Defendant hospital was entitled to summary judgment after plaintiff’s expert declaration stated only that husband “could have survived” had defendant treated him in accord with the standard of care—but stopped short of saying that survival was more likely than not but for the hospital’s acts, which is the standard for showing causation in a medical malpractice wrongful death action. The trial court correctly granted summary judgment to the defendant hospital on the ground that plaintiff could not prove her husband’s death was caused by the defendant’s negligent treatment. To prove causation in a medical malpractice wrongful death action, the plaintiff must demonstrate that there was a reasonable medical probability that the death was more likely than not the result of negligence. The defendant submitted declarations from its experts opining that defendant’s acts did not cause injury to plaintiff’s husband. Plaintiff’s counter-declaration from her expert stated only that the husband “could have survived” had defendant treated him in accord with the standard of care. “Could have” states only a possibility, not that survival was more likely than not but for defendant’s acts. So the counter-declaration failed to raise a triable issue of fact. H&S Code 1278.5 provides that a health facility may not discriminate or retaliate against a patient, employee, member of the medical staff or other health care worker who complains to a regulatory or accrediting agency about the quality of care, services or conditions at the facility. This case holds that the section grants a cause of action for violation of the section only to a patient, employee, medical staff member or other health care worker, not to relatives of the patient. It also holds that section protects against discrimination or retaliation only if the complaint was made by the patient, or an employee, medical staff member or other health care worker. The section does not protect against discrimination or retaliation based on a complaint submitted by the patient’s family member.
California Court of Appeal, Fourth District, Division 1 (Aaron, J.); June 7, 2017; 2017 WL 2464959