Chimal v. Vong CA4/1 ( 2023 )


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  • Filed 2/27/23 Chimal v. Vong CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    LYNETTE CHIMAL et al.,                                               D080517
    Plaintiffs and Appellants,
    v.                                                         (Super. Ct. No. RIC1902960)
    JENNIFER VONG,
    Defendant and Respondent.
    APPEAL from a judgment of the Superior Court of Riverside County,
    John W. Vineyard, Judge. Affirmed in part and reversed in part with
    directions.
    Law Offices of Wole Akinyemi and Wole Akinyemi for Plaintiffs and
    Appellants.
    Neil, Dymott, Frank, McCabe & Hudson, Clark R. Hudson and David
    P. Burke for Defendant and Respondent.
    INTRODUCTION
    Lynette Chimal’s baby died soon after delivery by cesarean section
    following a protracted labor. She and her partner, Jasen Watson (together,
    Plaintiffs), sued Dr. Jennifer Vong, the delivery physician, and Parkview
    Community Hospital Medical Center (Parkview), alleging professional
    negligence, wrongful death, and intentional infliction of emotional distress
    (IIED). After Parkview settled with Plaintiffs, Dr. Vong moved for summary
    judgment. The trial court granted summary judgment, finding that Plaintiffs
    failed to show triable issues of fact as to the elements of breach of duty and
    causation on the first and second causes of action for negligence and wrongful
    death,1 and extreme and outrageous conduct on the third cause of action for
    IIED.
    On our de novo review, we conclude Plaintiffs met their burden of
    producing conflicting evidence on whether Dr. Vong’s conduct fell below the
    standard of care and caused Plaintiffs’ injuries. Accordingly, triable issues of
    material fact on the negligence and wrongful death causes of action preclude
    summary judgment and we reverse as to the first and second causes of action.
    We find no error as to the trial court’s conclusion that Plaintiffs failed to
    produce evidence showing extreme and outrageous conduct to support a cause
    of action for IIED and so we affirm summary adjudication of the third cause
    of action.
    1     In setting forth its findings on breach of duty and causation, the trial
    court did not delineate between the negligence and wrongful death causes of
    action, but it entered judgment in favor of Dr. Vong and dismissed the entire
    action with prejudice. We presume the court disposed of both causes of
    action.
    2
    FACTUAL AND PROCEDURAL BACKGROUND
    I.
    Chimal’s Labor and Delivery at Parkview2
    On May 17, 2018, Chimal was 40 weeks pregnant. It was her first
    pregnancy, and she was 18 years old. At 11:30 p.m. that day, Chimal’s water
    broke and her treating obstetrician, Dr. Herman Carstens, admitted her at
    Parkview at 2:52 a.m. on May 18.3 She was 50 percent effaced and -3 station
    upon admission.4 Her pregnancy was noted to be complicated by class 2
    obesity and elevated thyroxine levels. Chimal was given a cervical ripening
    medication and Pitocin at 2:35 a.m. to help move her labor along. At
    8:43 a.m. and 11:37 a.m. she was given another cervical ripening medication,
    Cytotec, but Chimal’s labor did not progress to a vaginal delivery.
    2     Because this is an appeal from a grant of summary judgment in favor of
    Dr. Vong, we examine the evidence de novo and “our account of the facts is
    presented in the light most favorable to the nonmoving party below, in this
    case [Plaintiffs], and assumes that, for purposes of our analysis, [Plaintiffs’]
    version of all disputed facts is the correct one.” (Birschtein v. New United
    Motor Manufacturing, Inc. (2001) 
    92 Cal.App.4th 994
    , 999 (Birschtein), italics
    added; accord Miller v. Department of Corrections (2005) 
    36 Cal.4th 446
    , 470.)
    Here also, both parties relied on medical records, including the labor and
    delivery flowsheet (LD flowsheet), which listed all of the data collected on the
    fetus and mother as well as notes from the attending nurses, for the relevant
    undisputed medical data. As we later explain, it is their experts’
    interpretation of the medical data that is in conflict.
    3     All further dates refer to 2018 if no year is specified.
    4     The percent “effaced” indicates how much the cervix has thinned out
    just before or during labor. (See Stedman’s Medical Dict. (28th ed. 2006)
    p. 613, col. 2.) A baby’s “station” is “[t]he degree of descent of the presenting
    part of the fetus through the maternal pelvis[.]” (Id. at p. 1830, col. 1.)
    3
    On the evening of May 18, Dr. Vong was the on-call physician at
    Parkview covering for Dr. Carstens’ patients, including Chimal. Although
    she managed Chimal’s care remotely that evening and the next day while she
    was caring for patients at another hospital, Dr. Vong had access to Chimal’s
    vital signs and the fetal heart rate tracings on her phone, and access to the
    nursing staff at Parkview who were reporting Chimal’s progress.
    At 11:31 p.m. on May 18, a nurse telephoned Dr. Vong to report that
    Chimal’s membranes had been ruptured for 24 hours; they had placed a
    monitor (a scalp electrode) on the fetus; and Chimal’s last temperature was
    99.5 degrees Fahrenheit. Dr. Vong ordered the nurse to administer
    antibiotics to Chimal and to notify her if Chimal’s temperature reached 100.4
    degrees.
    At 4:00 a.m. on May 19, a nurse noted Chimal had normal uterine
    contractions, but the fetal heart rate tracing on the fetal strip5 (the strip)
    showed the fetus was experiencing moderate heart rate variability (meaning
    that it was fluctuating by 6 to 25 beats per minute) and early, variable
    5      Plaintiffs provided a copy of the “Stored Fetal Strip” from Chimal’s
    labor at Parkview. During her deposition, Dr. Vong interpreted this strip,
    explaining that it showed both Chimal’s contractions and the fetus’s heart
    rate pattern. This strip allowed both Dr. Vong and the Parkview nursing
    staff to monitor the fetus and watch for accelerations, decelerations,
    tachycardia, and other changes in the fetus’s status.
    4
    decelerations.6 In light of this fetal heart rate pattern, the nurse categorized
    the tracing as a Category II strip.7
    At 5:27 a.m., an anesthesiologist was at Chimal’s bedside; she was
    given an antibiotic, ampicillin, intravenously at 5:30 a.m. and an epidural at
    5:40 a.m.
    At 7:10 a.m. on May 19, Nida Llorico came on as the nurse attending to
    Chimal. At 7:15 a.m., Llorico examined Chimal and noted in the LD
    flowsheet that her amniotic fluid was clear.
    At 10:00 a.m., the strip showed a fetal heart rate of 160 beats per
    minute, “[m]inimal” variability, accelerations “absent,” and the presence of a
    late deceleration.8 Llorico entered the tracing as a Category II strip. The
    6      Neither party provides us with any definition of “decelerations,” but the
    Stedman’s Medical Dictionary definitions for early, variable, and late
    decelerations clarify that a deceleration is a temporary slowing of the fetal
    heart rate in relation to a uterine contraction. (See Stedman’s Medical Dict.,
    supra, at p. 496, col. 2 [defining an “early d[eceleration]” as “slowing of the
    fetal heart rate early in the uterine contraction phase”; defining a “variable
    d[eceleration]” as a “transient fetal bradycardia . . . which may occur at any
    time in relation to a uterine contraction”; defining a “late d[eceleration]” as
    “any transient fetal bradycardia, with onset of d[eceleration] at the peak of
    the uterine contraction and nadir as contraction finishes”].)
    7      Although the parties never explain the criteria used by medical staff in
    ranking a fetal strip as a Category I, II, or III, we infer from the record that a
    tracing moves from Category I to Category II if the fetus exhibits a change in
    its baseline heartrate (such as tachycardia), changes in variability, or
    accelerations and decelerations. We further infer that a Category III strip
    signifies the fetus is experiencing the most concerning heartrate patterns, as
    Dr. Vong testified that a Category III strip warranted intervention by
    cesarean section.
    8     The LD flowsheet contains a prefilled category of “Decelerations” (as
    well as “Accelerations”) under “Fetal Assessment,” next to which there are
    5
    late deceleration concerned Llorico so she performed “Fetal Interventions” to
    include turning Chimal “side to side” and giving her “some fluids through the
    IV.”
    At 10:30 a.m., Llorico entered in the LD flowsheet that the fetus was
    experiencing tachycardia, with a fetal heart rate of 175 to 180 beats per
    minute. Although the late deceleration had “resolved” at this time, she
    entered the tracing as a Category II strip due to the tachycardia. She did a
    sterile vaginal exam of Chimal and, because she was concerned by the change
    in the fetal heart rate, Llorico called Dr. Vong at 10:37 a.m. Llorico reported
    the sterile vaginal exam results, the fetal heart rate status, and Chimal’s
    contraction pattern to Dr. Vong. Dr. Vong ordered Llorico to repeat the
    sterile vaginal exam, re-check maternal temperature, and to call her with the
    results.
    At 10:50 a.m., Llorico performed another sterile vaginal exam, noted
    there was a “small amount of clear fluid,” and recorded Chimal’s temperature
    had elevated to 102.5 degrees.
    At 11:00 a.m., the strip showed the fetus still tachycardic with a fetal
    heart rate of 170 beats per minute, moderate variability, and both
    accelerations and late decelerations present. The tracing remained a
    Category II strip.
    At 11:05 a.m., Llorico reported to Dr. Vong that Chimal’s cervix had not
    further dilated, and she had a fever of 102.5 degrees. Llorico also reported to
    Dr. Vong that the strip showed fetal tachycardia of 170 to 180 beats per
    empty fields for the medical staff to enter their observations or actions.
    Although the 10:00 a.m. entry for May 19 merely states “Late” next to
    “Decelerations,” both Llorico and Dr. Vong testified in their depositions there
    was a single late deceleration at 10:00 a.m.
    6
    minute, with late decelerations. Dr. Vong gave orders for intravenous (IV)
    fluids, Tylenol, and the antibiotic gentamicin.
    At 11:30 a.m., Llorico performed additional fetal interventions,
    including repositioning Chimal and administering IV fluids and oxygen to
    her. The fetus remained tachycardic with accelerations and late
    decelerations. Dr. Vong called Llorico with instructions to discontinue
    Pitocin; Llorico made her aware that Pitocin had been off since 11:05 a.m.
    At 12:00 p.m., the fetus was still tachycardic with a heart rate of 180
    beats per minute, moderate variability, absent accelerations, and late
    decelerations. The tracing continued as a Category II strip. At this hour,
    Dr. Vong called and ordered Llorico to prepare Chimal for delivery by
    cesarean section.
    At 12:15 p.m. on May 19, according to the LD flowsheet, Dr. Vong was
    at Chimal’s bedside.
    At 12:37 p.m., Chimal was taken to the operating room.
    Dr. Vong explained her decision to proceed to a cesarean section at
    12:00 p.m. on May 19, in her operative report: Chimal “was noted to develop
    a maternal fever [of] 102 and maternal tachycardia, consistent with
    chorioamnionitis[9]. . . . Fetal heart tones were noted for fetal tachycardia
    which developed after maternal fever with baseline changing between 165-
    175 [beats per minute]. . . . There was moderate variability throughout the
    9      Chorioamnionitis is an “[i]nfection involving the chorion, amnion [the
    amniotic sac], and amniotic fluid; usually the placental villi and decidua are
    also involved.” (Stedman’s Medical Dict., supra, at p. 371, col. 1; see also
    Merriam-Webster’s Medical Dict. Online (2023)  [as of Feb. 27, 2023], archived at
     [defining chorioamnionitis as “inflammation
    of the fetal membranes”].)
    7
    fetal tachycardia but repetitive late decelerations developed and persisted
    despite resuscitative efforts. Her sterile vaginal exam was noted to be 5 cm,
    90 percent effaced and -1 station. Decision was made to proceed with a . . .
    cesarean section delivery due to prolonged rupture of membranes, failure to
    progress, chorioamnionitis and fetal tachycardia with late decelerations.”
    At 12:56 p.m., surgery began. Upon entering the amniotic cavity, Dr.
    Vong noted a “[l]arge amount of thick yellow meconium stained fluid with
    particulate[s]” and “a large amount of meconium.”10
    At 1:03 p.m., Dr. Vong delivered the baby and passed the baby to the
    waiting neonatal intensive care unit (NICU) nurse for suctioning of the
    mouth and nostrils and for neonatal assessment. Dr. Vong clamped the cord
    and cut a segment for cord gas readings. The placenta, which was given to
    pathology, was intact, but the membranes contained meconium staining.
    Arterial cord gas readings from the cord segment were recorded as “pH 7.07,
    PCO2 68, PO2 11.0, HCO3 19.7, BE-11.8, SaO2 15.4.” Chimal returned to
    the recovery room in stable condition. The baby was taken to the NICU for
    respiratory distress.
    At approximately 7:00 p.m. on May 19, the baby was transferred to
    Children’s Hospital of Orange County (CHOC) where she passed away on
    May 20 at 6:27 a.m. After briefly being discharged to visit her daughter’s
    body, Chimal was readmitted to Parkview that day for postoperative and
    postpartum care and treatment of her infection and fever. She remained in
    the hospital on antibiotics until May 24.
    10    Meconium is “[t]he first intestinal discharges of the newborn infant,
    greenish in color and consisting of epithelial cells, mucus, and bile.”
    (Stedman’s Medical Dict., supra, at p. 1167, col. 2.)
    8
    II.
    Laboratory, Pathology and Autopsy Reports
    Parkview conducted pathology studies of the placenta and umbilical
    cord specimens on May 19. A pathology report dated May 22 listed the
    following diagnosis from the tissue samples: “moderate to marked acute
    funisitis”; “moderate, focally approaching marked acute chorioamnionitis
    with necrosis”; “placental infarct approximately 2 centimeters in greatest
    dimension”; “acute deciduitis”; and “meconium-laden macrophages, amnion
    and chorion (2)(CO).” (Capitalization omitted.) A laboratory report dated
    May 19 at 2:24 p.m. identified the “positive growth of: Escherichia coli”
    (E. coli) in the baby’s blood culture sample.11 (Capitalization omitted.)
    CHOC performed an autopsy of the baby on May 20. In the autopsy
    report, the pathologist noted “[t]he girl baby was delivered by [cesarean
    section] with the history of prolong ROM [rupture of membranes] and fever of
    the mother. No other prenatal complication was noticed.” In microscopic
    analysis of “sections of bilateral lung from each lobe,” the pathologist noted in
    the report: “Many colonies of bacteria are identified intermixed with acute
    inflammatory exudates. The findings are consistent [with] amniotic
    aspiration related bacterial pneumonia.” The report concluded, “The cause of
    death is acute pneumonia.” The final diagnosis was “bilateral acute
    pneumonia” with “colonies of bacteria identified” and “evidence of inhaled
    amniotic fluid.” (Capitalization and boldface omitted.) Otherwise, it noted
    that “no other significant histopathological changes [were] identified.”
    (Capitalization and boldface omitted.)
    11    The copy of the laboratory results for Chimal in our record contains an
    entry under “blood culture” that is not readable. (Capitalization omitted.)
    9
    III.
    Chimal’s Complaint
    In May 2019, Plaintiffs filed a verified complaint against Parkview,
    asserting three causes of action for professional negligence, wrongful death,
    and IIED. They subsequently filed a Doe amendment to name Dr. Vong as a
    defendant as to all three causes of action.
    Plaintiffs alleged the “medical records and fetal heart rate tracings”
    demonstrated “significant delay” in the delivery of the baby, and that “[t]he
    baby should have been delivered minimally over 2.5 hours earlier after
    admission.” They alleged there was “no[t] adequate monitoring of the fetal
    heart rate tracings which should have given important clues to the delivery
    doctor and nursing staff as to when the baby should have been delivered.”
    Plaintiffs asserted “[t]he fetal heart rate tracings showed that the baby[12]
    was ready to be delivered at 9:00 a.m. on May 19, 2018,” and that by
    1:00 p.m. the same day, “the heart rate of the baby had dropped significantly
    and still nothing was done.” According to Plaintiffs, by the time the cesarean
    section was performed, “the baby was already in septic condition, and it was
    too late.”
    In support of her IIED cause of action,13 Chimal alleged she was aware
    that Dr. Vong and the nurses’ conduct “was causing injury to [the baby]
    12    It is general knowledge that the term “fetus” is used prior to delivery
    and “neonate” or “baby” after delivery. We will use these terms, except when
    directly quoting the parties’ or their experts.
    13     Plaintiffs’ complaint appears to allege an IIED cause of action only on
    behalf of Chimal, thus our discussion and analysis of that cause of action will
    be so limited. But we note that any such allegation by Watson would fail
    because when he was asked during his deposition, “do you believe that
    10
    because she notice[d] that the baby was not breathing when the baby was
    removed from her womb.” As a result, she “sustained serious emotional
    distress and damages, severe mental anguish, emotional and physical
    distress, [and] humiliation by having to watch her baby die of unnecessary
    death.”
    IV.
    Summary Judgment Proceedings
    A.    Dr. Vong’s Motion and Supporting Evidence
    Dr. Vong moved for summary judgment, or alternatively summary
    adjudication, as to all three causes of action. Dr. Vong asserted Plaintiffs
    could not show a breach of duty, or that any negligence by her caused the
    baby’s death. She produced evidence to show her decision to treat suspected
    chorioamnionitis with antibiotics in hopes of allowing the mother to progress
    to a vaginal delivery was consistent with the standard of care when faced
    with a Category II strip. She also produced evidence to demonstrate the
    outcome would have been the same even if the fetus had been delivered
    earlier because the fetus would have succumbed to the advanced in utero
    E. coli infection. Finally, Dr. Vong maintained that, because her conduct was
    appropriate and within the standard of care, there was no evidence of
    extreme and outrageous conduct to support Chimal’s claim of IIED.
    In support of her motion, Dr. Vong submitted her declaration and
    excerpts of her deposition testimony, as well as those of various witnesses;
    the declarations of Dr. Stephen Hebert and Dr. Philippe Friedlich; and
    Parkview and CHOC medical records.
    Dr. Vong or any of the nurses at Parkview intended to cause you emotional
    distress,” he answered “No.”
    11
    1.    Dr. Vong’s Deposition Testimony
    Dr. Vong testified she had access to the fetal heart rate tracings and
    Chimal’s vitals on her phone, and that she also relied on the Parkview
    nursing staff to monitor the mother and fetus and let her know when there
    was a problem. Although she could monitor the strip “in real time,” she was
    not always able to see the nurses’ comments on the LD flowsheet in real time.
    Dr. Vong recalled looking at the 9:50 a.m. segment of the strip on
    May 19 “shortly” after that tracing, and noted the fetal heart rate was 160
    beats per minute, “there [was] a single late deceleration,” but not “any
    repetitive decelerations.” She reviewed the 10:07 a.m. segment of the strip
    around 10:30 a.m., which showed the fetal heart rate was 160 beats per
    minute, with an acceleration and moderate variability. She explained this
    indicated the fetus was “doing well” and since there had only been one late
    deceleration in the prior strip, there was “no pattern for . . . intervention
    right here at this point.”
    When Dr. Vong looked at the strip around 10:30 a.m., she noticed the
    10:15 a.m. tracing showed “an increase in the baseline fetal heart rate to
    approximately 170 [beats per minute],” indicating “the onset of fetal
    tachycardia.” Dr. Vong called to the hospital at “approximately” 10:30 a.m.
    and instructed a nurse (presumably Llorico) to take Chimal’s temperature,
    check the cervical dilation, and call her back with the results. She then had
    the nurse re-check Chimal’s temperature and dilation. At this time, Dr. Vong
    noted Chimal was having normal contractions.
    At 10:57 a.m., Dr. Vong identified a late deceleration on the strip. She
    explained she did not go to the hospital at this point because the fever and
    fetal tachycardia were “consistent with chorioamnionitis”⎯indicating the
    presence of infection⎯and she wanted to treat it with antibiotics, Tylenol,
    12
    and IV fluids first “to see if these interventions would help to resolve the fetal
    tachycardia.”
    By 11:05 a.m., the strip showed moderate variability and two late
    decelerations. Dr. Vong did not deliver by cesarean section at this point
    because it “can take up to an hour” for the Tylenol and antibiotics to take
    effect, and she wanted to see if there was any improvement so Chimal could
    continue to progress with her labor. Dr. Vong also explained it was a
    Category II strip with moderate variability, and “fetal heart rate monitoring
    guidelines” provide “you can continue to monitor. If there is progression or
    worsening of the strip to Category [III], then you will need to proceed with
    delivery.” Chimal did not have a Category III strip.
    At 12:05 p.m., when the strip showed “persistent” fetal tachycardia and
    “recurrent late decelerations,” Dr. Vong called for an emergency cesarean
    section. She left Riverside Community Hospital where she was caring for
    other patients and was at Chimal’s bedside by 12:15 p.m. While Chimal “was
    going to the OR and being prepared for the C-section,” Dr. Vong wrote a
    report at 12:28 p.m. before performing the surgery because, she explained,
    “[i]t’s customary to document that you’ve discussed the risks and the benefits
    and consented the patient.”
    2.    Dr. Hebert’s Declaration
    Dr. Hebert, who is board certified in obstetrics and gynecology, opined
    that Dr. Vong acted within the appropriate standard of care and “none of her
    treatment or conduct caused Plaintiffs’ alleged injuries.” He based his
    opinion on his review of the medical records and deposition testimony of
    various witnesses, including Dr. Vong.
    Dr. Hebert believed Dr. Vong was “actively involved” in Chimal’s care
    and appropriately monitoring the fetal heart strip by remote application. He
    13
    stated that when Dr. Vong recognized “the patient’s signs and symptoms
    were consistent with chorioamnionitis,” her decision to first treat the
    infection with Tylenol and antibiotics and allow labor to progress in hopes of
    a vaginal delivery was consistent with the American College of Obstetrics
    and Gynecology guidelines.
    Dr. Hebert explained “[t]he standard of care did not require emergent
    intervention or delivery by immediate cesarean” between 9:00 a.m. to
    10:30 a.m., because, although there was “moderate variability with
    increasingly frequent decelerations,” it was still a Category II strip. Once the
    strip “began to show late and prolonged decelerations despite appropriate
    treatment of the fever and presumed chorioamnionitis” between 11:30 a.m.
    and 12:00 p.m., it was his opinion that ordering intervention was “a matter of
    clinical judgment.” By 11:50 a.m. to 12:00 p.m., when the strip was showing
    recurrent late decelerations, Dr. Vong appropriately ordered intervention by
    cesarean. Dr. Hebert opined that, by making this decision “approximately
    one hour after institution of treatment for chorioamnionitis,” Dr. Vong “was
    in full compliance with the standard of care.” And that “[a]ccomplishing the
    delivery prior to 1:00 pm in this non-elective but not emergent situation was
    also well within the standard of care for this Category II strip.”
    Dr. Hebert opined “to a reasonable degree of medical probability, that
    this baby’s outcome would have been the same even if Dr. Vong had decided
    to deliver well before any indications of significant concern from the fetal
    heart strip.” After stating this opinion, Dr. Hebert explained: “Sepsis[14]
    14    Sepsis is “a potentially life-threatening, systemic response of the
    immune system[.]” (Merriam-Webster’s Medical Dict. Online (2023)
     [as of Feb. 27,
    2023], archived at .)
    14
    occurs when there is infection in the blood that causes a combination of
    effects including bacterial proliferation in the organs. The infection
    overwhelms the body’s responses, and it becomes a race between doctors
    providing antibiotics to fight the infection and correcting metabolic
    abnormalities versus the infection overtaking the organ function. [¶] . . .
    Obstetricians see chorioamnionitis commonly. It is well known that a certain
    percentage of babies inevitably succumb to this condition, and it is without
    any negligence on behalf of the obstetrician. We do know that each newborn
    is not equally equipped to fight off infection and we know that each mother’s
    bacterial flora are unique, but it would be speculative for any expert to claim
    they know why this particular baby failed to survive when a majority of
    babies in the same circumstance would have survived. This is not something
    the obstetrician can foresee.”
    3.    Dr. Friedlich’s Declaration
    Dr. Friedlich is double board certified in neonatology and pediatrics.
    Based on the same medical records and deposition testimonies, Dr. Friedlich
    opined “with a very high degree of medical probability” that the baby’s
    “outcome would have been the same even if the infant was delivered up to 12
    hours earlier.”
    Dr. Friedlich explained the laboratory results showed the fetus “grew”
    E. coli bacteria in its blood, and that “the medical evidence is clear this baby
    was infected at a very advanced staged [sic].” He stated “[t]he baby
    developed sepsis because of the level of E Coli [sic] infection found throughout
    the infant’s body,” and explained that “[t]he pathophysiology of bacteria
    entering the fetus and actually causing sepsis takes time.” He observed the
    placental pathology report showed there was “(1) acute funisitis, (2) acute
    chorioamnionitis, and (3) acute deciduitis, meaning all layers of the placenta
    15
    were involved.” Highlighting that “there was meconium noted within
    macrophages (white blood cells that engulf and digest microbes and foreign
    substances),” Dr. Friedlich explained it is “a well-known medical fact” that
    “[i]t takes approximately 12 hours for macrophage cells to digest and
    incorporate meconium material.” He further opined that, “in hindsight, the
    mother was infected with chorioamnionitis” and “[t]he fetal tachycardia was
    indicative of the fetus being infected in utero and [having gone] into sepsis in
    utero due to the infection.”
    Dr. Friedlich noted “the cord gasses obtained by Dr. Vong were not
    consistent with hypoxic ischemic encephalopathy” because the “[v]enous cord
    gasses were 7.17 and arterial cord gasses were 7.07,” and “to cause brain
    damage,” the cord gasses typically “have to be less than 7.” It was his opinion
    the “ ‘moderate acidosis’ observed was due to the infant’s infection,” and “not
    hypoxia.” He further explained the reason the fetus was still alive in utero
    was because “[the] placenta was working hard to oxygenate” the fetus and
    “[w]hen you have sepsis, vessels dilate, and the heart has to pump a lot faster
    to accomplish tissue perfusion.” Although the “infection created a congenital
    pneumonia in the baby[, s]ince the baby does not use her lungs in utero, the
    baby is not technically affected by the pneumonia as long as she has placental
    support.” However, “[a]s soon as you detach the baby from the placenta, the
    lungs (which were very sick with infection) will not be able to function” and
    “the baby becomes very sick and goes into septic shock.” According to
    Dr. Friedlich, “congenital infection affects 3 out of every 1,000 babies,” and
    “there is no way for doctors to assess the baby’s lungs in utero” and “there
    was no way Dr. Vong could have known this result would occur.”
    16
    B.    Plaintiffs’ Opposition and Opposition Evidence
    In opposition to the motion, Plaintiffs submitted an expert declaration
    from Dr. James J. Ingaglio and excerpts of Llorico’s deposition testimony,
    among other evidence.
    1.     Llorico’s Deposition Testimony
    Llorico confirmed she made a 10:00 a.m. entry on May 19 in the LD
    flowsheet, reporting a fetal heart rate of 160 beats per minute coupled with a
    late deceleration. She testified “[l]ate decelerations are not normal.” The late
    deceleration did give her cause for concern regarding the condition of the
    fetus, and so she performed fetal interventions, including administering IV
    fluids to Chimal. By 10:30 a.m., the late deceleration had resolved but
    Llorico noted fetal tachycardia of 175 to 180 heartbeats per minute. The fetal
    tachycardia concerned her and was the reason she called Dr. Vong at
    10:37 a.m.
    2.     Dr. Ingaglio’s Declaration
    Dr. Ingaglio is board certified in obstetrics and gynecology, and stated
    he was familiar with the standard of care in that practice and could
    “competently testify to the standard of care and the cause of death of [the]
    baby.” Like Dr. Hebert and Dr. Friedlich, he based his opinions on his review
    of Parkview’s medical records, including the strip, the LD flowsheet,
    Dr. Carsten’s medical records and reports by a primary care physician;
    CHOC’s medical records and autopsy report; and Dr. Vong’s deposition
    testimony.
    Dr. Ingaglio began by summarizing the medical facts on which he relied
    for his opinion. Specifically, he noted Chimal “[d]uring her course of
    labor, . . . develop[ed] maternal fever (102.5) and maternal tachycardia
    consistent with chorioamnionitis.” “Fetal heart tones were noted for fetal
    tachycardia with a baseline between 175 and 180 [beats per minute]. There
    17
    was moderate variability but there were repetitive late decelerations despite
    resuscitative efforts.” He observed “[t]hick meconium was noted at C-section”
    and the baby was taken to the NICU for respiratory distress shortly upon
    birth.
    Dr. Ingaglio also highlighted what he considered to be the “[c]ritical
    timelines” on May 19 (boldface and underline omitted), including that:
    Category II tracing began at 5:00 a.m. and continued to 10:00 a.m. with late
    decelerations; Chimal was given ampicillin at 5:30 a.m.; fetal tachycardia
    began at 10:30 a.m., with late decelerations recorded at 11:00 a.m.; Dr. Vong
    was made aware at 11:05 a.m. that Chimal had a fever of 102.5 degrees with
    no cervical change and there was fetal tachycardia with late decelerations;
    those conditions continued up until 12:00 p.m. when Dr. Vong ordered the
    cesarean section; Dr. Vong arrived into the operating room at 12:42 p.m. and
    surgery began at 12:56 p.m.; and finally, thick meconium was present at
    delivery at 1:03 p.m.
    Under the heading “Breach of Standard of Care” (boldface and some
    capitalization omitted), Dr. Ingaglio rendered the following opinion:
    “Throughout the labor induction, there were several instances of late
    decelerations and fetal tachycardia. The nurse contacted Dr. Vong [at]
    10:37 a.m on 5/19/2018 and advised Dr. Vong that there were late
    decelerations present. From 0700 to 1050, there was no cervical change
    (5/90/-1 for almost 4 hours/failure to progress). At 1100, this patient had fetal
    tachycardia (HR-170’s) and maternal temperature of 102.5. Dr. Vong
    ordering additional medications only delayed delivery especially in the
    presence of late fetal heart rate decelerations. For an expert to claim that the
    outcome would have been the same even if Dr. Vong had decided to deliver
    this baby sooner does not make sense. The longer the baby remained
    18
    undelivered the more damage was done as a result of the APGAR of 1 at 1
    minute and 1 at 5 minutes and cord gases of 7.07 arterial and 7.17 venous.
    [¶] From 1100 to 1256/start of surgery, there was a 2-hour delay. If this C-
    section was called at 1100 [at] the latest and surgery started at 1130 or
    sooner, more likely than not this baby would be alive and well. This 2-hour
    delay[15] was catastrophic and resulted in [the baby’s] demise from meconium
    aspiration and respiratory distress.”
    C.    Dr. Vong’s Evidentiary Objections
    Dr. Vong filed written evidentiary objections to the following four
    statements in Dr. Ingaglio’s declaration on various grounds, including that
    the challenged statement was vague and ambiguous, lacked foundation,
    lacked a basis for expert opinion, assumed facts not in evidence, and was
    speculative, unintelligible and not relevant: (1) “ ‘The nurse contacted Dr.
    Vong at 10:37 on 5/19/2018 and advised Dr. Vong that there were late
    decelerations present.’ ” (2) “ ‘Dr. Vong ordering additional medications only
    delayed delivery especially in the presence of late fetal heart rate
    decelerations.’ ” (3) “ ‘The longer the baby remained undelivered, the more
    damage was done as a result of APGAR of 1 at 1 minute, 1 at 5 minutes, and
    cord gases of 7.07 arterial and 7.17 venous.’ ” And (4) “ ‘From 1100 to
    1256/start of surgery, there was a 2-hour delay. If this C-section was called
    15     We recognize the delay between when Dr. Ingaglio believed Dr. Vong
    should have called for surgery and when the cesarean actually began would
    be less than two hours had the surgery not started until 11:30 a.m. But given
    that Dr. Ingaglio emphasized that (1) a nurse made Dr. Vong aware of the
    late decelerations at 10:37 a.m. (which was two hours before the 12:56 p.m.
    start time), and (2) Dr. Ingaglio opined the outcome would have been
    different had the surgery started at 11:00 a.m. at “the latest” (italics added),
    we do not view the potential discrepancy of up to half an hour as
    consequential to his opinion.
    19
    at 1100 the latest and surgery started at 1130 or sooner, more likely than not
    this baby would be alive and well.’ ”
    The trial court did not rule on any of Dr. Vong’s objections.
    We note here that Dr. Vong did not object to Dr. Ingaglio’s expert
    qualifications. Nor did she object to his conclusion that the “2-hour delay was
    catastrophic” and resulted in the baby’s “demise from meconium aspiration
    and respiratory distress.”
    D.    Trial Court’s Ruling on Summary Judgment
    The trial court granted Dr. Vong’s summary judgment motion, finding
    she had met her initial burden of showing that Plaintiffs could not establish
    breach of duty or causation. Turning to Dr. Ingaglio’s declaration to
    determine if Plaintiffs carried their shifted burden of production, the trial
    court acknowledged it understood it was Dr. Ingaglio’s opinion that “ ‘Dr.
    Vong ordering additional medications only delayed delivery especially in the
    presence of the late fetal heart rate decelerations.’ ” The court further
    understood it was Dr. Ingaglio’s opinion “the two-hour delay between the
    time the patient showed fetal tachycardia and maternal temperature of 102.5
    around 11:00am to 12:56pm when the C-section, surgery began ‘was
    catastrophic and resulted in [the baby’s] demise from meconium aspiration
    and respiratory distress.’ ”
    But the trial court found “[t]he problem with Dr. Ingaglio’s testimony
    . . . [wa]s that he does not state Dr. Vong’s conduct, including ordering
    medications or performing the C-section breached the applicable standard of
    care.” The court also found problematic that Dr. Ingaglio did not “state that
    Dr. Vong’s actions or omissions were a substantial factor in causing Plaintiffs’
    harm within a reasonable medical probability,” but instead he “merely
    state[d] that it would be ‘more likely than not’ that the baby would have
    20
    survived had it been delivered earlier.” Finally, the court found the opinion
    lacking because “Dr. Ingaglio fail[ed] to provide a reasoned explanation for
    his conclusion” and “d[id] not refute or contradict the well-reasoned and
    detailed explanation by Dr. Friedlich as to why delivery up to 12 hours
    [earlier] wouldn’t have made a difference.” Rather, the court noted
    “Dr. Ingaglio merely state[d] that the expert’s conclusion ‘does not make
    sense,’ without adequately explaining why.”
    Because the trial court concluded that Plaintiffs failed to meet their
    burden of producing evidence to establish a triable issue of fact as to Dr.
    Vong’s negligence, it also found for Dr. Vong on the IIED cause of action
    because Plaintiffs had not produced evidence to show “any other extreme or
    outrageous conduct.” The court entered judgment in favor of Dr. Vong and
    dismissed the entire action with prejudice. Plaintiffs timely appealed from
    the judgment of dismissal.
    DISCUSSION
    I.
    Standard of Review and General Principles
    We review an order granting summary judgment de novo.16 (Gonzalez
    v. Mathis (2021) 
    12 Cal.5th 29
    , 39 (Gonzalez).) “ ‘In practical effect, we
    assume the role of a trial court and apply the same rules and standards
    which govern a trial court’s determination of a motion for summary
    judgment.’ ” (Shugart v. Regents of University of California (2011) 
    199 Cal.App.4th 499
    , 504−505 (Shugart); Hernandez v. KWPH Enterprises (2004)
    16    Dr. Vong asserts “the standard of review applicable to this appeal is
    that of abuse of discretion.” (Capitalization and boldface omitted.) We reject
    this point without further discussion, as it is unsupported by any citation to
    legal authority and it is patently wrong.
    21
    
    116 Cal.App.4th 170
    , 175 [“The appellate court ‘must assume the role of the
    trial court and redetermine the merits of the motion’ using the same
    standards required below.”].)
    A defendant seeking summary judgment bears “the burden of
    persuasion” that one or more elements of the cause of action in question
    cannot be established or that there is a complete defense to it. (Aguilar v.
    Atlantic Richfield Co. (2001) 
    25 Cal.4th 826
    , 850 (Aguilar).) The defendant
    also “bears an initial burden of production to make a prima facie showing”
    that no triable issue of material fact exists; if he carries his burden of
    production, “he causes a shift, and the opposing party is then subjected to a
    burden of production of his own to make a prima facie showing of the
    existence of a triable issue of material fact.” (Ibid.; Code Civ. Proc.,17 § 437c,
    subds. (o), (p)(2).)
    In determining whether there is a triable issue of material fact, we
    consider all the evidence presented on the motion for summary judgment
    except that to which objections were sustained. (Gonzalez, supra, 12 Cal.5th
    at p. 39; Garrett v. Howmedica Osteonics Corp. (2013) 
    214 Cal.App.4th 173
    ,
    181 (Howmedica).) “ ‘We liberally construe the evidence in support of the
    party opposing summary judgment and resolve doubts concerning the
    evidence in favor of that party.’ ” (Gonzalez, at p. 39.) “ ‘We accept as
    undisputed facts only those portions of the moving party’s evidence that are
    not contradicted by the opposing party’s evidence. . . . In other words, the
    facts alleged in the evidence of the party opposing summary judgment and
    the reasonable inferences therefrom must be accepted as true.’ ” (Hanson v.
    17   All further undesignated statutory references are to the Code of Civil
    Procedure.
    22
    Grode (1999) 
    76 Cal.App.4th 601
    , 604 (Hanson), italics added; see also
    Birschtein, supra, 92 Cal.App.4th at p. 999 [on de novo review of an award of
    summary judgment, “our account of the facts is presented in the light most
    favorable to the nonmoving party below, in this case plaintiff, and assumes
    that, for purposes of our analysis, her version of all disputed facts is the
    correct one”].)
    II.
    The Trial Court Erred in Granting Summary Judgment
    on the Professional Negligence and Wrongful Death Causes of Action
    On appeal, Plaintiffs do not dispute Dr. Vong carried her initial burden
    of production to establish that no triable issues of material fact exist as to
    breach of duty and causation on the negligence cause of action.18 Plaintiffs
    contend, however, that they satisfied their shifted burden of production
    because Dr. Ingaglio’s declaration sufficiently presented conflicting evidence
    on both elements to preclude summary judgment. As we shall explain, we
    agree with Plaintiffs.
    We conclude, as the trial court did, that with Dr. Hebert’s and
    Dr. Friedlich’s declarations, Dr. Vong met her initial burden of production to
    establish she did not fall below the standard of care and that she did not
    negligently cause the baby’s death. Dr. Hebert opined the standard of care
    did not require Dr. Vong to order delivery by immediate cesarean before the
    18    “ ‘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 professional’s negligence.’ ” (Burgess v. Superior Court (1992) 
    2 Cal.4th 1064
    , 1077.)
    23
    May 19 12:00 p.m. timeframe because the fetal heart rate tracing was still a
    Category II strip, and it was appropriate for Dr. Vong to first treat Chimal’s
    fever and chorioamnionitis with antibiotics to allow her to progress to a
    vaginal delivery. Dr. Friedlich opined the baby’s “outcome would have been
    the same” even if Dr. Vong had ordered delivery by cesarean “up to 12 hours
    earlier,” and Dr. Hebert largely agreed. Although not explicitly stated, both
    experts appear to suggest the baby would have succumbed to sepsis because
    of the advanced in utero E. coli infection. When, as here, a defendant in a
    medical malpractice case moves for summary judgment and supports her
    motion with expert declarations that her conduct fell within the community
    standard of care and did not proximately cause the resulting injury, “ ‘[s]he is
    entitled to summary judgment unless the plaintiff comes forward with
    conflicting expert evidence.’ ” (Munro v. Regents of University of California
    (1989) 
    215 Cal.App.3d 977
    , 985, italics added.)
    We turn to Plaintiffs’ opposition evidence, specifically Dr. Ingaglio’s
    declaration, to determine whether it sufficiently created a conflict in the
    evidence as to breach of duty or causation. In doing so, we are mindful that
    “when considering the declarations of the parties’ experts, we liberally
    construe the declarations for the plaintiff’s experts and resolve any doubts as
    to the propriety of granting the motion in favor of the plaintiff.” (Powell v.
    Kleinman (2007) 
    151 Cal.App.4th 112
    , 125–126; see Hanson, supra, 76
    Cal.App.4th at p. 604 [“ ‘the moving party’s affidavits are strictly construed
    while those of the opposing party are liberally construed’ ”].) “In light of the
    rule of liberal construction, a reasoned explanation required in an expert
    declaration filed in opposition to a summary judgment motion need not be as
    detailed or extensive as that required in expert testimony presented in
    support of a summary judgment motion or at trial.” (Howmedica, supra, 214
    24
    Cal.App.4th at p. 189, italics added.) And where there is a conflict in the
    evidence, “ ‘the facts alleged in the evidence of the party opposing summary
    judgment and the reasonable inferences therefrom must be accepted as
    true.’ ” (Hanson, at p. 604, italics added; accord Birschtein, supra, 92
    Cal.App.4th at p. 999.)
    Here, it is also instructive to look at application of the rule of liberal
    construction to expert declarations filed in opposition to a summary judgment
    motion in other medical malpractice actions. We begin with Hanson, supra,
    
    76 Cal.App.4th 601
    .
    In Hanson, two surgeons who were sued for professional negligence
    moved for summary judgment on the elements of breach of duty and
    causation. (Hanson, supra, 76 Cal.App.4th at pp. 604–605.) Plaintiff was
    diagnosed with spinal stenosis and, after he underwent surgery to relieve the
    compression of his spinal canal, plaintiff experienced swelling and pain in his
    neck, an accumulation of blood in the area, and significant curvature of the
    upper spine. (Ibid.) Experts, in support of the surgeons’ motion, opined the
    surgery was appropriate for plaintiff’s condition and performed within the
    applicable standard of care, and that plaintiff’s postoperative complications
    are known complications with the surgery and not the result of any
    negligence by the surgeons. (Id. at p. 605.)
    In opposition, plaintiff’s “equally qualified” expert opined that the
    surgeons acted below the standard of care because they “ ‘should have’ ”
    further investigated the cause of the bleeding at the time of the surgery;
    discovered plaintiff’s internal bleeding and other medical conditions before
    his discharge from the hospital; explored and sutured plaintiff’s dura leak
    instead of just packing it with absorbent material; and immediately returned
    plaintiff to surgery when he awoke with symptoms of a nerve injury.
    25
    (Hanson, supra, 76 Cal.App.4th at p. 605.) The expert also opined “ ‘it was
    apparent that the surgical procedure that was performed . . . had not only
    failed to improve the severe congenital spinal stenosis, but indeed [it] had
    become worse.’ ” (Id. at pp. 605−606.) On causation, the expert opined
    plaintiff’s nerves were injured during the surgery and the care provided by
    the surgeons “ ‘contributed to and was a substantial factor or cause in
    bringing about [plaintiff’s] current injuries.’ ” (Id. at p. 606.)
    The trial court granted the surgeons summary judgment because it
    found the declaration of plaintiff’s expert “lacked a factual basis.” (Hanson,
    supra, 76 Cal.App.4th at p. 606.) On appeal, the surgeons argued plaintiff’s
    expert had not shown breach of duty or causation because his declaration
    focused largely on what the surgeons “ ‘should’ ” have done when faced with
    the complications the plaintiff suffered. (Id. at p. 607.) The Court of Appeal
    reversed. Noting that “ ‘professional prudence is defined by actual or
    accepted practice within a profession, rather than theories about what
    “should” have been done,’ ” the court found “nothing theoretical about the
    [plaintiff’s expert] declaration.” (Ibid.) Rather, it clearly asserted specific
    “factual breaches” in explaining what the surgeons failed to do. (Ibid.) The
    court also found the expert had adequately stated plaintiff suffered nerve
    damage during surgery and the surgeons’ care caused his injuries. (Ibid.)
    Although it found “the style” of plaintiff’s expert declaration was “at times a
    bit obtuse,” the court concluded plaintiff was “entitled to all favorable
    inferences that may reasonably be derived from th[e] declaration,” which
    “inferences include a reading of the declaration to state that the nerve
    damage [plaintiff] suffered during surgery was caused by the conduct of
    defendants, which conduct fell below the applicable standard of care.
    Nothing more was needed.” (Id. at pp. 607−608.)
    26
    In Shugart, a case involving postoperative complications following a
    vaginal repair surgery employing surgical mesh, a gynecologist similarly
    moved for summary judgment on the elements of breach of duty and
    causation on a professional negligence claim. (Shugart, supra, 199
    Cal.App.4th at pp. 501−504.) The trial court granted summary judgment,
    concluding the plaintiff’s expert declaration was “deficient” and lacked
    evidentiary value because it “failed to refer to the materials” on which the
    expert relied. (Id. at pp. 503−504, 505.) The Court of Appeal reversed,
    concluding the foundational facts and medical records on which the plaintiff’s
    expert relied were before the trial court to support the expert’s opinion. (Id.
    at pp. 505−506.) The expert had stated he reviewed the medical records and
    “explained his opinions in part by references to notations in the medical
    records of [defendant] that were before the court in support of the moving
    papers.” (Ibid.)
    Relevant too, the Shugart court concluded that although the expert’s
    declaration was “not a model of specificity,” it was sufficient to raise a triable
    issue of fact as to whether the gynecologist’s treatment of plaintiff met the
    standard of care and whether that care caused or contributed to plaintiff’s
    alleged injuries. (Shugart, supra, 199 Cal.App.4th at p. 506.) The plaintiff’s
    medical expert had opined that the gynecologist: (1) cut the patient’s vaginal
    wall and allowed bacteria to enter the tissues, thereby weaking the healing
    incision and eroding the supporting mesh, and (2) allowed exposed vaginal
    mesh to remain vulnerable to bacteria for four weeks without excising it,
    thereby further interfering with the healing process. (Ibid.) “Indulging all
    reasonable inferences in support of [the plaintiff expert’s] testimony,” the
    court found “his declaration adequately raise[d] a triable issue as to whether
    or not [plaintiff] was unnecessarily exposed to the postoperative infection she
    27
    suffered; whether the infection was aggravated by [the gynecologist’s] care,
    including the failure to timely excise the protruding mesh; and whether the
    recuperation time was unnecessarily prolonged, adversely affecting
    [plaintiff’s] overall healing and ability to timely and adequately respond to
    the later-performed corrective procedures. That was enough to defeat [the
    summary judgment] motion.” (Ibid.)
    In this case, Dr. Ingaglio, like Dr. Hebert, is board certified in
    obstetrics and gynecology. Dr. Ingaglio relied on the same medical records
    and materials relied on by Dr. Vong’s experts to provide the bases of his
    opinions. And like plaintiff’s expert in Shugart, he “explained his opinions in
    part by [specific] references to notations in the medical records” that were
    before the trial court on the motion. (Shugart, supra, 199 Cal.App.4th at
    pp. 505−506.) He discerned these critical facts from the medical records:
    “Throughout the labor induction, there were several instances of late
    decelerations and fetal tachycardia.” From 7:00 a.m. to 10:50 a.m., “there
    was no cervical change,” that is Chimal remained “5/90/1-1” (or as Dr. Vong
    spelled out in her operational report, “5 cm, 90 percent effaced and -1
    station”) “for almost 4 hours” with “failure to progress.” At 11:00 a.m., “this
    patient had fetal tachycardia (HR-170’s [or heart rate in 170s]) and maternal
    temperature of 102.5.” These medical facts are not disputed.
    However, Dr. Ingaglio’s interpretation of the undisputed medical facts
    differed from that of Dr. Vong’s experts. Contrary to Dr. Friedlich and
    Dr. Hebert, Dr. Ingaglio opined that given this set of facts, which he
    explained Dr. Vong was made aware of by the nursing staff, “Dr. Vong
    ordering additional medications only delayed delivery especially in the
    presence of late fetal heart rate decelerations” and that the approximately “2-
    hour delay [in delivery] was catastrophic and resulted in [the baby’s] demise
    28
    [or death] from meconium aspiration and respiratory distress.” He further
    opined that had Dr. Vong ordered intervention by cesarean at 11:00 a.m. at
    “the latest and surgery started at 11[:30 a.m.] or sooner, more likely than not
    this baby would be alive and well.”
    Dr. Ingaglio’s declaration is entitled to all favorable inferences that
    may reasonably be derived from it. Indulging all favorable inferences, it is
    reasonably clear to us that it was Dr. Ingaglio’s opinion the standard of care
    required delivery by immediate cesarean once Dr. Vong became aware the
    mother and fetus were simultaneously experiencing fetal tachycardia,
    recurring late decelerations, and an elevated maternal fever that had not
    improved with antibiotics. And that because Dr. Vong did not order the
    cesarean at 11:00 a.m., and did not complete the surgery until two hours
    later, she breached the standard of care. Dr. Ingaglio’s opinion conflicts with
    Dr. Hebert’s opinion that the standard of care allowed Dr. Vong to continue
    attempting to treat the presumed chorioamnionitis with antibiotics in utero
    after 11:00 a.m. Nothing more is needed. Dr. Ingaglio’s medical opinion is
    sufficient to raise conflicting evidence on breach of duty.
    We disagree with the trial court’s view that Dr. Ingaglio’s declaration
    was somehow fatally flawed because it “does not [explicitly] state Dr. Vong’s
    conduct including ordering medications or performing the C-section breached
    the applicable standard of care.” Under a liberal construction, with all
    favorable inferences drawn, we believe Dr. Ingaglio’s declaration did just
    that. He asserted specific “factual breaches” in explaining what he believed
    Dr. Vong failed to do. (Hanson, supra, 76 Cal.App.4th at p. 607.) Moreover,
    after setting out his credentials and expertise in obstetrics and
    gynecology⎯which went unchallenged by Dr. Vong⎯Dr. Ingaglio averred he
    was “readily familiar with the standard of care for the providers” in that
    29
    specialty. He averred he could “competently testify to the standard of care
    and the cause of death.” He then directed his opinions on Dr. Vong’s conduct
    under the heading, “Breach of Standard of Care.” (Boldface and underline
    omitted.) Although the style of his declaration and his opinions might not be
    the model of specificity, this was adequate.
    Likewise, Dr. Ingaglio’s declaration was adequate to raise a conflict in
    the evidence on causation. Responding to Dr. Hebert’s and Dr. Friedlich’s
    opinions, he asserted that “[f]or an expert to claim that the outcome would
    have been the same even if Dr. Vong had decided to deliver this baby sooner
    does not make sense.” He explained that “[t]he longer the baby remained
    undelivered the more damage was done as a result of the APGAR of 1 at 1
    minute and 1 at 5 minutes and cord gases of 7.07 arterial and 7.17 venous.”
    It was his medical opinion that had Dr. Vong called for the cesarean at
    11:00 a.m. and performed the surgery by 11:30 a.m., “more likely than not
    this baby would be alive and well.” He thus concluded the approximately
    two-hour delay in delivering Chimal’s baby was “catastrophic” and “resulted
    in [the baby’s] demise from meconium aspiration and respiratory distress.”
    To demonstrate the defendant’s actions were the proximate cause of the
    harm in a wrongful death arising from medical negligence, the plaintiff must
    prove by a reasonable medical probability based on competent expert
    testimony that a “defendant’s conduct more likely than not was a substantial
    factor (a cause in fact) of the plaintiff’s alleged injury.” (Uriell v. Regents of
    University of California (2015) 
    234 Cal.App.4th 735
    , 746, italics added.) In
    other words, “the evidence must be sufficient to allow the jury to infer that in
    the absence of the defendant’s negligence, there was a reasonable medical
    probability the plaintiff would have obtained a better result.” (Alef v. Alta
    Bates Hospital (1992) 
    5 Cal.App.4th 208
    , 216 (Alef), italics added [reversing
    30
    entry of nonsuit for jury determination of whether failure to monitor heart
    rate and detect repeated decelerations indicating fetal distress caused brain
    damage].) The trial court found fault with Dr. Ingaglio’s declaration because
    “[h]e merely state[d] that it would be ‘more likely than not’ that the baby
    would have survived had it been delivered earlier,” instead of stating
    explicitly that “Dr. Vong’s actions or omissions were a substantial factor in
    causing Plaintiff’s harm within a reasonable medical probability.” However,
    these two standards are the same: “to ‘a reasonable medical
    probability’ . . . means more likely than not.” (Kline v. Zimmer (2022) 
    79 Cal.App.5th 123
    , 131.)
    Dr. Ingaglio opined it was more likely than not the baby would be “alive
    and well” if Dr. Vong had not delayed delivery by cesarean by two hours. He
    explained the fetal tachycardia, maternal fever, and late decelerations were
    indicators that the fetus was suffering harm, and thus, “[t]he longer the baby
    remained undelivered the more damage was done[.]” Although he cites post-
    birth APGAR scores (“1 at 1 minute and 1 at 5 minutes”) and cord gas
    readings (“7.07 arterial and 7.17 venous”) as evidence of the damage (which
    Dr. Vong would not have had access to during labor), these numbers tend to
    support Dr. Ingaglio’s point that the fetus’s health continued to deteriorate
    the longer it remained undelivered.19 Low APGAR scores indicate poor
    19     We also note that Dr. Hebert’s declaration lends support to Dr.
    Ingaglio’s opinion that time was of the essence. Dr. Hebert opined that when
    an “infection overwhelms the body’s responses, . . . it becomes a race between
    doctors providing antibiotics to fight the infection and correcting metabolic
    abnormalities versus the infection overtaking the organ function.” Moreover,
    he stated that although “a certain percentage of babies inevitably succumb to
    this condition [chorioamnionitis], . . . it would be speculative for any expert to
    claim they know why this particular baby failed to survive when a majority of
    babies in the same circumstance would have survived.” It is a reasonable
    31
    neonatal health and, as Dr. Friedlich explained, once cord gas levels drop
    below seven, the fetus may suffer brain damage. Dr. Ingaglio then concluded
    the approximately two-hour delay was the critical window during which Dr.
    Vong’s failure to deliver caused the baby’s death from meconium aspiration
    and respiratory distress. It is in this context that he said: “For an expert to
    claim that the outcome would have been the same even if Dr. Vong had
    decided to deliver this baby sooner does not make sense.” His opinion on
    causation was sufficient to satisfy Plaintiffs’ burden of production to preclude
    summary judgment on Plaintiffs’ first cause of action for negligence.
    Dr. Vong’s arguments on appeal do not persuade us differently. She
    asserts Dr. Ingaglio’s opinion⎯specifically, that “ ‘Dr. Vong ordering
    additional medications only delayed delivery especially in the presence of late
    fetal heart rate decelerations’ ”⎯is “too vague, confusing, and unintelligible
    to constitute a reliable standard of care opinion,” and he “provided no
    foundation or ‘reasoned explanation’ for his opinion.” For those reasons, Dr.
    Vong contends his statement “should be excluded” on appeal by this court.
    She further asserts “Dr. Ingaglio’s causation hypothetical is inadmissible and
    was properly excluded” by the trial court.
    As we have noted, the trial court did not rule on Dr. Vong’s evidentiary
    objections to portions of Dr. Ingaglio’s declaration, including the statements
    she now asserts this court should exclude. Before ruling on a summary
    judgment motion, “[t]he trial court must rule expressly” on any evidentiary
    objections raised by the parties. (Reid v. Google, Inc. (2010) 
    50 Cal.4th 512
    ,
    531−532 (Reid).) If the court does not expressly admit or exclude the
    inference from Dr. Ingaglio’s declaration that he believes an earlier delivery
    of the baby may have obtained “a better result.” (Alef, supra, 5 Cal.App.4th at
    p. 216, italics added.)
    32
    challenged evidence, “it is presumed that the objections have been overruled,
    the trial court considered the evidence in ruling on the merits of the
    summary judgment motion, and the objections are preserved on appeal.” (Id.
    at p. 534.) But the burden is on the objector to renew the objections in the
    appellate court. (Ibid.) Otherwise, on our de novo determination, we “ ‘take
    the facts from the record that was before the trial court when it ruled on [the
    summary judgment] motion.’ ” (Gonzalez, supra, 12 Cal.5th at p. 39.)
    Although Dr. Vong states “the trial court correctly excluded Dr.
    Ingaglio’s conclusory and speculative opinions,” the record does not reveal
    that the trial court expressly ruled on her evidentiary objections. So we infer
    she means the trial court effectively excluded Dr. Ingaglio’s opinions by
    discounting their value in granting summary judgment. But absent an
    express ruling, the objections are impliedly overruled. (Reid, supra, 50
    Cal.4th at p. 534.)
    And while Dr. Vong states at the conclusion of her argument on the
    merits that Dr. Ingaglio’s opinions “should likewise not be considered on
    appeal,” this is not sufficient to renew her evidentiary objections before this
    court. (See Flake v. Neumiller & Beardslee (2017) 
    9 Cal.App.5th 223
    , 229,
    fn. 4 [declining to consider objections that were “not separately headed or
    briefed on appeal”].) To borrow from Sherman v. Hennessy Industries, Inc.
    (2015) 
    237 Cal.App.4th 1133
    : “Here, our review encompasses all the evidence
    submitted by the parties, even though they raised numerous written
    evidentiary objections to the showing proffered by their adversary. Because
    the trial court did not expressly rule on the objections, we presume them to
    have been overruled. (Reid[, supra, 50 Cal.4th at p. 534].) As no objection
    has been reasserted on appeal, all have been forfeited.” (Sherman, at p. 1139,
    fn. 1.) Having failed to properly renew her evidentiary objections on appeal,
    33
    Dr. Vong has forfeited them and we have no occasion to revisit them and
    grant her request to exclude Dr. Ingaglio’s opinion on appeal.20
    Our task is only to determine whether Plaintiffs have satisfied their
    burden to produce contradictory evidence on the elements of breach of duty
    and causation, not to weigh the persuasive value or the merits of Dr.
    Ingaglio’s medical conclusions. (See Aguilar, 
    supra,
     25 Cal.4th at p. 850 [the
    party opposing summary judgment has only a burden of production, not a
    burden of persuasion].) The trial court improperly weighed the
    persuasiveness of plaintiff’s expert against defendant’s experts. In finding
    Dr. Ingaglio’s declaration insufficient, the trial court criticized Dr. Ingaglio
    for failing to “refute or contradict the well-reasoned and detailed explanation
    by Dr. Friedlich as to why delivery up to 12 hours wouldn’t have made a
    difference.” Plaintiffs have only a burden of production to make a prima facie
    showing of the existence of a triable issue of material fact. (Ibid.) As our
    high court explained in Aguilar, “[a] burden of production entails only the
    presentation of ‘evidence,’ ” not “the ‘establish[ment]’ through such evidence
    of a requisite degree of belief.’ ” (Ibid.) And a “prima face showing is one that
    is sufficient to support the position of the party in question. [Citation.] No
    more is called for.” (Id. at p. 851.)
    Because we conclude triable issues of material fact exist as to Dr.
    Vong’s negligence and causation, we also reverse as to Plaintiffs’ wrongful
    death cause of action. (Norgart v. Upjohn Co. (1999) 
    21 Cal.4th 383
    , 390 [To
    prevail on a wrongful death claim, the plaintiff must prove “(1) a ‘wrongful
    20    Notwithstanding forfeiture, we would conclude Dr. Ingaglio’s
    declaration is admissible for the same reasons we conclude it was sufficient to
    satisfy Plaintiffs’ shifted burden of production on summary judgment.
    34
    act or neglect’ on the part of one or more persons that (2) ‘cause[s]’ (3) the
    ‘death of [another] person.’ ”].)
    We express no opinion on the ultimate merits of Plaintiffs’ negligence
    and wrongful death causes of action, but on the record before us we conclude
    Plaintiffs satisfied their burden of production to make a prima facie showing
    of the existence of triable issues of material fact on breach of duty and
    causation. Summary judgment should not have been granted on the first and
    second causes of action.
    III.
    The Trial Court Properly Granted Summary Judgment
    as to Chimal’s IIED Cause of Action
    Chimal asserts the trial court erred in granting summary judgment on
    her IIED cause of action based on the lack of evidence that Dr. Vong engaged
    in “extreme or outrageous conduct.” We are sure Chimal (and Watson)
    suffered untold distress from the tragic loss of their baby. However, as we
    shall explain, that fact alone is insufficient as a matter of law to support an
    IIED cause of action. We thus conclude the trial court did not err on entering
    judgment in favor of Dr. Vong on the IIED cause of action.
    “A cause of action for intentional infliction of emotional distress exists
    when there is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with
    the intention of causing, or reckless disregard of the probability of causing,
    emotional distress; (2) the plaintiff’s suffering severe or extreme emotional
    distress; and (3) actual and proximate causation of the emotional distress by
    the defendant’s outrageous conduct.” ’ ” ’ ” (Hughes v. Pair (2009) 
    46 Cal.4th 1035
    , 1050 (Hughes).)
    “A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to
    exceed all bounds of that usually tolerated in a civilized
    35
    community.’ ” ’ ” (Hughes, 
    supra,
     46 Cal.4th at pp. 1050–1051.) “ ‘Liability
    has been found only where the conduct has been so outrageous in character,
    and so extreme in degree, as to go beyond all possible bounds of decency, and
    to be regarded as atrocious, and utterly intolerable[.]’ ” (Cochran v.
    Cochran (1998) 
    65 Cal.App.4th 488
    , 496 (Cochran), italics added.)
    In cases where California courts have found the defendant’s actions did
    rise to the requisite level of extreme and outrageous conduct, there generally
    was present an extra element of extreme callousness or base motives that
    made the conduct complained of outrageous. (See, e.g., Crouch v. Trinity
    Christian Center of Santa Ana, Inc. (2019) 
    39 Cal.App.5th 995
    , 1007–1008
    [corporate director and grandmother of the victim “[f]lying into a tirade at
    a 13-year-old girl who had been drugged and raped and yelling at her that
    she was stupid and it was her fault”]; KOVR-TV, Inc. v. Superior Court (1995)
    
    31 Cal.App.4th 1023
    , 1030 [television reporter recording three young children
    while he informed them that the mother who lived next door murdered her
    two children—their friends—and then killed herself]; McDaniel v. Gile (1991)
    
    230 Cal.App.3d 363
    , 373, 375 [attorney withholding legal services when the
    client would not grant him sexual favors].) In So v. Shin (2013) 
    212 Cal.App.4th 652
    , 656–657, for example, an anesthesiologist administered
    insufficient anesthesia and the plaintiff woke up and experienced pain during
    a dilation and curettage procedure following a miscarriage. When the
    plaintiff asked the doctor why she awoke during the procedure, the doctor
    became angry and came within inches of her with a container containing
    blood and possible fragments of the deceased fetus’s body parts. (Id. at
    p. 657.) The Court of Appeal concluded that “forcing a patient who had
    recently miscarried to look at what she believed to be her dismembered fetus
    was extreme and outrageous.” (Id. at p. 673.)
    36
    Plaintiffs have not produced evidence of that extra element of extreme
    callousness or base motives in Dr. Vong’s conduct.21 Relying on the same
    evidence underlying the negligence cause of action, including Dr. Ingaglio’s
    opinion that the approximately 2-hour delay was “catastrophic” and caused
    the baby’s death, Chimal contends Dr. Vong’s conduct was extreme and
    outrageous for the following reasons: Dr. Vong “knew (based on her medical
    training) that when the temperature of the mother was 102.5 that there was
    an infection setting in and the baby need[ed] to be delivered as soon as
    possible.” Dr. Vong “continued to push more medication and prolong the
    problem for the fetus,” while she was attending to other patients at other
    hospitals, even though she “knew what could happen to the mother and the
    fetus.” Dr. Vong called for the cesarean at 12:00 p.m. but stopped to write up
    her report, “instead of going straight to [the operating room] for immediate
    surgery.” As a result of Dr. Vong’s alleged conduct, Chimal asserts she “was
    subjected to emotional trauma after the baby was born because she could not
    hear the first cry of her baby,” who was immediately rushed to the NICU,
    while Chimal remained in the operating room “running [a] fever and
    depressed.” Chimal alleged “she suffered serious emotional distress from
    21     Plaintiffs contend the trial court erred in finding they did not submit
    the consultation report of Dr. Johnny Liquete with their opposition papers,
    and subsequently denying their request that the court review the report after
    the summary judgment hearing. The record does reflect this report was, in
    fact, before the trial court under a different exhibit number than the one
    listed by Plaintiffs. We need not address this contention of error because on
    our de novo determination of the merits, we have read and considered Dr.
    Liquete’s report. Dr. Liquete conducted a physical examination of the mother
    approximately two days after her cesarean section and documented that she
    still had a fever, elevated white blood cell count, and chorioamnionitis. These
    facts do not change our conclusion there is no triable issue of material fact as
    to Plaintiffs’ IIED cause of action.
    37
    witnessing the death of her baby caused by [Dr.] Vong’s negligence.” Here,
    we note the baby passed the next day at CHOC, when Chimal was still
    hospitalized at Parkview.
    While the evidence Chimal presents, fully credited, shows that Dr.
    Vong may have made decisions below the standard of care, it does not
    demonstrate that her actions were, as a matter of law, “ ‘so extreme in
    degree, as to go beyond all possible bounds of decency,’ ” or that they were
    “ ‘atrocious, and utterly intolerable.’ ” (Cochran, supra, 65 Cal.App.4th at
    p. 496.) Plaintiffs do not offer facts showing that extra element of extreme
    callousness or base motives necessary to elevate the conduct to the level of
    outrageousness required to support an IIED cause of action.
    Allegations of negligent conduct alone are insufficient to demonstrate
    intentional infliction of emotional distress, no matter how tragic the
    circumstances. For example, in Ochoa v. Superior Court (1985) 
    39 Cal.3d 159
    (Ochoa), a couple’s 13-year-old son became extremely ill while in a juvenile
    detention facility. (Id. at p. 163.) Both parents visited him, witnessed him in
    severe pain, and experienced extreme mental and emotional distress as a
    result. (Ibid.) By the next day, the boy had been diagnosed with bilateral
    pneumonia, had a temperature of 105 degrees, was hallucinating and
    vomiting, and had coughed up blood. (Id. at pp. 163–164.) The facility’s staff
    denied the increasingly distressed mother’s repeated requests to have her son
    seen by a private doctor, claiming the boy only had the flu. (Ibid.) A staff
    doctor told her he would give her son a penicillin shot, but the record did not
    indicate whether he ever did. (Id. at p. 163, fn. 3.) The mother was forced to
    leave, and her son subsequently died. (Id. at p. 164.)
    After the trial court sustained the defendants’ demurrers, the boy’s
    parents sought a writ of mandate to compel the court to set aside the order.
    38
    (Ochoa, supra, 39 Cal.3d at p. 164.) Although the California Supreme Court
    found the plaintiffs had pled facts sufficient to support claims for negligent
    infliction of emotional distress and deliberate indifference to serious medical
    needs in violation of state and federal constitutional protections, it concluded
    the alleged facts were insufficient to state a cause of action for IIED. (Id. at
    p. 165, fn. 5.) The Court reasoned, “although defendants conduct did cause
    the plaintiffs untold distress, it is evident that the defendants acted
    negligently rather than with the purpose of causing the plaintiffs emotional
    distress.” (Ibid.)
    The same is true here. Although Dr. Vong may have acted negligently
    in her care of Chimal, the asserted facts Plaintiffs rely on do not demonstrate
    an express intent to cause emotional distress to Chimal. Nor do they support
    a claim that Dr. Vong acted with reckless disregard of not just the possibility,
    but the high probability, of causing emotional distress. “A defendant’s
    conduct is in reckless disregard of the probability of causing emotional
    distress if [he] [she] has knowledge of a high degree of probability that
    emotional distress will result and acts with deliberate disregard of that
    probability or with a conscious disregard of the probable results.” (BAJI No.
    12.77.) Being aware that an adverse outcome is medically possible, is not the
    same as knowing that it is highly probable.
    Accordingly, we conclude Plaintiffs have not met their burden of
    producing evidence showing extreme and outrageous conduct by Dr. Vong.
    We affirm the trial court’s order entering judgment in favor of Dr. Vong on
    Chimal’s IIED cause of action.
    DISPOSITION
    The judgment is reversed with directions to the trial court to vacate the
    order granting summary judgment. The court shall enter a new order
    39
    granting summary adjudication of the third cause of action for intentional
    infliction of emotional distress and otherwise denying the motion for
    summary judgment or summary adjudication. Plaintiffs shall recover their
    costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
    DO, J.
    WE CONCUR:
    IRION, Acting P. J.
    DATO, J.
    40