Judge: Gail Killefer, Case: 21STCV32418, Date: 2023-03-30 Tentative Ruling
Case Number: 21STCV32418 Hearing Date: March 30, 2023 Dept: 37
HEARING DATE: March 30, 2023
CASE NUMBER: 21STCV32418
CASE NAME: Fredy Alvarez, et al. v. Randal P. Arase, M.D.
MOVING PARTY: Defendant, Randal P. Arase, M.D.
OPPOSING PARTIES: Plaintiff, Fredy Alvarez, as an
Individual and as Successor in Interest of the Estate of Miriam Del Carmen
Vigil Del Alvarez
TRIAL DATE: March 12, 2024
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary Judgment
OPPOSITION: January 6, 2023
REPLY: January
13, 2023
TENTATIVE: Defendant’s motion for
summary judgment is granted. Defendant is to give notice.
Background
This is a medical malpractice action arising out of
complications following a gallbladder surgery. Randal P. Arase, M.D. (“Defendant”) performed
the surgery on Decedent Miriam Del Carmen Vigil Del Alvarez (“Decedent”), who
later died after being discharged from the hospital.
On September 1, 2021, Plaintiff Fredy Alvarez individually
and as successor in interest of the Estate of Decedent filed the complaint
against Defendant and Does 1 through 50 for: (1)¿wrongful death; (2) medical
negligence; (3) breach of fiduciary duty – failure to use reasonable care; (4)
survival; and (5) loss of consortium.
On January 25, 2022, Defendant’s demurrer was sustained
without leave to amend as to the fourth cause of action.
Defendant now moves for summary judgment on the remaining
causes of action of Plaintiff’s Complaint. Plaintiff opposes the motion.
Evidentiary Objections
Defendant’s Objections to Plaintiff’s Materials &
Evidence
Overruled: Objections 1-2, 8, and 16.
Sustained: Objections 3 -7, 9-15, and 17-19.
Factual Summary
Decedent was found to have a gallstone
in her gallbladder following ultrasound imaging on September 18, 2020.
(Separate Statement of Undisputed Material Facts (“DSS”), ¶¶ 1-2.) On October
28, 2020, Decedent presented to Defendant for an examination. (DSS ¶3.) Tests
were performed on Decedent before an operation took place. (DSS ¶7.) On
February 23, 2021, Decedent underwent a “laparoscopic cholecystectomy” without
“apparent complication.” (DSS ¶¶ 9-11.) After several post-procedure
follow-ups, Decedent was discharged home on the same day with her
prescriptions. (DSS ¶¶12-18.) On
February 24, 2021, Decedent’s family telephoned Defendant’s clinic to complain
of Decedent’s pain and lack of heat in her extremities. (DSS ¶20.) On the same
day, Decedent passed away around 21:15 hours, with immediate cause of death
listed as “Acute Respiratory Failure, secondary to Hypotension & Myocardial
Infarction.” (DSS ¶23.)
“On March 4, 2021, an autopsy was performed by Stephan R.
Grigorian, M.D., FCAP. The cause of death identified by autopsy was:
‘Complications of the Sepsis. The underlying hypertensive cardiovascular
disease is a significant contributory factor.’” (DSS ¶24.) “Other anatomic
diagnoses documented include diffuse acute peritonitis, with small and large
bowel diffuse ischemic necrosis and small bowel perforation at the level of the
jejunum. Additionally documented is hypertensive heart disease; ischemic heart
disease with coronary artery atherosclerosis, mild; mild degenerative valvular
disease with focal dystropbic calcifications, aortic valve; atherosclerosis of
the proximal and the distal abdominal aorta, mild.” (DSS ¶25.)
The parties dispute the conduct of Defendant, whether it
fell below the appropriate standard of care, and the cause of Decedent’s
ultimate death. (DSS ¶¶27-35, 37-50.)
Discussion
“The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties' pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(a) provides:
A party may move for summary judgment in any action or
proceeding if it is contended that the action has no merit or that there is no
defense to the action or proceeding. The
motion may be made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the motion is
directed or at any earlier time after the general appearance that the court,
with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30
days before the date of trial, unless the court for good cause orders
otherwise. The filing of the motion
shall not extend the time within which a party must otherwise file a responsive
pleading.
A
motion for summary judgment may be granted “if all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (CCP § 437c(c).)
“The
motion shall be supported by affidavits, declarations, admissions, answers to
interrogatories, depositions, and matters of which judicial notice shall or may
be taken. The supporting papers shall
include a separate statement setting forth plainly and concisely all material
facts that the moving party contends are undisputed. Each of the material facts stated shall be
followed by a reference to the supporting evidence. The failure to comply with this requirement
of a separate statement may in the court’s discretion constitute a sufficient
ground for denial of the motion.” (CCP §
437c(b)(1); see also Cal. Rules of
Court, rule 3.1350(c)(2) & (d).)
In
analyzing motions for summary judgment, courts must apply a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine
whether the moving party has negated the opponent's claims; and (3) determine
whether the opposition has demonstrated the existence of a triable, material
factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) CCP § 437c(p)(2) provides:
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.
The
court must “view the evidence in the light most favorable to the opposing party
and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39
Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.”].) A motion for
summary judgment must be denied where the moving party’s evidence does not
prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d
462, 475) or where the opposition is weak (Salasguevara
v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).
II.
Analysis
The elements of a claim for professional negligence are:
“(1) the duty of the professional to use such skill, prudence, and
diligence as other members of his profession commonly possess and exercise; (2)
a breach of that duty; (3) a proximate causal connection between the negligent
conduct and the resulting injury; and (4) actual loss or damage resulting from
the professional's negligence.” (Paul v. Patton (2015) 235
Cal.App.4th 1088, 1095.)
“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.¿
[Citation.]”¿ (Johnson v. Superior Court¿(2006) 143 Cal.App.4th 297,
305.)¿¿¿
The elements of the cause of action for wrongful death are
(1) the tort (negligence or other wrongful act), (2) the resulting death, and
(3) the damages, consisting of the pecuniary loss suffered only by those
persons who, because of their relation to the deceased, are presumed to be
injured by his or her death, not by persons who are not in the chain of
intestate succession. (Quiroz v. Seventh Ave. Center (2006) 140
Cal.App.4th 1256, 1263-64.)
In a medical malpractice case, “[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 the plaintiff comes forward with
conflicting expert evidence.”¿¿Munro v. Regents of University of California¿(1989)
215 Cal. App. 3d 977, 984-985 (citations omitted).¿ An expert declaration, if
uncontradicted, is conclusive proof as to the prevailing standard of care and
the propriety of the particular conduct of the health care provider.¿¿(Starr
v.¿Mooslin¿(1971) 14 Cal. App. 3d 988, 999.)
As the actions of
Defendant, and their meeting of the relevant standard of care, underpin all of
the Complaint’s remaining claims, the court now looks to the causes of action
together.
Here, Defendant
contends, and supplies the declaration of their retained expert, Mark J.
Sherman, M.D., to show, that this court should grant summary judgment as
Defendant’s actions “met the standard of care in the medical care rendered to
the Decedent, and did not cause injury to the decedent.” (Motion, 4-5.)
Defendant further provides the declaration of Dr. Sherman “as to the applicable
standard of care” as “a qualified physican who is board certified as a
Diplomate by the American Board of Surgery.” (Motion, 11-14.)
In opposition, Plaintiff
merely contends Defendant’s actions were “subpar to the standard of care” in
the treatment of Decedent and asserts “Plaintiff Fredy is in search for an
expert that contradicts Defendant’s expert and said expert’s finding thereby
negating the validity of a motion for summary judgment... Fredy, indeed, will
have an expert witness that states that [Defendant’s] actions and omission
contributed to Decedent Miriam’s death...” (Opp., 9-10.) Since the Complaint’s
filing in September 2021, and after nearly two years of litigating this matter,
Plaintiff’s opposition concedes they do not proffer an expert declaration yet
and cannot provide such expert testimony in support of his claims at the
summary judgment stage.
In reply, Defendant correctly contends all remaining causes
of action require an expert declaration to create triable issues of material
fact regarding the appropriate standard of care. (Reply, 2-5.)
“Defendant has fulfilled his burden of production in his
Motion, and then the burden shifted to Plaintiff to show any triable issue with
affidavits from a competent expert...However, Plaintiff has failed this burden
as Plaintiff attempted to create triable issue with a lay witness – Plaintiff’s
declaration. (Reply, 6; citing Sanchez v. South Hoover Hospital (1976)
18 Cal.3d 93, 107.)
Defendant repeats
earlier arguments regarding the lack of triable issues regarding the relevant
standard of care and causation. (Reply, 7-9.) Defendant further correctly
explains Plaintiff “has had more than adequate time to find an expert” and
could have moved to continue this summary judgment to obtain further “necessary
discovery,” but Plaintiff has failed to do so. (Reply, 8.) The court agrees.
Expert
Qualifications
Here, only
Defendant offers an expert declaration. Evid. Code § 720(a) provides that “a
person is qualified to testify as an expert if he has the special knowledge,
skill, experience, training, or education sufficient to qualify him as an
expert on the subject to which his testimony relates.” In a medical malpractice
case, an expert witness doctor “must have enough knowledge, learning, and skill
with the relevant subject to speak with authority, and he or she must be
familiar with the standard of care to which the defendant was held.” (Avivi
v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463,
467.) “[A] party opposing a motion for summary judgment may use
declarations by an expert to raise a triable issue of fact on an element of the
case provided the requirements for admissibility are established as if the
expert was testifying at trial.” (Towns v. Davidson (2007) 147 Cal.App.4th 561,
472.)
Defendant relies
on their expert, Dr. Sherman.
In reply, Defendant argues Plaintiff’s serf-serving
declaration fails to create triable issues of material fact. This court agrees.
The court notes an
opposing expert declaration has a lower burden because the “reasoned
explanation” required in an opposing expert’s declaration “need not be as
detailed or extensive as that required in expert testimony presented in support
of a summary judgment motion or at trial.” (Garrett v. Howmedica Osteonics
Corp. (2013) 214 Cal.App.4th 173, 187-189.) Plaintiff has not provided an expert
declaration and thus has failed to meet this relatively low burden. Accordingly,
the Court finds Defendant’s expert to be sufficiently qualified, and Plaintiff
to have failed to bring forth a sufficiently qualified expert in opposition.
Breach
“Whether the
standard of care in the community has been breached presents the basic issue in
a malpractice action and can only be proved by opinion testimony unless the
medical question is within the common knowledge of laypersons”.¿¿(Jambazian¿v.
Borden¿(1994) 25 Cal.App4th 836, 844 (citations omitted).)¿¿Additionally,
“causation must be proven within a reasonable medical probability based upon
competent expert testimony. Mere possibility alone is insufficient to establish
a prima facie case.”¿¿(Jones v. Ortho Pharmaceutical Corp.¿(1985) 163
Cal.App.3d 396, 402.)¿¿Expert testimony “can enable a plaintiff's action to go
to the jury only if it establishes a reasonably probable causal connection
between an act and a present injury.”¿¿(Id.¿at 403.)¿¿“The issue of
proximate cause ordinarily presents a question of fact. However, it becomes a
question of law when the facts of the case permit only one reasonable
conclusion.”¿ (Capolungo¿v. Bondi¿(1986) 179 Cal.App.3d 346,
354.)¿
“‘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 (“Munro”)(Citations
omitted.) ¿
Here, Defendant’s expert opined Defendant’s treatment and
assessment were appropriate and within the standard of care, shifting the
burden to Plaintiff. Plaintiff, in turn, relies only on his own declaration,
opining Defendant’ conduct below the relevant standard of care. Thus, Plaintiff
has failed to show a triable issue of material fact as to the element of breach
of the relevant standard of care pursuant to Munro.
Causation
A plaintiff must
show that the defendant’s act or omission was a substantial factor in bringing
about the injury.¿ (Saelzler¿v. Advanced Group 400¿(2001) 25 Cal.4th
763, 778 (“[P]laintiff¿must show some substantial link or nexus between
omission and injury”).)¿¿Further, “causation must be proven within a reasonable
medical probability based upon competent expert testimony.”¿ (Jones v. Ortho
Pharmaceutical Corp.¿(1985) 163 Cal.App.3d 396, 402-03.)¿
The proper test
for proving causation in a negligence action is the substantial factor test.¿ (Mayes
v. Bryan¿(2006) 139 Cal.App.4th 1075, 1092-93.)¿ The plaintiff must
establish that “(1) that the defendant's breach of duty ... was a substantial
factor in bringing about the plaintiff's harm and (2) that there is no rule of
law relieving the defendant of liability.”¿ (Id.¿at 1093.)¿¿“Conduct can
be considered a substantial factor in bringing about harm if it ‘has created a
force or series of forces which are in continuous and active operation up to
the time of the harm’ [citation], or stated another way, ‘the effects of the
actor's negligent conduct actively and continuously operate to bring about harm
to another’ [citation].”¿ (Id.¿at 1093.)¿ In a medical malpractice
action, causation is proven when a plaintiff produces sufficient evidence to
allow a jury to infer that in the absence of defendant’s negligence, there was
a reasonable medical probability the plaintiff would have obtained a better
result.¿ (Id.)¿
Here again, Defendant’s expert declaration successfully shifts
the burden from Defendant to Plaintiff, and Plaintiff’s failure to submit an
expert declaration moves toward showing no triable issues of material fact exist
regarding causation. While the court will not engage in weighing of
credibility, and endeavors to recognize the factual disputes, this court
further recognizes Plaintiff’s failure to meet his burden pursuant to Munro.
(Mann v.
Cracchiolo (1985)
38 Cal.3d 18, 39.) Furthermore, much in the same way, the court
agrees with Defendant that questions surrounding the standard of care and
causation are central to all of Plaintiff’s claims, and unless opposed by
expert testimony, can be determined at this junction as a matter of law. (Mary
M. v. City of Los Angeles (1991) 54 Cal.3d 202, 221; Linton v. DeSoto
Cab Co., Inc. (2017) 15 Cal.App.5th 1208, 1225.)
In sum, this court finds no triable issues of fact exist as
to whether Defendant’s conduct fell below the appropriate standard
of care or caused Decedent’s death and damages to Plaintiff. As Defendant
correctly explained, Plaintiff has had sufficient time to obtain necessary
discovery, obtain necessary expert testimony, or move for additional time to do
so before this court. But Plaintiff has failed to offer sufficient expert
testimony as a countering declaration to show triable issues of material fact
exist regarding the standard of care and causation. While Plaintiff may
eventually find an expert in support if this matter were to continue,
Plaintiff’s delay of nearly two years constitutes a failure to meet their
burden of opposition at this summary judgment stage as a matter of law.
As the court has found all remaining causes of action to be
reliant on the medical negligence analysis, and subsequently on the expert
declarations, the court therefore finds summary adjudication to be merited as
to all claims and causes of action of the Complaint.
For these reasons, Defendant’s motion is granted.
Conclusion
Defendant’s motion for summary judgment is granted. Defendant
is to give notice.