Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a medical malpractice case.  Plaintiff Mumtaz Jetha claims that Defendants Laserway Medical Group, Inc. and Laserway, LLC negligently performed a laser hair removal procedure on her face and upper back.  (Compl. ¶16-17.)  Plaintiff claims she suffered second degree burns as a result of the procedure.  (Id. ¶10.)  The operative complaint alleges two claims for negligence and negligent infliction of emotional distress.   

The relevant facts are as follows: On December 1, 2022, Plaintiff received laser hair removal to her neck and face.  (Undisputed Material Fact (“UMF”) No. 2.)  Plaintiff signed consent forms which disclosed risks of the procedure including erythema (inflammation) and edema (swelling). (UMF No. 3.)   

The laser hair removal was performed by Nathalie Moreno, R.N., who observed some erythema following Plaintiff’s treatment, which is normal following this type of procedure.  (UMF No. 5.)  Aloe was applied to Plaintiff, and she was given post care instructions for her treatment.  (UMF No. 5.)     

The next day, Plaintiff reported burns to Defendants.  Diagnosis upon examination indicated a burn to Plaintiff’s neck.  According to Defendants’ medical expert, this is a well-known complication of the treatment that is not always avoidable, can occur even in the absence of negligence and that Plaintiff was warned of and consented to.  (UMF No. 6.)   

This hearing is on Defendants’ motion for summary judgment or in the alternative for summary adjudication.  Defendants proffer the declaration of their medical expert (Dr. Keith Marcus) who opines that, to a reasonable degree of medical probability, all the care and treatment provided by Defendants to Plaintiff was at all times compliant with the standard of care.  (UMF No. 9.)  Dr. Marcus also opines that to a reasonable degree of medical probability, no negligent action or omission by Defendants caused or contributed to Plaintiff’s injuries.  (Id.) 

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, a defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element of the claim(s) or by establishing an affirmative defense.  (Code Civ. Proc. §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 defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Id.)  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.) 

In a case involving a cause of action for medical malpractice, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless Plaintiff comes forward with conflicting expert evidence.”  (Munro v. Regents of Univ. of Cal. (1989) 215 Cal.App.3d 977, 985.) 

DISCUSSION 

A party opposing a motion for summary judgment must respond to the moving party;s separate statement of undisputed material facts. (See Code Civ. Proc. § 437c, subd. (b)(3) (“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. . . . Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”).  Plaintiff failed to oppose Defendants’ separate statement.  Notwithstanding this failure, the Court will rule on the merits of the motion for summary judgment.   

Defendants argue based on their expert’s declaration, that they did not breach the standard of care, and therefore, Plaintiff’s claim for medical malpractice must fail.  The Court disagrees. 

To establish a claim for medical malpractice, Plaintiff must prove (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.  (Latimore v. Dickey (2015) 239 Cal.App. 4th 959, 968.) 

The first element, standard of care, is the key issue in a malpractice action and can only be proved by expert testimony, unless the circumstances are such that the required conduct is within the layperson’s common knowledge.  (Id.)  The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts.  (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)    

Defendants present the declaration of their expert, Dr. Marcus, to establish that their treatment of Plaintiff was within the standard of care.  Dr. Marcus opines based on his review of the medical records that Defendants “met the standard of care in [Plaintiff’s] diagnosis and treatment” and “there was no negligent conduct by Defendants that caused harm to the Plaintiff based on a reasonable medical probability.”  (Marcus Decl. ¶ 12.)   Defendants’ expert declaration is wholly conclusory.   

“The law is clear that [the] moving party's burden … cannot be satisfied by an expert declaration consisting of ultimate facts and conclusions that are unsupported by factual detail and reasoned explanation, even if it is admitted and unopposed.”  (Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 657.)  “[B]ecause an expert opinion is worth no more than the reasons and facts on which it is based,” an expert opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value. (Id. at 662.) 

In Good Samaritan , the Court of Appeal held that summary judgment should not have been granted on a minor's claim that a hospital was negligent in housing him with a roommate who sodomized him. (Id. at 656–657.)  In support of a motion for summary judgment, the hospital lodged an unrebutted expert declaration from a nurse stating, based on a review of the hospital’s records, that the hospital’s conduct met the standard of care at all times during the care and treatment of the minor.  (Id. at 659–660, 665.)  In reversing the judgment, the appellate court concluded that the expert’s declaration was legally insufficient to shift the burden to the plaintiff to show a triable issue of material fact because it was conclusory and lacked any meaningful explanation of the applicable standard of care and the conduct required to meet it. (Id. at 656, 664–665.)  In reaching this conclusion, the Court of Appeal cited Kelley v. Trunk (1998) 66 Cal.App.4th 519 and Johnson v. Superior Court (2006) 143 Cal.App.4th 297.  (Good Samaritan, 23 Cal.App.5th at 663–664.) 

In Kelley, a patient sued physicians, alleging that he suffered neurological damage and other injuries as a result of negligent medical care after being treated for a laceration on his arm. (Kelley, 66 Cal.App.4th at 521.) The defendants moved for summary judgment, submitting the expert declaration of another doctor who, after reviewing the medical records, stated that “‘[a]t all times [the treating physician] acted appropriately and within the standard of care under the circumstances presented.’” (Id. at p. 522.)  The expert “did not further elaborate upon or explain the basis for his opinion.”  (Id.)  The trial court granted summary judgment, but the Court of Appeal reversed. (Id. at 523, 525.)  Even though the expert's declaration was admitted into evidence due to the plaintiff's failure to object (id. at p. 524), the appellate court held that the standard for summary judgment is “not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.” (Id. at p. 525.) 

In Johnson, a patient sued his physicians for malpractice, alleging that he was injured by excessive use of radiation during his treatment for prostate cancer. (143 Cal.App.4th at 299–300, 306.)  The physicians moved for summary judgment, relying on a conclusory expert declaration stating that what was done was within the standard of care. (Id. at 306.) The trial court granted summary judgment because it found the plaintiff’s competing expert declaration inadequate.  (Id. at 299.)  The Court of Appeal held that the bare conclusion of the defendants’ expert, unsupported by reasons or explanations, was insufficient to show the defendants acted within the standard of care.  (Johnson, 143 Cal.App.4th at 305, 307; see also Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 (value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed).)  Since a patient could be harmed by receiving too much radiation, an expert opinion that does not set forth the standard for determining a safe amount of radiation is legally insufficient to show the standard of care was met. (Johnson, at 143 Cal.App.4th at 308.) And because the defendants did not meet their initial burden of production, they were not entitled to summary judgment, regardless of the adequacy of the plaintiff’s opposition. (Id. at pp. 305, 308.)  So it is here.   

The expert declaration presented by Defendants amounts to little more than a bare statement that Defendants’ treatment was within the standard of care.  It does not elaborate or explain why Defendants’ treatment was within the standard of care, except to suggest that a burn is a “well known complication that is not always unavoidable”, of which Plaintiff was aware, having signed an informed consent form before the procedure.  (Marcus Decl. ¶ 9.)  Defendants’ position appears to be that since a burn is a known risk of the procedure, the burn suffered by Plaintiff was necessarily within the standard of care.  This does not follow. 

Because Defendants did not meet their initial burden of proof, it does not matter that Plaintiff did not file a competing expert declaration.  Where the defendant did not meet his initial burden of production, he is not entitled to summary judgment, regardless of the adequacy of the plaintiff's opposition.  (McAlpine v. Norman (2020) 51 Cal. App. 5th 933, 940-941 (trial court erred in granting summary judgment where defendant submitted an expert declaration unsupported by factual detail or reasoned explanation and even where plaintiff did not submit a competing expert declaration).) 

CONCLUSION 

For the foregoing reasons, the Court DENIES Defendants Laserway Medical Group Inc. and Laserway, LLC’s motion for summary judgment.   

 

IT IS SO ORDERED. 

 

DATED: June 4, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court