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 (the “Decedent”).  Decedent died while undergoing hernia repair surgery.  Plaintiffs have sued the surgeon (Leslie Memsic), the anesthesiologist (Calvin Johnson), and the surgical center where the procedure took place (436 Beverly Hills, LLC or “LLC”).  Plaintiffs allege claims for professional negligence and wrongful death.   

Decedent was 38 years of age when she saw Dr. Memsic on January 17, 2019 with an increasingly tender and painful recurrence of her hernia.  (Undisputed Material Fact “UMF” No. 1.)  Dr. Memsic recommended a surgical repair of the hernia, which was scheduled for June 4, 2019.  (UMF Nos. 1, 2, 6.)  Prior to surgery, Dr. Memsic’s office provided Decedent with a document regarding “General Surgical Risks” which included a discussion of the risks of anesthesia, including death.  (UMF No. 5.)   

On the day of surgery, Decedent reviewed and signed a document entitled “Consent to Operation, Anesthesia and Medical Services” which again included risks of complications including death and stated that the anesthesiologist for the procedure was not an employee or agent of either Dr. Memsic or LLC.  (UMF No. 7.)  Decedent also signed a separate consent for the anesthesia services which again included risks of complications including the inability to reverse the effects of anesthesia, paralysis and death.  (UMF No. 9.)   

The independent and board-certified anesthesiologist for the planned surgery was Dr. Calvin Johnson who is not employed by either Dr. Memsic or LLC.  (UMF No. 8.)  Prior to the surgery, Dr. Johnson commenced induction of the patient with medications that included Ketamine, Versed, Propofol and Rocuronium.  (UMF No. 10.) 

Neither Memsic nor LLC played any role in the selection of medications to be used by the anesthesiologist, and it was appropriate for them to defer to Dr. Johnson’s expertise and experience.  The standard of care does not require the surgeon or other surgical center staff members to involve themselves in the selection of anesthetic medications.  (UMF No. 11.) 

Still prior to commencement of surgery, Dr. Johnson noted difficulty ventilating Decedent and he commenced efforts to resuscitate Decedent.  (UMF No. 13.)  Under these circumstances, the standard of care required surgery staff members and Dr. Memsic to provide assistance as requested or needed by Dr. Johnson but to do so under the express direction of Dr. Johnson.  (UMF No. 14.)   

Dr. Johnson eventually called a code blue and CPR was initiated while a call was placed to 911 to summon paramedics.  (UMF No. 15.)  The paramedics transported Decedent to Cedars-Sinai Medical Center where she died the following morning.  (UMF No. 16.)  Decedent’s death was caused by an anaphylactic reaction to anesthetic medications, Ketamine and/or Rocuronium administered by Dr. Johnson.  (UMF No. 18.) 

This hearing is on two motions for summary judgment filed separately by Dr. Memsic and LLC.  Relying on the declaration of their common expert (Michael Hurwitz), Defendants argue there is no triable issue that they complied with the applicable standard of care and no act or omission on their part caused or contributed to Decedent’s death.  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.  The Court previously granted summary judgment in favor of the anesthesiologist (Dr. Johnson). 

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 

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, both Memsic and LLC have supplied a declaration from an expert attesting that they complied with the standard of care and their acts or omissions did not cause Decedent’s death.  Their expert, Michael B. Hurwitz, has been licensed to practice medicine in the State of California since 1990.  (Hurwitz Decl. ¶1.)  He received his medical degree from Louisiana State University School of Medicine in 1984, and completed his residency in general surgery at Harbor-UCLA Medical Center, followed by a fellowship in surgical oncology at the same medical center.  (Id.)  Dr. Hurwitz has been board certified by the American Board of Surgery since 1995 and has been in private practice as a general surgeon since 1998.  (Hurwitz Decl. ¶2.)  He is also the Chair of the Department of Surgery at Hoag Memorial Hospital Presbyterian.  (Hurwitz Decl. ¶2.)  The Court finds Dr. Hurwitz is qualified to testify as an expert.   

Dr. Hurwitz avers that neither Defendant has any responsibility to select the anesthetic medications that resulted in Decendent’s death, nor would they be expected to direct the efforts at resuscitation that followed.  (Hurwitz Decl. ¶24.)  He states it is his “unequivocal opinion that the care and treatment rendered to [Decedent] by [Memsic and LLC] … complied with the applicable standards of care for a general surgeon and surgery center at all times.”  (Hurwitz Decl. ¶26.)  According to Dr. Hurwitz, “[e]ven with the benefit of retrospect, [he is] unable to identify a single breach of the standard of care on the part of [either Defendant].”  (Id.)   

There has been no evidentiary objections to Dr. Hurwitz’s declaration.  The declaration is supported by Dr. Hurwitz’s education, knowledge, training, experience and review of the pertinent medical records, which he describes in detail in his declaration and which have also been submitted to the Court.   

Based on the foregoing, the Court concludes Defendants have met their 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 Defendants 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, Defendants argue 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, Defendants have presented a declaration from their expert attesting that “based upon a reasonable degree of medical probability, the death of [Decedent] was caused by the consequences of anaphylactic reaction to anesthetic medications, Ketamine and/or Rocuronium, administered by [Dr. Johnson] and that no act or omission by DR. MEMSIC or 436 BEVERLY HILLS, LLC surgery center caused or contributed to this patient’s death.”  (Hurwitz Decl. ¶25.)  Accordingly, Defendants have also met their 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 they fail to do, as they have not filed a competing expert declaration, much less an opposition.   

 

 

CONCLUSION 

Based on the foregoing, the Court GRANTS Defendants Leslie Memsic and 436 Beverly Hills, LLC’s motions for summary judgment.  

 

IT IS SO ORDERED. 

 

DATED: May 4, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court