Go With What You Know, Not With What You Think You Know.

ems providers FOR EDUCATION PURPOSED ONLY

SCHULMAN v. County of Los Angeles Fire Dept./Paramedics
February 7, 2006.

Opposition to Motion of Defendant County of Los Angeles for Summary Judgment; Memorandum of Points and Authorities and Declarations in Support of Opposition

à On the night of May 3, 2004, plaintiff Sarah Schulman, a 22 year-old student at Pepperdine University, ate dinner with several friends at Dukes Restaurant in Malibu. In addition to her meal, she consumed one alcoholic drink. Following dinner, at approximately 9:00 p.m. she returned home.

At 9:45 p.m., she left home and went with several friends to the “Dume Room,” a small bar/restaurant on Heathercliff Drive near Pt. Dume in the western portion of Malibu. The idea was to participate in the Karaoke entertainment which was provided that night. Her small group arrived at approximately 10:10 p.m., and Sarah ordered one beer.

The Karaoke began at approximately 10:30 p.m., and Sarah and one of her friends sang one song together. Soon after returning to her table, Sarah felt an excruciatingly sharp pain near her left ear, and she became immediately dizzy. She advised her friends of these alarming symptoms, and told them that she was going outside for some fresh air.

After only one minute or so outside, she returned inside to advise her friends that she was feeling even worse. She decided to go back outside again. In the process of doing so she repeatedly stumbled, and she became acutely disoriented and extremely dizzy.

Two of Sarah’s friends accompanied her back outside. She continued to stumble, and expressed to them that she was extremely dizzy. She sat down on a bench just outside the bar/restaurant. She was holding her head in pain. Almost immediately thereafter, she began vomiting repeatedly. Her attempts at communicating with her friends became unintelligible. She then collapsed onto the ground, and lay in her own vomit.

Her friends picked her up and sat her down, and immediately called 911 for help.

Approximately 10 minutes later, Los Angeles County paramedics arrived on the scene. One of Sarah’s friends, Nicola Stalley, described in considerable detail each of the alarming symptoms to the paramedics: A sudden onset of severe, localized pain on the left side of her head, severe dizziness, altered consciousness, severe vomiting, loss of balance, speech difficulties and disordered thoughts.

Despite this clear indication of a cerebral hemorrhage, the paramedics who arrived on scene immediately concluded that Sarah was just another college kid who had consumed too much alcohol and/or drugs.

The comments made by the paramedics to Sarah’s friends revealed their cynical conclusion that this was nothing to be concerned about, and that they believed that the description by her friends of the acute and severe symptoms was simply an exaggeration.

The paramedics went through the motions of their assessment, checking boxes on the Emergency Medical Services Form and providing an assessment which was heavily weighted in favor of their apparent conclusion that this was a drinking event, coupled with a history of “anxiety.”

There is no mention on the EMS Report Form of the sudden onset of localized head pain. No mention of speech difficulties, disorganized thoughts, severe dizziness, or loss of balance. This banal assessment, which spring from the paramedics’ knee-jerk conclusions about the college kids at the bar, seriously impacted Sarah’s subsequent treatment, and led to a lengthy delay in diagnosing her severe intra-cerebral hemorrhage.

The paramedics, apparently aware of the degree of their superficial and inaccurate assessment, including the failure to pass on critical symptoms as described by Sarah’s friends, altered their records after the fact.

Exhibit 1 is a photocopy of the EMS Report Form which was provided in response to plaintiff’s subpoena. Exhibit 2 is a photocopy of the EMS Report Form which was produced in response to plaintiff’s subpoena to Santa Monica Hospital. A comparison of the two reveals that the paramedics, apparently concerned about their skeletal assessment, added the phrase “Altered LOC” amidst their comments that Sarah was alert, but that she had been drinking in a bar.

It is submitted that this alteration of their assessment record is an acknowledgement by them that they failed to properly assess Sarah’s cerebral hemorrhage, and failed to raise the alarms when they dropped her off at the ER approximately one hour after they were first contacted.

The ER records reveal that no significant evaluation by an ER physician was performed until 1:30 a.m., 2 hours after the paramedics first made contact with Sarah. Comments made to Sarah’s friends by the ER nurse upon their arrival at approximately 12:30 a.m. confirmed that the paramedics’ assessment that Sarah was intoxicated had been simply accepted by the ER personnel. The ER records, which confirm that no diagnosis of an intracranial bleed was made until 2:30 a.m. support this paramedic-based misevaluation.

The three hour delay between the paramedics’ first contact and the first CT scan of Sarah’s brain at 2:30 a.m. more likely than not caused a significant worsening of her condition and the effect on her brain.

DISPUTED FACTUAL ISSUES
The following significant material factual issues exist in this case, as evidenced by plaintiff’s Separate Statement in Opposition to the instant Motion:

1. Whether the paramedics failed, in a grossly negligent manner, to record and convey the history of plaintiff’s onset and the attendant symptoms;

2. Whether the paramedics were grossly negligent in failing to assess and test plaintiff for signs of an intracranial bleed, despite clear signs which pointed to its occurrence;

3. Whether the paramedics modified their EMS Report Form after its submission to the hospital in order to mask their misassessment, and in an attempt to enhance the alarming history of symptomatology to which only they had been made aware;

4. Whether the delay in the later diagnosis of an intracerebral hemorrhage was occasioned by the paramedics failure to convey an accurate history; and

5. Whether the delay resulted in a worsening of plaintiff’s condition.

LEGAL STANDARD
A motion for summary judgment “shall be granted 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.” Cal. Civ. Proc. Code § 437c(c). A motion for summary adjudication will be granted if the moving party establishes that: (1) one or more causes of action have no merit; (2) no defense exists to one or more causes of action; (3) a punitive damages claim has no merit; or (4) one or more defendants owed or did not owe a duty to plaintiff. Cal.Civ.Proc. Code § 437c(f). The purpose of summary procedure is to penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues of material fact. Chern v. Bank of America, 15 Cal. 3d 866, 873 (Cal. 1976). The trial court’s sole function in this procedure is to identify whether such issues of fact exist and not to decide the merits of the issues themselves. Molko v. Holy Spirit Assn., 46 Cal. 3d 1092, 1107 (Cal. 1988). If there is one, single material fact in dispute, the motion must be denied. Versa Technologies, Inc. v. Sup. Ct., 78 Cal. App. 3d 237, 240 (Cal. Ct. App. 2d 1978). Summary judgment is a drastic measure that deprives the losing party of trial on the merits. Mann v. Cracchio, 38 Cal. 3d 18, 35 (Cal. 1985). Therefore, it should be granted with caution, so that the procedure does not become a substitute for trial. Rowland v. Christian, 69 Cal. 2d 108, 111 (Cal. 1968). The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. Miller v. Bechtel Corp., 33 Cal. 3d 868, 874 (Cal. 1983). Any doubts as to the motion’s merit should be resolved in favor of the party opposing the motion. Id.

To be entitled to judgment, defendant must show either: (1) one or more elements of a cause of action cannot be established; or (2) a complete defense exists for a cause of action. Cal. Civ. Proc. Code § 437c(o)(2); Molko, 46 Cal. 3d at 1107. To show one or more elements cannot be established, defendant may present affirmative evidence negating an essential element of a cause of action or show plaintiff has no evidence of some critical element of a cause of action. Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 334 (Cal. 2000). As a part of its showing plaintiff has no evidence of an element of a cause of action, defendant has the added burden of demonstrating plaintiff cannot reasonably be expected to obtain such evidence. Hagen v. Hickenbottom, 41 Cal. App. 4th 168, 186 (Cal. Ct. App. 6th 1995). Such a showing shifts the evidentiary burden to plaintiff to show it has evidence that raises a triable issue of material fact as to that element of the cause of action. Cal. Civ. Proc. Code § 437c(o)(2).

SUBSTANTIAL FACTUAL ISSUES EXIST

The paramedics employed by the defendant herein grossly disregard critical information which had been conveyed very specifically to them by eyewitnesses concerning Sarah Schulman’s life-threatening condition. All symptoms pointed to an intracranial bleed. All of the paramedics biases pointed to college kids out drinking. The paramedics etched this bias in stone in failing to report acute onset of severe head pain, sever disorientation, and abrupt and dramatic personality changes.

The comments and actions of the ER personnel confirmed the conveyance of this glaring misassessment, and the paramedics alteration of their record after the fact acknowledge their gross failures. Substantial facts relating to these issues need to be resolved by a jury.