Judge: David B. Gelfound, Case: 21STCV22453, Date: 2024-02-27 Tentative Ruling

Case Number: 21STCV22453    Hearing Date: February 27, 2024    Dept: F49

Dept. F49 

Date: 2/27/24

Case # 21STCV22453

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

 FEBRUARY 27, 2024

MOTION FOR SUMMARY JUDGMENT

Motion filed: 9/29/23

MOVING PARTY: Defendant James J. Lee, M.D. (the “moving Defendant” or “Dr. Lee”) 

RESPONDING PARTY: None 

NOTICE: ok 

RELIEF REQUESTED: An order granting the moving Defendant’s Motion for Summary Judgment.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This medical malpractice action stems from the care and treatment provided to Plaintiff Andrey Rossius, D.M.D. (“Plaintiff”) by Defendant Jame J. Lee, M.D.

On June 16, 2021, Plaintiff filed this action against Defendants Providence Health & Services, Providence, Providence St. Joseph Health, Providence Holy Cross Medical Center, James J. Lee, M.D., Peyman Mesbah Oskui, M.D., Lanzio Arnau, O.T., and Does 1 through 50. The Complaint alleges one cause of action for medical malpractice.

On September 29, 2023, the moving Defendant, James J. Lee, M.D., filed the instant Motion for Summary Judgment (the “Motion”).

On February 13, 2024, Plaintiff filed his Statement of No Opposition to the Motion.

ANALYSIS

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“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. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd.(c).) 

“[I]f the moving papers establish a prima facie showing that justifies a [ruling] in the [plaintiff's] favor, the burden then shifts to the [defendant] to make a prima facie showing of the existence of a triable material factual issue.”' (Citation.)" (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900, quoting Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.) “The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) 

A.    Cause of Action – Medical Malpractice

The moving Defendant argues that he is entitled to summary judgment as a matter of law as to the entire Complaint because Plaintiff cannot establish the necessary elements of the cause of action for medical malpractice, specifically the elements of breach of duty and proximate causation. (Mot., at 6.)

The essential elements to establish a claim of medical malpractice 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 that duty; (3) proximate causal connection between negligent conduct and resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468 n.2; citing Hanson v. Grode (1999) 76 Cal.App.4th 601, 606; see CACI 500, et seq.)

Expert testimony is required in establishing the standard of care by which the acts of a physician are to be measured. The California Supreme Court reiterated the rule that the standard of care is “a basic issue in a malpractice action that can only be proved by [expert’s] testimony, unless the conduct required by the particular circumstance is within the common knowledge of the layman.” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) 

The proximate causation element hinges on whether the defendant’s conduct was a “substantial factor” in bringing about the plaintiff’s injuries. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1053.) Furthermore, the causation “must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.” (Jones v. Ortho Pharmaceutical Corporation, et al. (1985) 163 Cal.App.3d 396, 402-403.)  

 In O’Connor v. Bloomer (1981) 116 Cal.App.3d 385 (O’Connor), the Court of Appeal considers a motion for summary judgment based on defendants’ declaration as expert opinions in a medical malpractice action. There, the plaintiff appealed the trial court’s granting motion for summary judgment for two assistant surgeons, arguing that the trial court abused its discretion in granting the motion for summary judgment because it placed too much emphasis on the declarations of Defendants Dr. Wright and two assistant surgeons. (Id., at 391.)  The Court of Appeal upheld the trial court’s decision, noting that the “extent of the duties and the responsibilities of assistant surgeons during heart surgery is not a matter that is within the common knowledge of lay people,” (Id., at 387) and that the trial court properly considered these unchallenged expert testimonies. (Ibid.)

Similarly, here, Dr. Lee, a duly licensed plastic surgeon specializing in plastic, reconstructive, and aesthetic hand surgery (Lee Decl., ¶¶ 1, 7, 8), mirrors the assistant surgeons in O’Connor. The extent of the duties and responsibilities of plastic surgeons during specific operations is beyond the common knowledge of laypeople. (Id., ¶ 17.) Dr. Lee, like the assistant surgeons in O’Connor, asserts in his declaration that he adhered to the applicable standard of care in treating Plaintiff (Id., ¶¶ 26, 27), indicating that one or more of the elements of the cause of action cannot be established.

An essential parallel between this case and O’Connor is the unopposed nature of the moving Defendant’s declaration by Plaintiff. Following precedent, the Court concludes that the moving Defendant’s unopposed declarations, serving as expert testimony, fulfill his initial burden. Consequently, the burden shifts to Plaintiff to demonstrate the existence of a triable material factual issue.

However, given Plaintiff’s Statement of No Opposition and the lack of any countervailing evidence to dispute the moving Defendant’s expert testimony, the Court GRANTS the Motion for Summary Judgment.

CONCLUSION

Moving Defendant James J. Lee’s Motion for Summary Judgement is GRANTED.

Moving party is ordered to provide notice of this order.