Judge: H. Jay Ford, III, Case: 20STCV17685, Date: 2023-07-20 Tentative Ruling

Case Number: 20STCV17685    Hearing Date: July 20, 2023    Dept: O

  Case Name:  Hernandez v. John Doe MD, et al.

SUBJECT:                 MOTION TO SUMMARY JUDGMENT

MOVING PARTY:   Defendant Cedars-Sinai Medical Center  

RESP. PARTY:         None

TENTATIVE RULING

            Defendant Cedars-Sinai Medical Center’s Motion for Summary Judgment is GRANTED.

I.  Law Applicable to Medical Malpractice

            The elements of a medical malpractice cause of action 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.  See Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468 fn 2. 

The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts.  See Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.  “The standard of care for physicians is the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.  The test for determining familiarity with the standard of care is knowledge of similar conditions.  Geographical location may be a factor considered in making that determination, but, by itself, does not provide a practical basis for measuring similar circumstances.”  Id. at 470.

Whether the standard of care in the community has been breached presents a basic issue of fact in a malpractice action which can only be proved by expert opinion testimony unless the medical question is within the common knowledge of laypersons.  Id.; see also 1 Witkin, Cal. Evid., supra, Opinion, § 86, p. 631.  “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.”  See Golden Eagle Refinery Co., Inc. v. Associated Intern. Ins. Co. (2001) 85 Cal.App.4th 1300, 1315 (citing See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524).  Accordingly, where a plaintiff provides proper opposing expert testimony via a declaration, a triable issue of material fact is raised which precludes summary judgment.  Jambazian, supra, 25 Cal.App.4th at 844.  The absence of opinion evidence on this issue is fatal to the plaintiff’s cause of action.  Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.  An expert declaration is admissible as long as Defendants’ expert states in detail his qualifications and the factual basis for his opinion.  See generally Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524. 

Expert testimony is also required to establish the element of causation in a medical malpractice action.  “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. That there is a 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 that 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.”  Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 (trial court properly struck medical expert testimony on issue of causation where expert’s opinion failed ot provide a reasoned explanation regarding the etiology connecting plaintiff’s infected subcutaneous tissue to the nidus inside peritoneal cavity where retractor was retained). 

II. Defendant negates Plaintiff’s allegation of breach.

Plaintiff alleges in her complaint that Defendants left a necklace insider her during a surgical procedure.  See Complaint, ¶12.  Defendants submit evidence that a “foreign body” was found in Plaintiff during a pouchoscopy performed on 4-14-19.  See Dec. of C. Hawley, Ex. C, C. Ha Report, Post-Pouchoscopy; Dec. of N. Katakhouda, MD, ¶5(d).  Expert Katakhouda examined the photos taken by Ha during the pouchoscopy and concludes in his expert opinion that the “foreign body” is a line of B-shaped medical staples that are fused together.  See Dec. of N. Katakhouda, MD, ¶7.  Katakhouda testifies that the B-shaped medical staples “would have been placed in Plaintiff during one of her prior surgeries, likely Dr. Murrell’s surgery in 2015, as part fo a standard operative procedure.”  Id. at ¶7.  Katakhouda testifies that the staples were intended to be permanently implacted in the body and it was within the standard of care to use such medical staples during the surgery.  Id. at ¶7.  Katakhoud also testifies that it is normal to see surgical staple lines migrate into the chain formation seen in the endoscopic photographs.  Id. at ¶8.  Katakhoud opines that Defendant did not breach any standard of care.  Id. at ¶¶10, 14.

In addition, Katakhoud testifies that the decision to use medical staples and to allow them to remain inside Plaintiff’s body was not made by the nurses or nonphysician staff of Cedars Sinai.  Katakhoud opines that it is within the reasonable standard of care to rely on the surgeon’s expertise to make this decision.  Id. at ¶13.

Katakhould’s declaration negates Plaintiff’s allegation that Defendants committed negligence when they left a necklace in her during surgery.  Katakhould opines that based on the endoscopic images the foreign object noted by Ha in her reporter was not a necklace but a line of surgical staples from a prior surgery. 

As such, the burden shifts to Plaintiff to present evidence that the foreign object was in fact a necklace.  Plaintiff did not file any opposition.

III.  Defendant negates Plaintiff’s allegation of causation.

Katakhould’s declaration also negates any allegation of causation.  Katakhoud opiones that medical staples such as those found in Plaintiff would not cause Plaintiff’s complaints of pain or injury.  See Dec of Katakhoud, ¶9.  Katakhoud testifies that Ha found no indications of foreign body reaction or ulcertation.  Id. at ¶9; Dec. of C. Hawley, Ex. C, C. Ha Report, Post-Pouchoscopy.  Katakhoud opines that if the staples had caused Plaintiff any injury, there would have been signs, including ulceration or foreign body reaction.  Id.        

Katakhoud’s declaration negates Plaintiff’s allegation of causation.  The burden therefore shifts to Plaintiff to raise a triable issue of material fact as to causation. Plaintiff did not file an a written opposition or present any evidence in opposition.

IV.  Motion for Summary Judgment GRANTED

No trial issues of fact remain as to the elements of breach and causation.  Cedars-Sinai’s Motion for Summary Judgment is GRANTED.