Judge: Daniel M. Crowley, Case: 19STCV45059, Date: 2022-10-19 Tentative Ruling

Case Number: 19STCV45059    Hearing Date: October 19, 2022    Dept: 28

Defendants Sean Leoni, M.D. and Sean Leoni, M.D., Inc.’s Motion for Summary Judgment

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On December 13, 2019, Plaintiff Garry Isaacson (“Plaintiff”) filed this action against Defendants Sean Leoni, M.D. (“Leoni”) and Sean Leoni, M.D., Inc. (“Leoni Inc.”) for medical malpractice.

On June 22, 2020, Defendants filed an answer.

On January 25, 2021, Defendants filed a Motion for Summary Judgment to be heard on April 15, 2021. The hearing was continued twice via stipulation to October 19, 2022. On October 5, 2022, Plaintiff filed an opposition. On October 14, 2022, Defendants filed a reply.

Trial is scheduled for December 5, 2022.

PARTY’S REQUESTS

Defendants request the Court grant summary judgment on the basis that there is no dispute of material fact.

Plaintiff requests the Court deny the motion.

OBJECTIONS

Plaintiff’s Objections:

Sustained: 1, 3, 4, 5, 6, 7

Overruled: 2

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “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.) 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

The elements of a cause of action for medical negligence are: (1) duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of duty; (3) 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, 701-702.) The standard of care that a medical professional is measured by is a matter within the exclusive knowledge of experts; it can only be proven by their testimony, generally. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) Causation must be proven within a reasonable medical probability based on competent expert testimony; “a less than 50-50 possibility that defendants’ omission caused the harm does not meet the requisite reasonable medical probability test of proximate cause.” (Bromme v. Pavitt (1 992) 5 Cal.App.4th 1487, 1504.)

A cause of action premised on a physician's breach of this fiduciary duty may alternatively be referred to as a claim for lack of informed consent. (See, e.g., Moore v. Regents of University of California (1990) 51 Cal.3d 120, 12) p. 133, 271 [“the allegations state a cause of action for breach of fiduciary duty or lack of informed consent”].) The elements of informed consent are: (1) A patient gives an “informed consent” only after the doctor has adequately explained the proposed treatment or procedure. (2) A doctor must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand. (3) A doctor must give the patient as much information as he needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances. (4) The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. (5) Lastly, a doctor is not required explain minor risks that are not likely to occur. (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343).

DISCUSSION

Plaintiff alleges that Defendant was negligent in his care and treatment in connection with the performance of a laser assisted liposuction procedure to the abdomen, resulting in a bowel injury.

Defendants submitted a declaration from Terry Dubrow, M.D., who is a physician licensed to practice in California, with the applicable education and experience to give an expert opinion (Declaration of Terry Dubrow, M.D. ¶¶ 1-2.) Based upon Plaintiff’s medical records and Plaintiff's deposition, Dubrow opined that Leoni complied with the standard of care at all times. (Dubrow Decl. ¶6.)

Leoni obtained a consent form from Plaintiff prior to the procedure which detailed several potential complications, including but not limited to death, infection, and injury to surrounding structures; he had agreed to the same consent form thrice before. (Dubrow Decl. ¶ 8.) The surgery itself was appropriately performed within the standard of care, with no postoperative complaints. (Dubrow Decl. ¶ 9.) Bowel perforations are common complications of liposuction procedures, that can occur even in the absence of negligence. (Dubrow Decl. ¶ 10.) Defendants’ expert establishes that Leoni acted within the standard of care and did not cause the damages in question. Defendants met their burden, which shifts to Plaintiff.

Plaintiff submitted a declaration from Larry S. Nichter, M.D., a plastic surgeon licensed to practice in California, with the applicable education and experience to give an expert opinion. (Declaration of Larry S. Nichter, M.D. ¶¶ 1, 3-5.) Based upon Plaintiff’s medical records, Plaintiff's deposition, Rosa Beas’s deposition, and various notes, Nichter opined that Leoni did not comply with the standard of care. (Nichter Decl. ¶ 6.) Among the various potential issues, Nichter noted that Leoni lied as to his qualifications and was not qualified to perform Plaintiff’s surgery (Nichter Decl. ¶ 8-9). Plaintiff contends Leoni did not properly obtain informed consent otherwise; there is no documentation of consent prior to the procedure, no documentation was provided prior to the date—it only consisted of filling out standardized forms. (Nichter Decl. ¶¶ 12, 17, 20, 24.) The most serious complications were only listed as under exposure to anesthesia, and not for the surgery itself. (Id.) Nichter opines that this does not meet the standard for informed consent in Southern California. (Nichter Decl. ¶¶ 14, 18, 21, 25.) Plaintiff has met his burden.

Defendants’ reply simply notes that Plaintiff provided informed consent because he signed a form labeled “Informed Consent for Prolipo Plus Laser Assisted Liposuction with Tumescent Anesthesia.” This does not necessarily meet the standard required for informed consent, especially if Defendants misrepresented their credentials. The Court finds that there is a dispute as to material fact and denies the motion.

CONCLUSION

Defendants Sean Leoni, M.D. and Sean Leoni, M.D., Inc.’s Motion for Summary Judgment is DENIED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.