Allen v. American Medical Response West CA3 ( 2016 )

Filed 2/16/16 Allen v. American Medical Response West CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
OPAL J. ALLEN et al., C077087
Plaintiffs and Appellants, (Super. Ct. No.
39-2011-000269893-CU-PO-STK)
v.
AMERICAN MEDICAL RESPONSE
WEST et al.,
Defendants and Respondents.
Plaintiffs and appellants Opal J. Allen and Victor Allen, Sr. (collectively the
Allens) sued defendants and respondents American Medical Response West (named as
American Medical Response, Inc., and American Medical Response Ambulance Service,
Inc.), County of San Joaquin, Joshua Moore, Robert Bolt, Jared Roberts, Richard N.
Buys, M.D., Dan Burch, Douglas DeMartinez, M.D., and Nurse Pollock (collectively
respondents) regarding the drowning death of their grandson and son, respectively, Victor
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Allen, Jr. (the decedent). The Allens appeal from the summary judgment granted in favor
of respondents. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The record on appeal does not include a reporter’s transcript. Accordingly, we
treat this as a “judgment roll” appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-
1083 (Allen); Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) Nor do we
have the benefit of an adequate summary of significant facts provided by counsel for
appellants.1 (Rule 8.204(a)(2).) Thus, we summarize the facts in the light most
favorable to the judgment as follows.
The Allens alleged respondents were grossly negligent in their medical response to
the drowning of the decedent, by failing to follow published policies and in allowing
life-support measures to be terminated precipitously. The Allens also alleged the
corporate respondents and the County of San Joaquin were liable for failing to properly
train and supervise the other respondents and for vicarious liability based on the acts or
omissions of the other respondents.
Respondents collectively moved for summary judgment, or in the alternative, for
summary adjudication, contending respondents’ care and treatment of the decedent met
the standard of care and was provided in good faith; neither Burch nor Buys was in any
way involved in the response or emergency aid rendered; no act or omission on the part
of any respondent was a substantial factor in causing the decedent’s death; as the gross
negligence cause of action fails, so too must the causes of action for failure to properly
train and supervise and for vicarious liability; and Opal J. Allen is not a proper plaintiff.
1 We note respondents did at least provide a summary of facts, but as it contains no
citation to the record, it is not particularly helpful to the court. (Cal. Rules of Court, rule
8.204(a)(1)(C); further rule references are to these rules.)
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In support of their motion, respondents submitted expert declarations from a paramedic
and an emergency department physician, who each opined that respondents acted within
their respective standards of care in determining that no further resuscitative efforts were
required and in obeying that directive from the physician as relayed by the nurse.
Respondents also submitted the expert declaration of a neurologist who opined that,
within a reasonable degree of medical probability, further resuscitative efforts would not
have saved the decedent’s life. The Allens opposed the motion by objecting to the
evidence submitted by respondents and without producing any contradicting evidence.
The trial court overruled the Allens’ evidentiary objections, other than objections
to certain legal conclusions contained in the experts’ declarations. The trial court also
found that Opal J. Allen lacked standing to pursue the action against respondents because
she was the decedent’s grandmother and the decedent had a living parent—Victor Allen,
Sr. (Code Civ. Proc, § 377.60; Prob. Code, § 6402, subd. (b).) The trial court concluded
expert testimony was required to establish whether respondents fell below the standard of
care because the effect of resuscitation efforts on a body with no pulse, no cardiac
activity, and no respiration is not a process within common knowledge. As respondents
submitted expert declarations establishing respondents did not violate the standard of care
and that no action or inaction by respondents caused the decedent’s death, and the Allens
presented no conflicting expert evidence, the trial court held that summary adjudication
was appropriate as to the Allens’ gross negligence cause of action. And, as the Allens
failed to show gross negligence or that respondents Burch or Buys were involved in the
care or treatment rendered to the decedent, the trial court concluded the Allens did not
establish vicarious liability or a failure to train and supervise as to any respondent.
Accordingly, judgment was entered in favor of respondents.
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DISCUSSION
Prior to addressing the Allens’ contentions, it is helpful to set forth some rules
regarding the scope of our review on appeal. The trial court’s judgment is presumed to
be correct. (People v. Giordano (2007) 42 Cal.4th 644, 666.) When, as here, an appeal is
“on the judgment roll” (Allen, supra, 172 Cal.App.3d at pp. 1082-1083), we must
conclusively presume evidence was presented that is sufficient to support the court’s
findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Thus, our review is limited
to determining whether any error “appears on the face of the record.” (National
Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; rule 8.163.)
Moreover, it is an appellant’s burden to affirmatively show prejudicial error via an
adequate record, factual analysis, and legal authority on each point made, with
appropriate citations to the material facts in the record; otherwise, the point is forfeited.
(Rule 8.204; Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [where appellant fails to provide
an adequate record we need not consider the merits of appellant’s contentions]; Keyes v.
Bowen (2010) 189 Cal.App.4th 647, 655-656; San Joaquin River Exchange Contractors
Water Authority v. State Water Resources Control Bd. (2010) 183 Cal.App.4th 1110,
1135 [argument forfeited for lack of separate heading]; State ex rel. Dept. of Pesticide
Regulation v. Pet Food Express (2008) 165 Cal.App.4th 841, 855 [forfeiture due to
failure to separately head argument and failure to support argument with legal and factual
analysis].) Where an appellant fails to support claims of error with citation and authority,
the reviewing court is not obligated to perform that function on the appellant’s behalf.
(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Rather, we
can deem the contention forfeited as lacking foundation. (In re S.C. (2006)
138 Cal.App.4th 396, 406-407; see Atchley v. City of Fresno (1984) 151 Cal.App.3d 635,
647.) Additionally, where an appellant fails to present a point under a separate heading
in its opening brief, the contention is forfeited. (Rule 8.204(a)(1)(B); San Joaquin River
Exchange, supra, 183 Cal.App.4th at p. 1135.)
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Here, the Allens have failed to meet their briefing burden because they have not
complied with established requirements. Instead of providing us with a summary of
significant facts, part III of the opening brief entitled “Statement of Facts” recounts few
pertinent facts, rarely cites the record, does not summarize the evidence presented to the
trial court, and instead challenges the admissibility of the expert declarations offered in
support of the motions for summary judgment. Even if the evidentiary challenges were
not forfeited for failure to separately head them, they would be forfeited because the
Allens present no cogent factual or legal analysis explaining why it would be improper
for the trial court to admit the declarations. Thus, to the extent the Allens are contending
the trial court erred in admitting the expert declarations submitted by respondents in
support of their motion for summary judgment, that contention is forfeited.
We next turn to the Allens’ stated contentions, or at least the contentions we have
culled from the nearly incoherent opening brief presented by counsel. As labeled, the
Allens’ first contention is that the trial court prejudicially abused its discretion by “failing
to apply existing standards of performance to respondents’ care for [the decedent].” The
argument, however, appears to be that the trial court erred in determining that expert
testimony was required to establish whether there was a violation of the standard of care
amounting to gross negligence because respondents failed to adhere to an established
policy regarding cold-water drowning and because their decision to cease resuscitative
efforts amounts to an abandonment.
In support of the argument, the Allens cite Czubinsky v. Doctors Hospital (1983)
139 Cal.App.3d 361, 367, which holds that where the hospital failed to provide adequate
staff to supervise a patient immediately after surgery, and that patient suffers permanent
brain damage following cardiac surgery because there was inadequate staff to administer
postoperative care, a jury could find the hospital negligent without the aid of expert
testimony. There, during the critical period immediately following a patient’s surgery,
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both the operating surgeon and the circulating nurse left the operating room, leaving only
the anesthesiologist and operating room technician to monitor the patient. (Id. at p. 363.)
The patient suffered cardiac arrest, and the operating room technician left the room to
obtain aid, leaving only the anesthesiologist to ineffectively administer cardiopulmonary
resuscitation for multiple minutes. (Id. at p. 366.) Expert testimony demonstrated that
the lack of staffing, which the court characterized as “a conceded abandonment,” was a
violation of the standard of care and also the proximate cause of the patient’s injury, and
the Czubinsky court held the same could have been demonstrated with lay testimony. (Id.
at p. 367.) We find no fault with the reasoning of Czubinsky. However, it is inapposite to
the present case.
The present case does not involve a lack of staffing or monitoring. Rather, it
involves the sustained efforts of emergency personnel to resuscitate a young man pulled
from a river with no pulse, no heartbeat, no respiration, and no lung sounds, who was
unresponsive with fixed and dilated pupils. The decedent had been under water for more
than 30 minutes. While resuscitative efforts were ongoing, emergency responders
telephoned the hospital and ascertained from an emergency department physician, via an
emergency department nurse, that under the circumstances resuscitative efforts should be
terminated and time of death reported. Though the Allens rely on a policy indicating that
with cold-water drowning, the patient should be transferred to the emergency department
for determination of death, in ceasing resuscitative efforts emergency responders relied
on the hospital’s directive that the policy did not apply because the water temperature
was not cold enough. The two cases are not analogous, such that the reasoning of
Czubinsky does not apply here.
Further, though the Allens characterize the termination of resuscitative efforts as
abandonment, they have not presented any cogent analysis or legal authority to suggest
that under the circumstances of this case respondents abandoned their duties in advising
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the cessation of resuscitative efforts or in adhering to such advice. Indeed, ample
evidence was presented that respondents did not violate the standard of care, and also that
no act or omission on the part of respondents was a proximate cause of the decedent’s
death. The Allens presented no conflicting evidence, expert or otherwise. On this record,
respondents have shown the gross negligence cause of action has no merit, and the Allens
have not shown a triable issue of material fact exists as to that cause of action. (Code
Civ. Proc., § 437c, subds. (f)(1), (p)(1)-(2).)
The Allens also purport to argue that “the trial court prejudicially abused its
discretion in [the] application of medical malpractice standards to respondents’
abandonment” of the decedent. In support of this contention, appellants cite Elam v.
College Park Hospital (1982) 132 Cal.App.3d 332, 346-347 for the proposition that
expert testimony is not required to establish a hospital failed to adequately screen its
medical staff. However, the Allens provide no factual or legal analysis explaining how
this precedent applies to the present case. Instead, they state in conclusory fashion that
“the County was directly responsible for [American Medical Response and Moore,
Roberts and Bolt], which served as contractual agents for [the] County.” Even if we
could decipher how this “argument” relates to the point the Allens are apparently
asserting, their failure to provide any cogent analysis renders the argument forfeited.
On the record before us, we conclude the trial court did not err in finding no
triable issue of material fact existed with respect to the gross negligence cause of action,
and that respondents were entitled to summary adjudication as to that cause of action.
Moreover, to the extent the Allens challenge the trial court’s finding as to the causes of
action for vicarious liability and for failure to train and supervise, we conclude that
because liability for those causes of action is premised on a showing of gross negligence,
it was also proper for the trial court to grant summary adjudication in respondents’ favor
as to those causes of action.
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DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal. (Rule
8.278(a)(1), (2).)
BUTZ , J.
We concur:
DUARTE , Acting P. J.
HOCH , J.
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