Judge: Edward B. Moreton, Jr., Case: 20STCV32342, Date: 2022-12-15 Tentative Ruling

Case Number: 20STCV32342    Hearing Date: December 15, 2022    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

            This is a medical malpractice and wrongful death case.  Plaintiffs are the parents, domestic partner and children of decedent Antonia Camarena.  Camarena died while undergoing hernia repair surgery.  She died from an anaphylactic reaction to the anesthetics she was given.  Plaintiffs have sued the surgeon (Leslie Memsic) and the anesthesiologist (Calvin Johnson).  Plaintiffs allege claims for professional negligence and wrongful death.     

This hearing is on two motions for summary judgment filed separately by Memsic and Johnson.  Relying on declarations from their experts, Memsic and Johnson argue there is no triable issue that they complied with the standard of care and/or that no act or omission on their part caused or contributed to Camarena’s death.  (Cross Decl. ¶¶23, 25-28; Hurwitz Decl. ¶¶21-24.)  No opposition has been filed.  Plaintiffs’ former counsel was relieved as counsel in July 2022, and there has been no appearance by any new counsel. 

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.)  CCP §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

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.4^th 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, both Memsic and Johnson have supplied declarations from experts attesting that they complied with the standard of care.  Memsic’s expert, Michael B. Hurwitz, has been certified by the American Board of Surgery since 1995 and has been in private practice as a general surgeon since 1998.  He is also the Chair of the Department of Surgery at Hoag Memorial Hospital Presbyterian.  (Hurwitz Decl. ¶¶1-2.)  The Court finds Dr. Hurwitz is qualified to testify as an expert.  Dr. Hurwitz avers that Dr. Memsic has no responsibility to select the anesthetic medications that resulted in Camerena’s death, nor would she be expected to direct the efforts at resuscitation that followed.  (Hurwitz Decl. ¶23.)  He states it is his “unequivocal opinion that the care and treatment rendered to [Camarena] by [Memsic] and her staff … complied with the applicable standard of care for a surgeon at all times.”  (Hurwitz Decl. ¶24.)  Based on the foregoing, the Court concludes Memsic has met her burden of showing there are no triable issues as to whether she breached the standard of care. 

Johnson’s expert, John Cross, has been practicing since 1992; he specializes in adult and pediatric anesthesiology and is board certified in each.  He is also the Vice Chair of Staff at St. Joseph Hospital in Orange.  (Cross Decl. ¶¶1-2.)   The Court finds Dr. Cross is qualified to testify as an expert.  Dr. Cross attests that Camerena died from “an anaphylactic reaction to an anesthetic medication, most likely, Rocuronium” but that Johnson “acted in compliance with the standard of care in administering said medication” because the “patient had no known allergy to this type of medication or … any other medication.”  (Cross Decl. ¶23.)  He also opines that Dr. Johnson “complied with the standard of care in his decision to intubate the patient for the [hernia] surgery based upon the totality of circumstances.”  (Cross Decl. ¶25.)  He further avers that “Dr. Johnson complied with the standard of care in the manner in which he and his team attempted to resuscitate the patient.  All of the techniques employed during the resuscitation process were appropriate and complied with the standard of care.”  (Cross Decl. ¶26.)  Based on the foregoing, the Court concludes Johnson has met his burden of showing there are no triable issues on whether he breached the standard of care. 

Once Memsic and Johnson have met their burden, the burden then shifts to Plaintiffs 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, Johnson 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.4^th 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, Johnson has presented a declaration from his expert attesting that Camarena “unfortunately suffered from a non-preventable anaphylactic allergic reaction to Rocuronium, and that no act or omission by Dr. Johnson caused or contributed to her death.”  (Cross Decl. ¶28.)  Accordingly, Johnson has also met his burden to show there is no triable issue on causation.          

CONCLUSION

Based on the foregoing, the Court GRANTS Defendants Leslie Memsic and Calvin Johnson’s motions for summary judgment.

IT IS SO ORDERED.

DATED: December 15, 2022                                              ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court