Judge: Frank M. Tavelman, Case: 23BBCV00410, Date: 2023-12-22 Tentative Ruling

Case Number: 23BBCV00410    Hearing Date: December 22, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR SUMMARY JUDGMENT

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Donald M. Stone (“Plaintiff”) brings this action against Raymond B. Raven M.D. (“Defendant”) alleging medical negligence in connection with a surgery Defendant performed on Plaintiff’s hand in August 2022 to address carpal tunnel. Plaintiff alleges that Defendant did not properly close the wound in his hand after surgery resulting in infection, scarring and the inability to close the affected hand completely. Plaintiff’s Complaint contains a singular cause of action for Medical Negligence.

Defendant now moves for summary judgment of Plaintiff’s Medical Negligence claim. Defendant argues that no triable issue of fact exists as to whether Defendant’s performance of the surgery adhered to the standard of care. Plaintiff opposes the motion and Defendant replies.

EVIDENTIARY OBJECTIONS:

Defendant’s evidentiary objections to the declaration of Donald M. Stone are SUSTAINED as to Nos. 1-4, 10, and 12 and OVERRULED as to Nos. 5-9, 11, and 13.

ANALYSIS: 

I.                    LEGAL STANDARD 

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (C.C.P. § 437c(a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (C.C.P. § 437c(c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (C.C.P. § 437c(p)(2).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Id.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Id.) When summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Id.)

II.                 MERITS

“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 the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.)

The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony. (Hanson v. Grode (1999) 76 Cal.App.4th 601, as modified (Nov. 29, 1999). When 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 the plaintiff comes forward with conflicting expert evidence. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984–985 [internal quotations and citations omitted].)

Here, Defendant submits the declaration of Stuart Kuschner M.D., a board-certified orthopedic surgeon. (Kuschner Decl. ¶ 1.) Kuschner states that, based upon his review of Plaintiff’s medical records, Defendant adhered to the standard of care in performing Plaintiff’s surgery. (Kuschner Decl. ¶ 8.) Kuschner states that with Plaintiff’s presentation of neuropathy in the affected hand, Defendant appropriately recommended surgery to repair the damage. (Kuschner Decl. ¶ 9.) Kuschner states the operation appeared to go without complication and the operation was performed within the standard of care., (Kuschner Decl. ¶ 10.) Kuschner states there was no need to culture the wound. (Kuschner Decl. ¶ 12.) Kuschner states that Defendant’s prescription of Bactrim and saline soaks were standard and appropriate for a patient presenting with swelling and stiffness post-operation. (Kuschner Decl. ¶ 12.) Kuschner states that infection is an inherent risk of surgery and that no behavior of Defendant contributed to Plaintiff’s injury in this case. (Kuschner Decl. ¶¶ 13, 15.)

Defendant’s submission of the Kuschner declaration is sufficient to satisfy their burden on summary judgment to show no triable issue of fact. As such, the burden shifts to Plaintiff to present competing expert testimony in rebuttal.

Plaintiff’s opposition attaches no expert declaration in contravention of that presented by Defendant. Plaintiff argues that he need not present any expert testimony because the facts behind Plaintiff’s claims are such as to be within the common knowledge of layperson. Plaintiff cites to Willard v. Hagemeister, in which the California Court of Appeals held that expert testimony is not required where the “conduct required by the particular circumstances is within common knowledge of the layman.” (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.) Plaintiff’s citation ignores the subsequent conclusion in Willard that the dental procedures at issue, a root canal, were not within the layman’s common knowledge. (Id. at 413.)

Plaintiff’s argument that the medical procedures performed upon him are within the layperson’s knowledge is unpersuasive. It is clear the procedure performed upon Plaintiff required highly specialized medical knowledge which only those credentialed in orthopedic surgery possess. The average layperson does not possess the knowledge required to conduct orthopedic surgery to correct carpal tunnel syndrome, nor do they possess knowledge as to appropriate surgical aftercare. Plaintiff’s argument that he has had similar procedures before and his conjecture about his wife’s procedure are irrelevant to the determination of a standard of care. Contrary to Plaintiff’s contentions, Plaintiff must present conflicting expert testimony to survive summary judgment. As Plaintiff has submitted no such testimony, he has failed to uphold his burden in opposition to this motion.

Accordingly, Raymond B. Raven M.D.’s motion for summary judgment is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Raymond B. Raven M.D.’s Motion for Summary Judgment came on regularly for hearing on December 22, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR SUMMARY JUDGMENT IS GRANTED. 

ALL EXISTING DATES ARE VACATED.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 22, 2023                           _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles