Judge: David B. Gelfound, Case: 22STCV00864, Date: 2025-01-27 Tentative Ruling

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Case Number: 22STCV00864    Hearing Date: January 27, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR SUMMARY JUDGMENT

Motion filed: 4/11/24

MOVING PARTY: Defendant Providence Medical Institute

RESPONDING PARTY: Plaintiff Laura Beth Denver (non-opposition)

NOTICE: OK.

RELIEF REQUESTED: An order granting the Moving Defendant Providence Medical Institute’s Motion for Summary Judgment.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This medical malpractice action arises from the care and treatment provided to Plaintiff Laura Beth Denver (“Plaintiff” or “Denver”) by Defendant Rachel B. Long, M.D. (“Dr. Long”) in connection with a surgical procedure performed on November 27, 2020. (Compl. ¶ 7.)  

On January 10, 2022, Plaintiff filed a Complaint against Defendant Dr. Long and Does 1 through 20, alleging a single cause of action for Medical Malpractice. Dr. Long filed her Answer to the Complaint on February 18, 2022. On October 26, 2022, Plaintiff substituted Defendants Providence Medical Associates and Providence Medical Institute (“PMI”) for Doe 1 and Doe 2, respectively. Providence Medical Associates and PMI filed their Answer on December 16 and 19, 2022, respectively. On May 13, 2024, Plaintiff substituted Defendants Providence Holy Cross Medical Center and Kathryn Joann Wright, M.D. for Doe 3 and Doe 4, respectively. Providence Holy Cross Medical Center and Kathryn Joann Wright, M.D. filed their Answer on June 24 and July 8, 2024, respectively.

On April 11, 2024, Defendant PMI filed the instant Motion for Summary Judgment (the “Motion”). Subsequently, on November 21, 2024, Plaintiff filed her Notice of Non-Opposition to 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 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 fn.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’ declarations 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 surgeon 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.)

Here, Defendant PMI presents expert opinions of Shira Varon, M.D. (“Dr. Varon”) who is a licensed physician in the State of California. (Varon Decl. ¶ 1.) Dr. Varon obtained a medical degree from George Washington University School of Medicine in 2002 and completed her residency in obstetrics and gynecology from George Washington University Medical Center in 2006. (Id. ¶ 2.) Dr. Varon has been board certified by the American Board of Obstetrics and Gynecology since 2009 and is currently Fellow of American Congress of Obstetricians and Gynecologists and the American Association of Gynecologist Laparoscopists. She also serves as a Clinical Professor for the Department of OB/GYN and Reproductive Sciences at University of California, San Diego School of Medicine. In addition, Dr. Varon has a practice focus designation issued by American Board of Obstetrics and Gynecology in Minimally Invasive Gynecologic Surgery. She has also served on various committees for the American College of Obstetricians and Gynecologists throughout her career. (Id. ¶ 4.)

The Court notes that Dr. Varon’s qualifications have not been contested by Plaintiff. Accordingly, the Court determines that based on Dr. Varon’s education, training and experience, she is familiar with the standard of care in the community for the field of Obstetrics and Gynecology.

PMI asserts the following undisputed material facts (“UMF”). It employed non-physician staff at Providence outpatient facilities at which Plaintiff was seen in November – December 2020. (UMF No. 1.) PMI did not employ Defendant Dr. Long at the time during which Dr. Long rendered treatment to Plaintiff. (Id. No. 2.) Plaintiff established her gynecologic care with Dr. Long in December 2017. (Id. No. 4.) Dr. Long was the primary surgeon for Plaintiff’s laparoscopic assisted vaginal hysterectomy surgery on November 27, 2020. (Id. No. 5.) PMI did not employ any of the personnel who rendered treatment to Plaintiff during her inpatient admission at Providence Holy Cross Medical Center on November 27-28, 2020. (Id. No. 2.)

Dr. Varon submits her expert opinion that during the postoperative period, there is no indication in the records that PMI was in negligent in any way in responding to Plaintiff’s communications with PMI staff. (Varon Decl. ¶ 11.) Specifically, on one occasion, Plaintiff contacted PMI on November 30, 2020, stating that she had not yet had a bowel movement and was experiencing pain in her shoulders and chests. Her mother followed up with a phone call to PMI staff and complained that Plaintiff had not had a bowel movement and was in pain. (UMF No. 6.) Dr. Varon opines that it was appropriate for the staff to refer her to the hospital for evaluation if she was having pain and constipation despite taking medications. (Varon Decl. ¶ 11.) On the other occasion, Plaintiff called PMI on December 9, 2020, reporting that she had one-half cup of gushing vaginal bleeding. (UMF No. 7.) PMI staff advised Plaintiff to go the Emergency Room. (Ibid.) However, Plaintiff later reported that she did not go because she had a follow-up appointment already scheduled with Dr. Long and due to COVID fears. (Ibid.) Dr. Varon opines that it was appropriate to advise Plaintiff to go to the ER. (Varon Decl. ¶ 11.) Dr. Varon further states that when Plaintiff was seen on December 10, 2020, by Dr. Long on an outpatient basis, Dr. Long had sole authority regarding decision-making and there is no indication that the PMI staff had any role in the decision not to admit Plaintiff or perform any further workup. Thus, Dr. Varon is of the opinion that PMI did not breach any duty during the postoperative period. (Varon Decl. ¶ 12.)

Furthermore, Dr. Varon’s expert evidence shows that PMI’s involvement in Plaintiff’s care was, to a reasonable degree of medical probability, not a substantial factor in causing Plaintiff’s alleged damages and postoperative complications. (Varon Decl. ¶ 14.)

Accordingly, the Court concludes that relying on Dr. Varon’s unopposed declarations, serving as expert testimony, Defendant PMI has fulfilled its initial burden, establishing a prima facie showing that justifies a ruling in its favor.

Consequently, the burden shifts to Plaintiff to demonstrate the existence of a triable material factual issue.

However, given the Plaintiff’s Notice of Non-opposition on the record and the lack of any countervailing evidence to challenge Dr. Varon’s expert testimony, the Court concludes that Plaintiff has not met the burden of demonstrating the existence of a triable material factual issue.

Based on the foregoing, the Court GRANTS the Motion for Summary Judgment as to the Defendant PMI.

CONCLUSION

The unopposed Motion for Summary Judgment, filed by Defendant Providence Medical Institute is GRANTED.

Moving party to provide notice.