Mark L. Kiefer Wins Summary Judgment and Subsequent Appeal by Plaintiffs in Medical Malpractice Claim

May 2013

Ericksen Arbuthnot partner Mark L. Kiefer (Los Angeles) recently prevailed in the California Court of Appeals for the Second Appellate District following a motion for summary judgment in favor of an emergency room nurse. At issue were the qualifications of competing nursing experts to address the hospital “chain of command” in an ER setting.

The original claim arose from alleged negligence relating to medical treatment rendered to an AK 47 gunshot victim. The firm’s client was a registered emergency room nurse who treated the plaintiff in the hospital emergency room. An unknown assailant shot both plaintiff’s decedent and his male companion in a drive-by shooting incident. The decedent was transported to the emergency room of a medical center in Southern California with wounds in his left thigh and lower leg. A vascular surgeon was summoned to the medical center but did not arrive until several hours later. Plaintiff’s decedent died on the operating table and a wrongful death action was brought by his surviving mother and children.

The wrongful death complaint alleged that plaintiff’s decedent “unnecessarily bled to death” because of an allegedly negligent delay in getting him into surgery. Plaintiffs contended that the ER nurse had violated an “indirect standard of nursing care” by failing to invoke the “chain of command.” According to plaintiffs, the nurse was obliged to have the on-call vascular surgeon called on a more frequent basis than was being done by the ER physician and the unit secretary and failed to page “any doctor” to the ER to begin the surgery.

Mr. Kiefer filed a motion for summary judgment (MSJ) based on the testimony of an expert on the ER nursing standard of care who established that the ER nurse did not breach any standard of care. His declaration established that the chain of command did not require the nurse to abandon her patient in order to summon a vascular surgeon to the hospital or arrange to have “any doctor” in the hospital take decedent into surgery. The plaintiffs’ Opposition to the MSJ was supported by the testimony of a nurse who had never worked in a hospital emergency room. Objections to the nurse’s declaration on that basis were sustained and the court granted the defense MSJ.

On appeal, the Appellate Court unanimously agreed that Plaintiffs’ expert lacked emergency room experience and was therefore not qualified to give an opinion as to the standard of care for ER nurses and that plaintiffs’ expert’s Declaration in Opposition to the MSJ was properly stricken. Once the Declaration was stricken, the court found that Plaintiffs had failed to raise any triable issue of fact on to the standard of care issue, so the order granting the MSJ was upheld. The decision was not published.

To date there are no published decisions in the State of California involving a nurse found to have fallen below the standard of care for failing to have “gone up the chain of command.” This ruling highlights the importance of selecting experts with relevant qualifications and experience, and illustrates that trial courts are willing to strike an expert’s declaration if the expert is not sufficiently qualified in the particular area of expertise in question.