Judge: Daniel M. Crowley, Case: 20STCV01175, Date: 2022-12-07 Tentative Ruling
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Case Number: 20STCV01175 Hearing Date: December 7, 2022 Dept: 28
Defendant Kimberly Malone, M.D.’s
Motion for Summary Judgment
Having considered the moving papers,
the Court rules as follows.
BACKGROUND
On
January 10, 2020, Plaintiffs Javier Brito (“Javier”), Yadira Brito (“Yadira”),
Michael Brito (“Michael”) and Janet Brito (“Janet”) filed this action against
Defendants Venice Beach Surgical Center (“Venice”), Oceanview Medical &
Surgical Group (“Oceanview”), Augusto Rojas, M.D. (“Rojas”) and Kimberly
Malone, M.D. (“Malone”) for medical malpractice (wrongful death).
On
April 1, 2021, Malone filed an answer. On April 5, 2021, Rojas filed an answer.
On
September 21, 2022, Malone filed a Motion for Summary Judgment to be heard on December
7, 2022.
Trial
is scheduled for March 23, 2023.
PARTY’S REQUESTS
Malone requests the Court grant
summary judgment on the basis that there is no dispute of material fact.
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.)
According
to CCP § 340.5, “[I]n an action for injury or death against a health care
provider based upon such person’s alleged professional negligence, the time for
the commencement of action shall be three years after the date of injury or one
year after the plaintiff discovers, or through the use of reasonable diligence
should have discovered, the injury, whichever occurs first. In no event shall
the time for commencement of legal action exceed three years unless tolled for
any of the following: (1) upon proof of fraud, (2) intentional concealment, or
(3) the presence of a foreign body, which has no therapeutic or diagnostic
purpose or effect, in the person of the injured person.”
CCP
§ 364 states that if notice of an action based on medical professional
negligence is served within 90 days of the expiration of the applicable statute
of limitations, the time for commencement will be extended 90 days from service
of the motion.
DISCUSSION
Plaintiff alleges that Decedent passed away
due to negligence that occurred during liposuction conducted by Rojas. Malone
was the anesthesiologist during the procedure.
Standard of Care
Malone submitted a declaration from Daniel
Sones, M.D., an anesthesiologist licensed to practice medicine in California,
with the applicable education and experience to give an expert opinion.
(Declaration of Daniel Sones, M.D. ¶¶ 2.) Based upon Decedent’s medical
records, the complaint and Decedent’s autopsy report, Sones opined that Malone
always complied with the standard of care. (Sones Decl. ¶¶ 5, 7). Decedent was
stable during the operation; she was provided with appropriate fluid
replacement. (Sones Decl. ¶ 8.) The care rendered by Malone in the recovery
room was also appropriate—Decedent was stable and not bleeding, meaning that
administering fluid and watching the patient was proper. (Sones Decl. ¶ 9.) The
code was properly handled. Paramedics were called, CPR was initiated, chest
compression were performed, and epinephrine and atropine were administered.
(Sones Decl. ¶ 10.) Malone did not commit any acts or omission in violation of
the standard of care that caused or contributed to the death of decedent.
(Sones Decl. ¶ 14.) Malone has met her burden, which shifts to Plaintiff.
Plaintiff did not file an opposition. The
Court grants the motion.
CONCLUSION
Defendant
Kimberly Malone, M.D.’s Motion for Summary Judgment is GRANTED.
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.