Judge Bruce G. Iwasaki, Case Number: 22STCV17656, Date: 2023-12-14 Tentative Ruling

Moving Party: Defendant Sanjay Logani, M.D. and Advanced Retina Associates Medical Group, Inc.

Tentative Ruling: The motion for summary judgment is granted.

This is a medical malpractice action. Defendant Sanjay Logani, M.D. (Logani) performed surgery on Plaintiff Roland Minsal’s left eye, resulting in a loss of vision in his eye. The Complaint contains a single cause of action for professional negligence/medical malpractice.

Defendants Logani and his employer, Advanced Retina Associates Medical Group, Inc., now move for summary judgment. On December 4, 2023, Plaintiff filed an opposition to the motion. For the reasons discussed more fully below, the Court disregards Plaintiff’s opposition.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c,¿subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.)

The moving party has the initial burden of production to make¿a prima facie¿showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make¿a prima facie¿showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c,¿subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden by proving that for each cause of action alleged, plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c(p)(2).)

In the reply, Defendants argues Plaintiff’s opposition was untimely and should be disregarded. This argument is well-taken.

With a hearing date of December 14, 2023, Plaintiff’s opposition to the motion for summary judgment was due on November 30, 2023. Plaintiff did not file an opposition until December 4, 2023.

In an attempt to explain the late opposition, Plaintiff submits the declaration of William Welden, an attorney “associated with Gary R. Carlin’s firm.” (Welden Decl., ¶ 1.) He states that he was experiencing heart palpitations on November 30 and December 1 that “had an effect on [him]” such that he “was distracted and under the weather both days.” (Welden Decl., ¶ 2.) As result, he “did not follow through on getting the Opposition filed and served timely.” (Welden Decl., ¶ 2.)

An incapacitating illness of counsel may constitute “excusable neglect.” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 280.) Here, however, the explanation provided is inadequate. As the Reply notes, it is not clear who this attorney is in the context of the this litigation as he is not a part of firm for the attorney of record and has not appeared in this litigation. There is no declaration from Attorney Carlin explaining Attorney Welden’s role in this litigation. Moreover, Attorney Welden’s own declaration on his role in preparing the Opposition is extremely vague. Further, Attorney Welden’s representation that he was “under the weather” does not demonstrate a reasonable inability to perform his professional responsibilities and, therefore, does not constitute excusable neglect.[1]

Given this inadequate excuse, the Court exercises its discretion to disregard Plaintiff’s late-filed opposition. (Rules of Court, rule 3.1300(d) [“If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”]; see also Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 657 [“Plaintiffs inadvertently filed the declarations of Smith and Williams's parents on February 28, 2017, four days after the Board filed its reply and three days before the hearing date. A paralegal declaration cited upload error as the reason for the late filing. Nevertheless, plaintiffs did not seek a continuance, and there was no abuse of discretion in excluding declarations filed after the reply.”]; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [affirming trial court’s refusal to consider papers filed beyond the deadline when the opposing party “did not invoke any of the available procedures to obtain a court order permitting her to file late papers”].)

Even if the Court considered the late Opposition, the motion for summary judgment would still be granted. The Court now turns to the substantive analysis of the motion.

Defendants move for summary judgment on the grounds that Defendant Logani appropriately performed the surgery on Plaintiff in compliance with the applicable standard of care.

“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

Here, Defendants submit the expert declaration of David Boyer, M.D. (Dr. Boyer) in support of their motion. Dr. Boyer is a retinal specialist and board-certified Ophthalmologist who – based upon his years of education, training, and experience – is familiar with the applicable standard of care for ophthalmologists who perform vitrectomy surgeries, including the removal of a dislocated cataractous. (Boyer Decl., ¶¶ 1, 3.) Dr. Boyer notes that the medical records indicate that Plaintiff had a mature cataractous lens in his left eye which had become dislocated and the “only” treatment opinion under the circumstances was a surgery to remove the dislocated cataractous lens. (Boyer Decl., ¶ 5.) As such, the vitrectomy surgery performed by Defendant Logani was medically indicated. (Boyer Decl., ¶ 5.)

Further, Dr. Boyer goes on to describe the proper method for performing a vitrectomy surgery and opines – based on Defendant Logani’s operative report – that Dr. Logani performed the vitrectomy surgery in compliance with the applicable standard of care. (Boyer Decl., ¶ 6.) Relying on the declaration of Defendant Logani and his medical records, Dr. Boyer opines that the care and treatment provided by Defendant Logani at all times complied with the requisite standard of care. (Boyer Decl., ¶¶ 4-6.)

Further, because Defendant Logani is not liable for any medical negligence, Defendant Advanced Retina – as his employer – cannot be liable under the theory of respondent superior. (Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423 [Under the doctrine of respondeat superior, “[t]he employer cannot be held vicariously liable unless the employee is found responsible.”].)

To prove a medical malpractice claim, the plaintiff must first establish the applicable standard of care and then demonstrate that the standard of care was breached. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.) “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 prevailing of care’ unless the negligence is obvious to a layperson.” (Johnson, supra, 143 Cal.App.4th 297, 305.) Similarly, “ ‘[c]ausation must be proven within a reasonable medical probability based upon competent expert testimony.’ ” (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603; see also Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498 [expert testimony required to establish medical negligence caused patient's injury].)

In opposition, Plaintiff submits no evidence that the surgery performed by Defendant Logani fell below the applicable standard of care. (Lefkowitz Decl., ¶¶ 1-7.) Rather, in opposition, Plaintiff contends that Defendants failed to provide Plaintiff with informed consent of the risks involved in the surgery.

In making this argument, Plaintiff relies on the declaration of Dr. Todd Lefkowitz. (Lefkowitz Decl., ¶¶ 4-7.) Specifically, Dr. Lefkowitz opines that Defendants’ conduct fell below the standard of care because the records do not show that Defendants warned Plaintiff that there was a five percent chance he would lose his vision, or that he would need multiple surgeries (as many as five) to correct the problem. (Lefkowitz Decl., ¶¶ 4-7.)

First, as Defendants argue in reply, Plaintiff cannot rely on this new, unpled legal theory to defeat summary judgment.

The pleadings play a key role in a summary judgment motion. “‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues’” and to frame “the outer measure of materiality in a summary judgment proceeding.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) As our Supreme Court has explained it: “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ ” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493; see Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 (Jacobs) [“ ‘[a] party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings,’ and ‘[e]vidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings’ ”]; see Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182 [“We do not require [defendant] to negate elements of causes of action plaintiffs never pleaded.”].)

Furthermore, “ ‘ “ ‘[t]he [papers] filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.’ ” ’ ” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 333.) An opposing party's separate statement is not a substitute for amendment of the complaint. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1201, fn. 5.) Similarly, “ ‘ “[d]eclarations in opposition to a motion for summary judgment ‘are no substitute for amended pleadings.’ ... If the motion for summary judgment presents evidence sufficient to disprove the plaintiff's claims, ... the plaintiff forfeits an opportunity to amend to state new claims by failing to request it.” ’ ” (Conroy v. Regents of University of California, supra, 45 Cal.4th at p. 1254.)

Here, the Complaint is devoid of any allegations that Defendants’ negligence arose from their failure to obtain informed consent from Plaintiff. Moreover, the Reply also notes that Plaintiff’s discovery response also failed to raise informed consent as a theory of liability. (Werre Reply Decl., ¶ 2, Ex. B [Interrogatory Nos. 5-6].) Thus, Plaintiff cannot raise this argument now in opposition to the motion for summary judgment.

Second, Plaintiff’s evidence does not raise a triable issues of material fact on this ground.

Liability for lack of informed consent attaches if (1) the physician failed to disclose a known material risk inherent in the treatment, (2) the risk materialized, (3) there is a casual relationship between the physician's failure to inform and the plaintiff's injury because a reasonable person would have declined the treatment had she been informed of the risk. (Cobbs v. Grant (1972) 8 Cal.3d 229, 244–245.) “An action for failure to obtain informed consent lies where ‘an undisclosed inherent complication ... occurs.’ ” (Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1202 [italics omitted].) The cause of action for lack of informed consent does not exist unless “ ‘the plaintiff has suffered some legally compensable injury.’ ” (Id. at p. 1204.) “ ‘[S]peculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence.’ ” (Id. at pp. 1204–1205.)

As a preliminary matter, Defendants argue that the issue of informed consent “is a basic factual dispute between the parties; not an issue requiring expert testimony.” (Reply 2:19-20.)

This is not consistent with the law; rather, whether expert testimony is required turns on the nature of the non-disclosure. “[W]hen a given procedure inherently involves a known risk of death or serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur. Beyond the foregoing minimal disclosure, a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances.” (Id. at pp. 244–245.) As the court subsequently explained in Arato v. Avedon (1993) 5 Cal.4th 1172, expert testimony may be necessary to explain the beyond-minimal-disclosure aspect of the duty, because the scope of such duty depends on a professional standard. (Id. at p. 1191.)

In any case, here, Plaintiff’s expert declaration is insufficient to carry Plaintiff’s burden on informed consent. To support the absence of the disclosure of a specific risk, Plaintiff relies solely on Dr. Lefkowitz’s assertion that “there is nothing in the records to indicate that [Plaintiff] was warned of the possibility of multiple successive surgeries should complications arise.” (Lefkowitz Decl., ¶ 6.) Plaintiff’s expert lacks the foundation to opine on the absence of a disclosure where the underlying evidence is absent. That is, Plaintiff does not submit evidence that any specific disclosure was not made, such as Plaintiff’s own declaration that he was not told of a specific risk that then occurred.

Accordingly, even if considered, Plaintiff’s opposition has failed to raise a triable issue of material fact in dispute.

Defendants’ motion for summary judgment is granted. Defendants are to prepare, serve and lodge a proposed Judgment.

[1] Plaintiff does not (and cannot) rely on the mandatory relief provisions Code of Civil Procedure section 473, subdivision (b). (See Huh v. Wang (2007) 158 Cal.App.4th 1406, 1412, 1415 [explaining that mandatory relief was not available where the plaintiff's attorney failed to file opposition to a summary judgment motion and failed to appear at the hearing on the motion].)

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