Opinion
E072133
03-13-2020
ALICIA ROSALES, Plaintiff and Appellant, v. DIGNITY HEALTH, Defendant and Respondent.
Law Offices of Tim D. Wright, Tim D. Wright; and Baker O. Terry, Jr., for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Gregory G. Lynch, John J. Weber and Kristi K. Hedrick for Defendant and Respondent.
ORDER MODIFYING OPINION; AND DENIAL OF PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
The petition for rehearing filed April 1, 2020, by appellant is denied. The opinion filed in this matter on March 13, 2020, is modified as follows:
The sixth paragraph in "DISCUSSION" section "A. TRIABLE ISSUE OF MATERIAL FACT," (page 12 of the opinion) is modified to read:
"Morley's declaration reflects that the Hospital met the standard of care by educating Rosales regarding the call button, which would permit Rosales to summon assistance. Further, the Hospital provided Rosales with non-skid footwear and adequate lighting, which would permit Rosales to walk safely when she walked. The Hospital's evidence reflects it fulfilled its duty by teaching Rosales to call for assistance, by providing a well-lit and clean environment, and by providing safety socks. The Hospital contended, based upon its evidence, that it did not cause Rosales's injuries. One can infer from the Hospital's causation assertion that Hospital's position is that Rosales's injury was caused by her failure to either (1) wait for the nurse to return, or (2) summon assistance before walking. In sum, because the Hospital provided evidence that it met the standard of care by teaching Rosales how to safely move and providing her the tools and environment for safe movement, Hospital met its burden of demonstrating Rosales's lack of a prima facie case."
Except for this modification, the opinion remains unchanged. The modification do not effect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. FIELDS
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1702116) OPINION APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed. Law Offices of Tim D. Wright, Tim D. Wright; and Baker O. Terry, Jr., for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Gregory G. Lynch, John J. Weber and Kristi K. Hedrick for Defendant and Respondent.
Plaintiff and appellant Alicia Rosales (Rosales) sued defendant and respondent Dignity Health (the Hospital) alleging medical negligence. The Hospital brought a motion for summary judgment. The trial court found Rosales's lawsuit was time-barred and, alternatively, that there were no triable issues of material fact. Rosales contends the trial court's findings were incorrect. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. NOVEMBER 2015 INJURIES
In February 2017, Rosales was 63 years old. In her complaint, Rosales alleged she "suffers with diabetes and with numbness of her feet as a result of the diabetes and the hospital was aware of [Rosales's] medical condition." On November 13, 2015, Rosales was a patient at St. Bernadine Medical Center (St. Bernardine), awaiting gall bladder surgery. A nurse helped Rosales to the bathroom, "where the nurse put a clean gown on [Rosales]. The nurse also began to take the old gown off of [Rosales] but was then called away on another matter, leaving the old gown around [Rosales's] ankles and feet. [¶] After the nurse left the hospital room, [Rosales] exited from the bathroom and tried to walk back to her bed but the old gown, which was wrapped around [Rosales's] ankles and feet, restricted [Rosales's] ability to walk.
In Rosales's complaint, she alleges her injuries occurred on November 11, 2012, and November 11, 2015. It appears from the record that Rosales sustained her injuries on November 13, 2015.
"[Rosales's daughter (Daughter)], who was sitting in the hospital room, watched [Rosales] exit the bathroom. As [Rosales] struggled to walk back to her hospital bed, [Daughter] realized that the nurse had left the old gown around [Rosales's] ankles and feet which was causing [Rosales] to lose her balance. [Daughter] frantically tried to get across the room in time to catch [Rosales] from falling, but was not able to do so, and then witnessed [Rosales] trip on the gown, and fall to the ground, causing [Rosales] to suffer serious injuries." Rosales's injuries included "femoral fractures."
B. JANUARY 2016 LETTER
On January 15, 2016, Rosales's attorney sent a letter to the risk management department at St. Bernardine. The body of the letter reads:
"Please be advised that I represent the above name[d] client for personal injuries sustained while a business invitee on your premises.
"Assuming your company is insured for matters of this nature, would you kindly turn this letter over to your insurance carrier for immediate attention and also please inform us if there is a medical payment provision in this insurance policy and the amount of the limits. In any event, I would very much appreciate if you would call me to let me know who your insurance carrier is.
"If it is easier for you, please complete the enclosed copy of this letter and please fax or email it back to us.
"Also, it has come to my attention that you are responsible for the maintenance, preservation and safekeeping of the item of property, a video of surveillance (hereinafter 'property'), that may have captured Rosales's accident.
"This letter will place you on notice to take appropriate action to preserve and maintain the stated property for the purposes of my client's claim and potential lawsuit. I am sure you can appreciate that my client has sustained serious injuries as a result of the above mentioned accident and theirs [sic] projected losses and damages will be significant.
"Any altering, changing, modification, tempering [sic], destruction or loss of this property shall subject a defendant in a lawsuit to evidentiary sanctions. Further, Penal Code Section 135 makes it a misdemeanor to willfully destroy evidence in addition to any civil liabilities.
"Thank you in advance for maintaining, preserving and protecting this valuable piece of evidence. If you have any questions, please do not hesitate to contact me."
C. APRIL 2016 LETTER
On April 15, 2016, Rosales's attorney sent another letter to the risk management department at St. Bernardine. The body of the April 2016 letter is nearly identical to the body of the January 2016 letter.
D. NOVEMBER 2016 LETTER
On November 8, 2016, Rosales's attorney sent a third letter to the risk management department at St. Bernardine. The body of the letter reads:
"This letter shall serve as a notice, in accordance with Section 364 of the Code of Civil Procedure, that the above identified individual will file suit against St. Bernardine Medical Center and Does 1 through 50, within 90 days from the date of this notice for damages resulting from negligent medical care administered to Alicia Rosales. [Rosales] is currently unaware of Does 1 through 50, and intends to sue them as soon as she becomes aware of their identit[ies].
"The legal basis for this action is that, St. Bernardine Medical Center and Does 1 through 50, to be identified and named in such action were negligent in properly outfitting [Rosales], who has a history of neuropathy in her feet. Defendants and each of them failed to remove a hospital gown from [Rosales's] feet and ankles which caused her [to] trip, fall, and suffer injuries as the result of such negligence.
"The negligence of such care, which is the subject of this action, took place on or about November 13, 2015. Due to the nature of the injuries sustained, [Rosales] knew about Defendants' medical negligence immediately, when she was hospitalized the same day at St. Bernardine Medical Center.
"Enclosed herein please find the following medical records and billing statements which reflect injuries and damages sustained by [Rosales].
| "St. Bernardine Medical Center | $130,774.00 |
| "Med-America Physicians Billing | $623.00 |
| "Renaissance Radiology | $644.52 |
| "Braswell Colonial Care | $12,850.00 |
| "Arrowhead Orthopaedics [sic] | $ STILL TREATING |
|---|---|
| "Total | $144,891.52+ |
"Thank you for your cooperation in this matter."
E. COMPLAINT
Rosales's complaint was filed on February 6, 2017. Rosales brought a cause of action for medical negligence. In that cause of action, Rosales alleged, "During the times alleged herein, defendants, and each of them breached their duty to [Rosales] and so negligently cared for, treated, and rendered medical services upon [Rosales] and so negligently operated, managed, controlled, and conducted their services and activities in connection with [Rosales's] care and assistance, that [Rosales] suffered serious injuries, including femoral fractures."
F. SUMMARY JUDGMENT MOTION
The Hospital brought a motion for summary judgment. The Hospital contended Rosales's lawsuit was time-barred because it exceeded the one-year statute of limitations. (Code Civ. Proc., § 340.5.) The Hospital noted that Rosales sustained her injuries on November 13, 2015, and filed her complaint on February 6, 2017.
All subsequent statutory references will be to the Code of Civil Procedure unless otherwise indicated.
Alternatively, the Hospital asserted there was no triable issue of fact because the Hospital met its standard of care. The Hospital asserted that, at the time Rosales was admitted to St. Bernardine, she was determined to be a fall risk, in part because Rosales used a walker at home. Because Rosales presented a risk of falling, "fall safety interventions were implemented and fall prevention education was provided to [Rosales] and her family. Interventions included the fact that [Rosales's] bed was locked and low, her room was clutter and obstacle free, proper lighting was assured, the call light was within [Rosales's] reach and hourly rounding was in place. Properly fitted nonskid footwear was applied and the patient was oriented to her surroundings."
The Hospital asserted that, on November 13, 2015, Rosales used her walker to walk to the restroom to put on a second hospital gown to cover her backside. A nurse walked alongside Rosales to the bathroom. While in the bathroom, the nurse told Rosales that Rosales would be going to surgery and she did not need two gowns. While in the bathroom, the nurse assisted Rosales with removing the second hospital gown. The nurse left the room. Rosales washed her hands and brushed her teeth.
"Once [Rosales] finished she turned around and took two or three steps but her walker was not near her. Notwithstanding this fact, she continued to walk out of the bathroom. She did not ask for help and did not use the call light. The next thing she knew, her legs opened and she fell. When asked, [Rosales] further confirmed that she did not call the nurse to ask for assistance to get out of bed because she could do so on her own and could get to the bathroom on her own with her walker. She likewise confirmed that she never used the call light or called for help. [Citation.]" Daughter "was sitting steps outside of the bathroom door which remained open." Daughter "confirmed that she never saw the nurse leave the room with the walker and has no idea where it went."
The Hospital provided the declaration of Margaret A. Morley (Morley), who was a registered nurse with "extensive experience in bedside nursing at acute care facilities in California, and [who] is familiar with the standard of care for nurses." Morley explained that "appropriate safety measures and interventions were in place prior to and at the time of Mrs. Rosales'[s] fall. Appropriate education was provided to Mrs. Rosales and her family and reiterated with respect to fall precautions and the use of the call light to request assistance." Morley opined, "[N]othing hospital staff did or failed to do caused or contributed to Mrs. Rosales'[s] fall or her alleged injuries."
G. OPPOSITION
Rosales opposed the Hospital's motion for summary judgment. In regard to the statute of limitations, Rosales asserted the one-year limit was extended by 90 days due to her November 2016 letter notifying the Hospital of her intent to sue. (§ 364, subd. (d).) Rosales asserted the 90-day extension gave her until February 7, 2017, to file her lawsuit, and therefore her complaint was timely filed.
Rosales asserted there was a triable issue of material fact on the issue of negligence due to: (1) the nurse leaving the second gown on the floor where it created a tripping hazard; (2) the nurse moving Rosales's walker beyond Rosales's reach; and (3) the nurse departing Rosales's room without a walker being within Rosales's reach.
H. REPLY
The Hospital replied to Rosales's opposition. As to the statute of limitations, the Hospital asserted the November 9, 2016, letter was not Rosales's notice of intent to sue; rather, Rosales's January 15, 2016, letter constituted her notice of intent to sue. The Hospital asserted, "[s]erving another notice of intent to sue on November 9, 2016, had no legal effect." Therefore, the Hospital concluded that the November 2016 letter did not extend the statute of limitations.
In regard to the existence of a triable issue of material fact, the Hospital contended, "[Rosales] does not present an expert opinion on whether [the Hospital] met the standard of nursing care and, if there was a breach of the standard of care, whether the nurse caused [Rosales's] injuries. [Rosales's] failure to submit an expert's opinion is fatal to her opposition."
I. HEARING
The trial court held a hearing on the Hospital's motion. At the beginning of the hearing, the trial court said its tentative ruling was to grant the motion. The trial court said, "[T]he statute of limitations was busted in this case in terms of when the matter was filed based upon the January 15, 2016, Notice of Intent to Sue letter and the date of the incident with respect to the plaintiff in this matter."
In regard to a triable issue, the trial court explained that the Hospital provided an expert's declaration reflecting "that nothing in the care and treatment provided by the nurse or others . . . caused or contributed to any injuries or damages suffered by [Rosales]." The trial court then said, "What I don't have from [Rosales] is an expert declaration that is in conflict."
Rosales asserted the January and April 2016 letters did not constitute notices of intent to sue. Rosales explained that the two letters did not communicate "an intention to commence the action," they did not indicate the basis for Rosales's lawsuit, e.g., negligence, and they did not specify Rosales's injuries.
In regard to the lack of an expert, Rosales contended expert testimony was not needed "because its in the common knowledge of a layperson." Rosales contended that, when she went to the bathroom, "the walker didn't go into the bathroom because it was tight quarters. The walker was left immediately outside the bathroom." When Rosales was finished in the bathroom, "the walker was somehow gone. The only person that had been present that could have removed it was the nurse."
Rosales contended, "Our claim is that this is—this is every day negligence that doesn't—it—it's a medical malpractice case because it was in a medical setting, there was a nurse there and we were in a hospital, so it's negligence involving a nurse and involving a hospital. But it's common every day negligence . . . ."
The Hospital asserted the January 2016 letter discussed preserving evidence for a potential lawsuit because Rosales was severely injured. The Hospital contended the January 2016 letter met the requirements for a notice of intent to sue. As to the lack of an expert, the Hospital asserted that Rosales brought a medical malpractice cause of action, which means Rosales alleged the nurse failed to meet the standard of care.
The trial court adopted its tentative ruling as its final ruling. The trial court found that Rosales's lawsuit was time-barred. The trial court explained that Rosales failed to establish a triable issue of material fact because "there is no opposing expert witness declaration" and therefore "there is no triable issue of material fact as to whether or not any of the conduct of defendants caused or contributed to any of the injuries or damages sustained by [Rosales]."
DISCUSSION
A. TRIABLE ISSUE OF MATERIAL FACT
Rosales contends the trial court erred by granting summary judgment because there is a triable issue of material fact.
" 'A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.] The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish, a prima facie case . . . ." [Citation.]' [Citation.] '[O]nce a moving defendant has "shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established," the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action" '
" 'On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.' " (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 274.)
"The standard of care in a medical malpractice case requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen. [Citation.] It is also established that a nurse's conduct must not be measured by the standard of care required of a physician or surgeon, but by that of other nurses in the same or similar locality and under similar circumstances." (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.)
In the Hospital's motion for summary judgment, it provided Morley's declaration. Morley was a registered nurse. Morley declared, "Appropriate education was provided to Mrs. Rosales and her family and reiterated with respect to fall precautions and the use of the call light to request assistance. Mrs. Rosales verbalized her understanding." Morley concluded, "Based on my education, training, experience and review of the aforementioned information, there is no indication that the nursing staff fell below the standard of care in the community in their care and treatment of Mrs. Rosales at any time."
Morley's declaration reflects that the Hospital met the standard of care by educating Rosales regarding the call button, which would permit Rosales to summon assistance. Further, the Hospital provided Rosales with non-skid footwear and adequate lighting, which would permit Rosales to walk safely when she walked. The Hospital's evidence reflects it fulfilled its duty by teaching Rosales to use the call button, and therefore, Rosales's injury was caused by her failure to use the call button to summon assistance. In sum, because the Hospital provided evidence that it met the standard of care, the Hospital met its burden of demonstrating Rosales's lack of a prima facie case.
We now turn to Rosales's evidence to determine if she established a triable issue of material fact. In Rosales's complaint, she alleged the Hospital "failed to inform and/or assist [Rosales] properly as [Rosales] was improperly dressed which caused her trip and fall." Rosales did not provide the declaration or deposition transcript of an expert to explain the standard of care for dressing patients who present a fall risk. For example, Rosales did not provide evidence explaining if fall-risk patients should be dressed while sitting or if fall-risk patients are permitted to dress themselves.
The Hospital provided evidence indicating that it met its duty because it provided Rosales with a call button, provided her with nonskid footwear, and provided proper lighting, among other things. It was therefore incumbent upon Rosales to explain why the standard of care required more. A layperson would not be familiar with what nurses are required to do when dressing a patient who presents a fall risk. Because Rosales failed to provide evidence from an expert to establish the standard of care, we conclude Rosales has not established a triable issue of material fact. Therefore, we conclude the trial court did not err.
Rosales contends Morley's declaration has "no evidentiary value because it lacked a reasoned explanation of why the underlying facts led to the ultimate conclusion (that the hospital met the nursing standard of care)." (Italics omitted.) "If an expert provides an opinion in support of a motion for summary judgment, he or she must provide the facts upon which the expert's conclusions are based. ' " '[A]n expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]' [Citation.]" [Citation.] '[A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.' " (Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 662.)
Morley, the Hospital's expert, provided details as to how the Hospital met the standard of care for Rosales in terms of Rosales being a fall risk. Morley explained, "Interventions included the fact that the patient's bed was locked and low, her room was clutter and obstacle free, proper lighting was assured, the call light was within the patient's reach and hourly rounding was in place. Properly fitted nonskid footwear was applied and the patient was oriented to her surroundings. The Fall Risk Plan of Care was initiated and additional fall prevention interventions were implemented: A yellow wristband was applied and a fall alert indicator was posted in a visible location."
Morley concluded, "[T]here is no indication that the nursing staff fell below the standard of care in the community in their care and treatment of Mrs. Rosales at any time." One can reasonably conclude from Morley's declaration that the foregoing steps, such as placing the call button within Rosales's reach and supplying Rosales with nonskid footwear are the standards for caring for patients who pose a risk of falling. Morley provided facts as to how the standards were met in this case, e.g. by placing the call button within Rosales's reach. One can reasonably conclude from Morley's declaration that Morley believed the standard of care was met in this case because of the various fall precautions provided to Rosales, such as nonskid footwear, a call button within reach, and adequate lighting. Because the reasons for Morley's conclusions are easily inferred from her declaration, we are not persuaded that Morley's declaration lacks evidentiary value.
Rosales contends her lawsuit concerns ordinary negligence—not medical malpractice—and therefore evidence from an expert is not required. "The pleadings play a key role in a summary judgment motion and ' " 'set the boundaries of the issues to be resolved at summary judgment.' " ' [Citation.] '[T]he scope of the issues to be properly addressed in [a] summary judgment motion' is generally 'limited to the claims framed by the pleadings. [Citation.] A moving party seeking summary judgment or adjudication is not required to go beyond the allegations of the pleading, with respect to new theories that could have been pled, but for which no motion to amend or supplement the pleading was brought, prior to the hearing on the dispositive motion.' " (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444.)
" 'Professional negligence' means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed." (§ 340.5, subd. (2).)
In Rosales's complaint she alleged, "At all times mentioned herein defendant, [the Hospital], and Does 1 to 25, owed a legal duty to plaintiff, [Rosales], to provide adequate [a]dvice, diagnosis, treatment, medical services, assistance, and care which is ordinarily possessed and/or exercised by healthcare providers who are duly licensed to practice and who are in good standing with the State of California."
Rosales's allegations reflect that the Hospital "owed a legal duty" to provide "care which is ordinarily . . . exercised by healthcare providers who are duly licensed." Because Rosales asserted the duty owed was that of a licensed medical professional, we are not persuaded that she alleged ordinary negligence. (See § 340.5, subd. (2) [professional negligence means an act done within the service of a licensed healthcare provider].)
Rosales contends that if she alleged medical malpractice then the common knowledge exception applies so expert testimony was not required. Rosales asserts the instant case is similar to Massey v. Medical Center Redding (2009) 180 Cal.App.4th 690 (Massey). In Massey, the plaintiff, "who was then 65 years of age, underwent bifemoral bypass surgery on March 3, 2006, to improve circulation in his legs." (Id. at p. 693.) "This surgery involved cutting open [the] plaintiff's abdomen and making tunnels in his groin and then threading tubes from his aorta through the tunnels to his leg arteries." (Id. at p. 695.) After the surgery, the plaintiff was designated a fall risk. (Id. at p. 693.) On the evening of March 9, 2006, the plaintiff used his call light to summon a nurse to help him use the restroom. The nurse "set [the] plaintiff on the walker, and then told [the] plaintiff he [(the nurse)] had to go do something and would be right back. When 'right back' became 15 minutes, [the] plaintiff lost patience and tried to move on his own with the walker. He fell and suffered a compression fracture to his back." (Ibid.) The plaintiff "was not discovered for nearly two hours." (Id. at p. 695.)
The Massey plaintiff brought a medical negligence cause of action. (Id. at pp. 693-694.) The trial court found the plaintiff's expert was unqualified and granted nonsuit after the plaintiff's opening statement. (Id. at p. 692) On appeal, the plaintiff asserted expert testimony was not required because the "the nurse's alleged negligence for the fall poses a question of common knowledge." (Massey, supra, 180 Cal.App.4th at pp. 692, 694.) The appellate court explained, "Once the condition of the patient is factually established as helpless or severely disabled . . . common knowledge and experience can be used to determine whether the patient fell because she or he was insufficiently attended to by medical personnel." (Massey, supra, 180 Cal.App.4th at p. 697.) The appellate court further explained that the nurse "was engaged here in a routine, nontechnical task of assisting a fall-risk patient to walk a short distance to the bathroom. The common knowledge exception applies to this task." (Ibid.) Thus, the appellate court held that the plaintiff's case could proceed without expert testimony. (Ibid.)
As to the first issue—establishing the plaintiff is "helpless or severely disabled—in the instant case, "[Rosales] asked a nurse for a second hospital gown to cover her backside. Upon her receipt of the second gown [Rosales] stood up, put the second gown on and grabbed her walker to go to the bathroom." When Rosales finished washing her hands and brushing her teeth in the bathroom, "she turned around and took two or three steps but her walker was not near her. Notwithstanding this fact, she continued to walk out of the bathroom. She did not ask for help and did not use the call light." "When asked, [Rosales] confirmed that she did not call the nurse to ask for assistance to get out of bed because she could do so on her own and could get to the bathroom on her own with her walker."
In sum, the record reflects: (1) Rosales dressed herself with the second gown; (2) Rosales stood-up and reached for her walker by herself; (3) Rosales washed her hands and brushed her teeth by herself; and (4) Rosales walked out of the bathroom by herself. Rosales was not a postoperative patient, like the plaintiff in Massey. Rosales was awaiting surgery and was capable of moving on her own. Therefore, it has not been established that Rosales was helpless or severely disabled.
In regard to the second issue—whether the nurse was engaged in a non-technical task—in the instant case, we cannot conclude that the nurse was engaged in a nontechnical task because we do not know what is involved in dressing a patient who presents a fall risk. For example, it is possible that fall-risk patients should be dressed while seated, and there may be skills involved in dressing a seated person. We do not have sufficient information about how nurses should dress fall-risk patients, and, as a result, we cannot conclude that the situation can be assessed by a layperson. Because Rosales is asserting the exception to the rule should be applied, it is Rosales's burden to supply the evidence necessary to establish the exception is applicable. (Standard Pacific Corp. v. Superior Court (2009) 176 Cal.App.4th 828, 834.) Rosales has failed to demonstrate that the exception to needing an expert is applicable in this case.
In Rosales's appellant's opening brief, she asserts that, after the nurse assisted Rosales with removing the second gown, the nurse "left, without any explanation (and was next seen after Ms. Rosales fell, when she came back after [Daughter] stepped into the hall and summoned help)." To the extent Rosales is asserting a fall-risk patient can never be left alone while out of bed, Rosales would need expert testimony to establish that duty because the requirements of caring for a fall-risk patient are not known to laypeople.
B. EVIDENTIARY OBJECTIONS
In Rosales's appellant's opening brief, she requests this court review the trial court's decision to overrule Rosales's objections to the Hospital's evidence. Rosales does not contend the trial court erred; she simply "requests review." In Rosales's appellant's reply brief, she asserts, "Although overruled by the trial court, those objections also need no further attention in this court." It appears Rosales has abandoned her request for this court to review the trial court's rulings on her objections. However, to the extent Rosales is still requesting this court review the objections, this court will not review the record and create arguments concerning how the trial court may have erred. Therefore, we deny Rosales's request. (Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 767 [" 'This court is not inclined to act as counsel for . . . appellant and furnish a legal argument as to how the trial court's rulings . . . constituted an abuse of discretion' "].)
C. PROCEDURAL ERRORS
Rosales contends the trial court erred by granting summary judgment because the Hospital (1) did not separately identify each material fact in its separate statement; (2) included non-material facts in its separate statement; and (3) did not provide sufficient citations in its separate statement. We will assume, for the sake of judicial efficiency, that the Hospital's separate statement included non-material facts and lacked sufficient separation of the facts and lacked sufficient citations. (See Cal. Rules of Court, rule 3.1350(d) [requirements for a separate statement].) Rosales fails to explain why "a different result would have been probable if such error . . . or defect had not occurred or existed." (§ 475.) Because Rosales does not address the issue of prejudice, we do not reverse the judgment. (§ 475.)
D. SANCTIONS
Rosales requests this court sanction the Hospital. First, Rosales contends sanctions should be imposed because the Hospital responded to Rosales's statute of limitations argument, concerning the November 2016 letter, in the Hospital's reply, rather than fully briefing the statute of limitations issue in the motion for summary judgment. Second, Rosales contends sanctions should be imposed because the Hospital cited Massey in its motion for summary judgment but ignored the holding in Massey. We deny Rosales's request for sanctions.
E. REMAINING ISSUES
Rosales contends the trial court erred by finding her lawsuit exceeded the statute of limitations. Additionally, Rosales contends the trial court erred by sustaining the Hospital's objections to Rosales's evidence. We conclude these issues are moot due to our holding ante that the trial court properly granted summary judgment as a result of Rosales failing to provide the opinion of an expert. (Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 174-175 [issue is moot when no effective relief can be granted].) Therefore, we will not address the merits of these remaining issues.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. FIELDS
J.