Judge Edward B. Moreton, Jr., Case Number: 23STCV09078, Date: 2024-04-11 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 23STCV09078, Date: 2024-04-11 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

RACHEL GRADSTEIN,

Plaintiff,

DEAN K. MATSUDA, et al.,

Defendants.

Case No.: 22STCV09078

Hearing Date: April 11, 2024

[TENTATIVE] ORDER RE:

DEFENDANT DEAN K. MATSUDA’S

MOTION FOR SUMMARY JUDGMENT

OR IN THE ALTERNATIVE, FOR

SUMMARY ADJUDICATION

This is a medical malpractice case. Plaintiff Rachel Gradstein claims that Defendant Dean Matsuda negligently performed a bilateral hip arthroscopic surgery. The operative complaint alleges a single claim for medical malpractice.

The relevant facts are as follows: At the time Plaintiff saw Defendant, she had a history of left groin and lateral hip pain. (Undisputed Material Facts (“UMF”) No. 109.) Plaintiff’s hip symptoms were unresponsive to conservative therapy for at least three months before she saw Defendant. (UMF No. 110.)

On December 3, 2020, Defendant saw Plaintiff, and after a physical examination, he recommended a bilateral hip arthroscopy. (UMF No. 111.) Hip arthroscopy is a minimally invasive surgery in which only two or three small incisions are utilized to insert a small camera and miniature surgical instruments into the hip joint to repair damaged cartilage and bone malformations. (UMF No. 118.) The operation typically takes a few hours and patients can return home the same day. (UMF No. 119.)

Plaintiff obtained two second opinions. Defendant contends that both opinions recommended bilateral hip procedure. (UMF No. 121.) In contrast, Plaintiff contends that both doctors did not perform bilateral hip procedure and recommended against it. (Gradstein Decl. ¶¶ 51, 67.) Notwithstanding, Plaintiff opted for simultaneous bilateral hip arthroscopies and chose Defendant to perform the surgery. (UMF No. 122.)

Defendant claims he made no guarantees as to the surgical outcome or avoidance of complications. (UMF No. 13.) He also made no guarantees as to the possibility of future arthritic progression and/or the possible need for further surgery, including hip replacement. (UMF No. 14.) Defendant claims he covered the risks and benefits of the procedure with Plaintiff prior to performing the procedure and obtained the appropriate informed consent. (UMF No. 113.)

Meanwhile, Plaintiff claims Defendant painted an absurdly rosy picture of the ease of a bilateral hip arthroscopy which downplayed both the length of recovery and the risks of instability. Defendant purportedly advised Plaintiff that a bilateral hip arthroscopy was no more debilitating than a single side arthroscopy, that she would not need pain medication after the first day, that she would immediately be weight bearing on both legs, that she would not need formal physical therapy, that she would be sufficiently recovered in time to board a plane and fly to London after six days and maybe as early as 72 hours, that she would be sufficiently recovered in time for IVF treatments two weeks later, and that she could even have the surgery while pregnant. (Additional Material Facts (“AMF”) Nos. 12-14, 17, 21, 27, 28, 33, 35, 44, 46, 48, 54 and 138.)

On January 8, 2021, Defendant performed the surgery, and noted there were no intraoperative complications. (UMF No. 123.) Plaintiff complained of pain after the surgery, for which Defendant provided care. (UMF Nos. 125, 126.) Due to Plaintiff’s unchanging pain, it is unclear the source of her pain, but based on the imaging and surgical notes, the hip joints connected appropriately. (UMF No. 152.)

Plaintiff alleges that Defendant engaged in excessive bone resection. (UMF No. 127.) However, there is no evidence of excessive bone resection in either femoral neck. (UMF No. 128.) The final shape of a femoral neck will never be perfect or symmetrical. (UMF No. 134.) There is no consensus within the medical community defining what is adequate bone resection. (UMF No. 132.)

Plaintiff alleges that due to Defendant’s bone re-sectioning, she is permanently disfigured. (UMF No. 137.) However, bone re-sectioning does not affect the contour or the physical appearance of the hip non-radiographically. (UMF No. 138.)

Plaintiff also alleges Defendant dislocated her SI joint while on the operating table. (UMF No. 139.) But it is impossible to dislocate the SI joint manually. (UMF No. 140.) This type of dislocation can only happen in a high energy impact such as a high-speed car accident or fall from a significant height. (UMF No. 141.) Notably, Plaintiff was involved in a car accident on April 12, 2021, in which she subsequently complained of SI joint pain. (UMF No. 142.)

Plaintiff further complains of instability. The only way for hip surgery to lead to instability is if Plaintiff had dysplasia (Plaintiff does not) or the surgeon did not close a capsule which comprises of three major ligaments enveloping the hip joint and keeping the joint stable. (UMF No. 253.) Defendant’s expert opines Defendant properly closed Plaintiff’s capsule. (UMF No. 254.)

This hearing is on Defendant’s motion for summary judgment or in the alternative for summary adjudication. Defendant proffers the declaration of his medical expert (Dr. Marc Safran) who opines that, to a reasonable degree of medical probability, all the care and treatment provided by Defendant to Plaintiff was at all times compliant with the standard of care. (Safran Decl. ¶10.) Dr. Safran also opines that to a reasonable degree of medical probability, no negligent action or omission by Defendant caused or contributed to Plaintiff’s injuries. (Id. ¶11.) Plaintiff has not submitted a declaration from her own expert to refute the opinions of Dr. Safran.

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 an entire action or a 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.)

EVIDENTIARY OBJECTIONS

The Court sustains Defendant’s Objection Nos. 7, 8, 9, 10, 11, 13, 14, 16, 23, 24, 25, 27, 28, 30, 31, 32, 33, 34, 39, 40, 41, 42, 44, 46 and overrules Defendant’s Objection Nos. 1, 2, 3, 4, 5, 6, 12, 15, 17, 18, 19, 20, 21, 22, 26, 29, 35, 36, 37, 38, 43, 45, 47 to the Declaration of Rachel Gradstein. The Court sustains Defendant’s Objection Nos. 1, 2, 3, 5, 6, 7, 9, 10, 12, 13, 15, 16, 17, 19, 20, 21, 22, 23, 24 and overrules Defendant’s Objection Nos. 4, 8, 11, 14, 18, 25, 26, 27, 28, 29, 30, 31 to Plaintiff’s Exhibits.

Defendant argues based on his expert’s declaration, that he did not breach the standard of care, and therefore, Plaintiff’s claim for medical malpractice must fail. The Court agrees.

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 proven 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.) Here, Defendant’s expert declaration conclusively establishes that the care and treatment rendered by Defendant to Plaintiff complied with the applicable standard of care. (Safran Decl. ¶10; UMF No. 108.)

Plaintiff has failed to submit an expert declaration to refute Dr. Safran’s opinion. Plaintiff instead relies on the deposition testimony of her current treating doctor, Dr. Jason Snibbe. Plaintiff has not designated Dr. Snibbe as an expert. In any event, Dr. Snibbe never testified as to the applicable standard of care, and more importantly, that Defendant breached the standard of care.

Plaintiff also complains that she was not permitted to depose Defendant’s expert. Under proper circumstances, parties are allowed to depose an expert who supplies a declaration in support of a summary judgment where there is a “legitimate question regarding the foundation of the opinion of the expert.” (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1540.) However, Plaintiff did not identify any “objective facts” that “create a significant question regarding the validity of the affidavit or declaration which, if successfully pursued, will impeach the foundational basis of the affidavit or declaration in question.” (Id. at 1541.)

Defendant also argues based on his expert’s declaration that Plaintiff cannot show he caused Plaintiff’s injuries. The Court agrees.

In a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. (Alef v. Alta Bates Hosp. (1992) 5 Cal.App.4th 208, 216.) A mere possibility alone is not sufficient. (Morgenroth v. Pac. Med. Ctr. (1976) 54 Cal.App.3d 521, 533.)

In Jones v. Ortho Pharmaceuticals Corp. (1985) 163 Cal.App.3d 396, the court elaborated on the difference between probability and possibility: “The distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can 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 that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” (Id. at 403.)

Here, the expert declaration of Dr. Safran establishes that no act or omission on the part of Defendant proximately caused or contributed to Plaintiff’s claimed injuries. (Safran Decl. ¶11; UMF No. 247.) It is Dr. Safran’s expert opinion as an expert in Orthopedic Surgery, and based on his education, training, experience, knowledge and from the review of Plaintiff’s medical records that to a reasonable degree of medical probability, Defendant did not proximately cause Plaintiff’s injuries. (Id.)

Plaintiff does not address causation in her Opposition. Plaintiff also did not proffer any expert declaration refuting Defendant’s expert’s opinion that Defendant did not cause Plaintiff’s claimed damages. At most, Plaintiff relies on her own declaration that her treating doctors opined Defendant caused her injuries. (See e.g., Gradstein Decl. ¶¶ 111-112.) But that is inadmissible hearsay, and in any event, her doctors never testified that Defendant caused her injuries, to a reasonable degree of medical probability.

Defendant next argues that based on his expert’s declaration, Defendant properly disclosed the risks associated with the bilateral hip arthroscopy. The Court agrees.

In Cobbs v. Grant (1972) 8 Cal.3d 229, 244-245, 104 Cal. Rptr. 505 (Cobbs), the California Supreme Court held that expert testimony was not required to establish the duty to disclose a known risk of death and serious bodily harm. The Cobbs court rejected the defendant's argument that a doctor need disclose only as much information as is the custom of physicians practicing in the community.

Such a rule, the Cobbs court concluded, is “needlessly overbroad,” in that even if there were a “medical community standard as to the disclosure requirement for any prescribed treatment, it appears so nebulous that doctors become, in effect, vested with virtual absolute discretion.” (Id. at 243.) The court continued, “Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose on themselves.” (Id. at pp. 242-243.) Accordingly, in California, the scope of a doctor’s duty to obtain informed consent is the following:

"When a given procedure inherently involves a known risk of death or serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur. Beyond the foregoing minimal disclosure, a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances." (Id. at pp. 244-245.)

Subsequent decisions have clarified that although expert testimony is not required to establish a doctor’s duty to disclose a “known risk of death or serious bodily harm” associated with a medical procedure (Cobbs, 8 Cal.3d at 244, italics added), expert testimony may be required to establish the existence of a risk.

For example, in Jambazian v. Borden (1994) 25 Cal.App.4th 836, 840, the court held that in proving his informed consent claim, the plaintiff was required “to present properly qualified medical opinion evidence that his alleged diabetic condition created surgical risks other than those related by defendant prior to the procedure.” The Jambazian court rejected the plaintiff's argument that “the trial court erred in concluding opinion testimony was needed to defeat the summary judgment motion because it is not required in informed consent cases.” (Id. at pp. 846-847.) The court noted that Cobbs, 8 Cal.3d 229, and its progeny had not addressed the issue whether expert testimony could be required to establish the existence of a risk associated with a medical procedure:

“The problem with plaintiff's reliance on Arato [v. Avedon (1993) 5 Cal.4th 1172], Cobbs, [8 Cal.3d 229,] and Willard [v. Hagemeister (1981) 121 Cal. App. 3d 406,] is none of those decisions involved an issue of whether the plaintiff in fact had a particular medical condition which required disclosure concerning the particular range of effects of a proposed procedure on the patient. Moreover, no decision supports plaintiff's implicit argument that in informed consent cases, a lay witness may render a medical opinion as to whether a patient has a condition which requires particular advice be given as to risks of a surgery.” (Jambazian, 25 Cal.App.4th at 848.)

Similarly, in Betterton v. Leichtling (2002) 101 Cal.App.4th 749, 750-751 (Betterton), the court discussed the difference between the use of expert testimony to prove the duty to disclose a known risk and the use of expert testimony to prove the existence of the risk itself:

“It is settled that a doctor’s duty to disclose serious potential complications to a patient before performing a medical procedure is not defined by the standards of the medical community. However, whether a risk of serious complications exists can be a question appropriately reserved for resolution by medical experts.”

In Betterton, the plaintiff alleged that his surgeon “failed to obtain [his] informed consent to [an] operation because he did not advise [him] of the risk of increased bleeding due to aspirin use . . . .” (Betterton, 101 Cal.App.4th at p. 752.) The Betterton court concluded that the jury should have been instructed to rely solely on expert testimony in determining whether the use of aspirin posed such a risk:

“Whether to disclose a significant risk is not a matter reserved for expert opinion. Whether a particular risk exists, however, may be a matter beyond the knowledge of lay witnesses, and therefore appropriate for determination based on the testimony of experts. (Jambazian, 25 Cal.App.4th 836, 848-849 (whether plaintiff suffered from diabetic condition posing risks in surgery was subject to proof only through experts).) Here, the effect of Betterton’s aspirin use on the risk of surgical complications was a subject beyond the general knowledge of lay people. Therefore, the jury should have relied only on expert testimony when it determined whether the use of aspirin causes significant risks in surgery. (Id. at p. 849.)” (Betterton, 101 Cal.App.4th at 756.)

Betterton and Jambazian make clear that while no expert testimony is required to establish a doctor's duty to disclose a “known risk of death or serious bodily harm” (Cobbs, 8 Cal.3d at 244; italics added), expert testimony is required to establish whether a risk exists in the first instance where the matter is beyond the knowledge of a lay person. (Betterton, 101 Cal.App.4th at 756; Jambazian, 25 Cal.App.4th at 848-849.)

In this case, whether the injuries claimed by Plaintiff are a risk of the bilateral hip arthroscopy is clearly a matter beyond the knowledge of a layperson. Therefore, Plaintiff was required to present expert testimony regarding the existence of that risk in order to defeat summary judgment on her informed consent claim. (Betterton, 101 Cal.App.4th at 756; Jambazian, 25 Cal.App.4th at 848-849.) The only expert evidence is that of Defendant’s expert who opines that Defendant “covered the risks and benefits of the procedure to Plaintiff prior to performing the procedure and provided the appropriate informed consent.” (Safran Decl. ¶10(b).)