Judge: Daniel M. Crowley, Case: 21STCV19813, Date: 2022-12-08 Tentative Ruling

Case Number: 21STCV19813    Hearing Date: December 8, 2022    Dept: 28

Defendants Paul Tien Ching Liu M.D. and Paul TC Liu M.D. Inc.’s Motion for Summary Judgment

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

BACKGROUND

On May 25, 2021, Plaintiff Janet A. Bollin (“Plaintiff”) filed this action against Defendants Paul Tien Ching Liu M.D. (“Dr. Liu”) and Paul TC Liu M.D. Inc. (“Liu Inc.”) for medical malpractice.

On December 14, 2021, Defendants filed an answer.

On September 21, 2022, Defendants filed a Motion for Summary Judgment to be heard on December 8, 2022. On November 22, 2022, Plaintiff filed an opposition. On December 2, 2022, Defendants filed a reply.

Trial is scheduled for July 11, 2023.

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

Defendants’ Objections:

Sustained: 1, 2, 3, 4, 5

Overruled: 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36

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 Dr. Liu was negligent in his care and treatment of Plaintiff by failing to diagnose and treat her severe myelopathy and critical cervical stenosis, as well as failing to monitor and treat her vitamin 12 deficiency.

Dr. Liu has been Plaintiff’s primary care doctor since May 11, 2011; Plaintiff has visited Dr. Liu multiple times, but not yearly, since 2011. (UMF 3.)

Standard of Care

Defendants submitted a declaration from Jeffery Philip Salberg, M.D., a physician, specialized in internal medicine, who is licensed to practice medicine in California, with the applicable education and experience to give an expert opinion. (Declaration of Jeffery Philip Salberg, M.D. ¶¶ 3-5.) Based upon Plaintiff’s medical records and discovery responses, Salberg opined that Defendants always complied with the standard of care. (Salberg Decl. ¶¶ 6, 7, 50). It was within the standard of care for Dr. Liu to prescribe conservative treatment with Medrolpak and a Prednisone taper in light of her known diagnosis of systemic lupus erythematosus and positive response to the conservative treatment. (Salberg Decl. ¶ 46.) Emergent surgery would not have been indicated at that time; furthermore, any such surgery would be the decisions for a neurosurgeon, not a primary care provider. (Id.) Plaintiff decided to discontinue Prednisone for three months, resulting in a vitamin B12 deficiency. (Salberg Decl. ¶ 47.) In response to this deficiency, Dr. Liu appropriately ordered vitamin B complex to address the deficiency, as well as a CT scan to evaluate her cervical spondylosis due to reported weakness and numbness. (Id.) After she first reported losing her balance, Dr. Liu appropriately ordered MRIs and a neurology consultation. (Id.) Plaintiff saw the referred neurosurgeon within a month, suggesting Dr. Liu made a timely referral. (Salberg Decl. ¶ 48.) Dr. Liu properly responded to Plaintiff’s information that she had a cervical spine impingement and obtained a referral to a neurosurgeon for Plaintiff. (Salberg Decl. ¶ 49.) Dr. Liu did not commit any acts or omission in violation of the standard of care that caused or contributed to the death of decedent. (Salberg Decl. ¶ 50.)

Defendants also submitted a declaration from Edwin C. Amos, M.D., a neurologist, licensed to practice medicine in California, with the applicable education and experience to give an expert opinion. (Declaration of Edwin C. Amos, M.D. ¶¶ 1, 4-5.) Based upon Plaintiff’s medical records and discovery responses, Amos opined that Defendants always complied with the standard of care. (Amos Decl. ¶¶ 6, 7, 46). It was within the standard of care for Dr. Liu to continue to prescribe conservative treatment via a Prednisone taper given Plaintiff’s symptomatic improvement and normalizing motor functions. (Amos Decl. ¶ 47.)  Plaintiff decided to discontinue Prednisone for three months, resulting in a decrease in vitamin B12 deficiency. (Amos Decl. ¶ 48.) In response to this decrease, Dr. Liu appropriately ordered vitamin B complex to address the deficiency, as well as a CT scan to evaluate her cervical spondylosis due to reported weakness and numbness. (Id.) He also appropriately ordered MRIs and a neurology consultation, which was quickly scheduled. (Id.) The neurologist did not recommend that Plaintiff undergo emergency neurosurgery or obtain an emergency consultation while evaluating Plaintiff. (Amos Decl. ¶ 49.) Dr. Liu properly responded to Plaintiff’s information that she had a cervical spine impingement and obtained a referral to a neurosurgeon for Plaintiff. (Amos Decl. ¶ 50.) Although the neurosurgeon recommend surgery, he never indicated a need for it; in fact, he offered conservative therapy as an alternative. (Id.) The decision for emergency surgery would have been within the purview of a neurologist or neurosurgeon—not a PCP, like Dr. Liu. (Amos Decl. ¶ 51.) Dr. Liu did not commit any acts or omission in violation of the standard of care that caused or contributed to the death of decedent. (Amos Decl. ¶ 51.)

Based on the above declarations, Defendants have met their burden. The burden shifts to Plaintiff.

Plaintiff’s Opposition

Plaintiff submitted a declaration from Jonathan Weaver, M.D., a physician, specialized in internal medicine, who is licensed to practice medicine in California, with the applicable education and experience to give an expert opinion. (Declaration of Jonathan Weaver, M.D. ¶ 2.) Based upon Plaintiff’s medical records, Plaintiff’s discovery responses, Plaintiff’s deposition, and Defendants’ moving papers, Weaver opined that Defendants breached the standard of care. (Weaver Decl. ¶¶ 5-10, 13). Weaver specifically noted that Dr. Liu was required to refer Plaintiff to a neurologist or neurosurgeon at the November 19, 2019, visit, rather than waiting until June 2020. (Weaver Decl. ¶13.) During the November visit, Plaintiff presented with complaints and symptoms that should have put Dr. Liu on notice as to potential issues. (Id.) She specifically reported enlarged cervical lymph nodes, rash on her hands, whole body weakness, difficulty performing basic tasks, difficulty typing and writing, severe edema of body parts, unsteady gait, loss of coordination, loss of sensation, fatigue, and numbness. (Weaver Decl. ¶ 11L.) Weaver opined that the failure to refer Plaintiff to a neurologist or neurosurgeon at that time caused a delay in the diagnosis and treatment of Plaintiff’s cervical myelopathy. (Id.)

Plaintiff also submitted a declaration from Michael E. Gold, M.D., a neurologist who is licensed to practice medicine in California, with the applicable education and experience to give an expert opinion. (Declaration of Michael E. Gold, M.D. ¶ 2.) Based upon Plaintiff’s medical records, Plaintiff’s discovery responses, Plaintiff’s deposition, and Defendants’ moving papers, Gold opined that Defendants breached the standard of care. (Gold Decl. ¶¶ 5-10, 14-18). Gold opined that had Plaintiff presented to a neurologist or neurosurgeon in or around November 2019, she would have undergone spinal surgery by January 2020. (Gold Decl. ¶ 15.) She presented with minor to moderate versions of the same symptoms at the November visit, as opposed to the severe forms in the spring 2020 visits. (Gold Decl. ¶ 16.) Plaintiff now has severe and permanent injuries that were caused due to the delay in surgery, which Gold opined was substantially caused by Dr. Liu’s failure to seek specialist help in November 2019. (Gold Decl. ¶¶ 17-18.)

Plaintiff has met her burden in providing expert opinions that Defendants did not act within the standard of care. As both sides have presented competing experts, the Court finds there is a dispute as to material fact. The Court denies the motion.

CONCLUSION

Defendants Paul Tien Ching Liu M.D. and Paul TC Liu 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.