Judge: Armen Tamzarian, Case: 22STCV39158, Date: 2024-03-27 Tentative Ruling
Case Number: 22STCV39158 Hearing Date: March 27, 2024 Dept: 52
Defendant Cedars-Sinai Medical
Center’s Motion for Summary Judgment
Defendant
Cedars-Sinai Medical Center moves for summary judgment of this action by
plaintiff Latonya Higgins.
Legal
Standard
A defendant moving
for summary judgment must show “that one or more elements of the cause of
action… cannot be established, or that there is a complete defense to the cause
of action.” (CCP § 437c(p)(2).) Once the defendant does so, the burden shifts
to the plaintiff to show a triable issue of at least one material fact. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 849.) Courts use a
three-step analysis: “(1) identify the issues framed by the pleadings; (2)
determine whether the moving party has negated the opponent’s claims; and (3)
determine whether the opposition has demonstrated the existence of a triable,
material factual issue.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294.)
Summary of Allegations
Plaintiff alleges
a single cause of action for medical malpractice. She alleges she underwent surgery at
Cedars-Sinai in 1995. (SAC, ¶ 5.) “During the Surgery, Defendant left a foreign
body, which has no therapeutic or diagnostic purpose… or effect inside
Plaintiff.” (¶ 6.) “The foreign body … was a plastic tube.” (Ibid.) “The plastic tube was discovered during
Plaintiff’s January 2022 medical examination.”
(Ibid.) “The plastic tube
caused Plaintiff to suffer several symptoms, including severe anemia, internal
hernia, poor nutrient absorption, constant pain, and other symptoms which
require surgery to repair.” (Ibid.)
Statute of Limitations
Defendant establishes it is entitled to judgment as
a matter of law because plaintiff’s action is untimely. The statute of limitations for medical
malpractice is “three years after the date of injury or one year
after the plaintiff discovers, or through the use of reasonable diligence
should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.) The three-year period is tolled when the
action arises from “the presence of a foreign body, which has no therapeutic or
diagnostic purpose or effect, in the person of the injured person.” (Ibid.) “[T]he foreign body exception does not apply to objects and substances
intended to be permanently implanted but items temporarily placed in the
body as part of a procedure and meant to be removed at a later time do come
within it.” (Maher v. County of
Alameda (2014) 223 Cal.App.4th 1340, 1352.)
Plaintiff underwent surgery at Cedars-Sinai in
1995. Her action is untimely unless the
foreign body exception applies.
Defendant meets its initial burden of showing
the foreign body exception does not apply.
In support of this motion,
defendant submitted the declaration of Carson Liu, M.D. He earned his medical degree in 1991 (Liu
Decl., ¶ 1) and has “performed thousands of bariatric procedures” (id.,
¶ 2). He “carefully reviewed” numerous
documents, including plaintiff’s discovery responses, her deposition
transcript, and medical records. (Id.,
¶ 6.)
Dr. Liu testifies
that the bariatric surgery performed on plaintiff is “called the ‘Fobi Pouch.’
” (Liu Decl., ¶ 21.) He further testifies, “To perform the Fobi
pouch, the stomach is separated into two portions and a small pouch is created. A silastic ring is then intentionally
placed around that small
pouch.” (Ibid.) The ring “is meant to be permanently
placed.” (Ibid.) Dr. Liu states the “silastic ring” is what
plaintiff referred to as a ”plastic ring.”
(Id., ¶ 24.) He further
testifies, “[T]he silastic ring is meant to be placed around the pouch and is
intended to remain within the patient indefinitely or until removed.” (Id., ¶ 25.)
Based on Dr. Liu’s
testimony, defendant meets its burden of showing the foreign body exception
does not apply because the object found inside plaintiff was meant to be placed
there permanently and thus had a therapeutic or diagnostic purpose or
effect. (Code Civ. Proc., § 340.5.)
Plaintiff does not
meet her burden of presenting evidence sufficient to demonstrate a triable
issue of material fact. Plaintiff
presents only her own declaration and a copy of a medical report from the Hemet
Endoscopy Center dated January 12, 2022.
Plaintiff did not file proof of service of this opposition on defendant. The adverse party is entitled to receive a
copy of any paper filed with the court.
(Code Civ. Proc., § 1010.) Plaintiff
also filed her opposition late. “An
opposition to” a motion for summary judgment “shall be served and filed
not less than 14 days” before the hearing.
(Code Civ. Proc., § 437c, subd. (b)(2).)
Plaintiff therefore had to serve and file the opposition by March
13. She filed it on March 20.
Even if plaintiff
had timely served and filed her opposition, she does not meet her burden of
showing a triable issue that precludes summary judgment. In her declaration, plaintiff states, “This
greyish looking piece of tubing was in fact part of a drainage tubing that was
to be left in in me for drainage of fluids external my body. So the tubing was partially inside my body and
partially visibly outside my body and was to be removed post surgery after 1 or
2 days. The tubing was inserted
incorrectly so when it came to removing the tubing the removal resulted in
tubing debris being left in my body.”
(Higgins Decl., p. 2:6-10.) She
further testifies, “[O]n January 12, 2022 embedded plastic tubing was found in
my stomach that should not have been in my stomach.” (Id., p. 2:18-19.)
Plaintiff’s
testimony is not admissible and not sufficient to demonstrate a triable issue
of fact. On a motion for summary
judgment, “[s]upporting and opposing affidavits or declarations shall be made
by a person on personal knowledge, shall set forth admissible evidence, and
shall show affirmatively that the affiant is competent to testify to the
matters stated in the affidavits or declarations.” (Code Civ. Proc., § 437c, subd. (d).) Except for expert witnesses, “the testimony
of a witness concerning a particular matter is inadmissible unless he [or she]
has personal knowledge of the matter.”
(Evid. Code, § 702, subd. (a).)
Plaintiff fails to
establish any personal knowledge or competence to testify about: the nature of
the object left in her body, that it “was to be removed post surgery after 1 or
2 days”, that it “was inserted incorrectly”, that its “removal resulting in
tubing debris”, or that the object “should not have been” there. With respect to the standard of care for a
medical professional, California courts have held it
is “ ‘peculiarly within the knowledge of experts’ ”, and “expert testimony is
required to ‘prove or disprove that the defendant performed in accordance with
the standard of care’ unless the negligence is obvious to a layperson.” (Johnson v. Superior Court
(2006) 143 Cal.App.4th 297, 305 (Johnson).) Though the foreign body exception to the
statute of limitations is a separate issue from the standard of care, the same
reasoning applies.
Whether the object found inside plaintiff was meant to be
permanently placed is not a matter of common knowledge. Plaintiff does not assert the object is a
surgical tool such as a “ ‘surgical clamp’ ” (Gannon v. Elliot (1993) 19
Cal.App.4th 1, 7), “surgical instrument cap” or “ ‘sponge’ ” (id. at p.
8) such that any person would know it should have been removed. Dr. Liu, who has performed thousands of
bariatric surgeries, testifies that the foreign body inside plaintiff was meant
to be permanently implanted. In
contrast, a lay person has no personal knowledge of how the “Fobi pouch”
surgery works, what was inside her, or whether it should have been removed.
Plaintiff’s
declaration also states, “Dr. Milan Chakrabarty is a fully licensed M.D. and is
qualified to make such a finding” (Higgins Decl., p. 2:20), i.e., that the
“tube” should have not been in her stomach.
Plaintiff did not submit a sworn declaration by Dr. Chakrabarty. The medical record she relies on is hearsay
and cannot be used to prove the truth of the matters stated in it. Even if admissible, Dr. Chakrabarty’s report does
not say the object should not have been in her stomach. The report’s “findings” state an “[e]mbedded
plastic tube was found in the anastomosis.” (Id., Ex. A, p. 2.) But below that, the “plan” portion of the
report states, “Please refer back to the surgeon who did the bypass surgery for
the plastic tube evaluation.” (Ibid.) Thus, rather than stating the object did not
belong in plaintiff’s body or had no therapeutic use, Dr. Chakrabarty’s report
states plaintiff should “refer back to” Dr. Fobi, the bariatric surgeon who
performed the surgery. The only evidence
in the record from a bariatric surgeon is testimony by Dr. Liu. He states the foreign object was supposed to
be permanently implanted in plaintiff.
Standard of Care
Defendant
also shows plaintiff cannot establish that it breached the standard of
care. For medical malpractice, the
plaintiff must prove defendant had and breached “a duty to use such skill,
prudence, and diligence as other members of the profession commonly possess and
exercise.” (Johnson, supra, 143
Cal.App.4th at p. 305.) “Because the
standard of care in a medical malpractice case is a matter ‘peculiarly within
the knowledge of experts’ [citation], expert testimony is required to ‘prove or
disprove that the defendant performed in accordance with the standard of care’
unless the negligence is obvious to a layperson.” (Ibid.)
Defendant
meets its initial burden. Dr. Liu
testifies, “As a bariatric surgeon and one who is familiar with the Fobi Pouch
procedure, there is no question that the presence of a silastic ring (or
plastic ring as defined by MS. HIGGINS), is expected and normal; and the
presence of this silastic ring in MS. HIGGINS is in no way below the standard
of care.” (Liu Decl., ¶ 24.) He further states, “[T]he silastic ring is
meant to be placed around the pouch and is intended to remain within the
patient indefinitely or until removed. The fact that this ring is still in MS.
HIGGINS is completely normal and not negligent on the part of CEDARS-SINAI MEDICAL
CENTER, or on the part of DR. FOBI for that matter.” (Id., ¶ 25.) Defendant thus presents competent expert
testimony that defendant did not breach its duty of care.
Plaintiff does not meet her
burden of presenting evidence sufficient to demonstrate a triable issue of
material fact on this element. She
presents no expert testimony. As
discussed above, this case does not involve a misplaced surgical tool such that
expert testimony is unnecessary. This
case concerns an object that defendant’s expert testifies was intended to be
permanently placed as part of the surgery.
Plaintiff can only meet her burden of demonstrating a triable issue of
material fact by presenting expert testimony that disputes Dr. Liu’s
statements. She does not do so.
Disposition
Defendant Cedars-Sinai Medical Center’s motion
for summary judgment of this action by plaintiff Latonya Higgins is granted. The court will sign the proposed judgment
defendant submitted on January 10, 2024.