Judge Audra Mori, Case Number: 21STCV03109, Date: 2023-04-26 Tentative Ruling

Plaintiff Ron Drori (“Plaintiff”) filed this action against Defendant the Regents of the University of California (“Defendant”) for damages relating to Defendant’s care and treatment of Plaintiff, including a spinal surgery. The complaint alleges a single cause of action for medical negligence against Defendant.

Defendant now moves for summary judgment as to the complaint. The motion is unopposed.

This matter was last heard on October 25, 2022, where it was continued to April 26, 2023, after Plaintiff appeared at the hearing and claimed he did not receive notice of the motion. Given that the motion was filed on April 5, 2022, the Court noted Plaintiff was to act diligently and vigilantly check for notices of any hearings provided by Defendant. The Court Clerk gave notice to the parties of the continued hearing date. (Min. Order, Nov. 1, 2022.)

Defendant argues it is entitled to summary judgment because its care and treatment of Plaintiff complied with the standard of care at all times, and because it did not cause or contribute to Plaintiff’s injuries. Defendant supports its motion with the declaration of Jacques Van Dam, M.D. (“Dr. Van Dam”), who opines that the care rendered to Plaintiff by Defendant and its employees complied with the standard of care in the community, and that to a reasonable degree of medical probability, no action or inaction on the part of Defendant or its employees caused or contributed to Plaintiff’s injuries. (Mot. Van Dam Decl. ¶¶ 5-12.)

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. “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.” (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.)

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.)

Defendant asserts that while Plaintiff contends that Defendant fell below the standard of care when its employee, Stephen Kim, M.D., performed an upper gastrointestinal endoscopy on Plaintiff on January 31, 2020, Defendant’s expert confirms that Defendant and its employees complied with the standard of care, and that nothing Defendant or its employees did or failed to do caused or contributed to injury to Plaintiff. According to Defendant, Plaintiff was referred to Dr. Kim for a follow up endoscopy because a prior endoscopy revealed a precancerous finding, specifically a duodenal adenoma, which merited further exploration and removal. Dr. Kim thoroughly performed the needed upper gastrointestinal endoscopy and appropriately obtained biopsies. Defendant submits the expert declaration of Dr. Van Dam to support its position.

Dr. Van Dam’s declaration is sufficient to meet Defendant’s moving burden to establish it is entitled to judgment as a matter of law. (Mot. Van Dam Decl. ¶¶ 5-12.) Dr. Van Dam attests that Defendant complied with the applicable standard of care in treating Plaintiff. In particular, Dr. Van Dam opines that “[t]he January 31, 2020 upper gastrointestinal endoscopy performed by Dr. Kim was appropriate and necessary given the prior duodenal adenoma found on October 10, 2019, along with the other abnormal findings from October 10, 2019. Mr. Drori was an appropriate candidate for the January 31, 2020, procedure.” (Id. at ¶ 7.) “Dr. Kim knew there was a confirmed adenoma and polyp found on the prior endoscopy, and he was told where it was generally located. Dr. Kim knew he was looking for a precancerous adenoma and he appropriately widened his search in an attempt to locate it. … This was all appropriate and within the standard of care.” (Id. at ¶ 6.) Furthermore, Dr. Van Dam provides that to a reasonable degree of medical probability nothing Defendant did or did not do caused or contributed to plaintiff’s injuries. Dr. Van Dam states that the risk of cancer is significant if not fatal, indicating that it was important for Dr. Kim to be thorough in looking for precancerous areas and obtaining biopsies. (Id. at ¶ 12.) The burden therefore shifts to Plaintiff to raise a triable issue of material fact in this regard.

Any opposition to the motion was due on or before April 12, 2023. To date, the Court has not received any opposition to the motion. Plaintiff, therefore, necessarily failed to meet the shifted burden.

Hon. Michelle C. Kim

Judge of the Superior Court