Calderon v. Tulare Regional Medical Center ( 2020 )

1 xx 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JIAME CALDERON, an individual; RC, a Case No. 1:17-cv-00040-BAM minor child; MC, a minor child; MC, a minor 10 child, ORDER DENYING DEFENDANT UNITED STATES OF AMERICA’S MOTION FOR 11 Plaintiff, SUMMARY JUDGMENT 12 v. (Doc. 108) 13 UNITED STATES OF AMERICA; TULARE REGIONAL MEDICAL CENTER; LUIS A. 14 SANCHEZ, D.O., and DOES 1 through 25, inclusive, 15 Defendants. 16 17 Currently before the Court is Defendant United States of America’s (“Defendant” or 18 “United States”) motion for summary judgment filed pursuant to Federal Rule of Civil Procedure 19 56. (Doc. 108). Plaintiffs Jiame Calderon and his three minor children (collectively “Plaintiffs”) 20 filed their opposition, supporting declarations and exhibits on January 26, 2020. (Doc. 113). 21 United States filed a reply on February 7, 2020.1 (Doc. 113). 22 On February 21, 2020, the Court held a hearing on the motion before the Honorable 23 Barbara A. McAuliffe, United States Magistrate Judge.2 Counsel Raymond Chandler appeared 24 by telephone on behalf of Plaintiffs. Assistant United States Attorney Jeffrey Lodge appeared on 25 behalf of Defendant United States. Counsel Alan Mish appeared on behalf of Defendant Dr. 26 1 Defendant Dr. Luis A. Sanchez did not join in the motion for summary judgment or file an opposition to 27 the motion. 2 The parties in this action have consented to the jurisdiction of the United States Magistrate Judge for all 1 Luis A. Sanchez. 2 Having considered the record, the parties’ briefing and arguments, and the relevant law, 3 the Court denies Defendant’s motion for summary judgment. 4 I. Introduction 5 This suit is a wrongful death action stemming from the death of decedent Ana Calderon 6 (“Ana”) on October 17, 2015. See generally Third Amended Complaint (“TAC”), Doc. 81. On 7 October 13, 2015, Ana gave birth to her third child with Plaintiff Jiame Calderon at the Tulare 8 Regional Medical Center (“TRMC”). There were no complications. TAC at ¶ 17. FAC at ¶ 15. 9 The following day, on October 14, 2015, Ana underwent a tubal ligation surgery performed by 10 Adanna Ikedilo, M.D., an employee of Defendant United States. TAC at ¶¶ 11, 18. Ana was in 11 good health when the tubal ligation began. TAC at ¶ 19. The tubal ligation procedure ended at 12 approximately 11:11 a.m. TAC at ¶¶ 18, 19. 13 According to the amended complaint, during the tubal ligation surgery and/or shortly 14 thereafter, significant changes to Ana’s vital signs occurred, including a significant drop in her 15 blood pressure and a significant increase in her heart rate. TAC at ¶ 20. Plaintiffs allege that 16 Dr. Ikedilo transected an artery during the tubal ligation procedure, which caused massive 17 internal bleeding and a life-threatening decrease in oxygen flow to vital organs, including the 18 brain, and was not in accordance with the applicable standard of care. TAC at ¶ 21. Plaintiffs 19 also allege that during and/or shortly after the tubal ligation surgery, Luis A. Sanchez, D.O., the 20 physician who administered anesthesia to Ana during the tubal ligation surgery, failed to 21 properly monitor Ana’s vital signs, failed to inform Dr. Ikedilo of the significant changes to 22 Ana’s vital signs, failed to diagnose the cause of such changes in vital signs and failed to treat 23 such changes in accordance with the applicable standard of care. TAC at ¶¶ 13, 22. 24 On October 14, 2015, at approximately 12:04 p.m., while still in the operating room, Ana 25 suffered her first cardiac arrest (code blue). During the code, Dr. Ikedilo was paged to return to 26 the operating room but did not return until shortly before 1:00 p.m. TAC at ¶¶ 23-24. Despite 27 obvious signs of internal bleeding, exploratory surgery to find the source of and treat the 1 to find and treat the cause of the bleeding was performed by Dr. Ikedilo from approximately 2 1:00 p.m. to 2:15 p.m. on October 14, 2014. TAC at ¶¶ 25-26. Ana was transferred to the 3 Intensive Care Unit (ICU) after the first exploratory laparotomy. While in the ICU, Ana 4 suffered a second cardiac arrest (code blue) at approximately 6:06 p.m. Ana was taken to the 5 operating room where a second exploratory laparotomy was performed from approximately 6 6:17 p.m. to 8:17 p.m. by Dr. Ikedilo and Dr. Rebecca Zulim. TAC at ¶¶ 27-29. 7 Ana never regained consciousness after the tubal ligation and as a result of the internal 8 bleeding, she suffered irreversible anoxic brain injury. On or about October 17, 2014, Ana was 9 transferred to California Pacific Medical Center where she expired shortly thereafter. TAC at 10 ¶¶ 30-31. 11 Plaintiffs proceed on their third amended complaint for wrongful death against the United 12 States as the deemed employer of the surgeon, Dr. Ikedilo, and against the anesthesiologist, Dr. 13 Sanchez, arising from Ana’s tubal ligation on October 14, 2015. (Doc. 108-14; Undisputed 14 Material Fact (“UMF”) 1.) Plaintiffs designated Dr. Howard C. Mandel as their expert witness 15 regarding the standard of care of the surgeon. UMF 2. Dr. Mandel gave his expert medical 16 opinion that the surgeon, Dr. Ikedilo, did not meet the standard of care in five (5) ways: (1) in 17 the tubal ligation surgery, failing to ligate dissected blood vessel(s), resulting in intra-peritoneal 18 hemorrhage; (2) in the tubal ligation surgery, failing to properly check the integrity of the ties 19 and for bleeding after the tubes are placed back inside the body at the end of the surgery; (3) 20 failure to quickly reopen the tubal ligation incision and treat the causes of bleeding before 21 leaving TRMC; (4) in the first laparotomy, leaving the left and right medial segments of the 22 Fallopian tubes as well as all of the uterine artery tributaries to the mesosalpinges un-ligated; 23 and (5) in the first laparotomy, interrupting an artery during the insertion of the Jackson-Pratt 24 drain, causing yet another source of bleeding. (Doc. 108-8 at 59-72, Ex. 5 to Declaration of 25 Jeffrey J. Lodge (“Lodge Decl.”), Original Expert Report of Howard C. Mandel, M.D., 26 F.A.C.O.G. (“Mandel Report”). 27 Plaintiffs also designated Dr. Keith Kimble as their expert witness regarding the standard 1 anesthesiologist, Dr. Sanchez, did not meet the standard of care for an anesthesiologist in six (6) 2 ways, including: (1) failure to warn Dr. Ikedilo that he was concerned about Ana Calderon’s 3 vital signs; (2) extubating while Ana Calderon was still in an emergency situation; (3) failure to 4 rapidly administer sufficient fluids; (4) failure to administer adequate pressor medication; (5) 5 failure to timely seek help; and (6) failure to properly diagnose Ana Calderon’s condition. 6 UMF 4. 7 The United States argues that Dr. Ikedilo competently performed the tubal ligation and 8 was not the cause of Ana’s death, instead placing the focus on Dr. Sanchez’ conduct. By this 9 motion, the United States seeks to exclude Dr. Mandel’s opinions and testimony, arguing that 10 they are unreliable because they failed to consider Dr. Sanchez’ performance and are therefore 11 inadmissible. Without Dr. Mandel’s opinions, the United States claims that Plaintiffs cannot 12 rely on the opinion of Dr. Sanchez’ medical expert on surgery, Dr. Nancy Mason, and are 13 therefore without the evidence necessary to establish medical negligence against the United 14 States under the Federal Tort Claims Act (“FTCA”). 15 II. Background3 16 A. Tubal Ligation 17 Ana was admitted to TRMC for labor and delivery on October 13, 2015. (Doc. 108-4, Ex. 18 1 to Lodge Decl., Deposition of Dr. Ikedilo (“Ikedilo Depo.”), 37:8-39:6; TRMC 000101. She 19 delivered a healthy baby, MC, with the assistance of an on-call physician. Id. Ana was scheduled 20 for tubal ligation surgery with Dr. Ikedilo the following morning on October 14, 2015. Id., Ex. 21 000101. Dr. Sanchez was assigned to provide anesthesia services. (Doc. 108-6, Ex. 3 to Lodge 22 Decl., Deposition of Dr. Sanchez (“Sanchez Depo.”), 21:6-24:17. 23 On October 14, 2015, Ana was transported from the labor recovery room to the pre- 24 operating room to prepare for the tubal ligation. Sanchez Depo., 168:15-172 and Ex. 1 (TRMC 25 3 This background is derived from the United States’ motion for summary judgment. Plaintiffs do not 26 dispute the sequence of the main events as described in the United States’ motion: the tubal surgery, the first code blue, the first exploratory laparotomy to find the source of bleeding, the second code blue in ICU due to rebleeding, 27 and return to the OR for second exploratory laparotomy. The facts and events delineated here are considered only for purposes of resolving the instant motion. Disputed facts relevant to the instant motion are noted. 1 000475). Dr. Sanchez conducted a pre-anesthetic evaluation at 0954. Id. In the pre-operation 2 room, her blood pressure (“BP”) was 115 over 64 and her pulse or heart rate (“HR”) was 73. Id. 3 at 55:9-22 and Ex. 2. Dr. Sanchez determined that Ana was healthy enough for anesthesia. Id. at 4 39:20-40:9. At 1000, Dr. Ikedilo also examined Ana and cleared her for surgery. TRMC 000101. 5 Ana was received in the operating room at 1015. Sanchez Depo. at Ex. 2. Her pre- 6 induction BP had increased to 149 over 85. Id. at 99:9-100:5. Dr. Sanchez attributed this to pre- 7 surgery nervousness. Id. at 102:8-13. He began administration of anesthesia at 1018. Id. at Ex. 2. 8 He inserted the intubation tube at 1025. Id. at 100:14-17. 9 Ana’s BP began to fall. Sanchez Depo., 100:21-23, Ex. 2. By 1035 it had dropped to 101 10 over 57. Id. at 102:14-103:9. An alarm went off. Id. at 105:10-12. Dr. Sanchez believes the BP 11 monitor is set to alarm under 90 systolic and HR over 100. Id. at 121:20-122:11. He determined 12 that hypovolemia, in combination with anesthesia drugs, caused her BP to decrease.4 Id. at 13 113:14-114:3; 102:22-103:9. Dr. Sanchez did not note hypovolemia in the record. Id. at Ex. 2. 14 Dr. Sanchez did not discuss the drop in blood pressure with Dr. Ikedilo, but he “might 15 have” told Dr. Ikedilo, “’Your patient is very dry,’ maybe” indicating some level of 16 hypovolemia. Sanchez Depo., at 105:10-21,104:15-20, 115:4-12, 122:17-123:9. Dr. Sanchez 17 administered phenylephrine to bring the blood pressure back up. Id. at 106:11-20, 118:4-23. 18 Ana’s BP rose to 139 over 70 by 1045. Id. at 111:8-11. Dr. Sanchez did not note the 19 administration of phenylephrine in the record. Id. at 84:10-12; Ex. 2. 20 Dr. Sanchez also noted that the oxygen in Ana’s blood, i.e. her SpO2, had dropped. 21 Sanchez Depo., 110:11-24, Ex. 2. SpO2 is the peripheral capillary oxygen saturation, an estimate 22 of the amount of oxygen in the blood. See https://www.webmd.com/lung/pulse-oximetry-test#1. 23 Dr. Sanchez adjusted the intubation tube and Ana’s oxygen levels returned to normal. Sanchez 24 Depo., 110:11-24. Dr. Sanchez did not note the adjustment of the intubation tube in the record. 25 Id. at Ex. 2. Dr. Ikedilo was aware of Ana’s hypotensive status and reintubation prior to surgery. 26 Ikedilo Depo., 31:8-24. 27 4 Hypovolemia is an abnormal decrease in the volume of blood plasma that occurs with dehydration or bleeding. See 1 Dr. Sanchez concluded it was appropriate for surgery to start. Sanchez Depo., 115:10-12, 2 185:2-18. Surgery started at 1044. Id. at 115:13-15, Ex. 2. Dr. Sanchez continuously monitored 3 Ana’s vital signs and recorded them every five minutes. Id. Ana’s BP began to drop. Id. at 4 116:16-117:6. Dr. Sanchez worked to maintain a “seminormal” blood pressure by increasing the 5 rate of fluids and continued use of phenylephrine. Id. Without the phenylephrine, Ana’s BP 6 would have been even lower. Id. at 118:5-12. He knew that an increase in heart rate and decrease 7 in blood pressure could be caused by blood loss, but he did not believe Ana was bleeding at that 8 time. Id. at 119:17-25. He did not discuss Ana’s vital signs with Dr. Ikedilo. Id. at 120:2-25. Dr. 9 Sanchez did not record any of the doses of phenylephrine in the anesthesia record. Id. at 197:18- 10 25. At the end of surgery, Ana’s heart rate was 95, and her blood pressure was safe. Sanchez 11 Depo., 122:12-16, 118:13-119:20. 12 Dr. Ikedilo performed the tubal ligation using the Parkland method. Ikedilo Depo., 13 TRMC 000133-34. Dr. Ikedilo secured ties on both fallopian tubes and confirmed that there was 14 “excellent hemostasis” i.e. no bleeding. Id. Dr. Ikedilo made a hand written post-surgical note 15 estimating total blood loss during surgery at 5 ml. Id. at 51:21-52:1; TRMC 000165. There is a 16 dispute regarding the timing and reasons for this note, including an assertion that the note was 17 made prior to completion of the surgery, and there was no need for the note if the surgeon 18 intended to return to the operating room. (See Doc. No. 113 at 12-113 Mandel Report at 63.) 19 Dr. Ikedilo left the operating room to talk to Ana’s family. Second Ikedilo Depo., 38:10- 20 17. Dr. Ikedilo met with Jiame Calderon and they talked less than 10 minutes. Id. at 41:3-11, 21 40:16-21. Ana was still in the OR. Id. 22 There is a dispute as to whether Dr. Ikedilo went back to the operating room area. Ikedilo 23 Depo., 40:3-24. Sanchez Depo., 188:6-18. At some point, Dr. Ikedilo received a non-emergency 24 call that another patient was in labor at a nearby hospital, Kaweah Delta, where she was on-call. 25 Id. at 40:25-41:14, 57:15-24. Dr. Ikedilo left to deliver the baby at Kaweah Delta. Id. 57:15-24. 26 Ana remained in the care of Dr. Sanchez as well as a circulating nurse and an OR tech. Sanchez 27 Depo., 135:17-136:16. 1 B. Post-Tubal Ligation Treatment 2 While in the care of Dr. Sanchez, Ana started to regain consciousness at 1125 or 1130, 3 and sat up. Sanchez Depo., 140:20-16, 142:14-143:13. At approximately 1130, Dr. Sanchez 4 noted that her EKG rhythm (which measures the electrical activity of the heartbeat) changed 5 from SR (sinus rhythm) to ST (sinus tachycardia). Id. at 153:11-155:14. Dr. Sanchez continued 6 to treat Ana for another 30 minutes. Id. at 145:4-16. At approximately 1204, Ana stopped 7 breathing and had no pulse. Id. at 146:12-15. Dr. Sanchez called a Code Blue. Id. at 147:19-25. 8 A Code Blue indicates that a cardiopulmonary arrest is happening to a patient in a hospital or 9 clinic, requiring a team of providers (sometimes called a code team) to rush to the specific 10 location and begin immediate resuscitative efforts. See medicinenet.com. Dr. Sanchez believed 11 Ana had a pulmonary embolism. Id. at 188:6-13. Several doctors responded to the Code Blue 12 including Emergency Room doctor, Dr. Marc Martinez. TRMC 000117. The response team 13 resuscitated Ana and ran tests. Id. 14 At 1215 or 1220 Dr. Sanchez asked for a call to be placed to Dr. Ikedilo. Sanchez Depo., 15 161:12-24. Dr. Ikedilo received a message as she was finishing the delivery of the baby at 16 Kaweah Delta. Second Ikedilo Depo., 41:25-43:24. She immediately returned to TRMC which 17 was about a ten-minute drive. Id. 18 C. Exploratory Laparotomy 19 Upon Dr. Ikedilo’s arrival at TRMC, the medical team soon discovered that Ana’s 20 abdomen was distended and full of fluid and Dr. Ikedilo prepared for an emergency exploratory 21 laparotomy. (Doc. 108-8 at 12-13.) Dr. Sanchez remained as the anesthesiologist. Sanchez 22 Depo., 163:2-18; TRMC 000125-126. 23 Dr. Ikedilo performed the surgery with the assistance of Dr. Gupta. Second Ikedilo 24 Depo., 47:9-17: Ex. 000125. Dr. Rebecca A. Zulim was also present to work on supplying blood 25 products. Id. at 48:16-49:16. Dr. Ikedilo identified massive wide-spread bleeding the color and 26 viscosity of grape Kool-Aid. Id. at 49:20-51:19. Dr. Ikedilo determined that Ana had developed 27 disseminated intravascular coagulation (“DIC”). Id. at 50:15-13. DIC is a rare but serious 1 may include bleeding, bruising, low blood pressure, shortness of breath, or confusion. 2 https://www.nhlbi.nih.gov/health-topics/disseminated-intravascular-coagulation. Dr. Ikedilo was 3 unable to identify a significant discrete source of blood loss. Second Ikedilo Depo., 49:20-51:19; 4 see also Ikedilo Depo., 66:5-13. It is disputed whether Dr. Ikedilo confirmed that the ties 5 remained secure on the fallopian tubes. Second Ikedilo Depo., 50:7-9; Mandel Report at 64-65. 6 Dr. Ikedilo and the medical team addressed the bleeding with a massive transfusion. 7 Ikedilo Depo., 63:14-65:1; TRMC 000125. Dr. Ikedilo identified a slow ooze of blood from the 8 area of the left mesosalpinx but no arterial bleeding. Id. To address this bleeding, Dr. Ikedilo 9 performed an oophorectomy and fimbriectomy, or removal of the ovary and fallopian tissue 10 located close to the ovary. Id. She applied “arista and snow” which are topical hemostatic agents 11 to reduce bleeding. Id. As a result, Dr. Ikedilo was able to stabilize the bleeding. Id. Dr. Ikedilo 12 was concerned about further bleeding due to DIC and placed a JP drain in Ana’s abdomen so 13 they could discover any additional bleeding. Id. Ana’s condition was stable but guarded and she 14 remained intubated and sedated as she was transferred to the ICU at 1451. Id.; Sanchez Depo., 15 162:2-8; TRMC 000135. 16 Dr. Ikedilo continued to monitor Ana’s condition including blood tests every one to two 17 hours to check for additional bleeding. Second Ikedilo Depo., 53:19-55:23. Dr. Ikedilo received 18 a lab report showing that Ana was bleeding again. Id. Dr. Ikedilo rushed back to the hospital. Id. 19 Ana had another Code Blue. Id. 20 D. Second Laparotomy 21 Ana was again in DIC. Second Ikedilo Depo., 55:24-58:14; TRMC 000123. Dr. Ikedilo 22 performed another laparotomy to stop the bleeding. Id. Dr. Sanchez was replaced by Dr. Palacios 23 to provide anesthesia. Sanchez Depo., 176:6-10; TRMC 000140. Dr. Ikedilo was assisted by Dr. 24 Pang and Dr. Zulim. Second Ikedilo Depo., 57:16-58:14; TRMC 00096. Dr. Ikedilo was unable 25 to identify a significant discrete source of blood loss. Second Ikedilo Depo., 56:4-11. Dr. Ikedilo 26 patched many diverse bleed sites including the omentum, which is a curtain of fatty tissue that 27 hangs down from the stomach. Ikedilo Depo., 67:5-15; see also TRMC 00123 The major source 1 stopped the bleeding. Id. Surgery ended at 2000 and Ana was taken to ICU, intubated but stable. 2 TRMC 000140. 3 Ana remained in critical condition, with signs of anoxic brain injury. TRMC 000096-99. 4 Because there was nothing more they could do, arrangements were made to airlift Ana to 5 California Pacific Medical Center in San Francisco. Id. Ana was transferred on October 17, 6 2015, and despite the efforts at California Pacific Medical Center, she passed away on October 7 24, 2015. 8 Dr. Ikedilo asked for an independent review to try to determine what happened. Ikedilo 9 Depo., 76:7-77:12. TRMC did not act on Dr. Ikedilo’s request for an investigation. Id. TRMC 10 subsequently filed for bankruptcy on September 30, 2017, and closed. (Doc. 22.) 11 II. Legal Standard 12 Summary judgment is appropriate when the pleadings, disclosure materials, discovery, 13 and any affidavits provided establish that “there is no genuine dispute as to any material fact 14 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact 15 is one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty 16 Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine “if 17 the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving 18 party.” Id. 19 The party seeking summary judgment “always bears the initial responsibility of 20 informing the district court of the basis for its motion, and identifying those portions of the 21 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 22 affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” 23 Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The exact 24 nature of this responsibility, however, varies depending on whether the issue on which summary 25 judgment is sought is one in which the movant or the nonmoving party carries the ultimate 26 burden of proof. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If 27 the movant will have the burden of proof at trial, it must “affirmatively demonstrate that no 1 at 323, 106 S.Ct. 2548). In contrast, if the nonmoving party will have the burden of proof at 2 trial, “the movant can prevail merely by pointing out that there is an absence of evidence to 3 support the nonmoving party’s case.” Id. 4 If the movant satisfies its initial burden, the nonmoving party must go beyond the 5 allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative 6 evidence from which a jury could find in [its] favor.” FTC v. Stefanchik, 559 F.3d 924, 929 (9th 7 Cir. 2009) (emphasis in original). “[B]ald assertions or a mere scintilla of evidence” will not 8 suffice in this regard. Id. at 929; see also Matsushita Electric Industrial Co. v. Zenith Radio 9 Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (“When the moving party has 10 carried its burden under Rule 56[ ], its opponent must do more than simply show that there is 11 some metaphysical doubt as to the material facts.”) (citation omitted). “Where the record taken 12 as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 13 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting First Nat’l Bank 14 of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). 15 In resolving a summary judgment motion, “the court does not make credibility 16 determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, “[t]he 17 evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be 18 drawn in [its] favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Inferences, however, are not 19 drawn out of the air; the nonmoving party must produce a factual predicate from which the 20 inference may reasonably be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 21 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir. 1987). 22 IV. Discussion 23 As indicated, the United States contends that Plaintiffs’ standard of care expert, Dr. 24 Mandel, should be excluded and summary judgment should be granted because Plaintiffs are 25 unable to establish a prima facie case of medical negligence against Dr. Ikedilo. The United 26 States also asserts that with the exclusion of Dr. Mandel’s expert opinion, Plaintiffs also cannot 27 rely on the opinion of Dr. Sanchez’ designated medical expert, Dr. Nancy Mason. 1 occurred governs substantive tort liability. Richards v. United States, 369 US. 1, 11 (1962). In 2 California, the elements a plaintiff must prove for a negligence action based on medical 3 malpractice are: “(1) a duty to use such skill, prudence, and diligence as other members of his 4 profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal 5 connection between the negligent conduct and the resulting injury; and (4) resulting loss or 6 damage.” Johnson v. Superior Court, 143 Cal.App.4th 297, 305, 49 Cal.Rptr.3d 52 (2006); 7 Hanson v. Grode, 76 Cal.App.4th 601, 606, 90 Cal.Rptr.2d 396 (1999) (same). “Because the 8 standard of care in a medical malpractice case is a matter ‘peculiarly within the knowledge of 9 experts,’ expert testimony is required to ‘prove or disprove that the defendant performed in 10 accordance with the standard of care’ unless the negligence is obvious to a layperson.” Johnson, 11 143 Cal.App.4th at 305, 49 Cal.Rptr.3d 52 (internal citations omitted). 12 “California courts have incorporated the expert evidence requirement into their standard 13 for summary judgment in medical malpractice cases. When a defendant moves for summary 14 judgment and supports his motion with expert declarations that his conduct fell within the 15 community standard of care, he is entitled to summary judgment unless the plaintiff comes 16 forward with conflicting expert evidence.” Hanson, 76 Cal.App.4th at 607, 90 Cal.Rptr.2d 396 17 (emphasis added). 18 In contending that Plaintiffs fail to state a prima facie case, the United States asserts that 19 Dr. Mandel’s opinions are inherently unreliable and are inadmissible under Federal Rule of 20 Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92, 113 21 S.Ct. 2786, 125 L.Ed.2d 469, (1993). Specifically, and as noted above, the United States claims 22 that Dr. Mandel’s opinions are unreliable because they fail to consider the conduct of the 23 anesthesiologist and its impact on Dr. Ikedilo’s conduct. The United States also claims that Dr. 24 Mandel’s opinions are based on speculation, false assumptions and incorrect data. 25 Federal Rule of Evidence 702 (“Rule 702”), which governs the admissibility of expert 26 witness testimony, provides: 27 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s 1 understand the evidence or to determine a fact in issue: (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles 2 and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 3 Rule 702 requires that an expert’s testimony be both reliable, in that the witness is 4 qualified to testify regarding the subject and the proposed testimony is supported by good 5 grounds, and relevant, in that it will assist the trier in determining a fact in issue. Daubert, 509 6 U.S. at 589-92. The Court’s role in weighing expert opinions against these standards of 7 reliability and relevancy is that of a “gatekeeper” to “make certain that an expert, whether basing 8 testimony upon professional studies or personal experience, employs in the courtroom the same 9 level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho 10 Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). “However, 11 the gatekeeping function is less pressing where, as here, the court sits as the trier of fact in place 12 of a jury.” Crane-Mcnab v. Cty. of Merced, No. CIV. 1:08-1218, 2011 WL 94424, at *1 (E.D. 13 Cal. Jan. 11, 2011) (citing In re Salem, 465 F.3d 767, 777 (7th Cir.2006) (“Where the gatekeeper 14 and the factfinder are one and the same—that is, the judge—the need to make [Daubert] 15 decisions prior to hearing the testimony is lessened.”) and United States v. Brown, 415 F.3d 16 1257, 1269 (11th Cir.2005) ( “There is less need for the gatekeeper to keep the gate when the 17 gatekeeper is keeping the gate only for himself.”). “In bench trials, the district court is able to 18 ‘make its reliability determination during, rather than in advance of, trial. Thus, where the 19 factfinder and the gatekeeper are the same, the court does not err in admitting the evidence 20 subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of 21 reliability established by Rule 702.’” United States v. Flores, 901 F.3d 1150, 1165 (9th Cir. 22 2018) (citation omitted). 23 In light of this standard, and because the claims against the United States will be the 24 subject of a bench trial, the Court intends to admit the evidence from Dr. Mandel, subject to the 25 ability later to exclude it or disregard it if it turns out not to meet the standard of reliability 26 required by Federal Rule of Evidence 702. That said, the Court addresses the arguments 27 forwarded by the United States, including the argument that Dr. Mandel’s opinion is inherently 1 unreliable because he disregarded the conduct of the anesthesiologist in rendering his expert 2 opinion and that Dr. Mandel reached his conclusions by disregarding material evidence and by 3 creating a false narrative. (Doc. No. 108-1 at 22.) 4 The crux of the United States’ position is that Dr. Mandel’s opinion should be excluded 5 because he disregarded the conduct of the anesthesiologist. To support this position, the United 6 States cites, among other things, testimony from Dr. Mandel’s deposition in which Dr. Mandel 7 confirms that his opinions and report did not analyze how the alleged failures Dr. Sanchez, the 8 anesthesiologist, impacted the performance of others in this case. Mandel Depo., 84:7-16. He 9 also confirmed that he did not focus on Dr. Kimble’s expert report regarding the conduct of the 10 anesthesiologist. Id. at 86:5-87:10. 11 The Court is not persuaded that Dr. Mandel’s opinion should be excluded as inherently 12 unreliable on this basis. Dr. Mandel was retained to “evaluate the standard of care provided to 13 Ana Calderon by Dr. Adanno Ikedilo on October 14, 2015 in regards to a bilateral tubal ligation 14 and subsequent exploratory surgeries to control bleeding.” Mandel Report at 61. The United 15 States does not dispute that Dr. Mandel is qualified to render an expert opinion regarding the 16 surgical standard of care under Federal Rule of Evidence 702. Dr. Mandel is Board Certified in 17 Obstetrics and Gynecology with over 35 years of experience in managing patients in his field. 18 Mandel Report at 60. In rendering his opinion, Dr. Mandel reviewed Ana’s medical records 19 from TRMC, including the anesthesia record from Dr. Sanchez and Dr. Sanchez’ deposition 20 testimony. Id. at 61, 63-65. Dr. Mandel then identified whether Dr. Ikedilo’s actions fell below 21 the standard of care with respect to any of her independent duties. Dr. Mandel confirmed at his 22 deposition that any negligence of the anesthesiologist had no impact on his opinion that Dr. 23 Ikedilo failed to meet the standard of care. Mandel Depo., 82:24—86:2. For instance, Dr. 24 Mandel identified Dr. Ikedilo’s independent duty to Ana separate from that of Dr. Sanchez 25 following the tubal ligation surgery. Id. at 65 (“[E]ven if Dr. Sanchez never directly warned Dr. 26 Ikedilo of Ana’s condition, Dr. Ikedilo should have known that Ana was not stable. Dr. Ikedilo 27 had an independent duty to check the vital signs before leaving the hospital.”). Dr. Mandel also 1 Mandel Report at 66-68. Although Dr. Sanchez participated in the first laparotomy, there is no 2 apparent allegation that his conduct during the procedure fell below the standard of care. 3 Moreover, the Court is not persuaded that Dr. Mandel’s opinion regarding Dr. Ikedilo’s conduct 4 should be excluded at this juncture given evidence that Ana suffered a hemorrhage and bleeding 5 caused by the tubal ligation surgery. (See, e.g., Doc. 108-11, Ex. 8 to Lodge Decl., Report of Dr. 6 Edward T. Riley at 16; Doc. 108-10, Ex. 7 to Lodge Decl. Report of Nancy E. Mason, MD, 7 FACOG at 28). 8 As an additional matter, the United States claims that Dr. Mandel’s opinion should be 9 excluded because he relies on the “captain of the ship” doctrine. (Doc. No. 108-1 at 23.) The 10 “captain of the ship” doctrine has been recognized in California state law malpractice claims for 11 decades. Baumgardner v. Yusef, 144 Cal.App.4th 1381, 1397, 51 Cal.Rptr.3d 277 (2006). It 12 recognizes a surgeon’s liability for the actions of others working under his supervision and 13 control during the operation. Id. at 1396. The “captain of the ship” doctrine is a negligence 14 standard that is based upon the doctrine of respondeat superior. Id. Here, however, Plaintiffs 15 have not alleged respondeat superior liability or vicarious liability. Rather, Plaintiffs’ 16 contention, for which they rely on Dr. Mandel’s opinion, is that Dr. Ikedilo had independent 17 duties separate and apart from those of the anesthesiologist, Dr. Sanchez. Indeed, Dr. Mandel, 18 when using the “captain of the ship” phrase, expressly testified that the surgeon has independent 19 duties, not that the surgeon was liable for the conduct of others. Mandel Depo., 90:24-91:16. 20 The United States also takes issue with Dr. Mandel’s opinion that Dr. Ikedilo’s alleged 21 failure to check for bleeding after the tubes were placed back inside the body was below the 22 standard of care. The United States contends that Dr. Mandel created a false narrative in which 23 he assumed ties were “knocked off” the fallopian tubes, in contradiction of Dr. Ikedilo’s 24 testimony, and he unreasonably interpreted the medical record to conclude that Dr. Ikedilo did 25 not check for bleeding before closing including Dr. Ikedilo’s handwritten report showing only 5 26 ml blood loss, which was confirmed by the OR report and her deposition testimony. (Doc. No 27 108-1 at 22, Ikedilo Depo. 63:14-68:125 and 58:15-62:19). 1 tube was brought outside of the body through a small incision, whereby a section of tube was 2 removed (ligated) and the cut ends were tied off with a “free tie.” The tube was checked for 3 bleeding and then pushed back into the abdomen through the incision. This process was then 4 repeated with the second tube. Doc. 113 at 8; TRMC 00133-34. A free tie differs from a suture 5 in that it is “looped” around the tube, not “anchored” to the tube by sewing through the tube with 6 a needle. (Doc. No. 108-12, Ex. 9 to Lodge Decl., Deposition of Charles March, M.D. (“March 7 Depo.”), 28:7-22). 8 Plaintiffs assert that Dr. Mandel concluded that one or more of the free ties came off after 9 Dr. Ikedilo pushed them back inside the abdomen. Dr. Mandel reportedly based this conclusion 10 on his own experience, stating that it is not uncommon for a tie to slip off and therefore checking 11 for bleeding after the tubes are placed back inside is critical.5 (Doc. No. 113 at 9; Mandel Report 12 at 63). Dr. Mandel also reportedly based his opinion on Dr. Ikedilo’s Operative Report of the 13 tubal surgery, written hours after the surgery ended, stating that Dr. Ikedilo checked the tied ends 14 of the tubes for bleeding before she pushed the tubes inside, not after. Mandel Report at 63. Dr. 15 Mandel additionally observed that while Dr. Ikedilo claimed that the ties were still intact when 16 she opened the abdomen during the second laparotomy, that claim did not appear until Dr. 17 Ikedilo’s second deposition, taken years after Ana’s death. Mandel Depo. at 69:16-70:9; Second 18 Ikedilo Depo., 57:13-15. That claim also did not appear in the Operative Reports. TRMC 133- 19 34; 123-124; 125-126. 20 The United States relies on Dr. Ikedilo’s handwritten post-op report showing only 5 ml 21 blood loss to support the contention that Dr. Ikedilo checked for bleeding after the tubes were 22 reinserted. TRMC 00165. However, Plaintiffs question the timing of Dr. Ikedilo’s Post-Op 23 Note, claiming that Dr. Ikedilo’s note was completed at 11:00, when surgery did not conclude 24 until 11:11. TRMC 00165; 000143. Plaintiffs also question the reason for the note, stating that 25 it was unnecessary if Dr. Ikedilo intended to return to the OR as she asserts. (Doc. No. 108-12, 26 Ex. 9 to Lodge Decl., March Report at 22.) 27 5 As Plaintiffs point out, the United States’ own expert opined that the failure to check for bleeding after the tubes are placed back inside is below the standard of care and that if a tie came off or became loose, it could have caused 1 The United States also contends that Dr. Mandel incorrectly assumed that the alarms on 2 Ana’s monitors went off during surgery. (Doc. 108-1). At issue here is Dr. Mandel’s opinion 3 that Dr. Ikedilo had an independent duty to check Ana’s vital signs before leaving the hospital. 4 Dr. Ikedilo claimed that she returned to the operating room after speaking with Mr. Calderon, but 5 Dr. Sanchez disputes this claim. Dr. Mandel believes that if Dr. Ikedilo had returned, then 6 alarms would have been sounding because, at the approximate time, Ana’s blood pressure had 7 fallen below 90mmHg systolic, the point at which the anesthetic alarms were set to sound. 8 Mandel Report at 64-65. In any event, whether or not she returned to the operating room, Dr. 9 Mandel opined that Dr. Ikedilo had an independent duty to check the vital signs before leaving 10 the hospital, even if Dr. Sanchez did not warn her of the condition. Id. 11 The Court finds that there are genuine disputes about whether any of the ties were 12 knocked off, whether Dr. Ikedilo checked for bleeding after she pushed the tubes back inside or 13 whether she returned to the operating room after speaking to Mr. Calderon. In light of these 14 disputes, the Court cannot conclude on the present record that the opinions of Dr. Mandel 15 regarding the tubal ligation are based on insufficient facts and data. Dr. Mandel opines, based 16 upon his years of experience and practice, Dr. Ikedilo’s surgical conduct fell below the standard 17 of care, irrespective of the anesthesiologist’s actions.6 His opinions are medically related to his 18 expertise and the standard for performance of surgical duties. His expert opinion is relevant and 19 based upon reliable scientific methodology given the experts’ academic and professional 20 experience and the nature of his opinion. To the extent the United States challenges the factual 21 basis of Dr. Mandel’s opinions, this challenge goes to the weight of the evidence rather than 22 admissibility. Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1017 n. 14 (9th Cir. 23 2004) (“[T]he factual basis of an expert opinion goes to the credibility of the testimony, not the 24 admissibility, and it is up to the opposing party to examine the factual basis for the opinion in 25 6 As noted throughout this Order, the evidence submitted for this motion is replete with expert opinions, from which 26 a reasonable jury could conclude, that Dr. Sanchez’s conduct fell below the standard of care before, during and after the tubal ligation surgery, which may have complicated or contributed to Dr. Ikedilo’s surgical difficulties. 27 Nonetheless, this motion seeks to exclude the purported unreliable opinions of Dr. Mandel. The evidence, at this point of the case, demonstrates that Ana died from hemorrhaging and complications of postpartum tubal ligation, 1 cross-examination.”) (quoting Children’s Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 865 2 (8th Cir. 2004)). 3 IV. Conclusion and Order 4 For the reasons stated, Defendant’s motion for summary judgment, filed on January 10, 5 2020, is HEREBY DENIED. 6 IT IS SO ORDERED. 7 8 Dated: February 24, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27