Judge: Donald F. Gaffney, Case: Wilson v. Patel, Date: 2022-10-12 Tentative Ruling

TENTATIVE RULING:

Motion for Summary Judgment or, in the Alternative, Summary Adjudication

The motion of Defendant Trishaben Patel, M.D. (“Dr. Patel”) for summary adjudication is GRANTED in part and DENIED in part. Dr. Patel’s motion for summary judgment is DENIED.

A defendant moving for summary judgment bears the initial burden to show the plaintiff’s action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) 

If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, however, the burden shifts to the plaintiff to establish, by means of competent and admissible evidence, that a triable issue of material fact still remains. (Code Civ. Proc., § 437c (p)(2); Binder, 75 Cal.App.4th at 850–851.)

The moving party’s papers are to be strictly construed, while the opposing party’s papers are to be liberally construed. (Committee to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.) 

A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.)

First Cause of Action for Medical Negligence

The first cause of action for medical negligence alleges that Dr. Patel, M.D. failed to conform to the standard of care and treatment rendered to Plaintiff Gary Wilson on June 18, 2020, and failed to provide Gary with information about the risks and hazards, or other harmful consequences, that might follow from the treatment, diagnosis, or surgery Dr. Patel planned for Plaintiff. (First Amended Complaint [“FAC”] ¶ 10.) The FAC further alleges Dr. Patel negligently failed to ensure the character, quality, ability, and competence of individuals treating Gary in her clinic. (FAC ¶ 11.) The FAC alleges Defendants negligently examined Gary and failed to diagnose his condition and negligently treated and cared for Gary while he was in the exclusive control of Defendants. (FAC ¶ 12.)

The elements to a claim for medical negligence are (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise, (2) a breach of the duty, (3) a proximate causal connection between the negligent conduct and the injury, and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

“In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen. [Citation.]” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) 

Expert testimony is also required to demonstrate causation to a reasonable medical probability.  (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)   “Mere possibility alone is insufficient to establish a prima facie case.  [Citations.]  That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion.  There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.  A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.”  (Jones, 163 Cal.App.3d at 402-403; Bromme v. Pravitt (1992) 5 Cal.App.4th 1487, 1504.) 

Dr. Patel demonstrates the lack of breach and lack of causation through the declaration of Sten E. Kramer, M.D. Dr. Kramer has been a practicing Physical Medicine and Rehabilitation physician and Pain Management-Specialist in Southern California since 1993. (Kramer Decl. ¶ 2.) He is board certified in Physical Medicine and Rehabilitation with a subspecialty in Pain Management. (Id.) Dr. Kramer routinely performs intercostal nerve block procedures on patients as a pain management physician. (Id.) Dr. Kramer declares that he has reviewed Plaintiff Gary Wilson’s medical records, the Complaint filed by Plaintiffs, and the deposition transcripts of Gary Wilson, Mary Wilson, and Dr. Patel. (Kramer Decl. ¶ 5.)

Dr. Patel has provided evidence that the care and treatment provided to Gary Wilson by Dr. Patel was within the standard of care of a pain medicine specialist in the Southern California Community and that Dr. Patel used appropriate surgical technique in performing the intercostal nerve block on June 18, 2020. (Kramer Decl. ¶¶ 8-9, 12.) Dr. Kramer also opines that no act or omission to act on the part of Dr. Patel caused or was a substantial factor in causing any injury to Gary Wilson. (Kramer Decl. ¶ 13.) Dr. Patel also provided evidence that Dr. Patel “appropriately consented” Gary Wilson for the intercostal nerve block performed on June 18, 2020. (Kramer Decl. ¶¶ 10, 11.) She discussed the risks and benefits of the procedure with Gary Wilson, and Gary Wilson signed the consent form for the procedure. (Id.)

Dr. Patel met her initial burden to show that Dr. Patel did not fail to conform to the standard of care with respect to the care and treatment rendered to Gary Wilson and with respect to providing Gary Wilson with information about the intercostal nerve block procedure. Dr. Patel has also provided evidence that she did not cause substantial injury to Gary Wilson.

Dr. Patel, however, did not address Plaintiffs’ allegation that she negligently supervised the nurses, nurse practitioners, nursing personnel, orderlies, assistants, aides, and employees that were under her supervision, control, direction, responsibility, and authority. (See FAC ¶¶ 11-12; Turner v. Anheuser–Busch, Inc. (1994) 7 Cal.4th 1238, 1252 [when a court considers a motion for summary judgment, it must identify the issues framed by the pleadings].) Because this allegation was not addressed, the motion for summary adjudication is denied as to the first cause of action.

Second Cause of Action for Negligent Infliction of Emotional Distress

The second cause of action alleges that Mary Wilson was at Dr. Patel’s office when Gary Wilson suffered his injuries. (FAC ¶ 16.) The FAC further alleges that Mary Wilson was aware of the injury that had been caused to Gary Wilson and suffered serious emotional distress as a result. (Id.)

To recover for negligent infliction of emotional distress as a bystander, Mary Wilson must plead and prove she (1) is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. (Thing v. La Chusa (1989) 48 Cal.3d 644, 667–668.) The doctrine of “negligent infliction of emotional distress” is not a separate tort or cause of action. It allows for recovery of emotional distress damages without physical injury in a negligence cause of action under limited circumstances. (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928; see also Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 126 [claim for negligent infliction of emotional distress requires proof of duty, breach, causation and damages].)

Dr. Patel has submitted evidence that Mary Wilson was not at the scene of the injury producing event. Mary Wilson testified at deposition that she was not present at any of the injections. (Ting Decl. ¶ 10, Ex. G [Mary Wilson Depo. Tr. at 24:2-3].) Plaintiffs submitted deposition testimony from Mary Wilson in which she indicated that she saw her husband, Gary Wilson, after he received the second intercostal injection. (Lawson Decl. ¶ 8, Ex. 3 [Mary Wilson Depo. Tr. at 34:16-25].) This testimony does not create a triable issue of material fact regarding whether Mary Wilson was present at the scene of the injury producing event at the time it occurred and was aware that it caused injury to Gary Wilson. The motion for summary adjudication is granted as to the second cause of action.

Third Cause of Action for Loss of Consortium

The parties do not dispute that the third cause of action for loss of consortium is dependent on Gary Wilson’s cause of action for medical negligence. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746 [“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.”]) Because the first cause of action survives, so too does the third cause of action for loss of consortium. The motion for summary adjudication is denied as to the third cause of action.

Dr. Patel’s evidentiary objections are not material to the disposition of the motion. (Code Civ. Proc., § 437c(q).)

Defendant to give notice.