Judge: Douglas W. Stern, Case: 21STCV14120, Date: 2022-12-07 Tentative Ruling

Case Number: 21STCV14120    Hearing Date: December 7, 2022    Dept: 68

BACKGROUND

            On April 13, 2021, Plaintiffs filed a complaint alleging two causes of action for professional negligence and negligent infliction of emotional distress. Plaintiff Joshua Kohan has dismissed his claim for negligent infliction of emotional distress, so the only claim left to be tried is the professional negligence claim of Plaintiffs Ayelet Kohan and Tehila Moeinzadeh. Plaintiffs are alleging that Defendant Dr. Rogers provided negligent prenatal care to Plaintiff Moeinzadeh, resulting in injuries to her and her daughter, Ayelet Kohan.

Dr. Rogers moves for summary judgment as to the cause of action for professional negligence. No opposition has been filed by Plaintiffs.

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 Section 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.)

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.)

            When interpreting § 437c, courts have held that a three-step analysis is required: (1) Identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading; (2) Determine whether the moving party’s showing has established facts which negate the opponent's claim and justify a judgment in movant’s favor; and (3) Determine whether the opposition demonstrates the existence of a triable, material factual issue. (AARTS Production, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)

Summary Judgment may be granted only where all the supporting and opposition papers show there is no triable issue as to any material fact and the moving party is entitled to judgment “as a matter of law.” (CCP § 437c(c).)

DISCUSSION

No Issue of Triable Fact as to the Professional Negligence Cause of Action

            Dr. Rogers moves for summary judgment on the basis that there are no triable issues of material fact.  His proof by expert testimony reveals that he did not fail to meet the standard of care and hence did not commit malpractice.

The essential elements to establish a claim of medical negligence are: (1) a legal duty to use due care; (2) a breach of such legal duty; and (3) the breach as the proximate or legal cause of the resulting injury. (5 Witkin, Summary of California Law (9th ed.), Torts §732.) A defendant is held liable for a plaintiff’s injuries only if he breached his duty to exercise reasonable care toward the plaintiff. (Id.)

The law requires that physicians exercise a reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by physicians under similar circumstances in diagnosis and treatment. (Folk v. Kilk (1975) 53 Cal. App. 3d 176, 185.)

The practitioner is not omniscient or capable invariably of knowing that his professional acts will achieve the desired result; he is responsible only where it is established that he did not act with the knowledge or foresight of practitioners generally or as a reasonably skillful and experienced practitioner would have acted in the same circumstances. (Allan v. Leonard (1969) 270 Cal. App. 2d 209, 215.)

In a medical malpractice action, the requisite standard of practice is determined by the applicable standard of practice then existing in that professional community. (Landeros v. Flood (1976) 17 Cal.3d 399.) The standard of care exercised by physicians can only be determined by expert testimony in any medical malpractice action where the facts cannot be evaluated by resort to common knowledge. (Lawless v. Calaway (1944) 24 Cal.2d 81, 86; see also Barton v. Owen (1977) 71 Cal. App. 3d 44.)

The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts. It presents a basic issue in a medical malpractice action and can only be proven by their testimony, unless conduct required by the circumstance is within the common knowledge of laymen. (Landeros v. Flood (1976) 17 Cal.3d 399, 410; see also Willard v. Hagemeister (1981) 121 Cal. App. 3d 406, 412 (stating that expert testimony “is conclusive as to the proof of the prevailing standard of skill and learning in the locality and propriety of particular conduct by the practitioner in particular instances”).) An “expert” is one who has acquired superior knowledge through his training and experience which better enables him to reach a conclusion from the facts than a person of common experience. (Eger v. May Dept. Stores (1953) 120 Cal. App. 2d 554.)

“[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case . . . There can be many possible “causes,” indeed, an infinite number of circumstances which 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 the injury was a result of its action.” (McNamara v. Ortho Pharmaceutical Corporation (1985) 163 Cal.App.3d 396, 402.)

Expert testimony is necessary to establish causation to a reasonable medical probability. (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603.)  Dr. Rogers establishes by expert witness testimony that his care and treatment were within the applicable standard of care. His expert, Stephen DiMarzo, M.D., declares that in his experience as a doctor specializing in obstetrics and gynecology and based on his review of Plaintiffs’ medical records, Dr. Rogers’s actions and recommendations were within the applicable standard of care for an ob/gyn. (DiMarzo Decl., ¶ 10.) Dr. DiMarzo also declares that the care that Dr. Rogers provided did not contribute to Plaintiffs’ claimed injuries or damages for purposes of the causation element. (DiMarzo Decl., ¶ 11.)

Plaintiffs have provided no expert testimony or other evidence in opposition to Dr. Rogers’s motion. No issues of triable fact exist as to the cause of action for professional or medical negligence. As such, summary judgment should be granted in favor of Defendant Dr. Rogers.

CONCLUSION AND ORDER

            Defendant’s motion for summary judgment is GRANTED.

Defendant is ordered to provide notice of this order and file proof of service of such.  Defendant shall submit a form of judgment for the Court to execute.