Response To Plaintiff'S Opposing Separate Statement Re Msj

Response

Cal. Super. - 4th Dist.January 4, 2016

I la ig ht O © 0 N N W n A s W N N O N N N N N N N N e m e m e m e m e e e m e d p e p e C o ~ ~ N n R W N = O o 0 0 N N N N D R R W N Y R o Angela S. Haskins (Bar No. 188821) a askins@hbblaw.com Allegra Perez (Bar No. 258209) aperez(@hbblaw.com HAIGHT BROWN & BONESTEEL LLP 555 South Flower Street, Forty-Fifth Floor Los Angeles, California 90071 Telephone: 213.542.8000 Facsimile: 213.542.8100 Attorneys for Defendant ORANGE COAST MEMORIAL MEDICAL CENTER SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE JOAN McKEE, Case No. 30-2016-00827940-CU-MM-CIJC Plaintiff, DEFENDANT ORANGE COAST MEMORIAL MEDICAL CENTER’S V. RESPONSE TO PLAINTIFF’S OPPOSING SEPARATE STATEMENT ORANGE COAST MEMORIAL OF UNDISPUTED MATERIAL FACTS MEDICAL CENTER, MEMORIALCARE IN OPPOSITION TO MOTION FOR HEALTH SYSTEMS and DOES 1 through SUMMARY JUDGMENT 50, inclusive, [Filed Concurrently with Reply Of Defendants. Defendant Orange Coast Memorial Medical Center To Plaintiff’s Opposition To Defendant’s Motion For Summary Judgment) Date: January 5, 2017 Time: 1:30 p.m. Dept.: (C24 Reservation Number: 72459988 Assigned for All Purposesto: Hon. Randall J. Sherman, Dept. C24 Action Filed: January 4, 2016 Trial Date: February 6, 2017 Defendant ORANGE COAST MEMORIAL MEDICAL CENTER hereby submits the following Response to Plaintiffs Opposing Statement of Undisputed Facts Submitted in Opposition to Motion for Summary Judgment as follows: 1 MHI5-0000058 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE 12151596.1 STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O O 0 3 N N W n B s W N N N N N N N N O N N G m m m d m d m d h m e m p l p e 0 3 O N w n A W N = D O N N N N R W N = O o PLAINTIFF JOAN MCKEE’S UNDISPUTED FACTS AND SUPPORTING EVIDENCE DEFENDANT’S RESPONSE AND SUPPORTING EVIDENCE 1. Ms. McKee visited to Orange Coast Memorial Medical Center on September 26, 2014, roughly one month before this incident. She was seen by Michael Pahl, MD. Declaration of Jacob Tauber, MD paragraph 3 page 2 line 21 through page 3 line 2; Declaration of Cary S. Macy paragraph 8 page 3 lines 20-23 and Exhibit 1 and 2 attached thereto; 1. Undisputed. 2. Dr. Pahl is a board certified Orthopaedic Surgeon with subspecialty training in Sports Medicine. According to his website he earned his undergraduate degree with honors from Chapman University. He earned his medical degree from Jefferson Medical College in Philadelphia. He did a research fellowship and completed his residency in Orthopaedic Surgery at Thomas Jefferson University Hospital in Philadelphia and went on to serve as chief resident. During his time 2. Undisputed. 2 MH15-0000058 DEFENDANT’S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE 12151596.1 STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O O 0 0 3 S N n m R s W N N O N N N N O N N N N E E e m e m m m m m e m p e e e e d 0 ~ ~ O N U n h h W N = O D O N N N R W = O there he trained under world-renowned surgeons ofthe prestigious Rothman Institute. After completing his residency, Dr. Pahl received fellowship training in Sports Medicine at the Southern California Center for Sports Medicine and the Memorial Orthopaedic Surgical Group. Following his fellowship training Dr. Pahl was invited to join the Memorial Orthopaedic Surgical Group. Dr. Pahl primarily sees patients at Memorial Orthopaedic Surgical Group in Long Beach and operates out of Long Beach Memorial Medical Center and The Surgery Center of Long Beach. Declaration of Cary S. Macy paragraph 8 page 3 line 23 through page 4 line 11. 3. Ms. McKee told Dr. Pahl she was having bilateral hip and knee pain. He 3. Dr. Pahl’s records do not indicate thatMs. McKee “made absolutely no mention ) of any back pain.”requested X-rays of her pelvis, knees andlow back. He diagnosed her as sufferingfrom degenerative joint disease ofthe hip. 3 MH15-0000058 DEFENDANT’S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE 12151596.1 STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O o 0 3 S N W n R A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 She told the doctor that she had hip pain and knee pain. Ms. McKee made absolutely no mention ofany backpain. Declaration of Jacob Tauber, MD paragraph 3 page 2 line 21 through page 3 line 2; Declaration of Cary S. Macy paragraph 8 page 3 lines 8-11 and Exhibit 1 and 2 attached thereto. 4. Ms. McKee returned to Orange Coast Memorial Medical Center on October 22, 2014, only 9 days before this incident. She was seen by Albert M. Tsai, MD. According to MemorialCare’s website Dr. Tsai is an orthopedic surgeon at Memorial Orthopedic Surgical Group. Declaration of Jacob Tauber, MD paragraph 4 page 3 lines 3-12; Declaration of Cary S. Macy paragraph 9 page 4 lines12-15 and Exhibit 1 and 2 attached thereto. 4. Undisputed. 5. Dr. Tsai is Board Certified by the American Board of Orthopedic Surgeons, Fellow of the American Academy of Orthopedic Surgeons and an active member 5. Undisputed. 4 MH15-0000058 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE 12151596.1 STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht o O 0 3 N N W n R A W N N D N N N N N N N N e e e m e m e m e m e e ee d e d p e 0 N N A A L n BR A W N = O D e N N N E W N R e o of the Arthroscopy Association ofNorth America and the American Orthopedic Society for Sports Medicine. Dr. Tsai pursued his undergraduate training at Harvard University, graduating in 1989 summa cum laude and Phi Beta Kappa with a Bachelor of Arts in Biochemical Sciences. He obtained his M.D. from the University ofPennsylvania School of Medicine in 1994 and was elected in his junior year to the Alpha Omega Alpha medical honor society. Subsequently, he did his orthopaedic surgery residency at the University of California, San Diego. Declaration of Cary S. Macy paragraph 9 page 4 line 12 through page 5 line 8. 6. On October 22, 2014, only 9 days before this incident Ms. McKee told Dr. Tasi that she was having bilateral hip pain with groin pain. He diagnosed her as suffering from osteoarthrosis ofthe hip. 6. Dr. Tsai’s records do not indicate thatMs. McKee “made absolutely no mentionof any back pain.” They indicate that hisplan was for Ms. McKee to undergo adiagnostic left hip intraarticular cortisoneshot to determine whether the pain wasfrom Plaintiffs hip or from her back. 5 MH]15-0000058 DEFENDANT’S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE 12151596.1 STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O o 0 N N N N U n B A W N N O N N N N N N N N m E E m e m e m e m e m m m me d p e d « 0 N N R W = O O R N N N R W R o Ms. McKee made absolutely no mention of any backpain. Declaration of Russell W. Nelson, MD Paragraph 7 page 3 lines 16-22; Declaration of Jacob Tauber, MD paragraph page line; Declaration of Cary S. Macy paragraph 9 page 4 lines 12-14 and Exhibit 1 and 2 attached thereto. 7. During the October 22, 2014, visit Dr. Tasi diagnosed her as suffering from osteoarthrosis of the hip. He recommended a left intraarticular cortisone shot. Declaration of Jacob Tauber, MD paragraph 4 page 3 lines 3-12; Declaration of Cary S. Macy paragraph 9 page 4 lines 12-14 and Exhibit 1 and 2 attached thereto. 7. Undisputed. 8. Ms. McKee was not suffering from radiculapathy down herleft leg or drop foot prior to her fall at Orange Coast Memorial 8. Undisputed that Ms. McKee alleges that she was not suffering from radiculopathy down her left leg or drop foot prior to her Medical Center. fall at Orange Coast Memorial Medical Declaration of Jacob Tauber, MD Center. paragraph S page 3 lines 13-17 Declaration of Cary S. Macy paragraph Exhibit 1 and 2 attached thereto. 6 MH15-0000058 12151596.1 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS | la ig ht N O 0 N N n h b h W N N N N N N D N N D N N e m m m e m e m m m e m e m pe d p d K R 9 A N n A W N = O Y O N N N l s W N N = o 9. No medical provider ever recommended that Plaintiff Joan McKee have surgery to lumbar spine before the October 31, 2014, falling incident at Orange Coast Memorial Medical Center. Declaration of Jacob Tauber, MD paragraph S page 3 lines 13-17; Declaration of Cary S. Macy Exhibit 1 and 2 attached thereto. 9. Unknown to Defendant. According to the medical records before the Court, undisputed. 10. On October 31, 2014, Ms. McKee appeared for a doctor's appointment at Orange Coast Memorial Medical Center (OCMMC) for a cortisone injection in her left hip. Declaration of Russell W. Nelson, MD Paragraph 8 page 3 lines 23-25; Declaration of Jacob Tauber, MD paragraph 6 page 3 lines 18-26; Declaration of Cary S. Macy Exhibit 1 and 2 attached thereto; McKee Deposition Page 69 line 23 through page 70 line 11. 10. Undisputed. 11. Ms. McKee changed into her hospital smock, had her folded pants in her right hand and held her gown shut with her left hand. McKee Deposition page 70 lines 12-18; 11. Undisputed that Ms. McKee testified that she changed into her hospital smock, had her folded pants in her right hand and held her gown shut with her left hand. However,irrelevant for purposes of 7 MH15-0000058 DEFENDANT'S RESPONSE TO PLAINTIFFS OPPOSING SEPARATE 12151596.1 STATEMENT UNDISPUTED MATERIAL FACTS | la ig ht O o 0 N N N N n R e W N N O N N N N N N N O N N o e m m k p m e m p d e m e d p d N N N U t RA R W N = D O Y N N R W N R e o Defendant’s Motion. 12. Radiological Technician Nicholas Arroyo in the course and scope of his employment with defendant Orange Coast Memorial Medical Center told Ms. McKee to sit and nodded at a stool with wheels. Declaration of Russell W. Nelson, MD Paragraph 9 page 3 lines 26 through page 4 lines 2 ; Deposition of Nicholas Arroyo page line; McKee Deposition page 70 lines 19-25. 12. Undisputed. However,irrelevant for purposes of Defendant’s Motion. 13. As Ms. McKee attempted to sit down as she was instructed to do by Defendants employee Nicholas Arroyo, the stool scooted outfrom underneath her and she fell hard on the linoleum floor of the examination room. Declaration of Russell W. Nelson, MD Paragraph 9 page 3 lines 26 through page 4 lines 2 ; McKee Deposition page 71 line 21 though page 72 line 9 and page 72 lines 17-24. 13. Undisputed that Ms. McKee testified that as she attempted to sit down, the stool scooted outfrom underneath her and she fell hard on the linoleum floor of the examination room. 14. Ms. McKee immediately felt pain in her bottom and later realized that her tailbone, both sides of her low back and hips were injured as well. 14. Undisputed that Ms. McKee testifiedthat she immediately felt pain in her bottomand later realized that her tailbone, bothsides of her low back and hips were injured 8 MH15-0000058 12151596.1 DEFENDANT’S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O o 0 3 N N n n A e W N e e D N N N N N N N N N r m e m e m e m e d e m p e e d e d o o N N L n h e W N = O N D 0 N N N N E R N N R D Declaration of Russell W. Nelson, MD Paragraph 9 page 3 lines 26 through page 4 lines 2 ; Declaration of Jacob Tauber, MD paragraph 6 page 3 lines 18-26; Declaration of Cary S. Macy Exhibit 1 and 2 attached thereto; Deposition of Joan McKee page 74 lines 8-11 and page 74 lines 19-25 as well. 15. Cindy Callaghan, R.T , acting in the course and scope of her employment with OCMMC came in and asked “why”they would have a stool with wheels on a linoleum floor and get it out of here. McKee Deposition page 82 lines 12-15. 15. Undisputed that Ms. McKee testified that Cindy Callaghan, R.T. came in and asked “why” they would have a stool with wheels on a linoleum floor and get it out of here. However,irrelevant for purposes of Defendant’s Motion. 16. The wheeled stool was an office chair that was used by the radiology technicians while they worked on their office across the hall from the examination room where Ms. McKee was injured. Callaghan deposition page 22 line 20 through page 21 line 20 and page 40 line 20 through page 41 line 1page 47 lines 2- 12 page 67 line 21 through page 68 line 12. 16. Undisputed that Ms. Callaghan testified that the stool was an office chair that was used by the radiology technicians. However,irrelevant for purposes of Defendant’s Motion. 17. Cindy Callaghan, acting in the course and scope of her employment with Defendant Orange Coast Memorial 17. Irrelevant for purposes of Defendant’sMotion. MH15-0000058 12151596.1 9 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS | la ig ht O o 0 0 9 S N U n A s W N N O N N D N N N N O N O N M m e m e m e m e e fe d e d p t p e « 0 ~ ~ A N U n B R W N = O N O N N N N R W = o Medical Center, stated that the wheeled stool that caused Ms. McKee to fall should not have been in the examination room where Ms. McKee was injured. Callaghan deposition page 22 line 20 through page 21 line 20 and page 40 line 20 through page 41 line 1page 47 lines 2- 12 page 67 line 21 through page 68 line 12; McKee declaration page 82 lines 12- 15. 18. Cindy Calaghan, acting in the course and scope of her employment with Defendant Orange Coast Memorial Medical Center, told the attendants to take the wheeled stool that caused Ms. McKee to fall, out of the examination room after Ms. McKee was injured. Callaghan deposition page 22 line 20 through page 21 line 20 and page 40 line 20 through page 41 line 1page 47 lines 2- 12 page 67 line 21 through page 68 line 12; McKee declaration page 80 lines 15- 21. 18. Irrelevant for purposes of Defendant’s Motion. 19. Plaintiff Joan McKee was injured in the October 31, 2014 falling incident at Orange Coast Memorial Medical Center. Declaration of Russell W. Nelson, MD 19. Vague as to the term “injured.”Plaintiff’s fall resulted in minor soreness ofthe buttocks which resolved quickly anddid not require any specific care or MH15-0000058 12151596.1 10 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht N o 0 N N n n R W N e N O N N N N D N N N N m m e m e m m d p m m k e m m d p d p e 0 ~ ~ A N W n R A W N = O O N N N R W e o Paragraph 9 page 3 lines 26 through page 4 lines 2 and Declaration of Russell W. Nelson, MD Paragraph 10 page 4 lines 4-9; Declaration of Jacob Tauber, MD paragraph 16 page 6 lines9- 15; Declaration of Cary S. Macy Exhibit 1 and 2 attached thereto; Deposition of Joan McKee page 74 lines 8-25; Declaration of Kenneth Solomon, PhD page S lines 8-9. treatment. Declaration of Russell Nelson, M.D., 23. 20. On November 1, 2014, one day after herfall she saw Jill Panitch, MD. Ms. McKee informed Dr. Panitch that she had fallen on linoleum floor the day before and injured her tailbone. X-rays of her sacrum/coccyx showed no fracture. Dr. Panitch referred Ms. McKee for 6 sessions of physical therapy and gave her a prescription for carisoprodol and diclofenac. Declaration of Russell W. Nelson, MD Paragraph 9 page 3 lines 26 through page 4 lines 2 and Declaration of Russell W. Nelson, MD Paragraph 10 page 4 lines 4-9; Declaration of Jacob 20. Undisputed. 11 MH15-0000058 12151596.1 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O o 0 J O N W n b h W N N N N N N N O N N N m m e m e m e m e m e m pe d e d e m 0 0 N N A N W n A R W N = O N O D N N R E W N = O Tauber, MD paragraph 8 page 4 lines1- 8; Declaration of Cary S. Macy paragraph 10 page S lines 10-12 and Exhibit 1 and 2 attached thereto. 21. On November 6, 2014, six days after herfall Ms. McKee had a physical therapy evaluation. She stated that she was waiting a cortisone shot in her left hip and went to sit in a chair but the chair rolled out from under her. She fell to the floor and hit her tailbone. She described pain in her having to sit on a donut, inability to lie on her back, pain in both legs and a “floppy foot” that occurs after walking. She also described shooting pain down her lower legs with walking. She also tingling in her back and legs. She also had severe tightness in her lumbrasacral area. Declaration of Jacob Tauber, MD paragraph 9 page 4 lines 9-19; Declaration of Cary S. Macy paragraph 11 page S lines 14-16 and Exhibit 1 and 2 attached thereto. 21. This paragraph contains the false statement that on November 6, 2014, Ms. McKee “also described shooting pain down her lower legs with walking. She also tingling in her back and legs. She also had severe tightness in her lumbrasacral area.” Nowhere in the November 6, 2014 physical therapy visit are these subjective complaints mentioned. Plaintiff’s Exhbit 8 22. Ms. McKee returned to Orange Coast 22. Undisputed. MH15-0000058 12151596.1 12 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O o 0 0 N N N N n h B R W N N O N N N N N N N M N N N = m m m e m e m e m e m e m e m p m R L N N A N L n b s W N = O D O R N Y N R E W N = O Memorial Medical Center on November 12, 2014, 12 days after herfall to see her orthopedist Albert M. Tsai, MD for a follow up regarding her left hip pain. She told Dr. Tsai that she had received the hip injection however prior to the procedure she had fallen off a stool at the hospital. She felt that he groin pain had gotten a little better. She said it was hard for her to say how much better because she now has severe pain in the low back and shooting down the left leg as well as numbness. She reported having one physical therapy appointment it made her pain worse so she wanted hold off. Declaration of Jacob Tauber, MD paragraph 10 page 4 line 20 through page 5S line 4; Declaration of Cary S. Macy paragraph 12 page S lines 18-21 and Exhibit 1 and 2 attached thereto. 23. Ms. McKee returned to Orange Coast Memorial Medical Center on November 26, 2014, 26 days after this incident to see 23. Paragraph 11 contains multiple false statements. On November 26, 2014, Ms. McKee was seen at MemorialCare Medical Center, not Orange Coast Medical Center. 13 MHI15-0000058 12151596.1 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht — Her physical therapist. She told the doctor she had persistant back pain. She said she was unable to lie on her back due to pain. She also said she had a floppy foot. Declaration of Jacob Tauber, MD paragraph 11 page 5 lines 5-11; Declaration of Cary S. Macy paragraph © 0 3 S N n n A s W N 13 page 5 lines 22-25 and Exhibit 1 and 2 J o t o attached thereto.Jd [S S There is nothing in the record to reflect that she saw any doctor that day. Nor is there any indication in this record that she reported “persistent low back pain.” Plaintiff’s Exhibit 10 J k \S ] 24. On January 23, 2015 Ms. McKee had J k W w an MRI performed at Hoag Memorial r h I S Hospital Presbyterian. The clinical history p t w h for the MRI stated that she was “(T)here — _ = ~ N month status fall with back pain radiating — o o to the left leg.” J — \ O Declaration of Russell W. Nelson, MD [y o] o S Paragraph 14 page S lines 1-8 ; N o J d Declaration of Cary S. Macy Exhibit 1 N o [| ] and 2 attached thereto. N o W w 25. The MRI report’s Clinical History actually notes “three month status post fall with back pain radiating to the left leg.” 25. On February 24, 2015 Ms. McKee N N w m visited Newport Orthopedic Institute to see N o A N Steven Dennis, MD. Ms. McKee informed N o ~ J the doctor that on October 31, 2014 she she N o o o 25. Undisputed. MH15-0000058 12151596.1 14 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht © 0 N1 3 N N n n B R W N N N N N N N N N O N N D m m m m e m e m e m p m e m m d e d p e 0 ~ ~ A N W n B s W N = O D e N N N R W N e O O wentto sit on a rolling chair at OC Memorial Hospital and the chair rolled out from underneath her and she fell back onto her tailbone and low back. Since then she has had low back, tailbone and left lower extremity pain. She described the pain as sharp aching stabbing and electrical in sensation that goes down to herleft foot and numbness in her left foot and leg along with tingling and weakness. Declaration of Jacob Tauber, MD paragraph 12 page S lines 12-21; Declaration of Cary S. Macy paragraph 14 page 5 line 26 to page S line 2 and Exhibit 1 and 2 attached thereto. 26. On November 2, 2015, Orthopedic surgeon concluded that surgical intervention was the only alternative for Plaintiff Joan McKee. He recommended a lumbar decompression from L3 to sacrum infusion of L.4-5. Declaration of Russell W. Nelson, MD Paragraph 19 page 6 lines 3-10; Declaration of Jacob Tauber, MD paragraph 13 page S line22 through page 26. Undisputed. 15 MH15-0000058 DEFENDANT’S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE 12151596.1 STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O o 0 0 3 O N W n A R W N N N D N D N R N N N N N N m e m e m m m e m p m be m e d p m « 0 N N A N B E W N = S N D E N N S N N R W = e 6 line 1; Declaration of Cary S. Macy paragraph 14 page S line 26 to page 6 line 2 and Exhibit 1 and 2 attached thereto. 27. On December 29, 2015, Steven Dennis, MD performed a posterior laminectomy at L.3-S1 with fusion at L4/5 on Ms. McKee at Hoag Memorial Hospital Presbyterian as a result of the injury that she received in her fall on October 31, 2014, at Orange Coast Memorial Medical center. Declaration of Russell W. Nelson, MD Paragraph 20 page 6 lines 11-20; Declaration of Jacob Tauber, MD paragraph 14 page 6 lines 2-8; Declaration of Cary S. Macy paragraph 15 page 6 lines 4-6and Exhibit 1 and 2 attached thereto. 27. Nowhere in Dr. Dennis’ Operative Report does he state that the surgery was “as a result ofthe injury that [Ms. McKee] received in her fall on October 31, 2014.” To the contrary, the pre- and post-operative diagnoses were: “severe multilevel spinal stenosis, mobile spondylolistheses, mechanicalinstability and bilateral neurogenic claudication.” Plaintiff’s Exhibit 12 28. Ms. McKee suffered injuries to her lower back including but not limited to radiculapthy, burning and tingling down her left leg and flop foot as a result of her fall on October 31, 2014, at Orange Coast Memorial Medical Center. Declaration of Jacob Tauber, MD paragraph 1S page 6 lines 9-15; 28. Unsupported by the medical records and Plaintiff’s two MRI’s taken after the alleged fall which reflect degenerative joint disease from the natural aging process compounded by her excess weight and do not reflect any acute injury or trauma to the spine. MH15-0000058 12151596.1 16 DEFENDANT’S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O © 0 2 O N w n A W N N N N N D N O N N N N m m m e m e m e m e m e d e d e d C 0 ~ ~ A N W n h e W N R D S D O N N R A W N e o Declaration of Cary S. Macy Exhibit 1 and 2 attached thereto. 29. Ms. McKee’s lumbar spine surgery on December 29, 2015 was caused by her fall on October 31, 2014, at Orange Coast Memorial. Declaration of Jacob Tauber, MD paragraph 16 page 6 lines 16-19; Declaration of Cary S. Macy paragraph Exhibit 1 and 2 attached thereto. 29. Unsupported by the medical records and Plaintiff's two MRI's taken after the alleged fall which reflect degenerative joint disease from the natural aging process compounded by her excess weight and do not reflect any acute injury or trauma to the spine. 30. The negligence of Orange Coast Memorial Medical Center caused Ms. McKee to injure her low back, caused her to need surgery and incur damages. Declaration of Jacob Tauber, MD paragraph 19 page 6 lines19-21; Declaration of Kenneth Solomon, Phd page 5 lines 8-9; Declaration of Cary S. Macy Exhibit 1 and 2 attached thereto. 30. Unsupported by the medical records and Plaintiff’s two MRI's taken after the alleged fall which reflect degenerative joint disease from the natural aging process compounded by her excess weight and do not reflect any acute injury or trauma to the spine. Irrelevant as to negligence as the standard ofcare issue is not raised in Defendant’s Motion. 31. A movable stool with wheelsis dangerous for patients to use in a hospital setting. Declaration of Kenneth Solomon, Phd paragraph 6A page 4 lines 7-13. 31. Irrelevant as to negligence as the standard ofcare issue is not raised in Defendant’s Motion. 32. Defendant Orange Coast Memorial medical Center fell below the standard of 32. Irrelevant as to negligence as thestandard ofcare issue is not raised in MH15-0000058 12151596.1 17 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht 1 care by not properly training their staff to Defendant’s Motion. 2 make sure that Ms. McKee did not use 3 stool with wheels. 4 Declaration of Kenneth Solomon, Phd 5 paragraph 6B page 4 lines 14-17. 6 33. Defendant Orange coast Memorial 33. Irrelevantas to negligence as the . medical Center fell below the standard of standard of care issue is not raised in g car by not properly training their staff to Defendant’s Motion. assist Ms. McKee while she was trying to ’ sit down. Declaration of Kenneth 10 Solomon, Phd paragraph 6C page 4 lines 1 19-25. 12 34. It was foreseeable that Ms. McKee 34. Irrelevant as to negligence as the 13 would lose her balance while holding her standard ofcare issue is not raised in 14 clothing while trying to sit on a movable Defendant’s Motion. 15 stool. 16 Declaration of Kenneth Solomon, Phd 17 paragraph 6C page 4 lines 19-25. 18 35. From a human factors perspective Ms. 35. Irrelevant as to negligence as the 19 McKee would have expectthat the seat she standard ofcare issue is not raised in 20 Was offered to sit in would be safe and Defendant’s Motion. 71 sturdy and that it would not move when she 59 attempted to sit down. 3 Declaration of Kenneth Solomon, Phd paragraph 6E page 5 lines 5-8. 24 36. Ms. McKee was injured as a direct 36. Irrelevant as to negligence as the 25 result of the forces exerted on her when she standard ofcare issue is not raised in 26 fell to the floor on October 31, 2014 at Defendant’s Motion. 21 Orange Coast memorial Medical center. 28 18 MH15-0000058 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE 12151596.1 STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht © 0 N N O N n n R A W N N O N N N N N N O N N N O N e m m m m m k d e m e m e m e m R n ~ ~ A N L n A e W N = O N O N N N N R W N D = o Declaration of Kenneth Solomon, Phd paragraph 6F page 5 lines 9-10. 37. On November 1, 2014, the day after the incident Ms. McKee wrote and e-mail to Cindy Callaghan who is employed by defendant Orange Coast Memorial Medical center and stated the following: “Hello Cindy, Per your instruction, below is a synopsis of the events that transpired during my outpatient injection procedure on October 31, 2014 at Orange Coast Memorial Hospital in Fountain Valley. My appointment on October 31, 2014 was to get a Cortisone injection in my left hip. When I was called back I was taken to a room, I put on a gown and I sat in a chair. Soon after, we were told to go to a room across the hall. I had folded my pants in my right hand and held my gown shut with my left. I was told to sit there and one attendant nodded to a stool. Two attendants turned towards the opposite wall to get ready. I stepped back and still having my hands full, I sat on a black stool. The stool shot out from underneath me and I fell hard on the linoleum floor. I laid there and the two attendants turned around and rushed to me. I was across the room, almost to the wall. People came running down the hall to see if I was ok. They saw me on the ground. When I could, I got myself up. Now my hip hurt worse and I was kind of in shock. They told me to sit back down. I said "No". I asked why you would have a stool with spinning wheels on linoleum? Next, I was told to get on the X- ray table. I told them my "bottom" hurt. Then I had to lay down and I realized my 37. Undisputed that Ms. McKee wrote the e-mail. Irrelevant as to negligence as the standard ofcare issue is not raised in Defendant’s Motion. Also unnecessary in a Separate Statement and should have been attached as an exhibit. 19 MH15-0000058 12151596.1 DEFENDANT’S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O O 0 0 3 A N n s W N = N O N N N N N N O N N m e m e m e m e m b e e d e d pe a 0 ~ ~ O N L n h h W N = O D 0 N N N N R e w N = o tailbone and both sides ofmy lower back and hips were no ok. I told them I could stand it. The doctor came in and pressed my groin. I told him I had fallen and my lower back and my hips were sore. He told me it would go fast. I said ok. He didn't like the way the machine was "hooked up" and left the room. A woman came in, she said she was bringing me a form to fill out as every incident needed to be reported. After several minutes and more time getting exposures taken to see what image the doctor would want, I told them I was counting to 10 and then I was leaving since it hurt to lay there. The doctor came back, complained some more and then went to put on gloves. He refused the blue gloves and had a 2 minute conversation why they are almost guaranteed to slip. He told the two attendants to try them on to see if they could pick up a needle. Then he read the label on the box of them. One attendant ran down the hall and as fast as he could came back with brownish gloves. Then the doctor asked them about the medication he was to administer. He drilled them on silly questions, something like what is that in milligrams, what is the size of bottle, etcetera. And I'm still in pain. All this delay after I told him my back hurt? Really?! The procedure is harsh and painful it wasn't over quickly. When he was done he asked them what pain medicine to use. The doctor asked for one thing, but the pharmacy sent something different and that he would use that instead. Honestly, if they had to wait for the pharmacy, I was going to have him task that needle out ofme and let me go home when he was finished, he just left. I don't even know what his name is. The woman with the form never came back. You came in and gave me your card and I asked about the form and you said there was no form 20 MH15-0000058 DEFENDANT'S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE 121515%6.1 STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O o 0 0 N N S N U n A W N N D N N N N N O N O N O N m m m m m m p m p m e m e m m d fe d e d 0 0 N N W n R A W N = D O N n w N = O o for me. I asked you why they would have a stool with rotating wheels on linoleum. You said "That shouldn’t be in this room" while pointing at the chair. You turned to leave and then turned back and took the stool with you. I told you I would get in touch if my back continued to hurt. The one attendant had me get dressed, but guess what? ... That bathroom door was locked from the other side. He said he would hurry and unlock it from the other side. 1 told him to turn around because I was changing now and going home. I said I felt like I was being "punked" or I was a test run for "Saturday Night Live." I walked down the hall, my back hurt and I was bent forward, my right foot hurt because I think I landed on it wrong. I wentto eat, sat down and then wanted to go. Thesitting straight hurt my tailbone. I laid in bed with ice. My wrists hurt, my palms are throbbing and my lower back hurts. Twenty-four hours later my bodyisstill sore. A question to you — why did you tell Jim Houndstone that the stool I tried to sit on was supposed to be held for me by an attendant? How would they have held it? They would have had to be on their knees, level with my back of my gown or in front between my legs! Really?! You told him that they wheel patients to radiology on it. I ask you — what do they hold on to? The chair has no arms and no back on it. Do they push them on the patient's backs or pull them by their hands? I called you at 11:51 a.m. from my cell phone and left you a message. My message stated that I want an assessment by a back doctor at Memorial Care ASAP, a pillow that supports your tailbone and a referral to physical therapy, none of which that will be billed to my insurance. You can get a hold ofme on my cell: 714-317-0015. 21 MH15-0000058 DEFENDANT’S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE 12151596.1 STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht N O 0 N S N W n b h W N D N N N N N N N N N m e m e m m m e m p d m e e d p e ® R N N A n B s W D = O O e N N N N R W e s Thank you, Joan McKee, M.A. in Education” See McKee deposition page 80 lines 24- 25 and it is attached to the deposition of Ms. McKee as Exhibit 3 and to the declaration of Cary S. Macyfiled concurrently herewith as Exhibit 14. Dated: December Q3, 2016 Respectfully submitted, HAIGHT BROWN & BONESTEEL LLP HAL Angela S. Haskins Allegra Perez Attorneys for Defendant ORANGE COAST MEMORIAL MEDICAL CENTER 22 MH]15-0000058 DEFENDANT’S RESPONSE TO PLAINTIFF'S OPPOSING SEPARATE 12151596.1 STATEMENT UNDISPUTED MATERIAL FACTS I la ig ht O C 0 N N W n R A W N N O N R N N O N N N N N e m e m e m e m m k m t p m p m © N N N N V n R e W N = D O D O N N N N R W N = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES McKee v. Orange Coast Memorial Medical Center Case No. 30-2016-00827940-CU-MM-CIC At the time ofservice, | was over 18 years of age and not a party to this action. | am employed in the County of Los Angeles, State of California. My business address is 555 South Flower Street, Forty-Fifth Floor, Los Angeles, CA 90071. On December 22, 2016, I served true copies of the following document(s) described as DEFENDANT ORANGE COAST MEMORIAL MEDICAL CENTER'S RESPONSE TO PLAINTIFF’S OPPOSING SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT on the interested parties in this action as follows: Cary S. Macy, Esq. Law Office of Cary S. Macy 17011 Beach Blvd., Ste. 900 Huntington Beach. CA 92647 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Haight Brown & Bonesteel LLP for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 1 am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 22, 2016, at Los Angeles, California. DlrTL MoniqueLopez — J J