Judge: Daniel M. Crowley, Case: 20STCV28114, Date: 2022-10-20 Tentative Ruling

Case Number: 20STCV28114    Hearing Date: October 20, 2022    Dept: 28

Defendant Benjamin Benham’s Motion for Summary Judgment

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

BACKGROUND

On July 27, 2020, Plaintiff Dawn Krantz (“Plaintiff”) filed this action against Defendant Benjamin Benham (“Benham” or “Defendant”) and Dermatology & Hair Restoration Specialists (“D&H”) for medical malpractice. On December 7, 2020, Plaintiff filed the FAC.

On December 7, 2020, Defendant filed an answer on behalf of both named Defendants.     On August 3, 2022, Defendant filed a Motion for Summary Judgment to be heard on October 20, 2022. On October 6, 2022, Plaintiff filed an opposition. On October 14, 2022, Defendant filed a reply.

Trial is scheduled for February 10, 2023.

PARTY’S REQUESTS

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

Plaintiff requests the Court deny the motion.

OBJECTIONS

Defendant’s Objections are OVERRULED.

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.)

DISCUSSION

Plaintiff alleges that Defendant negligently severed Plaintiff’s lateral femoral cutaneous nerve during a procedure, falling below the standard of care.

Defendant submitted a declaration from Dina Bierman, M.D., a dermatologist licensed to practice in California, with the applicable education and experience to give an expert opinion (Declaration of Dina Bierman, M.D. ¶¶ 1-2.) Based upon Plaintiff’s medical records and discovery responses, Bierman opined that Defendant complied with the standard of care at all times. (Bierman Decl. ¶¶ 5, 8.) Defendant appropriately performed the required surgery, an excision of basal cell carcinoma; there is no evidence of a nerve severance in the pathology slide taken immediately following this procedure that would produce Plaintiff’s symptoms. (Bierman Decl. ¶ 9.) The size, shape, and depth of the excision do not indicate that more was done than medically necessary. (Id.) Additionally, Bierman opined that Defendant did not cause the injury; Plaintiff did not begin to experience pain until 10 weeks after her surgery during a squats workout. (Bierman Decl. ¶ 11.)  Given the delay from the time of surgery, the pathology slide, and the pain starting during her workout, there is no evidence of causation. (Id.) Defendant’s expert establishes that Defendant acted within the standard of care and did not cause the damages in question. Defendant met his burden, which shifts to Plaintiff.

Plaintiff submitted a declaration from Marilyn Mehlmauer, M.D.., a dermatologist licensed to practice in California, with the applicable education and experience to give an expert opinion. (Declaration of Marilyn Mehlmauer ¶ 1.) Based upon Plaintiff’s medical records, Plaintiff's deposition, and the moving papers, Mehlmauer opined that Defendant did not comply with the standard of care. (Mehlmauer Decl. ¶¶ 4, 6.) Mehlmauer opined that the very surgery was unnecessary and not within the best interest of the patient, especially given Plaintiff’s history of paresthesia. (Mehlmauer Decl. ¶ 8.) Defendant should have called the pathologist prior to the procedure to determine if the abnormal cells extended to the deep or lateral margins of the biopsy—failing to do so breached the standard of care. (Id.) During the procedure, Defendant indicated that Plaintiff was bleeding more than usual, which Mehlmauer opines mean he had to cauterize bleeding blood vessels. (Mehlmauer Decl. ¶ 9.) Extensive cautery causes scar tissue to form around nerve fibers, causing traumatic neuroma, and can cause tingling and lancinating pain. (Id.)  Mehlmauer opines that this does not meet the standard of care in Southern California. (Mehlmauer Decl. ¶ 10.)

The Court finds that the contrasting opinions of Dr. Bierman and Dr. Mehlmauer create an issue of fact for a jury to resolve.  Contrary to Defendant’s objections to Dr. Mehlmauer’s declaration, the Court finds that the two declarations are equal in their description of the factual bases for the opinions; it is not for the Court to determine which is correct.

CONCLUSION

Defendant Benjamin Benham’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.