Judge Christian R. Gullon, Case Number: 21STCV08603, Date: 2024-03-13 Tentative Ruling

Judge: Christian R. Gullon, Case: 21STCV08603, Date: 2024-03-13 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

DEFENDANT MARVIN URBINA, M.D.’S MOTION FOR SUMMARY JUDGMENT is DENIED because Dr. Johnson’s declaration fails to comply with the evidentiary requirements set forth in Kelley v. Trunk.

This is a medical malpractice case. Plaintiff Bill Roybal (“Plaintiff”) alleges the following against Defendants NICK COPELI, M.D., OWER CASTRO, M.D., ADAM COEN, M.D., PATRICK TRUONG, M.D., DAVID S. LIN, M.D., SERGIO ANTONIO HERNANDEZ, M.D., BRENDA HAYAKAWA, M.D., MARVIN URBINA, M.D., EMANATE HEALTH / QUEEN OF THE VALLEY HOSPITAL:[1] Plaintiff presented to the emergency room at Emanate on four separate occasions complaining about abdominal / epigastric pain, pressure, and discomfort. It was not until the fifth visit on May 6, 2020 where Plaintiff was diagnosed with acute cholecystitis and gallstone, gangrenous gallbladder with perforation, abscess, sepsis, and related sequelae necessitating a prolonged hospital course. Plaintiff primarily alleges that Defendants failed to adequately examine and diagnose Plaintiff.

On March 21, 2023, Defendants Sergio Antonio Hernandez, M.D., Nick Copeli, M.D., and Brenda Hayakawa, M.D.’S filed their Motion For Summary Judgment (“MSJ” or “MSA”).

On May 31, 2023, Plaintiff filed a Notice Of Non- Opposition To Summary Judgment Motion Of Defendant Nick Copeli, M.D “[b]ased upon discovery and evidence to date, the moving papers and discussions with counsel for NICK COPELI, M.D., Plaintiff will not file substantive or procedural opposition to the pending Motion for Summary Judgment of Nick Copeli, M.D.”[3]

On June 9, 2023, the court issued the following minute order stating, in relevant part: “The Cause is argued by Defense Counsel; Plaintiff's Counsel submits on the tentative ruling. The Court adopts the Tentative Ruling and the Tentative Ruling is filed with the Court this date. Defendants' Sergio Antonio Hernandez, M.D., Nick Copeli, M.D., and Brenda Hayakawa, M.D.’S Notice of Motion and Motion For Summary Judgment, or in the Alternative, Summary Adjudication is Granted in Part (As To Dr. Copeli) and Denied in Part (as to Drs. Hayakawa and Hernandez).”

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ 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.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

A moving defendant bears the initial burden of production to 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, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, supra, at p. 849.) Specifically, “[t]he opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (2).)

The only evidentiary filing received was filed by Dr. Urbina on 3/8/24. Defendant objects to the entirety of Dr. Kalan’s declaration used in support of Plaintiff’s opposition to Defendant’s motion.

The court need not rule on the objection because, for reasons to be discussed below, the court does not reach Plaintiff’s evidence.

Dr. Urbina moves for summary judgment as to the medical negligence COA asserted against him. The court turns to the motion, opposition, separate statement (SS), and Plaintiff’s responses to the SS for the presentation of undisputed facts.[5]

- On April 28, 2020, plaintiff presented to the InterCommunity Hospital Emergency Department via ambulance where he was treated by Nick Copeli, M.D. where he complained of abdominal pain. He was discharged with a diagnosis of gastritis and advised to follow up with his primary care physician in 2-3 days or return to the emergency department for worsening symptoms. (Opp. p. 2:10-12)

- On April 29, 2020, Plaintiff had a telehealth visit with his primary care provider, Dr. Urbina wherein he still complained of persistent abdominal pain. (Opp. p. 2.)

- On April 30, 2020 (after 4 days of reported epigastric abdominal pain), Plaintiff returned to the Emergency Department at Inter-Community Hospital. Notes indicate that he was “screaming in pain” with pain to be 10/10 in severity. (Opp. p. 2.) There, though Dr. Hernandez was concerned of severe gastritis or an ulcer, he was treated by Dr. Hernandez who did not order any abdominal imaging. He was released that day. “Later in the day on April 30, 2020, after being discharged from Inter-Community Hospital, the patient presented to his PCP, Dr. Urbina, with complaints of persistent right-sided abdominal pain. Dr. Urbina’s physical examination was notable for moderate tenderness in the upper right quadrant and right middle quadrant, questionable rebound tenderness, and some abdominal distension. Dr. Urbina ordered an outpatient CT scan of the abdomen and pelvis and gave Mr. Roybal an intramuscular injection of Toradol, 60 mg. He prescribed gabapentin, metoclopramide, and Norco, and advised the patient to go back to the emergency department if his pain worsened.” (Opp. pp. 3-4.)

- On May 4, 2020, Plaintiff returned to Dr. Urbina’s office still complaining of severe persistent right-sided abdominal pain; he had a rash on his right side; fever of 100.4; and 2-3 areas of blistering on his abdominal wall (he had undergone a CT scan earlier that day). Dr. Urbina called 911 to transport Plaintiff to the hospital. At the hospital, Plaintiff was treated by Dr. Hayakawa, who believed Plaintiff had shingles. (Opp. p. 3.) Plaintiff was discharged that day. That same day, Dr. Urbina’s office received results from Mr. Roybal’s CT of the abdomen and pelvis. The results showed a 1cm/partial thickness gallbladder wall ulceration. No one from Dr. Urbina’s office reported these results to Mr. Roybal.

- On May 6, 2020, patient again called Dr. Urbina complaining of pain; Dr. Urbina advised Plaintiff to go the hospital. There, Plaintiff underwent surgery for acute cholecystitis, gallbladder perforation, and intra-abdominal abscess.

- On May 8, 2020, Plaintiff returned to surgery to remove the packing material that had been left in his abdomen to control bleeding. Mr. Roybal remained septic and postoperatively had peritonitis. (Opp. p. 5.)

2. Whether, if Dr. Urbina breached his standard of care, the purported negligence proximately caused Plaintiff’s alleged injuries. (See Motion p. 3:10-14.)

The elements of medical malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02.)

“Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.)

However, though not argued by Plaintiff, Johnson’s declaration fails to meet evidentiary requirements.

The seminal case of Kelley v. Trunk (1998) 66 Cal.App.4th 519 is squarely on point and provides the legal framework necessary to resolve the sufficiency of Defendant’s evidence. In Kelley, a plaintiff presented to a hospital for a deep laceration. The laceration was stitched and plaintiff was given medicine. The plaintiff continued to be in pain but rather than inquire about the symptoms or request that plaintiff be re-examined, Dr. Trunk referred him to a different physician. About one week later, the plaintiff required surgery. One of the physicians, Dr. Trunk, moved for summary judgment after the plaintiff sued him alleging that Plaintiff had lost use of his arm and other damage as a pain of negligent medical. In support of the motion, Dr. Trunk submitted the declaration of another physician, Dr. Herndon. Dr. Herndon’s declaration was a page-and-a-half long, reciting his credentials (which were substantial), and listed the medical records Dr. Herndon had reviewed. The appellate court found that the trial court improperly granted summary judgment because primarily because (1) Dr. Herndon’s declaration did not disclose the matter relied on in forming the opinion express and (2) his opinion was unsupported by reasons or explanations. Specifically, the court reasoned that:

What was the nature of the disease or condition that required Kelley's surgery? Was it brought on by the laceration? What symptoms of this condition reasonably might have been observable at the time Kelley complained to Dr. Trunk of continuing intense pain unmediated by medication? Should a reasonable doctor at this point in time have recognized the possibility of severe complications? If so, why? If not, why not? Would complications of the kind Kelley eventually suffered have become evident any earlier than three or four days after the laceration? Would earlier intervention have mitigated Kelley's injury? Herndon's declaration addressed none of these issues. Without illuminating explanation, it was insufficient to carry Dr. Trunks's burden in moving for summary judgment. (Id. at 524-525) (emphasis added.)

Similarly, here, Dr. Johnson’s opinion provides merely provides a conclusion.

It is my opinion that to a reasonable medical probability, no negligent act or omission by Dr. Urbina caused or contributed to any injuries or damages to Mr. Roybal. Per the subsequent hospital records, on May 6, the patient underwent an open cholecystectomy. If the patient had been diagnosed with perforated gallbladder a day earlier, he would still have undergone the surgery or cholecystectomy. In following, no act or omission by Dr. Urbina would have caused changed the patient’s need to have undergone a cholecystectomy. (Johnson Decl., ¿ 11, emphasis added.)

- how a physician in similar or like circumstances would have interpreted the symptoms

- whether another physician in similar or like circumstances would have ordered a pelvic/abdominal CT scan on April 29, 2020

- what a physician in similar or like circumstances would have suspected was the diagnosis based upon the persistent right-sided abdominal pain; rash on his right side and fever of 100.4 as exhibited on May 4, 2020.[6]

In short, there is no explanation as to why Plaintiff would have still had to undergo a cholecystectomy (i.e., whether less invasive surgery possible if have learned of the diagnosis earlier). Accordingly, Dr. Johnson’s declaration, similar to that in Kelley, is a “laconic expert declaration . . . which provide[s] only an ultimate opinion, unsupported by reasoned explanation.” (Id. at 525.)

Thus, as causation is already ordinarily a question of fact, making its determination on a summary judgment improper unless under undisputed facts there is no room for a reasonable difference of opinion on casual nexus, here, the court finds it would be a grave abuse of its discretion to determine the issue without sufficient evidence.

Therefore, as Dr. Johnson’s declaration is insufficient to carry Defendant’s evidentiary burden, there are triable issues of material fact as to standard of care and causation.

[1] Drs. Coen and Truong have been dismissed.

[2] Plaintiff filed a notice of non-opposition “[b]ased upon discovery and evidence to date, the moving papers and discussions with counsel [Defendant].”

[3] Though Plaintiff has filed a notice of non-opposition as to Dr. Copeli’s MSJ, a moving party’s motion “may still not be granted unless his papers clearly establish that there is no triable issue of fact.” (See Harman v. Mono General Hospital (1982) 131 Cal.App.3d 607, 612-613.) Accordingly, the court still needed to address Dr. Copeli’s burden.

[4] “The determination of the expert's qualifications is ordinarily a matter addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of abuse.” (Chadock v. Cohn (1979) 96 Cal.App.3d 205, 208.)

[5] The court must consider “‘all of the inferences reasonably drawn [from the evidence],’ and ‘must view such evidence [citation] and such inferences [citations] ... in the light most favorable to the opposing party.’” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 120-121, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

[6] In comparison, see declaration of Dr. Harvey D. Cohen (one of Plaintiff’s expert) which delineates how Dr. Urbina allegedly breached standard of care (e.g., [“Given Mr. Roybal’s history and symptomatology, the standard of care called for a stat order CT with stat follow up and/or hospital admission.”], italics original.)