Judge Audra Mori, Case 18STCV02705 2022-10-26 Tentative Ruling

Plaintiff Alan Yen (“Plaintiff”) filed this action against defendants Dr. George Cai, et al. for negligence and medical malpractice. On January 23, 2020, Plaintiff filed an Amendment to Complaint naming Daniel Leo Moon, M.D. (“Moon”) as Doe 3. Plaintiff’s Second Amended Complaint (“SAC”) alleges that on or about September 14, 2015, Moon “performed a laparoscopic cholecystectomy on Plaintiff to remove Plaintiff's normal gallbladder,” and that during the surgery, Moon inserted titanium clips in Plaintiff, which remained in Plaintiff after the procedure was completed. (SAC ¶ 23.) Plaintiff alleges he experienced persisting abdominal pain, and that after being admitted to a hospital on December 6, 2017, a CT scan showed the titanium clip was lodged in Plaintiff’s common bile duct, and that Plaintiff had a dilated common bile duct. (Id. at ¶¶ 27-28.) On December 7, 2017, “an ERCP was performed on Plaintiff to remove the titanium clip. The procedure revealed the clip had migrated and had been wrapped with a layer of sludge or stone that prevented it from being removed with various surgical devices.” (Id. at ¶ 29.) Plaintiff then underwent additional surgeries until the clip was removed from Plaintiff's body on January 18, 2018. (Ibid.)

Moon now moves for summary judgment. Plaintiff opposes the motion, and Moon filed a reply.

Moon asserts that Plaintiff’s sole cause of action against him is for medical negligence based on a laparoscopic cholecystectomy performed on Plaintiff. Moon argues he is entitled to summary judgment because Moon’s care and treatment of Plaintiff complied with the standard of care, and that Plaintiff’s injuries were not the result of anything Moon did or failed to do. Moon supports the motion with the expert declaration Robert Cole, M.D. (“Dr. Cole”). Dr. Cole attests that Moon met the standard of care at all times in his care and treatment of Plaintiff, and that to a reasonable degree of medical probability, no act or omission by Moon caused or was a substantial factor in causing Plaintiff’s injuries. (Mot. Dr. Cole Decl. ¶¶ 7, 9.) Dr. Cole states that in a standard laparoscopic cholecystectomy procedure, titanium surgical clips are used to seal off the cystic duct before removing the gallbladder, and these clips remain in the patient’s body after completion of the procedure. Migration of surgical clips is a known potential risk and complication of the procedure.

Plaintiff argues Moon’s treatment fell below the standard of care by injuring Plaintiff’s abdomen when Moon performed the cholecystectomy procedure on September 14, 2015. Plaintiff contends that Moon injured him when Moon mistakenly placed a surgical clip on Plaintiff’s common bile duct and then failed to diagnose and remediate the issue when Plaintiff returned on September 25, 2015, complaining of worsening abdominal pain. Plaintiff supports his opposition with the declaration of Michael Sedrak, M.D. (“Dr. Sedrak”). Dr. Sedrak opines that Moon’s treatment of Plaintiff deviated from the standard of care, and to a reasonable degree of medical probability, caused or was a substantial factor in causing Plaintiff’s injuries. (Opp. Dr. Sedrak ¶¶ 5, 7-8.)

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 317.) Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. (Id.) If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. (Id.)

A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. (CACI 506.) Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. (CACI 505.)

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. (See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844.) “‘When 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.)

In order to establish that defendant's negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498.) “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical 'possibility' needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” (Id.; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.)

In Moon’s reply to Plaintiff’s separate statement of undisputed facts submitted with the opposition, Moon makes objections to certain facts asserted by Plaintiff. Objections to a separate statement are improper. (Cal. Rules of Code, rule 3.1354(b).) The Court, therefore, declines to rule on the purported objections in the separate statements.

Moon additionally submits eight objections to the declaration of Dr. Sedrak attached to Plaintiff’s opposition. Moon argues Dr. Sedrak’s expert opinion is speculative and conclusory, and thus, fails to create a triable issue of material fact.

In ruling on the objections, the court is guided as follows: an expert opinion must be supported “by a reasoned explanation connecting the factual predicates to the ultimate conclusion” or it lacks evidentiary value. (See, e.g., Sanchez v. Kern Emergency etc. (2017) 8 Cal.App.5th 146, 155.)

In Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123-124, the court of appeals considered this issue at length. The Court noted that the standard of review for the plaintiff’s opposing declaration was lower than the standard of review for the defendant’s moving declaration. Declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed.

However, “[t]his does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.’ [Citation.]” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.)

In Fernandez v. Alexander, the plaintiff fractured her wrist, and her doctor allegedly “failed to recommend, encourage [or] perform surgery … instead ordering a cast.” (Id. at 772.) The doctor's expert declared that the doctor had engaged in medical treatment within the standard of care by ordering a cast. (Id. at 776.) The plaintiff's expert declared that the “failure to discuss surgical treatment options was a breach of the standard of care” and that to “a reasonable degree of medical probability” the care provided to plaintiff breached the standard of care. (Id.) “On the causation issue, he simply stated that, based on the records and his training and experience, his opinion, based on a reasonable degree of medical probability, was that defendant’s care and treatment ‘caused Plaintiff’s further deformity of her left wrist.’” (Id. at 781.) His declaration did not “explain[], for example, … how the failure to discuss surgery at the initial consultation caused” plaintiff's injury. Nor did the declaration “opine that surgery would have produced a better outcome” or “challenge or even address [the defendant's expert's] opinion that what happened to plaintiff's hand … was a potential outcome of both treatments [i.e., surgery or casting].” (Id. at p. 781.) The plaintiff’s expert offered “no reasoned explanation connecting the factual predicates to the ultimate conclusion [Citation], and that is the very definition of a purely conclusory opinion.” (Id. at 781-82 [internal quotations omitted].) Although the plaintiff contended she was entitled to all favorable inferences, the inferences the plaintiff suggested could not “reasonably be derived” from a barebones statement that defendant’s treatment “caused plaintiff’s further deformity.” (Id. at 782.)

In this case, objection 1 is sustained to the extent Dr. Sedrak asserts an improper legal conclusion. Objections 2-8 are sustained because Dr. Sedrak fails to provide a reasoned explanation supporting the ultimate conclusions, as will be discussed further below.

Summary judgment may only be granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code of Civil Procedure § 437c (c).) A “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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Once the moving party meets this initial burden, the burden then shifts to the party opposing summary judgment to establish, by means of competent and admissible evidence, that a triable issue of material fact still remains. (Id. at 850-851.)

Here, Plaintiff alleges that Moon was negligent in performing a laparoscopic cholecystectomy on Plaintiff, causing a surgical clip to become lodged in Plaintiff’s common bile duct resulting in subsequent surgeries and injuries. (Mot. Undisputed Material Fact (“UMF”) 1.) The parties previously stipulated that only the second cause of action for medical negligence applied to Moon, and that the first cause of action for negligence dd not apply. (Mot. UMF 2.)

On August 17, 2015, Plaintiff was admitted to Garfield Medical Center “for disorder of biliary tract.” (Mot. UMF 5.) An ultrasound of Plaintiff’s abdomen revealed a dilated common bile duct at 16 mm. (Mot. UMF 6.) Plaintiff was then evaluated by a gastroenterologist, George C. Lai, M.D. (“Dr. Lai”), and on August 21, 2015, Dr. Lai saw Plaintiff and discussed the findings of an endoscopic retrograde cholangiopancreatography (“ERCP”), which had revealed a non-visualized gallbladder consistent with cholecystitis. (Mot. UMF 7-10.) Dr. Lai discussed surgery to remove the gallbladder with Plaintiff, who agreed to have the surgery but later decided not to undergo the surgery. (UMF Mot. 10-11.) On September 9, 2015, Plaintiff presented to Garfield Medical Center with abdominal pain and was diagnosed with acute cholecystitis, and on September 12, 2015, a hepatobiliary (“HIDA”) scan of was positive for cystic duct obstruction causing cholecystitis. (Mot. UMF 12-13.) On September 14, 2015, Dr. Lai discussed a cholecystectomy with Plaintiff, who then consented to proceed with the surgery; Plaintiff signed a consent to surgery form, indicating that the procedure had been explained to him in detail. (Mot. UMF 15.) Moon signed the consent form verifying that he discussed the benefits and potential risks and complications of the procedure with Plaintiff. (Ibid.)

Plaintiff then underwent a laparoscopic cholecystectomy performed by Moon on September 14, 2015. (UMF Mot. 16.) Moon asserts that during the procedure, multiple titanium clips were placed on the “porta” side of the cystic duct and one clip was placed on the gallbladder side before removing the gallbladder. (Mot. UMF 17.) After the procedure, Plaintiff experienced fever and chills, and a CT and HIDA scan ordered by Moon showed no evidence of a bile leak or biloma. (Mot. UMF 19-20.) Plaintiff was cleared for discharge on September 21, 2015, and on September 25, 2015, Plaintiff returned to Garfield Medical Center and was admitted for worsening abdominal pain; Moon suspected that Plaintiff’s pain was due to postoperative pancreatitis. (Mot. UMF 22.) On September 26, 2015, Plaintiff underwent a laparoscopy and washout procedure with the placement of a 19-French Blake drain performed by Moon, and “[b]ilious fluid was found throughout the abdomen, particularly in the right upper quadrant, consistent with an apparent bile leak.” (Mot. UMF 23.) Thereafter, following further treatment, Moon cleared Plaintiff to be discharged home, which Plaintiff was on September 30, 2015. (Mot. UMF 24-27.)

More than two years later, on December 6, 2017, Plaintiff presented to Alhambra Hospital Medical Center and underwent a CT of the abdomen and pelvis due to acute generalized abdominal pain; “[t]he impression was status-post cholecystectomy with stable intra- and extrahepatic biliary ductal dilation, and a persistent surgical clip in the distal common bile duct.” (Mot. UMF 28.) Plaintiff then underwent an ERCP and attempted removal of a foreign body inside the bile duct, which was determined to be a surgical clip wrapped within a layer of sludge or stone. (Mot. UMF 29-30.) On January 24, 2018, Plaintiff underwent an ERCP and cholangioscopy to remove the surgical clip from the bile duct, which removed the clip. (Mot. UMF 31.)

Moon avers that he met the standard of care at all times in his care and treatment of Plaintiff, and that to a reasonable degree of medical probability, no negligent act or omission by Moon caused or was a substantial factor in causing Plaintiff’s injuries. (Mot. UMF 33, 37, Dr. Cole Decl. ¶¶ 5, 7.) Moon’s expert, Dr. Cole, opines:

The laparoscopic cholecystectomy was appropriately indicated and performed by Dr. Moon on September 14, 2015 … During the procedure, titanium clips were placed across the cystic duct before removing the gallbladder, which is the most common method to secure the duct before removing the gallbladder. Dr. Moon's operative report documented the proper use of surgical clips placed on the proximal side of the cystic duct and another on the gallbladder side. When Mr. Yen returned to the hospital with worsening abdominal pain due to a biliary leak, Dr. Moon appropriately treated the leak with a laparoscopy and washout procedure with placement of a drain.

In addition, in opining that nothing Plaintiff’s injuries were not the result of anything Moon did or did not do, Dr. Cole states:

In a standard laparoscopic cholecystectomy procedure, titanium surgical clips are used to seal off the cystic duct before removing the gallbladder, and these clips are retained within the patient's cystic duct after completion of the procedure. It is possible for these clips to dislodge, and migration of surgical clips into the common bile duct is a known potential risk and complication of the procedure. Dr. Moon appropriately performed the laparoscopic cholecystectomy, and the subsequent migration of the surgical clip into Mr. Yen's common bile duct did not result from anything Dr. Moon did or failed to do…

The evidence is sufficient to meet Moon’s moving burden to show that he is entitled to judgment as a matter of law on the ground that Moon complied with the standard of care and did not cause or contribute to Plaintiff’s injuries. The burden therefore shifts to Plaintiff to raise a triable issue of material fact in this regard. However, Plaintiff does not demonstrate with admissible or competent evidence that there is a triable issue of material fact as to either issue.

With a reasonable degree of medical probability, the common bile duct was first injured when Dr. Moon mistakenly placed the surgical clips in the common bile duct during the September 14, 2015, laparoscopic cholecystectomy. When Mr. Yen returned to Garfield Medical Center [o]n September 25, 2015, and was admitted for worsening abdominal pain, Dr. Moon suspected that the patient's pain was due to postoperative pancreatitis, and failed to consider/diagnose the correct underlying medical issue, which was, with a reasonable degree of medical probability, the result of his wrong placement of the surgical clip in the bile duct in the original cholecystectomy. When Dr. Moon performed a laparoscopy and washout procedure on September 26, 2015, to address an apparent bile leak, he once again failed to diagnose and address the underlying issue of the erroneous placement of the clip in the bile duct. Rather, Dr. Moon recommended that Mr. Yen proceed with an ERCP to remove or replace a stent to rule out an underlying malignant disease.

Indeed, on September 28, 2015, based on Dr. Moon's recommendation, Dr. Lai performed an ERCP with removal of an occluded stent and sludge from the common bile duct, once again failing to detect and address the surgical clip which was, with a reasonable degree of medical probability, present as well in the bile duct. The following day, on September 29, 2015, Mr. Yen was seen by Dr. Moon and discharged home by Dr. Lai with instructions to continue antibiotic treatment alone. Thus, Mr. Yen was discharged home without the underlying medical issue (i.e. the erroneous placement of the surgical clip in the common bile duct) ever being addressed by either Dr. Moon or Dr. Lai.

Dr. Sedrak states in a conclusory manner that Moon mistakenly, wrongly, and erroneously placed the surgical clips in the common bile duct during the September 14, 2015 procedure. But Dr. Sedrak does not explain what facts or circumstances show that the surgical clips were mistakenly, wrongly or erroneously placed. As Moon argues in reply, Dr. Sedrak fails to provide any specific facts regarding the standard of care for the procedure. He does not state where the surgical clips should have been placed instead, and Dr. Sedrak does not opine that or explain why it was a breach of the standard of care for Moon to place the surgical clips in the manner Moon did. Further, Dr. Sedrak does not dispute Dr. Cole’s statement that “Dr. Moon's operative report documented the proper use of surgical clips placed on the proximal side of the cystic duct and another on the gallbladder side.” (Mot. Dr. Cole ¶ 8.) Similarly, Dr. Sedrak does not explain why it was a breach of the standard of care for Moon to suspect that when Plaintiff returned to the Garfield Medical Center on September 15, 2015, Plaintiff’s pain was due to postoperative pancreatitis instead of the alleged placement of the surgical clip.

Moreover, Dr. Sedrak does not explain why it was below the standard of care for Moon to fail to diagnose the purported erroneous placement of the clip when Moon performed a laparoscopy and washout procedure on September 26, 2015, to address an apparent bile leak. To the extent that Dr. Sedrak asserts that Dr. Lai performed an ERCP with removal of an occluded stent and sludge from the common bile duct, Dr. Sedrak fails to provide any reasons as to how the failure to detect the surgical clip during a procedure performed by Dr. Lai was a breach of the standard of care by Moon. Additionally, while Dr. Sedrak notes that when Plaintiff presented to the Alhambra Medical Center on December 6, 2017, a CT scan of Plaintiff’s abdomen showed “a persistent surgical clip in the distal common bile duct,” (Opp. Dr. Sedrak Decl. ¶ 8), Dr. Sedrak does not state or provide any reasoning showing that such was due to any breach of the standard of care by Moon.

With a reasonable degree of medical probability, had Dr. Moon not mistakenly placed the surgical clip in the common bile duct during the initial September 14, 2015, laparoscopic cholecystectomy, or had he subsequently addressed the issue when the patient returned 11 days later on September 25, 2015, with a bilious abdomen, the additional surgical interventions two years later would not have been necessary, and would have thus saved the patient the additional pain and discomfort that were involved with those procedures.

(Opp. Dr. Sedrak Decl. ¶ 8 (emphasis added).) Dr. Sedrak’s opinion thus relies on the assumption that Moon “mistakenly placed” the surgical clip in the common bile duct without any specific facts or explanation as to why Dr. Sedrak determined that the surgical clips were mistakenly or wrongly placed.

In addition, Dr. Sedrak’s declaration does not contain any facts or opinions to explain how placing the surgical clip elsewhere, or doing the procedure differently, would have prevented Plaintiff’s injuries. Consequently, Dr. Sedrak does not offer any explanation or opinion demonstrating to a reasonable degree of medical probability that Moon’s placement of the surgical clip was done wrongly, or that a different placement would have prevented Plaintiff’s additional surgeries and claimed injuries. Dr. Sedrak does not otherwise dispute Dr. Cole’s opinions concerning the placement and use of the surgical clips, or that it is standard for the clips to be retained within the patient after completion of the procedure, with the clips becoming dislodged being a known complication.

In sum, Dr. Sedrak does not provide a reasoned explanation disputing Dr. Cole’s statements and fails to “connect[] the factual predicates to the ultimate conclusions” sufficiently to show that Defendant’s actions or inactions were the cause of Decedent’s death. (Fernandez, 31 Cal.App.at 781; see also Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 228 [If plaintiff would still have suffered the same injuries, regardless of the treatment plaintiff received, there is no causation].)

Based on the foregoing, Dr. Sedrak’s declaration is insufficient to raise a triable issue of fact concerning standard of care and causation.

Hon. Audra Mori

Judge of the Superior Court