Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This is a medical malpractice case.  On March 13, 2018, Defendant David Thordarson performed a total left ankle replacement surgery (the “surgery”) on Plaintiff Diana Weiss (“Plaintiff”) .  (Thordarson Statement of Facts (“TSOF”) No. 3.)   

In the weeks following the surgery, Plaintiff developed a blister over the central portion of the wound and around the hindfoot.  (TSOF No. 4).  Plaintiff was rebandaged and continued on antibiotic doxycycline.  (TSOF No. 4.)  On April 2, 2018, Dr. Thordarson stopped doxycycline as Plaintiff had no new wound drainage, and her pain and swelling had decreased.  (TSOF No. 5.) 

On April 18, 2018, Dr. Thordarson noted a scab covering the lateral border of Plaintiff’s left heel; he removed the scab and sutures and advised Plaintiff to wash the area daily and use dry dressing and to contact the clinic if signs of infection developed.  (TSOF No. 6.)   

On April 23, 2018,  Dr. Thordarson noted that Plaintiff’s ankle joint was healed but noted skin necrosis and referred Plaintiff to a reconstructive surgeon, Randolph Sherman.  (TSOF No. 7.)  (Dr. Sherman was named a defendant in this case but the complaint against him was dismissed after he filed a motion for summary judgment.)  On April 24, 2018, Dr. Sherman removed the necrotic skin and placed a vacuum assisted closure device (“VAC”) to assist in healing the wound.  (TSOF No. 8.)  Dr. Thordarson removed hardware from the left heel and ankle that had been exposed during the procedure.  (TSOF No. 8.) 

Over the following months, Dr. Sherman performed various procedures on Plaintiff. During one of those procedures on July 24, 2018, Dr. Thordarson inspected the wound and exchanged the polyethlene liner of the ankle prosthesis.  (TSOF No. 10.) 

Dr. Thordarson also continued to follow Plaintiff.  By November 5, 2018, the ankle skin was fully healed; and x-rays reflected a well-aligned, well-incorporated ankle replacement.  (TSOF No. 11.) 

The operative complaint alleges claims for medical malpractice and loss of consortium.  The claim for medical malpractice is brought by Plaintiff, and the loss of consortium is brought by her husband, Plaintiff Daniel Weise (“Plaintiff Daniel Weise”) (Collectively both plaintiffs are referred to as “Plaintiffs.”   

This hearing is on the remaining motion for summary judgment filed separately by Dr. David Thordarson.  Relying on the declarations of his expert, Defendant argues there is no triable issue that he complied with the applicable standard of care and that no act or omission on his part caused or contributed to Plaintiff’s alleged injuries.  No opposition has been filed.     

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 Ritchfield Co. (2001) 25 Cal.4th 826, 843.)¿ Code Civ. Proc. §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. Minor 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).¿  

As to each claim as framed by the complaint, the party 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 moving party has met that burden, the burden shifts to the opposing party 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.)  

DISCUSSION 

Medical Malpractice 

The elements of a cause of action for medical malpractice 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 that 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.) 

The question of whether there has been a breach of duty is determined by expert testimony.  As explained by the California Supreme Court, “the standard of care against which the acts of a medical provider are to be measured is a matter peculiarly within the knowledge of experts[.]”  (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)  “Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill … because such standard of skill is not a matter of general knowledge and can only be supplied by expert testimony.”  (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.) 

Here, Dr. Thordarson has supplied a declaration from his expert attesting that he complied with the standard of care and their acts or omissions did not cause Plaintiff’s damages.  Dr. Thordarson’s expert, Eric Giza, is a graduate of Temple University School of Medicine.  He did an orthopedic residency at Harvard from 1998 to 2003 and then did a fellowship in foot and ankle surgery at St. Vincent’s & North Shore Private Hospitals in Sydney, Australia in 2004.  He also did a fellowship in sports medicine at Santa Monica Orthopedic and Sports Medicine from 2004 to 2005.  He has been licensed to practice medicine in the state of California since 2004.  (Giza Decl. ¶3.) 

Dr. Giza opines that: (1) “Dr. Thordarson competently, and within the standard of care, performed the left total ankle arthroplasty and left lateral sliding calcaneal osteotomy”, (2) “It was within the standard of care for Dr. Thordarson to discontinue antibiotics on or about April 2, 2018 as there was no indication of infection”; (3) “Dr. Thordarson’s evaluation and care on April 18, 2018—removing sutures and the eschar and advising Plaintiff to wash the area daily and use dry dressing—was within the standard of care.  At that time, there were no signs of infection and plaintiff was given instructions to contact his office if any sign of infection developed”; (4) “It was within the standard of care for Dr. Thordarson to refer Plaintiff to a plastic/reconstructive surgeon on or about April 23, 2018 when it became clear the wound was not healing”; (5) “Finally, it was within the standard of care for Dr. Thordarson to remove hardware during the April 24, 2018 procedure as it had been exposed during the debridement.  Leaving the hardware in place would have created a risk of infection and there was sufficient inherent stability in the osteotomy without the hardware.”  (Giza Decl. ¶8.)    

Based on the foregoing, the Court concludes Defendant has met his initial burden of showing there are no triable issues as to whether they breached the standard of care.  (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 508 (the appellate court determined that a qualified expert’s declaration concluding that the defendant doctor’s actions had met the applicable standard of care was sufficient to establish a prima facie case in the doctor’s favor); Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968-969 (the appellate court determined that a qualified expert’s declaration stating that the expert had “reviewed [the decedent's] medical records and other materials” and “briefly summariz[ing] [the decedent’s] treatment at [the hospital] before concluding that the applicable standard of care was met” was sufficient to meet the defendant doctor's initial burden on summary judgment).  

Once Defendant has met his burden, the burden then shifts to Plaintiff to come forward with substantial responsive evidence to show that a triable issue of breach exists.  Plaintiffs have failed to meet their burden as they have not filed an Opposition or a competing expert declaration.   

In addition to the failure to show a breach of duty, Defendant argues there is also no triable issue on causation.  Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury.  As with the standard of care, causation must also be proven by expert testimony.  (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498 (“The law is well settled that in a personal injury action, causation must be proven within a reasonable medical probability based upon competent expert testimony.”); Dumas v. Cooney (1991) 235 Cal. App.3d 1593, 1603 (“Causation must be proven within a reasonable medical probability based upon competent expert testimony.”)   

Here, Defendant has presented a declaration from his expert attesting that his acts or omissions were not a substantial cause of Plaintiff’s damages.  Dr. Giza opines that “[b]ased upon my review of the records and on my education, training, and experience no act or omission on the part of Dr. Thordarson was a substantial cause of the development of the post-surgical blisters or infection.  Unfortunately, infection is a known risk of any surgical procedure and can develop in the absence of negligence.  There is no evidence to suggest that any act or failure to act on the part of Dr. Thordarson caused the infection to develop.”  (Giza Decl. ¶9.)   Accordingly, Defendant has also met his burden to show there is no triable issue on causation.           

Once again, the burden shifts to Plaintiffs to show a triable issue on causation, which the fail to do, as they have not filed a competing expert declaration, much less an opposition.   

Loss of Consortium 

Plaintiff Daniel Weise cannot maintain the second cause of action for¿loss of consortium as it is solely a¿derivative claim of his wife’s first cause of action for¿medical malpractice.  Accordingly, as the first cause of action for¿medical malpractice fails as a matter of law, so too must the derivative loss of consortium claim.  (Mark Dodge & Teresa Dodge v. Health, 2022 Cal. Super. LEXIS 8179 at *6 (spouse’s loss of consortium claim was derivative of husband’s medical malpractice claim and where the malpractice claim fails, the loss of consortium claim must also fail); Robertson v. Eisenhower Med. Ctr., 2019 Cal. Super. LEXIS 63315 at *2 (same); Bauer v. St. Francis Mem. Hosp., 2011 Cal. Super. LEXIS 5006 at *3 (same).) 

CONCLUSION 

Based on the foregoing, the Court GRANTS Defendant’s motion for summary judgment.  

 

IT IS SO ORDERED. 

 

DATED: May 25, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court