Judge: Anne Richardson, Case: 21STCV07308, Date: 2023-08-29 Tentative Ruling

Case Number: 21STCV07308    Hearing Date: August 29, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings Framing Motion

Plaintiff Richard Taik Kim—originally appearing in pro per but now represented by counsel—sues Defendants Dae Soon Rheem, M.D. (Dr. Rheem) pursuant to a February 25, 2021 Complaint alleging claims for medical malpractice and emotional distress based on allegations that Plaintiff underwent a colonoscopy with Dr. Rheem in March 2020, which involved the insertion of a rod into Plaintiff’s large intestine that has since caused Plaintiff Kim unendurable pain, including gas development, increased blood pressure, constipation, dizziness, sleep disturbance, and difficulties walking, and has led Plaintiff to take a number of constipation drugs and undergo acupuncture treatments. The Complaint prays for compensatory damages, emotional distress damages, consequential damages, costs of suit and expenses, punitive damages, and other relief deemed appropriate.  Note: While the cover page of the complaint states a purported second claim for “Emotional Distress,” there are no allegations in the complaint that track the required elements for a claim for intentional or negligent infliction of emotional distress. Rather, it appears all parties have interpreted the complaint as stating a single claim for medical malpractice, but including a claim for emotional distress damages for the alleged medical malpractice.

Procedural History and Motion Before Court

The action was originally assigned to Department 29 at the Spring Street Courthouse, the Personal Injury Hub.

On March 30, 2021, Dr. Rheem demurred to the Complaint’s medical malpractice claim and moved to strike the medical malpractice claim and the Complaint’s prayer for punitive damages.

On April 28, 2021, Department 29 overruled the demurrer but granted the motion to strike, in part, as to the Complaint’s prayer for punitive damages.

On May 4, 2021, Dr. Rheem filed an Answer to the Complaint.

On or around October 12, 2021, the action was reassigned to Department 30, another Personal Injury Hub courtroom.

On April 25, 2022, Dr. Rheem moved for summary judgment of the Complaint’s claim of medical malpractice. The motion was set for hearing on September 7, 2022, at which time trial was calendared for August 25, 2022.

On April 26, 2022, Dr. Rheem moved to advance the hearing date on the motion for summary judgment or, in the alternative, to continue trial.

On April 27, 2022, Department 30 granted the ex parte, in part, only as to continuance of trial to March 20, 2023.

On August 26, 2022, Dr. Rheem noticed Plaintiff Kim’s failure to oppose the motion for summary judgment.

On September 1, 2022, Plaintiff Kim made an untimely opposition to the motion for summary judgment.

On September 2, 2022, Dr. Rheem replied to the opposition.

On September 7, 2023, the motion for summary judgment came before Department 30, which continued the hearing to October 11, 2022 in order to consider the parties’ papers.

On October 11, 2022, Department 30, at the direction of Department 1, transferred and reassigned this action to Department 40 at the Stanley Mosk Courthouse for all purposes except trial, delegating the authority to assign trial in Department 40 to the Independent Calendar Court. Department 30 also noted any pending motions would be reset, continued, or vacated by Department 40 (hereafter, the Court).

On October 11, 2022, the Court noticed a case management conference for February 28, 2023.

On February 28, 2023, the Court held the case management conference, which Plaintiff failed to attend, leading the Court to continue the conference to July 20, 2023.

On July 20, 2023, the Court set the hearing on Dr. Rheem’s motion for summary judgment for August 29, 2023, and continued the case management conference to the same date.

Dr. Rheem’s motion for summary judgment is now before the Court.

Evidentiary Objections

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

Reply Objections to Opposition Evidence

Not ruled on as not material to disposition of this motion.

Motion for Summary Judgment

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 for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) A party may also seek summary adjudication of select causes of action, affirmative defenses, claims for damages, or issues of duty, which may be made by a standalone motion or as an alternative to a motion for summary judgment and proceeds in all procedural respects like a motion for summary judgment. (Code Civ. Proc., § 437c, subds. (f)(1)-(2), (t); see Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855, questioned by dictum in Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1094, fn. 2 [finding that summary adjudication may be granted as to separate factual grounds supporting a claim stated as a single count because the separate grounds state a separate cause of action].) The moving party bears the initial burden of production to make prima facie showing no triable material fact issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This burden on summary judgment or adjudication “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Id. at p. 850, fn. 11.) If the moving party meets this burden, the burden shifts to the opposing party to make a rebuttal prima facie showing that a triable issue of material fact exists. (Id. at p. 849.) “[I]n ruling on motions for summary judgment courts are to ‘“liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”’ [Citations].” (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 760.)

Complaint, First Cause of Action, Medical Malpractice: GRANTED.

The elements of medical malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702, citations omitted.) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Thus, in a medical malpractice case, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal. App. 3d 977, 984-985, citations omitted.) An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)

Dr. Rheem moves for summary judgment of the Complaint’s medical malpractice claim on two grounds: (1) Dr. Rheem complied with the applicable standard of care; and (2) Dr. Rheem’s conduct was not a substantial factor in causing any of Plaintiff’s alleged damages. (See Mot., p. 4-8.)

In support of both positions, Dr. Rheem presents the declaration of Jonathan Ellis, M.D. Dr. Ellis provides information in his sworn declaration that sufficiently details the grounds for this Court to determine that Dr. Ellis is a qualified medical expert to opine as to the applicable standard of care for gastroenterologists in the Southern California community, at all times relevant to this action. (Mot., Ellis Decl., ¶¶ 1-4.) Dr. Ellis explains that, in forming his opinion, he relies on a copy of the Complaint, Plaintiff’s responses to Dr. Rheem’s Form Interrogatories, Set One, and Special Interrogatories, Set One, responses and production to Dr. Rheem’s Request for Production of Documents, Plaintiff’s medical records from Dr. Rheem, and medical records from Hyo-Rang Lee, M.D, who checked Plaintiff’s condition after the procedures with Dr. Rheem. (Mot., Ellis Decl., ¶¶ 5-5(e), 14.) Copies of the Complaint, medical records from Dr. Rheem and from Dr. Lee, and responses to the special and form interrogatories are attached as Exhibits A to D to the motion for summary judgment. (See Mot., Cox Decl., ¶¶ 4-7, Exs. A-D.)

The Court first finds that Dr. Ellis provides a sufficient factual background of the medical procedures performed on Plaintiff by Dr. Rheem, as well as the condition of Plaintiff Kim prior to, during, and following the colonoscopy with Dr. Rheem. (Mot., Ellis Decl., ¶¶ 7-14.)

The Court next finds that Dr. Ellis provides sufficient declaratory statements supporting the conclusion that Dr. Rheem acted within the standard of care when treating Plaintiff Kim, as indicated by (1) Plaintiff’s age, medical history, complaints of lower abdominal pain, and prior history of colonoscopies, (2) Plaintiff’s informed consent to the procedure in 2020, (3) Dr. Rheem having employed a proper technique during the procedure, where the procedure and equipment as documented in Dr. Rheem’s operative report are standard for colonoscopy procedures, and where Dr. Rheem aborted the procedure after encountering a tortuous colon, (4) no documented complications or perforations from the procedure, (5) lack of evidence of injury at a follow up appointment with Dr. Rheem, as well as an unremarkable post-colonoscopy abdominal examination, (6) lack of injury in the subsequent medical records from Dr. Lee, (7) Plaintiff’s diverticulosis and chronic constipation being the actual reasons for his pain, (8) lack of evidence of injuries to organs, and (9) Plaintiff denying most pain symptoms five months after the procedure. (Mot., Ellis Decl., ¶¶ 16-20, 21-22.) The Court also accepts that because of these determinations, Dr. Ellis concludes that Dr. Rheem could not have caused Plaintiff Kim’s injuries. (Mot., Ellis Decl., ¶¶ 19-22.)

As a result, the Court finds that Dr. Rheem carries his burden on summary judgment as to the medical malpractice claim.

In opposition, Plaintiff Kim argues that triable issues of material fact remain as to whether Dr. Rheem’s use of an instrument to widen the interior of Plaintiff’s colon is what caused Plaintiff’s injuries and as to whether Plaintiff in fact gave informed consent to the treatment where his consent was only obtained after the procedure had been completed. Elsewhere, Plaintiff argues that Dr. Ellis’s declaration fails to mention the ten-minute use of the “hammer-like” equipment used to widen Plaintiff’s colon. Plaintiff also argues that Dr. Rheem admitted to Plaintiff to attempting to widen Plaintiff’s colon and that such admission contradicts the moving paper’s position that Dr. Rheem aborted the procedure after encountering a tortuous colon. Last, Plaintiff argues that causation need not be attested by an expert where Dr. Rheem failed to obtain informed consent from Plaintiff Kim prior to the procedure taking place. (Opp’n, pp. 2-4.)

In support, Plaintiff relies on his own declaration and nothing else. (See Opp’n, Kim Decl., ¶¶ 1-12.)

In reply, Dr. Rheem argues that the opposition was untimely, that Dr. Rheem met his burden as to standard of care and causation, and that Plaintiff failed to present expert opinions establishing breach of the standard of care or causation of Plaintiff’s injuries. (Reply, pp. 3-6.)

The Court first finds that the opposition, while perhaps untimely, will be considered on the merits. Even when the opposing party does expressly object to inadequate notice but then opposes the motion on the merits, the issue of defective notice may be waived unless the opposing party makes a request for a continuance or demonstrates prejudice from the defective notice. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288.) Here, Dr. Rheem responded to the opposition on the merits in his reply and did not argue prejudice from defective notice. (See Reply, pp. 3-6.)

The Court next finds that Plaintiff Kim has nevertheless failed to carry his burden on summary judgment. The Court credits that a triable issue as to informed consent may exist where Plaintiff argues that Dr. Rheem’s staff only obtained informed consent from him following the colonoscopy. (Opp’n, Kim Decl., ¶ 10.) However, the damages contemplated by the medical malpractice claim do not center on damages arising from a general breach of lack of informed consent, but rather, center on damages to Plaintiff arising from injuries to his body leading to manifestations of intense physical pain. (Complaint, ¶¶ 8-11.) Even if Plaintiff did not consent to the procedures undertaken by Dr. Rheem in early 2020, this does not mean that the procedures themselves were performed below the appropriate standard of care or that Dr. Rheem’s treatment caused Plaintiff Kim’s injuries as alleged in the Complaint. Moreover, an expert opinion is necessary to discuss standard of care and causation, which this opposition fails to attach. Indeed, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California, supra, 215 Cal. App. 3d at pp. 984-985, citations omitted.) An expert declaration, if uncontradicted (as is the case here), is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin, supra, 14 Cal.App.3d at p. 999.)

Summary judgment of the Complaint’s claim for medical malpractice is thus GRANTED. 

Conclusion

Defendant Dae Soon Rheem, M.D.’s Motion for Summary Judgment is GRANTED.