Judge: Anne Hwang, Case: 21STCV34894, Date: 2023-11-07 Tentative Ruling

Case Number: 21STCV34894    Hearing Date: November 7, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Judgment, or in the alternative, Summary Adjudication; Declaration of Scott Forman, M.D. and Adam R. James in Support thereof

2.      Separate Statement of Undisputed Material Facts

3.      Appendix of Exhibits of Defendant

OPPOSITION PAPERS

1.      Plaintiff’s Response to Notice of Motion and Motion of Defendant, Mark Mikhael, M.D., for Summary Judgment

2.      Plaintiff’s Response to Undisputed Material Facts and Evidence

3.      Appendix of Exhibits of Plaintiff in Support

REPLY PAPERS

1.      Reply to Plaintiff’s Opposition

BACKGROUND

            On September 22, 2021, Plaintiff Linda Van Cleave (Plaintiff) filed a complaint, in pro per, against Defendant Mark M. Mikhael, M.D. (Defendant) for medical malpractice involving a surgery to repair Plaintiff’s hammer toe.

Defendant now moves for summary judgment, or in the alternative, summary adjudication, arguing that (1) he did not breach the standard of care; (2) Plaintiff cannot prove causation; and (3) the action is barred by the statute of limitations.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] 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.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

1.      LEGAL STANDARDDS – PROFESSIONAL NEGLIGENCE CLAIM

“Civil Code section 1714, subdivision (a) establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. When applied to medical professionals, this duty of care imposes a duty to use such skill, prudence and diligence as other members of his profession commonly possess and exercise.” (Flores v. Liu (2021) 60 Cal.App.5th 278, 290 [cleaned up].) To prevail on a claim for negligence against a medical professional, a plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.)

“[T]he legal standard of care required by doctors is the standard of practice required by their own profession. The courts require only that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. Thus, liability is not found, and the label of malpractice is not placed upon a physician's actions, unless some deviation by the physician from the standard of care that his peers consider appropriate in the situation under review is proven.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1081 [cleaned up].)

Expert testimony is generally the only admissible and relevant evidence on whether a medical professional has breached the standard of care. (Landeros v. Flood (1976) 17 Cal.3d 399, 410 [“ ‘The standard of care against which the acts of a physician 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 (citations), unless the conduct required by the particular circumstances is within the common knowledge of the layman’ ”].) As the Court of Appeal has held, in reversing summary judgments for medical professionals: “The standard of care against which the acts of a physician 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. California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607 [cleaned up].) Further, a plaintiff “is entitled to all favorable inferences that may reasonably be derived from” an expert’s declaration which must be liberally construed. (See Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 782.)

2. STANDARD OF CARE – BREACH AND CAUSATION

Defendant argues Plaintiff cannot establish that Defendant breached the standard of care in his treatment and care of Plaintiff, nor that an act or omission by Defendant caused or contributed to Plaintiff’s alleged injuries.

Here, Defendant offers the following facts, based on the declaration of Dr. Scott K. Forman, M.D.:

-          MARK MIKHAEL, M.D. complied with the applicable standard of care in the care and treatment of LINDA VAN CLEAVE. (UMF 5.)

-          There were appropriate indications for surgery for Ms. Van Cleave. Dr. Mikhael properly performed the bunionectomy and correction of the left second hammertoe using the appropriate medical judgment in performing the surgery. Based on the subsequent imaging studies, Dr. Mikhael obtained the proper result. This was confirmed at the December 27, 2019, post-operative visit when the x-rays showed proper alignment. Further, when the patient returned on January 10, 2020, the x-rays again looked “good”, showed the proper alignment and there was no interval change. On January 17, 2020, Ms. Van Cleave stated that she noticed that the toes were starting to drift and she expressed some concern. Dr. Mikhael’s examination noted that alignment is satisfactory. Dr. Mikhael complied with the standard of care as he advised her to return in two weeks for follow-up care. When Ms. Van Cleave returned on January 31, 2020, x-rays revealed that the screw in the second metatarsal had failed. This resulted in the toe drifting laterally. Dr. Mikhael acted appropriately in recommending that she weight bear with a supportive shoe. Further, it was appropriate to advise her that if the toe became painful, she would be candidate for another surgery. Ms. Van Cleave was advised to follow up in two months but did not do so. Thus, MARK MIKHAEL, M.D., complied with the standard of care in his treatment of Linda Van Cleave. (UMF 6.)

-          No act or omission by MARK MIKHAEL, M.D., caused or contributed to the injuries alleged by LINDA VAN CLEAVE. (UMF 7.)

-          The procedure was properly performed and resulted in appropriate anatomical alignment. Plaintiff suffered a known complication from foot surgery which required a second surgery. Plaintiff signed the informed consent, and this complication occurs in 10-20% of these surgeries and occurred in the absence of negligence. Ms. Van Cleave was at an increased risk for the complication due to her pre-existing neuropathy. When Ms. Van Cleave initially presented to Dr. Hirschbein, he proceeded with the same plan as Dr. Mikhael: i.e. to continue to provide supportive wide toe box shoes and taping of the second toe. Dr. Hirschbein provided a cortisone shot due to arthritis and sent her for nerve conduction studies due to her neuropathy. Conservative treatment occurred for another year until Dr. Hirschbein performed surgery on July 21, 2021. Further, even if plaintiff proceeded to surgery in February of 2020 (with Dr. Mikhael), she more likely than not, would have had the same outcome. There was no reason to perform surgery in February of 2020 or July of 2020. Surgery is only required when the patient has pain; crooked/ugly toes are not a reason to perform surgery. Thus, to a reasonable degree of medical probability, no act or omission by MARK MIKHAEL, M.D., caused or contributed to the alleged injuries in this case. (UMF 8.)

Defendant has met his initial burden of showing that Plaintiff will be unable to establish that Defendant breached the standard of care with respect to the treatment and care of Plaintiff, or that Defendant’s breach of the standard of care caused or contributed to Plaintiff’s claimed injuries. Defendant has presented expert testimony by Dr. Forman, who is board certified in orthopedics and has specialized in foot and ankle injuries since 1992. (Forman Decl. ¶ 2, 8.) Therefore, the burden shifts to Plaintiff to establish a triable issue of fact.

Plaintiff does not set forth expert testimony rebutting Defendant’s evidence. Instead, Plaintiff argues that her expert, Dr. Hirschbein, who performed Plaintiff’s subsequent surgery, is willing to testify in the future. (See Opp., 34.) However, because this medical issue is outside the knowledge of laypersons, Plaintiff must present expert testimony to meet her burden. Because no conflicting expert evidence has been presented to oppose the motion for summary judgment, Plaintiff fails to meet her burden to raise a triable issue of material fact.

Accordingly, the Court grants the motion for summary judgment.[1]

CONCLUSION AND ORDER

            Based on the foregoing, Defendant Mark Mikhael, M.D.’s Motion for Summary Judgment is GRANTED. Defendant shall file a proposed judgment within 10 days.

            Defendant shall provide notice of the Court’s order and file a proof of service of such.