Judge: Carolyn M. Caietti, Case: 37-2023-00002300-CU-MM-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Medical Malpractice Summary Judgment / Summary Adjudication (Civil) 37-2023-00002300-CU-MM-CTL MILLER VS PELLE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Michelle Pelle, M.D. and Medderm Corporation dba Medderm Dermatology's Motion for Summary Judgment is DENIED.

Defendants move for summary judgment on the Complaint, which alleges two causes of action for: (i) medical negligence; and (ii) loss of consortium.

In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) Courts must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc.

(2006) 39 Cal.4th 384, 389.) In a medical malpractice action, the plaintiff must establish: (i) the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (ii) a breach of that duty; (iii) a proximate causal connection between the negligent conduct and the resulting injury; and (iv) actual loss or damage resulting from the professional's negligence. (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 238, fn. 3, citing Turpin v. Sortini (1982) 31 Cal.3d 220, 229-30.) When a defendant health care practitioner moves for summary judgment and supports the motion with an expert declaration that the conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.) In reviewing the declarations submitted by experts in a motion for summary judgment in a medical malpractice action, courts liberally construe the declarations of the plaintiff's experts, which are entitled to all favorable inferences in contrast to the defendant's declarations, which must be detailed and with foundation. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125–126.) Any doubts as to the propriety of granting the motion are resolved in favor of the plaintiff.

(Ibid.) Here, Defendants met their initial burden as to Dr. Pelle. Defendants' experts explain: (i) how Dr. Pelle met the standard of care during Plaintiff Matthew Miller's care and treatment and that Dr. Pelle used the proper antiseptic techniques when she performed the wide local excision of Matthew Miller's melanoma; Calendar No.: Event ID:  TENTATIVE RULINGS

3074344  43 CASE NUMBER: CASE TITLE:  MILLER VS PELLE [IMAGED]  37-2023-00002300-CU-MM-CTL and (ii) the treatment and care provided did not cause or contribute to Plaintiff Matthew Miller's injuries.

(ROA 37 - Declaration of Mona Mofid; ROA 36 -Declaration of Gonzalo Ballon-Landa, M.D.) Accordingly, Dr. Pelle also met her initial burden that Plaintiff Kelsey Miller does not have a viable cause of action for loss of consortium. Notably, there is no discussion as to Medderm Corporation's liability.

In liberally construing Plaintiffs' evidence, Plaintiffs raise factual disputes over whether Dr. Pelle's treatment complied with the standard of care. As explained by Plaintiffs' expert, Dr. Pelle should not: (i) have used Monsel's solution within the excised wound of the depth Dr. Pelle reached here because it can cause tissue damage; (ii) used a 15 C scalpel for an excision of the size on Matthew Miller's abdomen increasing the risk for infection; or (iii) administered anesthesia prior to prepping Matthew Miller with chloroxylenol cleanser increasing the risk of introducing S. aureus into Matthew Miller's deeper tissues. (E.g., ROA 52 – Declaration of Howard Steinman, at ¶¶ 23-31.) There is also a factual dispute over whether this caused Matthew Miller's need for subsequent medical and surgical treatment.

(Id., at ¶ 32.) As of this writing, Defendants did not reply, which was due on May 31, 2024.

Thus, there are triable issues of material fact regarding whether Defendants fell below the standard of care and whether the treatment caused or contributed to Matthew Miller's injuries; and accordingly, on Kelsey Miller's loss of consortium claim as well.

For these reasons, the motion is DENIED.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendants are ordered to give written notice of the Court's final ruling on all appearing parties by June 11, 2024.

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