Judge: James L. Crandall, Case: 20-1176159, Date: 2022-12-22 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Motion for Summary Judgment, filed on 9/7/22, is GRANTED.

Defendant’s objections to the declaration of Plaintiff’s expert Duane Bryant, M.D., filed on 12/16/22 under ROA 131, are overruled.

Defendant also filed “Objections to Plaintiff’s Separate Statement” on 12/16/22 under ROA 132. A party may submit objections to evidence, not objections to a separate statement. (See Cal. Rules of Court, Rules 3.1352 and 3.1354.) Therefore, the Court declines to rule on Defendant’s objections to Plaintiff’s separate statement.

Legal Standard

A defendant moving for summary judgment must “show” that either one or more elements of the “cause of action … cannot be established,” or there is a complete defense to that cause of action. (Code. Civ. Proc. § 437c(p)(2).) Once the moving party has met the initial burden above, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of fact exists. (Code Civ. Proc. § 437c(p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.)

The allegations of the complaint delimit the scope of the issues on a motion for summary judgment/adjudication. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.)

Here, Plaintiff Andrew C. Brown’s operative Second Amended Complaint (SAC) alleges a single cause of action for professional negligence based on medical malpractice.

The elements of a cause of action for medical negligence are as follows:

(1) Duty of 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 negligent conduct and resulting injury; and (4) actual loss or damage resulting from professional's negligence. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463.)

“The standard of care against which the acts of a medical practitioner 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, unless the conduct required by the particular circumstances is within the common knowledge of laymen.” (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215; see Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 983-984 [“The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment a reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.”].)

“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.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.)

[T]o testify as an expert in a medical malpractice case, a person 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, 470.)

Admissibility of Expert Declarations

Defendant contends that Plaintiff’s expert is unqualified to testify against Defendant in this matter because Plaintiff’s expert lacks the requisite experience in emergency medical care under Health and Safety Code section 1799.110(c), which states the following:

“(c) In any action for damages involving a claim of negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department. For purposes of this section, “substantial professional experience” shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in general acute care hospital emergency departments in the same or similar localities where the alleged negligence occured.”

Neither party’s expert has shown they are qualified to testify under section 1799.110(c). However, neither party has presented evidence or facts in the separate statement showing that Hoag is a general acute care hospital, so there is no basis for the Court to determine that section 1799.110(c) applies for purposes of this motion. Therefore, the Court will consider both parties’ expert declarations.

Triable Issue as to Breach of Standard of Care

Defendant’s expert provides the following opinions regarding Defendant’s compliance with the applicable standard of care:

“[T]he nurses and non-physician staff appropriately evaluated, monitored, and treated [Plaintiff]. Additionally, Dr. Gonella appropriately ordered imaging, evaluated plaintiff’s symptoms, and requested an ophthalmology consultation.” (Macy Decl., ¶ 19.) “Dr. Gonella and the non-physician staff at Hoag Memorial appropriately obtained an emergency ophthalmology consultation. [. . .] the standard of care did not require Dr. Gonella or the non-physician staff to provide additional treatment or recommendations after reviewing the expert ophthalmology opinion.” (Macy Decl., ¶ 21.)

In response, Plaintiff’s expert opines that Defendant breached the standard of care based on the following:

“There was no visual acuity documented in Dr. Gonella’s examination. However, in the section named Medical Decision Making, Dr. Gonella states that the visual acuity was normal. This is in direct contradistinction to the visual acuity taken earlier that was all blacked out and Mr. Brown could not see any of the letters on the visual acuity chart. Acute loss of vision in one eye constitutes an ophthalmic emergency and should have been evaluated by an ophthalmologist at the time of the emergency department visit. Therefore, the care given through the Hoag Memorial Hospital Newport Beach Emergency Center was not within the standard of care.” (Bryant Decl., Opinion ¶ 2.) “Seeing a dome-like shadow in the inferior or lower field is not a common symptom of either ocular migraine or posterior vitreous detachment. This symptom should have alerted both Dr. Gonella and Dr. Chanes that it was much more likely that Mr. Brown was suffering from a retinal detachment at that time. However, the diagnoses that were given by both Dr. Gonella and Dr. Chanes were (1) retinal migraine, and (2) posterior vitreous detachment right eye.” (Bryant Decl., Opinion ¶ 3.) “The retinal examination was severely lacking in that there was no clear vision of the retina in the right eye by Dr. Gonella. The diagnosis did not include dilation of the pupil. Dr. Gonella does admit that she did not have a good view of the retina. There is no evidence that any dilating drops were placed in the eye at the emergency room. There is no evidence that there was a fundus photograph or retinal photograph taken. There is no evidence that ultrasound B-scan was done either. Both of these ancillary tests would have revealed retinal detachment at the time of the emergency department visit on September 28, 20919 to September 29, 2019. Therefore, the examination at the emergency department, once again, was not within the standard of care.” (Bryant Decl., Opinion ¶ 4.)

In reply, Hoag contends the care and treatment rendered by Dr. Gonella is not before the Court in the present motion. (Reply, p. 6:11-13.) However, Hoag has failed to show it cannot be liable for the breaches of the standard of care by Dr. Gonella set out in Dr. Bryant’s declaration.

Plaintiff’s SAC alleges Dr. Gonella “is the Hoag Memorial Hospital Presbyterian Emergency Room doctor assigned to care for” Plaintiff on the date of the incident. (SAC, ¶ 3.) Wicks v. Antelope Valley Healthcare District (2020) 49 Cal.App.5th 866, 882, states,

“It is well established in California that a hospital may be liable for the negligence of physicians on the staff, unless the hospital has clearly notified the patient that the treating physicians are not hospital employees and there is no reason to believe the patient was unable to understand or act on the information. This rule is founded on the theory of ostensible agency.”

Hoag’s separate statement refers to Dr. Gonella as an “emergency room physician.” (See UMF 3.) The separate statement does not state whether Dr. Gonella was an independent contractor or if Plaintiff was notified whether Dr. Gonella was a hospital employee. Therefore, Hoag’s motion fails to address the issue of whether it may be liable for the alleged conduct of Dr. Gonella. Therefore, Plaintiff may demonstrate a triable issue as to Hoag’s liability for the care and treatment provided by Dr. Gonella.

Based on the declaration of Plaintiff’s expert, there is a triable issue of material fact as to whether Hoag is liable for a breach of the standard of care by Dr. Gonella, including failure to conduct an adequate retinal examination in the emergency room.

No Triable Issue as to Medical Causation

Defendant’ expert opines that at the time Plaintiff presented to the emergency room, he had a “macula off” retinal detachment, and emergency corrective surgery would have had no effect on Plaintiff’s outcome. (Macy Decl., ¶ 20.) Therefore, he opines that to a reasonable degree of medical probability, no act or omission by Hoag caused or contributed to Plaintiff’s alleged injuries. (Id. at ¶ 22.)

Plaintiff’s expert responds, “There are cases of retinal detachment where the superior retina is detached and folded over, blocking the vision of the macula. However, the macula can still be attached at that time.” (Bryant Declaration, Opinion ¶ 1.) Dr. Bryant concludes, “As a result of the breach of standard of care for Mr. Brown as stated above, Mr. Brown has lost significant amount of vision. . .” (Bryant Declaration, Proximate Cause section.)

Defendant has met its burden of showing there is no triable issue as to the element of causation. Plaintiff fails to meet its responsive burden on this issue. Plaintiff’s expert opinion that “there are cases” of folded retina blocking the vision of the macula fails to show that in this specific case, Plaintiff had a retinal detachment which could have been remedied by emergency surgery. Plaintiff’s expert opinion fails to state facts which could demonstrate that any delay in treatment caused by Hoag’s acts or omissions caused actual damage to Plaintiff.

Therefore, the motion is granted because Plaintiff has failed to demonstrate a triable issue of material fact as to the element of causation of damages.

Moving Party is to give notice.