Hernandez v. Qureshi CA2/5

Filed 8/19/20 Hernandez v. Qureshi CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

EDY HERNANDEZ, individually B290866

and as Guardian Ad Litem for Elias

Hernandez et al., (Los Angeles County

Super. Ct. No. BC620654)

Plaintiffs and Appellants,

v.

AZMATH QURESHI, M.D. et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Marc D. Gross, Judge. Affirmed in part and

reversed in part.

Law Offices of Ashton Watkins and Ashton R. Watkins for

Plaintiffs and Appellants.

Carroll, Kelly, Trotter, Franzen & McBride, Mark V.

Franzen, Jennifer L. Sturges and David P. Pruett for Defendants

and Respondents.

__________________________

Marleny Escobar was 34 years old when she died of

hemophagocytic lymphohistiocytosis (HLH), a rare

immunodeficiency disease. She was diagnosed and died shortly

after she gave birth to her second son. Two years after her death,

her husband and sons sued Dr. Azmath Qureshi, the doctor who

provided Escobar with prenatal care, and alleged that Dr.

Qureshi’s failure to investigate Escobar’s symptoms of HLH

during her pregnancy fell below the standard of care and caused

her premature death.

The court granted judgment on the pleadings as to husband

on the ground his claim was time-barred. Dr. Qureshi then

moved for summary judgment against the remaining plaintiffs on

the element of causation. Dr. Qureshi argued that Escobar’s

symptoms did not meet the criteria for an HLH diagnosis while

she was pregnant and, therefore, Dr. Qureshi could not have

provided Escobar with any treatment. In opposition, plaintiffs

submitted a declaration by an obstetrician/gynecologist opining

that if Dr. Qureshi had taken steps to investigate and treat

Escobar’s symptoms while pregnant, it was more likely than not

Escobar would have survived.

The trial court struck the declaration of plaintiffs’ expert on

the ground he did not have any experience treating patients with

HLH. The court further concluded that, even if the expert’s

declaration were admissible, it failed to raise a triable issue of

material fact as to causation because the expert did not opine

that Escobar’s “chance of survival would have been greater than

50% if Defendants had acted differently.”

Plaintiffs appealed. They challenge the trial court’s order

granting judgment on the pleadings as to husband’s claim. They

further argue the trial court erred in striking their expert’s

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declaration and concluding plaintiffs failed to raise a triable issue

of material fact as to causation. We agree the trial court properly

granted judgment on the pleadings. We find error with the trial

court’s striking of plaintiffs’ expert’s declaration and the court’s

conclusion the declaration failed to raise a triable issue of fact.

We reverse the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Consistent with our standard of review of orders granting

summary judgment, we will recite the facts in the light most

favorable to plaintiffs as the nonmoving parties. (Light v.

Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 81.)

1. The Illness and Death of Marleny Escobar

On October 29, 2013, Escobar attended her first prenatal

appointment with defendants. She was ten weeks pregnant, and

weighed 176 pounds. She complained of pain with urination and

blood in her urine, and was prescribed a medicine for urinary

tract infections. Lab results showed a low white blood cell count,

and low platelet counts which were flagged on the report as

abnormal.

Starting in December 2013 or January 2014, Escobar began

to have daily fevers. On January 16, 2014, Escobar presented

with a temperature of 102, a sore throat, congestion, cough and

an earache. Dr. Qureshi prescribed her an antibiotic. Although

Escobar was five months pregnant, she had not gained any

weight since her initial appointment with defendants.

The following month, on March 4, 2014, Escobar had a

temperature of 100.4 and complained of a cough. She reported

drinking 10 to 12 glasses of water a day and experiencing a

strong urge to urinate, while only urinating small amounts. She

had lost 10 pounds, and said that being sick had caused her not

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to eat. A urinalysis showed abnormal levels of proteins, ketones

and bilirubin. Lab results showed that her white blood cell count

remained abnormally low. Dr. Qureshi prescribed her an

antibiotic, and did not order any additional work-up of the white

blood cell count.

On March 18, 2014, Escobar was admitted to the hospital

for the early onset of labor. She arrived at the hospital with a

temperature of 101.8. Ultrasound examinations showed an

enlarged fatty liver and gallstones. Routine lab work showed her

white blood cell count was still abnormally low, and she had

“severely deranged liver function.” Her urine was dark with

abnormal levels of electrolytes.

Escobar gave birth the following day, March 19, 2014, to a

healthy boy. She was then transferred to Long Beach Memorial

Medical Center into Dr. Jennifer McNulty’s care. Dr. McNulty

consulted several specialists about Escobar’s case. Within a

week, the doctors were considering HLH as a diagnosis. Three

days later, she was started on treatment for HLH.

Escobar died the following month on April 17, 2014.

Autopsy findings confirmed her diagnosis of HLH and a fungal

infection throughout her body.

2. The Complaint

In May 2016, Escobar’s husband and sons filed a complaint

for wrongful death alleging medical malpractice by Dr. Qureshi,

her medical practice, and Elizabeth Bolanji, a nurse (collectively,

defendants). The complaint alleged that Escobar exhibited

symptoms of HLH when she received prenatal care with

defendants, and defendants’ failure to provide her with proper

treatment fell below the standard of care, causing her death.

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3. Motion for Judgment on the Pleadings

Defendants moved for judgment on the pleadings as to

husband’s individual claim for wrongful death. They argued

husband’s claim was time-barred because he discovered Escobar’s

injury when she died in April 2014, and under the one-year

statute of limitations, he only had until April 2015 to file his

claims. The complaint was filed a year later.

In opposition, husband argued that the statute of

limitations did not begin to run until he began to suspect medical

malpractice when his pastor suggested he speak to an attorney in

July 2015. He then timely filed the complaint within a year.

Defendants replied by referencing husband’s statements during

discovery in which he admitted he suspected as early as March

2014 that defendants had failed to correctly diagnose Escobar.

The trial court granted the motion, relying on the principle

that plaintiffs were required to conduct a reasonable

investigation after becoming aware of an injury, and are charged

with knowledge of information that would have been revealed

from such an investigation. (Fox v. Ethicon Endo-Surgery, Inc.

(2005) 35 Cal.4th 797, 808 (Fox).) The court observed that

husband did not “point to anything he learned in July 2015 that

caused him to ask his pastor if the doctor may have done

something wrong.”

4. Defendants Move for Summary Judgment

In September 2017, defendants moved for summary

judgment on the ground that plaintiffs could not prove

causation.1 Defendants’ motion was supported by the expert

1 Dr. Qureshi and her medical practice moved for summary

judgment, and the court granted Bolaji’s joinder.

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testimony of Dr. Kenneth McLain, a pediatrician with a specialty

in hematology and oncology. As part of his practice, Dr. McLain

treated children with HLH.

Dr. McLain opined that “no act or omission on the part of

Dr. Qureshi caused or contributed to the death of Ms. Escobar.”

To “meet the criteria for [an] HLH diagnosis,” a patient’s “ferritin

level must be above 3,000,” and before Escobar was hospitalized,

her ferritin level never rose above 3,000. Thus, “even if

additional blood work had been performed during Ms. Escobar’s

pregnancy, she would not have met the criteria for a diagnosis of

HLH.” “By the time HLH was diagnosable in Ms. Escobar . . .

she would not have survived the disease process.”

5. Plaintiffs’ Opposition

Plaintiffs’ opposition to the motion for summary judgment

was supported by the expert declaration of Dr. Paul Sinkhorn, an

obstetrician/gynecologist. Dr. Sinkhorn’s opinions were based on

his medical experience and review of Dr. McLain’s medical

articles on HLH.

In response to Dr. McClain’s opinion that Escobar could not

have been diagnosed with HLH prior to her hospitalization, Dr.

Sinkhorn opined that she could have still received treatment for

HLH even without a diagnosis. Dr. Sinkhorn cited to research

stating that “treatment is appropriate for some who do not meet

the strict diagnostic criteria but for whom there is a high degree

of clinical suspicion for HLH,” and “therapy may be necessary

before a firm diagnosis is in hand.”

Dr. Sinkhorn opined that had Escobar received earlier

treatment for HLH, “more probably than not” she would have

been able to arrest or slow down “her disease process.” He cited

to research stating that “[p]rompt initiation of treatment for HLH

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is essential to the survival of affected patients,” and “[s]urvival

can be dramatically increased with HLH-specific therapy.”

Dr. Sinkhorn also opined that even before any suspicion of

an HLH diagnosis was possible, had Escobar’s doctors treated her

elevated liver enzymes and her neutropenia, such interventions

could have enabled Escobar “to fight her disease process before

her immune system was fully defeated.”

Dr. Sinkhorn concluded that Dr. Qureshi and her staff’s

failure to address Escobar’s symptoms of “systemic illness”

throughout her pregnancy “led to an unchecked progression of

her disease until 3/18/14, when she went into preterm labor and

was noted to have an extremely dangerous neutropenia that was

now resistant to treatment, and that ultimately led to

disseminated infection, multiple organ failure, and death.” “Dr.

Qureshi’s negligent act or omission . . . was a substantial factor in

causing Decedent’s death.”

6. Dr. Qureshi’s Reply and Evidentiary Objection

In reply, defendants claimed Dr. Sinkhorn’s declaration

was defective because it did not state Escobar would have had a

better than 50 percent chance of surviving HLH had Dr. Qureshi

acted differently. Dr. Qureshi argued that “Plaintiffs are not

entitled to recovery based upon a mere possibility that Decedent’s

chance of survival would have improved if HLH had been

diagnosed earlier. Dr. Sinkhorn’s declaration does not satisfy

Plaintiffs’ burden of production because, at best, his opinion is

that Decedent would have had an increased chance of survival

but falls well short of the requirement that Decedent have a

better than 50 percent chance of survival.”

Dr. Qureshi also objected to Dr. Sinkhorn’s declaration on

the ground it lacked foundation because Dr. Sinkhorn had no

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expertise in “the diagnosis or treatment of HLH.” The trial court

sustained the objection, concluding that “[a]bsent a showing of

expertise concerning HLH, e.g., what causes HLH, how HLH is

treated, the progression of HLH, and the prognosis of a patient

with HLH, Dr. Sinkhorn failed to establish he is qualified to

refute Dr. McLain’s opinions.” The court struck Dr. Sinkhorn’s

declaration in its entirety.

7. The Granting of Summary Judgment

The court granted summary judgment concluding that

“plaintiffs necessarily failed to meet their burden of raising a

triable issue of material fact in light of the lack of admissibility of

the Declaration of Sinkhorn.” In the alternative, the court

concluded that Dr. Sinkhorn’s declaration, even if admissible, did

not raise a triable issue of fact as to causation because Dr.

Sinkhorn did not “establish Decedent had a greater than 50%

chance of survival if Defendants had done something differently.”

Dr. Sinkhorn’s opinion that “an earlier diagnosis would have

given Decedent an ‘improved chance for survival and wellness,’ ”

was insufficient to show that her “chance of survival would have

been greater than 50% if Defendants had acted differently.” He

“never actually opines that any different action on the part of

Defendants would have given [the decedent] a greater than 50%

chance of survival.”

Plaintiffs timely appealed.

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DISCUSSION

1. The Trial Court Properly Granted the Motion for

Judgment on the Pleading because the Complaint’s

Allegations Demonstrate Husband’s Action is Barred

by the One-Year Statute of Limitations

Plaintiffs argue the trial court erred in granting judgment

on the pleadings on statute of limitations grounds. They contend

the statute of limitations did not begin running at the time of

Escobar’s death because husband had no suspicion of wrongdoing

prior to talking with his pastor in July 2015. Lastly, plaintiffs

claim they can amend their complaint to show husband did not

have reason to suspect defendants of wrongdoing until July 2015.

We find no error.

“In an action for injury or death against a health care

provider based upon such person’s alleged professional

negligence, the time for the commencement of action shall be

three years after the date of injury or one year after the plaintiff

discovers, or through the use of reasonable diligence should have

discovered, the injury, whichever occurs first.” (Code Civ. Proc.,

§ 340.5.) “The term ‘injury’ means both the plaintiff’s physical

condition and its negligent cause; thus, once a plaintiff knows, or

by reasonable diligence should have known, he or she has been

harmed through professional negligence, the one-year limitations

period begins to run. [Citation.]” (Jefferson v. County of Kern

(2002) 98 Cal.App.4th 606, 610.)

For purposes of Code of Civil Procedure section 340.5, a

plaintiff “is ‘charged with “presumptive” knowledge of his

negligent injury, and the statute commences to run, once he has

“ ‘notice or information of circumstances to put a reasonable

person on inquiry, or has the opportunity to obtain knowledge

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from sources open to his investigation . . . .’ ” [Citation.] Thus,

when the plaintiff’s “reasonably founded suspicions [have been

aroused],” and he has actually “become alerted to the necessity

for investigation and pursuit of [his] remedies,” the one-year

period for suit begins. [Citation.]’ ” (Artal v. Allen (2003)

111 Cal.App.4th 273, 279.) A plaintiff “need not know the

‘specific “facts” necessary to establish’ the cause of action; rather,

he may seek to learn such facts through the ‘process

contemplated by pretrial discovery’; but, within the applicable

limitations period, he must indeed seek to learn the facts

necessary to bring the cause of action in the first place—he

‘cannot wait for’ them ‘to find’ him and ‘sit on’ his ‘rights’; he

‘must go find’ them himself if he can and ‘file suit’ if he does

[citation].” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398.)

We review the pleadings de novo to determine whether the

trial court erred in granting the motion. (O’Neil v. General

Security Corp. (1992) 4 Cal.App.4th 587, 594, fn. 1.) As to the

right to amend following a grant of a motion for judgment on the

pleadings, the abuse of discretion standard applies. (Virginia G.

v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.) A

trial court abuses its discretion in granting a motion for judgment

on the pleadings without leave to amend where the complaint

“does not show on its face that it is incapable of amendment.”

(Ibid.)

Here, the trial court found that the one-year limitations of

Code of Civil Procedure section 340.5 commenced with Escobar’s

death. The court reasoned that a plaintiff must conduct an

investigation after becoming aware of an injury, and is charged

with knowledge of information that would have been revealed by

such an investigation. (Fox, supra, 35 Cal.4th at p. 808.)

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Husband did not allege any facts showing he had conducted a

reasonable investigation after learning of his wife’s death, or

“point to anything he learned in July of 2015 that caused him to

ask his pastor if the doctor may have done something wrong.”

The complaint alleged facts showing husband was on

inquiry notice of his cause of action against defendants at the

time of Escobar’s death. Six months before her death, she

experienced “warning signs of symptoms of illness . . . . [She] had

multiple illness[es] during her pregnancy . . . [and] developed

daily fevers of 101–102. Despite these warning signs, Defendants

. . . failed to conduct further testing or follow up lab work or refer

Decedent to another physician for evaluation, diagnosis or

treatment.” Based on these allegations that wife suffered obvious

symptoms during pregnancy that defendants did not treat,

husband “either had or reasonably should have ‘become alerted to

the necessity of investigation and pursuit of [his] remedies.’

[Citation.]” (Graham v. Hansen (1982) 128 Cal.App.3d 965, 975.)

Plaintiffs contend they can allege facts showing husband

did not have “reason to know that Defendants caused Ms.

Escobar’s death until July 2015.” However, plaintiffs do not state

what those facts are and have, therefore, failed to show how they

would amend to show husband’s inability to have made earlier

discovery despite reasonable diligence. They do not, for example,

address husband’s statements during discovery that he suspected

as early as March 2014 that defendants had failed to correctly

diagnose Escobar.

As the complaint showed on its face that it was barred by

the statute of limitations and plaintiffs have not shown how they

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could amend to cure this defect, we conclude the trial court

properly granted the motion without leave to amend.2

2. Expert Declarations

a. Law on Expert Testimony

“A person is qualified to testify as an expert if he has

special knowledge, skill, experience, training, or education

sufficient to qualify him as an expert on the subject to which his

testimony relates.” (Evid. Code, § 720, subd. (a).) “ ‘[T]he

determinative issue in each case is whether the witness has

sufficient skill or experience in the field so his testimony would

be likely to assist the jury in the search for truth.’ [Citation.]”

(Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th

1102, 1115.) “It is the jury’s role to decide the weight to accord to

the expert testimony and ‘courts must . . . be cautious in

excluding expert testimony’ so as not to usurp that role.

[Citation.]” (People v. Veamatahau (2020) 9 Cal.5th 16, 35, fn. 6.)

The trial court acts as a gatekeeper to exclude improper

expert opinion. “The goal of trial court gatekeeping is simply to

exclude ‘clearly invalid and unreliable’ expert opinion. [Citation.]

In short, the gatekeeper’s role ‘is to make certain that an expert,

2 Defendants also contend that plaintiffs’ appeal from the

order granting judgment on the pleading is untimely because

they should have appealed within 60 days of the order granting

the motion. However, an order on a motion for judgment on the

pleading is not appealable; any appeal must be taken from the

judgment itself. (Ellerbee v. County of Los Angeles (2010)

187 Cal.App.4th 1206, 1212–1213.) There was no separate

judgment entered against husband. The appeal was timely when

measured by the date of the judgment entered following the grant

of summary judgment.

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whether basing testimony upon professional studies or personal

experience, employs in the courtroom the same level of

intellectual rigor that characterizes the practice of an expert in

the relevant field.’ [Citation.]” (Sargon Enterprises, Inc. v.

University of Southern California (2012) 55 Cal.4th 747, 772

(Sargon) (emphasis added).)

“ ‘[W]ork in a particular field is not an absolute prerequisite

to qualification as an expert in that field.’ [Citation.] For

example, ‘[q]ualifications other than a license to practice

medicine may serve to qualify a witness to give a medical

opinion.’ [Citations.] The determinative factor is whether the

expert ‘has sufficient skill or experience in the field so that his [or

her] testimony would be likely to assist the jury in the search for

the truth.’ [Citation.] The degree of expertise goes to the weight

of the expert's testimony, not its admissibility. [Citation.]”

(Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1318–1319

(Chavez); see also Brown v. Colm (1974) 11 Cal.3d 639, 645

[referring to the “unmistakable general trend in recent years . . .

toward liberalizing the rules relating to the testimonial

qualifications of medical experts”].)

“It is true . . . that the question whether a witness qualifies

as an expert is a matter addressed in the first instance to the

sound discretion of the trial court. [Citation.] It is also

elementary, however, that the court will be deemed to have

abused its discretion if the witness has disclosed sufficient

knowledge of the subject to entitle his opinion to go before the

jury.” (Chavez, supra, 207 Cal.App.4th at p. 1319; People v.

Lucas (2014) 60 Cal.4th 153, 226.) “ ‘The discretion of a trial

judge is not a whimsical, uncontrolled power, but a legal

discretion, which is subject to the limitations of legal principles

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governing the subject of its action, and to reversal on appeal

where no reasonable basis for the action is shown.’ [Citation.]”

(Sargon, supra, 55 Cal.4th at p. 773.)

b. The Trial Court Erred in Striking Dr.

Sinkhorn’s Declaration

Plaintiffs contend the trial court erred in striking Dr.

Sinkhorn’s declaration because he was qualified to testify about

whether defendants’ acts or omissions were a substantial factor

in causing Escobar’s death. Defendants argue the trial court

properly found that Dr. Sinkhorn lacked an adequate foundation

to testify about causation because he had never “seen, diagnosed,

or treated a case of HLH.” We conclude the trial court abused its

discretion in striking Dr. Sinkhorn’s declaration.

Defendants cite to Bushling v. Fremont Medical Center

(2004) 117 Cal.App.4th 493 in support of their argument that Dr.

Sinkhorn lacked the qualifications to opine on causation.

Bushling is inapposite; that case did not address the issue of

whether an expert was qualified to testify. Instead, Bushling

examined the substance of certain medical experts’ opinions on

causation, concluding that their opinions were speculative and

not supported by any factual basis. (Id. at p. 511.)

Dr. Sinkhorn had experience in the subject matter at

hand—the field of obstetrics medicine. He had practiced as an

obstetrician-gynecologist for over thirty years and was a professor

at several local medical schools. In preparation for his testimony,

he reviewed Escobar’s medical records, Dr. McLain’s declaration,

and medical publications by Dr. McClain on the diagnosis and

treatment of HLH. Based on Dr. Sinkhorn’s personal experience

as a medical practitioner, his knowledge of Escobar’s medical

condition, and his review of professional studies about her

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specific disease, he was qualified to opine on whether defendants’

actions or omissions caused Escobar’s death from HLH. This is

not a case where we can say the expert’s opinion was “clearly

invalid and unreliable” and would be unlikely to assist the jury in

its fact-finding mission. (Sargon, supra, 55 Cal.4th at p. 772.)

Admittedly, there were gaps in Dr. Sinkhorn’s expertise. He had

not treated an HLH patient. However, he was an expert in

obstetrics and was qualified to testify about the symptoms

presented by Escobar, and the effect a lack of treatment of those

symptoms had on her health. What he lacked in HLH experience

he filled in by relying on Dr. McCain’s own studies.3 The

different qualifications of the two medical experts – Dr. McCain

was not an obstetrician and did not treat pregnant women – goes

to the weight that the trier of fact might assign to their opinions.

The trial court erred in concluding Dr. Sinkhorn was

unqualified as an expert witness, and striking his declaration.

c. The Court Properly Overruled the Objection to

Dr. McLain’s Qualifications

Plaintiffs contend the trial court erred in overruling their

objection to Dr. McClain’s declaration. They argue he was not

qualified to opine on the standard of care because he had no

expertise in obstetrics or gynecology. However, Dr. McClain only

opined on causation, not the standard of care. Plaintiffs do not

dispute that Dr. McClain had expertise in the diagnosis and

treatment of HLH patients. He, therefore, was qualified to opine

on whether any actions or omissions by defendants caused

3 It is established law that an expert may base his or her

testimony upon a review of professional studies. (Sargon, supra,

55 Cal.4th at p. 772; Miller v. Silver (1986) 181 Cal.App.3d 652,

659.)

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Escobar’s treatment for HLH to be delayed and her to die

prematurely. The trial court did not abuse its discretion in

overruling plaintiffs’ objection to Dr. McClain’s declaration based

on lack of foundation.

3. Summary Judgment

Defendants moved for summary judgment on lack of

causation.4 On appeal from a grant of summary judgment in a

medical malpractice wrongful death action, lack of causation

presents the question of whether a decedent would have had a

greater than 50 percent chance of survival but for the

malpractice. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1492–

1493 (Bromme).) In the context of the present appeal, it is:

Would Escobar have had a greater than 50 percent chance of

survival if defendants taken steps to address her symptoms of

HLH prior to her hospitalization in March 2014. We analyze

plaintiffs’ claim of error in two steps: first, we consider whether

defendants carried their initial burden to show the absence of a

triable issue of material fact, and second, if defendants carried

their burden, we decide whether plaintiffs’ showing was sufficient

4 Appellants’ Opening Brief also addressed whether

defendants’ conduct breached the standard of care. In their

Respondents’ Brief, defendants pointed out that their motion was

limited to causation and argued that plaintiffs had impermissibly

commingled the two points. In their Reply Brief, plaintiffs

occasionally refer to standard of care but present no argument on

the point. This is understandable. Because defendant’s motion

for summary judgment did not address whether defendants had

breached the standard of care, plaintiffs were under no obligation

to rebut it. (See Brantley v. Pisaro (1996) 42 Cal.App.4th 1591,

1594.) Our opinion focuses on the sole ground of defendants’

motion for summary judgment—that no triable issue of fact

exists as to causation.

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to carry their burden of a prima facie showing of the existence of

a triable issue of fact.

a. Standard of Review

The trial court must grant a summary judgment motion if

“all the papers submitted show that there is no triable issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” (Code Civ. Proc., § 473c, subd. (c).)

“There is a triable issue of material fact if, and only if, the

evidence would allow a reasonable trier of fact to find the

underlying fact in favor of the party opposing the motion in

accordance with the applicable standard of proof.” (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A moving

party bears the initial burden of producing evidence to make a

prima facie showing that no triable issue of material fact exists.

(Ibid.) A defendant moving for summary judgment must produce

evidence showing that the plaintiff cannot establish at least one

element of each of its causes of action. (Id. at p. 854.) The

burden of production then shifts to the party opposing summary

judgment who must produce evidence to make a prima facie

showing that a triable issue of material fact exists. (Id. at

p. 850.)

“Because of the severity of the consequences of summary

judgment, we carefully scrutinize the moving party’s papers and

resolve all doubts regarding the existence of material, triable

issues of fact in favor of the party opposing the motion.

[Citation.]” (Connelly v. County of Fresno (2006) 146 Cal.App.4th

29, 36.) “ ‘ “[T]he moving party’s affidavits are strictly construed

while those of the opposing party are liberally construed.” . . .

We accept as undisputed facts only those portions of the moving

party’s evidence that are not contradicted by the opposing party’s

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evidence . . . .’ [Citation.]” (Cheyanna M. v. A.C. Nielsen Co.

(1998) 66 Cal.App.4th 855, 861.)

b. Causation in Wrongful Death Actions

Code of Civil Procedure section 377.60 provides: “A cause

of action for the death of a person caused by the wrongful act or

neglect of another may be asserted by . . . [¶] [t]he decedent’s . . .

children . . . .” “ ‘The elements of the cause of action for wrongful

death are the tort (negligence or other wrongful act), the

resulting death, and the damages, consisting of the pecuniary

loss suffered by the heirs. [Citations.]’ [Citation.]” (Quiroz v.

Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.)

Additionally, “the plaintiff [in a wrongful death action] must

prove the defendant’s conduct was a substantial factor in causing

the decedent’s death.” (Bromme, supra, 5 Cal.App.4th at

p. 1507.)

In the medical malpractice context, “the element of

causation is satisfied when a plaintiff produces sufficient

evidence ‘to allow the jury to infer that in the absence of the

defendant’s negligence, there was a reasonable medical

probability that the [patient] would have obtained a better result.

[Citations.]’ [Citation.]” (Espinosa v. Little Co. of Mary Hospital

(1995) 31 Cal.App.4th 1304, 1314–1315 (Espinosa).) “Causation

is generally a question of fact for the jury, unless reasonable

minds could not dispute the absence of causation.” (Lombardo v.

Huysentruyt (2001) 91 Cal.App.4th 656, 666.)

“Where the alleged negligence relates to the failure to

diagnose and treat a potentially terminal condition, a plaintiff

fails to satisfy the requisite causation if the evidence shows the

decedent did not have a greater than 50 percent chance of

survival had the defendant properly diagnosed and treated the

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condition.” (Bromme, supra, 5 Cal.App.4th at pp. 1492–1493.)

“ ‘While there is no judicially approved definition of what is a

substantial factor for causation purposes, it seems to be

something which is more than a slight, trivial, negligible, or

theoretical factor in producing a particular result.’ [Citation.]”

(Espinosa, supra, 31 Cal.App.4th at p. 1314.)

“The law is well settled that in a personal injury action

causation must be proven within a reasonable medical

probability based upon competent expert testimony. Mere

possibility alone is insufficient to establish a prima facie case.

[Citations.] That there is a distinction between a reasonable

medical ‘probability’ and a medical ‘possibility’ needs little

discussion. There can be many possible ‘causes,’ indeed, an

infinite number of circumstances which can produce an injury or

disease. A possible cause only becomes ‘probable’ when, in the

absence of other reasonable causal explanations, it becomes more

likely than not that the injury was a result of its action. This is

the outer limit of inference upon which an issue may be

submitted to the jury. [Citation.]” (Jones v. Ortho Pharm. Corp.

(1985) 163 Cal.App.3d 396, 402–403.)

c. Defendants’ Initial Burden in Moving for

Summary Judgment

Plaintiffs contend the trial court erred in concluding

defendants met their initial burden as moving parties for

summary judgment. Plaintiffs argue Dr. McClain “failed to set

forth any reasoned analysis of his opinion that Defendants did

not cause Ms. Escobar’s death.” We disagree.

Dr. McClain opined that a diagnosis of HLH requires a

ferritin level of above 3,000. According to Dr. McClain, Escobar

could not have been diagnosed with or treated for HLH prior to

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her hospitalization because “she did not meet the criteria for an

HLH diagnosis” as her ferritin level was under 3,000 when she

was in defendants’ care. This analysis supported Dr. McClain’s

conclusion that no act or omission by Dr. Qureshi caused or

contributed to Escobar’s death. This was a reasoned analysis,

supported by the facts of the case, and not the “naked” conclusion

plaintiffs assert.

This evidence was sufficient to meet defendants’ initial

burden of proof to show a prima facie case that plaintiffs could

not establish causation.

d. Plaintiffs’ Burden in Opposing Summary

Judgment

Plaintiffs contend the trial court erred in concluding they

did not raise a triable issue of material fact as to causation. They

argue Dr. Sinkhorn’s declaration adequately stated Dr. Qureshi’s

negligence was a substantial factor in causing Escobar’s death.

Defendants contend Dr. Sinkhorn failed to state whether earlier

treatment for HLH “would have had a medical probability of

averting Ms. Escobar’s death.” Reading the declarations

liberally, as we must, we conclude that Dr. Sinkhorn’s

declaration created a triable issue of material fact that

defendants’ negligence caused Escobar’s death.

The trial court concluded that Dr. Sinkhorn “never actually

opines that any different action on the part of Defendants would

have given [Escobar] a greater than 50% chance of survival.” But

Dr. Sinkhorn did state that had Dr. Qureshi conducted an

investigation and work-up of Escobar’s symptoms “in November

or December 2013, it is more likely than not that an early

diagnosis could have been made and appropriate therapy

instituted by January 2014.” Had Escobar received such an

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“earlier diagnosis and earlier treatment,” “more probably than

not” Escobar would have had a “better chance at arresting or

ameliorating her disease process.” Dr. Sinkhorn cited to research

finding that patients who receive the recommended regimen of

treatment for HLH have “a median survival of 54 percent at 6.2

years.”

In response to Dr. McLain’s conclusion that Escobar could

not have been treated for HLH prior to her hospitalization

because her ferritin levels were below 3,000, Dr. Sinkhorn cited

to research stating that treatment is appropriate for some

patients who “do not meet the strict diagnostic criteria.” Dr.

Sinkhorn also attested that defendants should have treated some

of Escobar’s symptoms, and such measures would have

strengthened Escobar’s immune system. This would have

enabled her body to fight the HLH. Instead, by doing nothing,

Escobar’s illness progressed to the point where her neutropenia

was “resistant to treatment” when she was finally admitted to

the hospital. The impairment of Escobar’s immune system

“predispose[d]” her to the fungal infection that was one of the

causes of her death. Had Escobar either been treated earlier for

HLH or had her observable symptoms during her pregnancy been

reasonably addressed, she would have more likely than not

survived.

These opinions did not posit “some theoretical possibility

the negligent act could have been a cause-in-fact of a particular

injury.” (Jennings v. Palomar Pomerado Health Systems, Inc.

(2003) 114 Cal.App.4th 1108, 1117.) Rather, Dr. Sinkhorn’s

declaration, “entitled to all favorable inferences that may

reasonably be derived from that declaration,” was sufficient to

raise a triable issue of fact as to whether Escobar’s chance of

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surviving was more than 50 percent had Dr. Qureshi properly

taken steps to investigate her symptoms. (Hanson v. Grode

(1999) 76 Cal.App.4th 601, 607–608.)

Defendants contend that Dr. Sinkhorn did not raise a

triable issue of material fact because he made only “conclusory

assertions,” and failed to provide any “factual description to

suggest how or when defendants would have acted to have

prevented the death of Ms. Escobar.” On the contrary, Dr.

Sinkhorn set forth four specific actions defendants should have

taken that would have prevented Escobar’s death.

First, when defendants learned Escobar had a

“significantly depressed” white blood cell count in October 2013,

“along with a low platelet count and a borderline absolute

neutrophil count,” they should have referred her “to a specialist

(internist, perinatologist, or hematologist) capable of performing

a full diagnostic work-up” or, “at the very least . . . ordered a

repeat CBC with manual differential to confirm or negate the

abnormal findings.” Had they done so, “the pertinent

contributing abnormalities could have been addressed much

earlier by targeted therapies, and these treatments would have

had a significantly higher chance of amelioration or arrest of

progression, with an attendant lowering of her chance of fatality.”

Second, when Escobar registered a fever of 102 on

January 16, 2014 and upper respiratory symptoms, Escobar

“should have been sent for a CBC and chest X-ray. . . . If a CBC

would have been done at this time, it is more likely than not that

leukopenia would again have been noted.”

Third, defendants should have observed and recorded

Escobar’s daily fevers from January through March 2014, and

ordered a work-up. Had they done so, her continued neutropenia

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would have been discovered. These were missed opportunities for

Escobar to have her symptoms treated.

Fourth, two weeks before Escobar’s hospitalization, when

she presented with a cough, fever, an abnormally low white blood

cell count, and abnormal levels of protein, ketones and bilirubin

in her urine, defendants should have referred her to a specialist.

Had they done so, “it is more probable than not that Mrs. Escobar

would have had a better chance of disease amelioration . . . .”

These were not expert opinions “based on assumptions of

fact without evidentiary support [citation], or on speculative or

conjectural factors” lacking foundation. (Jennings, supra,

114 Cal.App.4th at p. 1117.) Instead, Dr. Sinkhorn’s opinion was

supported by clear, reasoned explanations. Thus plaintiffs met

their prima facie burden of showing triable issues of fact as to

causation, and the motion for summary judgment should have

been denied.

DISPOSITION

The summary judgment is reversed. The court’s order

granting judgment on the pleadings is affirmed. Appellants to

recover their costs on appeal.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

KIM, J.

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