting with her husband, decedent remained steadfast in her decision and refused all medical treatment. At 5:42 p.m. that afternoon, she was pronounced dead.
DISCUSSION
I. Standard of Review
We review a summary judgment de novo to determine whether the moving party has met its burden of persuasion that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When the defendant is the moving party, the defendant must show either (1) that the plaintiff cannot establish one or more elements of a cause of action, or (2) that there is a complete defense. If that burden of production is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc., §§ 437c, subds. (c) & (o )(2).)
II. Professional Negligence
Alleged Against Surgeon
"The elements of a cause of action in tort for professional negligence are: (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 professionals negligence. [Citations.]" (Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal. Rptr. 849, 491 P.2d 433.) Here, the motion for summary judgment asserted plaintiffs failure to establish the duty and causation elements.
Turning our attention to the causation element, defendants are entitled to summary judgment where they can establish "no reasonable medical probability based upon competent expert testimony " that their actions caused the damage at issue in the lawsuit. (See Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 702, 260 Cal. Rptr. 772, quoting Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal. App. 3d 396, 402, 209 Cal. Rptr. 456.) In this instance, plaintiffs allege that decedents death was a direct and proximate result of Dr. Chappells professional negligence. Specifically, they assert that Dr. Chappell breached his duty of care toward decedent by fracturing her back, rendering her a paraplegic, and then by performing successive major surgeries over the following two days to "cover up his mistake" and to straighten her spine without giving her sufficient time to recover from the first surgery before beginning the second surgery. Plaintiffs maintain that the trauma of the two successive major surgeries was more than decedent could stand physically and emotionally. They further contend that defendants negligence foreseeably contributed to decedents decision to refuse medical treatment.
The trial court determined that defendants had met their initial burden of establishing that Dr. Chappells actions were not the cause of decedents death, and that plaintiffs had failed to raise a triable issue of fact on the causation element. We agree and conclude that under the undisputed facts in this case, the decision by decedent to refuse all medical treatment was an independent intervening act that led to her death.
Plaintiffs rely primarily on three cases. Cline v. Watkins (1977) 66 Cal. App. 3d 174, 135 Cal. Rptr. 838 involved claims of successive malpractice by two attorneys, who both failed to assert in a dissolution proceeding their clients community property interest in the opposing spouses pension. In Cline, the court held simply that the asserted negligence of the second attorney in failing to prevent the harm flowing from the first attorneys negligence did not absolve the first attorney from liability as a matter of law. (Id. at p. 179.) Similarly, Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal. App. 3d 620, 128 Cal. Rptr. 807 involved a claim of successive acts of negligence by two physicians in the treatment of a boy who had been struck by a foul ball at a Dodgers game. (Id. at pp. 624-626, 627-629.) Carlisle v. Kanaywer (1972) 24 Cal. App. 3d 587, 101 Cal. Rptr. 246, involved a wrongful death claim brought by the family members of an alcoholic against a bar owner alleging, among other things, that after negligently serving liquor to the decedent, the bar owner also failed to render aid when the patron became sick, unconscious, and helpless on the bar premises. (Id. at pp. 591-592.) The patron ultimately died from choking on his own vomit. (Id. at p. 590.) The appellate court concluded only that "one whose negligence injures another is bound to render him aid, and that the injured partys contributory negligence in causing the injury is not a defense in such a case. [Citations.]" (Id. at p. 592.) These three cases are readily distinguishable from the present case. Each dealt with successive acts of negligence and concluded that the second act of negligence did not immunize the party whose initial tortious act contributed to the ultimate injury. In our case, however, the ultimate injury resulted from a deliberate and knowing decision by the victim of a negligent injury to refuse medical treatment in the face of death, rather than accept continued life sustaining medical therapy.
We believe cases involving an injured partys decision to commit suicide are more directly on point. In Tate v. Canonica (1960) 180 Cal. App. 2d 898, 5 Cal. Rptr. 28, the court held that when a party negligently injures another, who subsequently commits suicide, the injured persons decision to die is an independent intervening cause and the wrongdoer cannot be held liable for the death. Only if the negligence causes a mental illness that results in an uncontrollable impulse to commit suicide can the wrongdoer be held liable for the death. (Id. at p. 915.) Tate left open the possibility that a suicide would not be a superseding cause if, "under the particular circumstances of the case, a truly voluntary suicide was a reasonably foreseeable result of the defendants wrongdoing." (Id. at p. 918.) In Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88 that possibility was confirmed. In Jacoves, the parents of a young man who committed suicide sued a psychiatric hospital, alleging that the hospital had been negligent in releasing their son while he was still experiencing suicidal ideations. Soon after the sons discharge from the hospital, he ended his life. The court reversed a summary judgment in favor of the hospital after concluding that the facts warranted an exception to the rule of superseding cause. The appellate court found that the alleged negligent discharge of the son from the hospital put him at risk for suicide (id. at p. 106), the same harm for which he sought hospital treatment in the first place (id. at p. 99). The court reasoned that the "suicide, itself, was the foreseeable risk and cannot, therefore, be a superseding cause." (Id. at p. 112.)
Here, defendants presented evidence that prior to the back injury attributed to Dr. Chappells negligence, decedent had told him "on a number of occasions that she would prefer to die rather than to continue to live in pain as she had." On January 25, 1998, decedent began refusing treatment for the respiratory complications from her recent surgeries. The following day, she was transferred from "the ICU to the TCU," where she again refused the oxygen needed to treat her respiratory complications. By 4:30 p.m. on January 27, she refused all medical treatment and repeated her desire to be allowed to die. She was assured by Dr. Teehee that her complications were only temporary and were reversible with continued treatment. After being informed that she would likely die if she declined treatment, she responded that she understood the risk, but wanted to die because she was tired. She was conscious, alert and oriented when she spoke with Dr. Teehee, who believed that she had the mental capacity to refuse treatment and was expressing her true wishes to him. Her husband told the doctor that he agreed with his wifes decision and explained that the two of them had made the decision together. Husband told the doctor that she preferred not to live because her life was not of the quality she wanted it to be. Husband explained that she had been through too much with the numerous prior surgeries and being confined to a wheelchair. Accordingly, Dr. Teehee believed that he had no choice but to follow her wishes. No further treatment was administered to her and she died a very short time later.
Defendants evidence met their initial burden to establish a complete defense to the wrongful death claim based on decedents superseding intervening decision to end her life by refusing all further medical treatment. (Tate v. Canonica, supra, 180 Cal. App. 2d at p. 915.) The burden then shifted to plaintiffs to produce evidence raising a triable issue of fact with regard to this defense. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850; Code Civ. Proc., § 437c , subd. (o )(2).) However, plaintiffs presented no competent evidence to establish that defendants negligence caused a mental illness in decedent that robbed her of the mental capacity to make the decision to refuse her medical treatments. No evidence was presented from any mental health care professional or medical ethicist to refute defendants evidence that decedent had been mentally competent when she refused further life sustaining medical treatment. Furthermore, plaintiffs presented no admissible evidence to support their speculative assertion that decedents decision to refuse medical treatment was a foreseeable result of the negligent transfer of decedent from the gurney. Plaintiffs persistent arguments on this aspect, ardent and sincere as they may be, are not a substitute for the actual evidence needed to raise a triable issue of fact to negate the complete defense of superseding intervening cause. As we have said before in other contexts, "Speculation is not evidence." (Citizen Action to Serve All Students v. Thornley (1990) 222 Cal. App. 3d 748, 756, 272 Cal. Rptr. 83, fn. omitted.)
Statements in the decedents daughters declarations inferring decedent lost her will to live as a result of the paralysis were excluded by the trial court as lacking foundation and as improper lay opinion.
In their reply brief, plaintiffs argue that defendants breached a separate duty owed to decedent "not to remove life support from a patient not dependent upon it and whose condition was temporary and reversible." Though never fully developed in the briefing, plaintiffs theory seems to be that this duty arose after decedents decision to refuse treatment and caused her death. In support of this theory, plaintiffs advance the proposition that "Alta Barker did not . . . qualify for full and complete autonomy in deciding to end her life." We note that plaintiffs never clearly articulated such a duty prior to their reply brief and, in the trial court and in the opening brief argued that their negligence claim rested on the malpractice that occurred prior to decedents decision. These arguments reflected the theory of both the administrative claim and the complaint that defendants negligence occurred during the transfer of decedent from the gurney. Moreover, in the trial court and in the opening brief, plaintiffs seem to concede that decedent had full autonomy to refuse treatment. (See plaintiffs opening brief, at p. 20 ["[Plaintiffs] did not contest Alta Lee Barkers right to stop treatment, but contended that [defendants] negligence and neglect foreseeably contributed to Alta Lee Barkers decision to stop the bad treatment she was getting by refusing all treatment."]; see also plaintiffs appendix, at p. 46.) These concessions are diametrically opposed to the legal position taken in the reply brief. Thus, we will not consider it. (Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 92, fn. 2.)
Even if we were to address on the merits the argument that defendants response to decedents decision to terminate treatment fell below the standard of care, plaintiffs would not prevail. In support of their summary judgment motion, defendants presented declarations from two independent experts, Susan B. Rubin, a clinical ethicist, and Dr. Bernard Rappaport, a psychiatrist, each of whom opined that the physicians and staff at Highland Hospital acted ethically and appropriately and within the standard of care in their response to Alta Lee Barkers refusal of treatment. In response, plaintiffs submitted no expert opinion to the contrary.
Based on our independent review of the evidence presented in the trial court, defendants were able to establish that decedents decision to refuse further respiratory treatments, despite her awareness that doing so would likely lead to her death, constitutes a superseding intervening cause of her death, and plaintiffs were unable to create any material disputed issues of fact regarding this defense.
Having concluded that defendants were entitled to summary judgment of the wrongful death claims based on the complete defense of superseding intervening cause, we need not consider the other grounds asserted in support of the summary judgment ruling based on the absence of legal duty and, as respects Dr. Chappell, on the statute of limitations.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs for this appeal.
We concur, STEVENS, Acting P.J., GEMELLO, J.