By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Strategies

Former Director of Risk Management Services

California Hospital Medical Center

Los Angeles

Morgan Lynch, 2018 JD Candidate

Pepperdine University School of Law

Malibu, CA

News: A California court of appeals recently upheld a motion for summary judgment in a case involving the death of a child during birth. The decedent child was born in 2011 at a California hospital. The child was born unresponsive and was transferred to a neonatal ICU. After several months of testing and treatment, the child passed away due to a brain injury that occurred before the transfer to the NICU.

The family sued the hospital that operated the NICU and the physician, alleging medical malpractice, negligent infliction of emotional distress, and wrongful death. The defense brought a summary judgment motion, which was granted by the trial court. Despite some creative arguments by the plaintiff on appeal, the appeals court held in favor of the defendants, upholding the grant of the summary judgment motion.

Background: On Sept. 27, 2011, at 12:17 p.m., the decedent child was born at a California hospital. She was cared for and underwent testing at the hospital by nurses who communicated with the attending physician-pediatrician. The following morning, the baby was unresponsive and was then transferred to the NICU, a unit housed by the first hospital but operated by another hospital. At the time of transfer, the child was noted to have no heart rate or respiratory rate.

The neonatologist at NICU did not care for the decedent, nor was he consulted prior to her arrival at NICU. Until her arrival, the baby was under the care of the Fresno physician-pediatrician. The NICU neonatologist was a member of a neonatology physicians group and was responsible for providing care and treatment to patients in NICU. None of the nurses or staff for the first hospital aided the NICU.

When the baby was transferred to the NICU, the neonatologist took over ventilation with a bag mask and intubated her using an endotracheal tube. She was connected to an intravenous line and underwent further testing. Unfortunately, the baby died on June 18, 2012. It was later determined that the child died of complications resulting from a hypoxic brain injury that occurred on Sept. 28, 2011, before she was brought to the NICU physician for resuscitation.

The decedent’s parents filed suit against the neonatologist and the first hospital, alleging medical malpractice, negligent infliction of emotional distress, and wrongful death. None of the treating physicians were agents or employees of the first hospital. The defendants brought a motion for summary judgment in which the neonatologist proffered expert testimony from a physician who concluded that he did not deviate from the standard of care and that his treatment was not the cause of the baby’s death. The hospital offered testimony from a registered nurse and physician who provided similar opinions.

The plaintiff opposed the summary judgment motion and offered the declaration of an expert who stated that both defendants breached their respective standards of care. The defendants entered objections to the plaintiff’s expert declaration, which were sustained. As a result, the court entered summary judgment in favor of the defendants.

On appeal, the plaintiff argued that his expert used in opposition to the motion for summary judgment had adequate factual foundation for his expert opinion, and the trial court’s entry of summary judgment was error. The defense maintained its position that neither defendant was liable for negligence causing the unfortunate death of the child. The defense stressed that the hospital and NICU are distinct, separate entities, that the neonatologist did not care for the child until her transfer to NICU, and that the first hospital’s physician-pediatrician did not criticize the degree of care exercised by the neonatologist while treating the child.

The petitioner-plaintiff failed to comply with a local rule that requires parties to cite directly to the record or risk waiver of their factual contentions. As a result, the court of appeals deemed some of the petitioner’s arguments as waived. Furthermore, the petitioner failed to designate his expert witness declaration as part of the record, resulting in a record without expert evidence for the petitioner. Finally, the court held that the foundation on which the expert’s testimony relied was insufficient. The trial court’s summary judgment was ultimately affirmed by the court of appeals.

What this means to you: The admissibility of an expert witness report was the crux of this case. Medical malpractice cases typically require more expert witness testimony than many other areas of practice. As such, a strong understanding of the applicable rules of evidence, especially as to experts, is imperative for a favorable adjudication. The court of appeal noted that the petitioner’s expert was qualified, but the deficiency was in the foundation laid for his testimony. This raises two issues in the defense of medical malpractice cases: the requirement that experts be qualified under requirements applicable to experts, and the prohibition of conclusory testimony.

As to establishing an adequate foundation, first and foremost, facts must be preserved in the appellate record. At the trial level, the plaintiff’s expert opined that the hospital’s nurses should have diagnosed the case as a high-risk pregnancy and consulted a neonatologist early. The defense objected to this in part because the hospital that would have made such a determination was not a named defendant in the suit. The appeals court noted that the nurses involved in the case would not have the authority nor the duty to characterize the pregnancy as high-risk while it was assigned to a physician. However, attorneys frequently argue that while it is beyond the scope of practice for the registered nurse to diagnose, it is well within his or her scope to question the practice of the physician and initiate the chain of command if he or she becomes aware of an unusual order or practice that appears to breach the standard of care. In any event, to lay a factual foundation for an expert, one must develop an in-depth understanding of the facts of the case and competently set them forth with appropriate evidence. Courts are the gatekeepers of expert testimony, as well as other forms of evidence, and take that role seriously.

From the appeals court’s opinion, it is unclear why the plaintiff did not join the first hospital and physician-pediatrician. Failing to do so appears to have been a fatal flaw for the plaintiff, especially considering the defense’s emphasis on the separation of ownership between the hospital and NICU. It is possible that the testing and resuscitation attempts at the NICU occurred while the statute of limitations ran on any claims against the first hospital, and the limitation period expired by the time the plaintiff sued. Statutes of limitation usually are relatively short in medical malpractice cases, but many jurisdictions do use a discovery rule for the accrual of a cause of action — delaying the running of the statute of limitations until the plaintiff discovers or should reasonably discover the injury. Therefore, it behooves medical professionals and hospitals to make careful note of when a plaintiff’s statute of limitations begins and expires.

Most hospitals with a NICU maintain an emergency response team, similar to Rapid Response or Code Blue teams, that can be called to the delivery room at the first sign of fetal distress during birth. That way, critical interventions such as suctioning, airway maintenance, and resuscitation can be performed immediately, thus avoiding transportation delays to another part of the hospital. The neonatologist, if required, also could be called to the delivery room by the NICU response team. A contractual agreement between the hospital and the NICU that included a credentialing agreement between the medical staffs would have allowed this scenario.

Finally, the defense in this case faced a difficult set of facts that carried a risk that a jury may render a verdict based on the emotions elicited from the fact that a child died rather than based on the legal principles involved. For that reason, success pretrial was crucial. The attorneys for the defense in this case exhibited mastery of the Federal Rules of Evidence and were diligent with local rules. Their objections were pointed and well-taken by both courts. As a result, the attorneys were rewarded with a pretrial ruling in their client’s favor and an affirmation by the court of appeal. Hospitals and medical professionals should work closely with counsel from the start of the case and throughout the case to develop sufficient evidence during pretrial discovery to win the case on motions practice prior to trial, as medical malpractice cases almost always lend themselves to emotionally charged facts that will appeal to juror sympathies at trial.


Decided on March 16, 2017, in Court of Appeal of California, Case No. F072414.