Judge: James L. Crandall, Case: 21-1181887, Date: 2022-10-20 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Defendant Richard Raymond Moy, DPM’s (Defendant) Motion for Summary Judgment is DENIED.

The court OVERRULES Plaintiff Antonio Cagnolo’s (Plaintiff) objections to the Declaration of Derek Ball, filed 10-6-22 under ROA No. 72.

The court OVERRULES objections 1, 3-5 and 7 and SUSTAINS objections 2 and 6 of Defendant’s Objections to Evidence in Support of Reply, filed 10-14-22 under ROA No. 76.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a)(1).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty.” (Code Civ. Proc. § 437c(f)(1).) “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that 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 that cause of action. Once the defendant . . . has met that 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.” (Code Civ. Proc. § 437c(p)(2).)

Defendant moves for summary judgment on the following grounds: (1) Defendant’s care and treatment of Plaintiff was within the standard of care and was not a substantial factor in causing or contributing to Plaintiff’s injuries and (2) Plaintiff’s claims are barred by the statute of limitations.

Standard of Care

The elements of a medical malpractice cause of action are: (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 Medical Center (Avivi) (2008) 159 Cal.App.4th 463, 468, fn. 2.) “In order to 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. [Citations.]” (Id., at 467.)

“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. [Citations.]” (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) “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.” [Citations.]’ [Citations.]” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.)

“The rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact. [Citations.]” (Garrett v. Howmedica Osteonics Corporation (2013) 214 Cal.App.4th 173, 189). “In light of the rule of liberal construction, a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial. [Citations.]” (Ibid.)

In support of this Motion, Defendant relies on the Declaration of Derick Ball, DPM. (Dr. Ball)

Dr. Ball states that he is a Board-Certified Foot Surgeon with the American Board of Podiatric Surgery and has been licensed to practice in California at all times relevant to this action. (Dr. Ball Decl., ¶ 1.) He received his podiatry degree from the Dr. M. Scholl Collee of Podiatric Medicine in Chicago in 1984. (Dr. Ball Decl. ¶ 1.) He completed residency in podiatric foot surgery at Beverly Hills Medical Center in Los Angeles in 1985. (Dr. Ball Decl. ¶ 1.) He has been an Expert Reviewer for the California Board of Podiatric Medicine since 2009. (Dr. Ball Decl. ¶ 1.)

Dr. Ball has reviewed the following records for this case: Mr. Cagnolo’s medical records, imaging, photographs, and a post-operative video from the offices of Dr. Moy, medical and imaging records from Orthopaedic Specialty Institute, medical records from the office of Richard Van Meter, M.D., physical therapy records from Core Performance Physical Therapy, and Plaintiff’s responses to Dr. Moy’s Form Interrogatories (Set One), Special Interrogatories (Set One) and Request for Production (Set One), Plaintiff’s Complaint, and deposition transcript. (Dr. Ball Decl. ¶ 4.)

Dr. Ball opines, based on his education, training, experience and review of materials that Defendant’s involvement in the care and treatment of Plaintiff was appropriate, complied with the standard of care, and did not cause Plaintiff harm. (Dr. Ball Dec. ¶ 6.) Specifically, Dr. Ball opines:

· The osteotomy approach by Defendant was an appropriate surgical approach and intra-operative photographs taken by Defendant demonstrate that he did a good job cleaning out the joint capsule. Plaintiff’s long-standing gout was well-documented. Additionally, selection of this procedure, which is joint sparing, is a reasonable alternative because Plaintiff declined a fusion. (Dr. Ball Decl. ¶ 6a.)

· Defendant obtained appropriate informed consent including the risks, benefits and potential complications. The contention that conservative care should have been offered first is without merit because Plaintiff has been suffering from gout and a right foot bunion for 10 years. (Dr. Ball Decl. ¶ 6b.)

· Defendant’s post-operative care and treatment was within the standard of care. Imaging demonstrates that Plaintiff obtained a good result after surgery. Post operative complaints such as persistent pain are known complications and a need for future surgery is not evidence that the surgery was performed below the standard of care. (Dr. Ball Decl. ¶ 6c.)

Based on this declaration, Defendant has met his initial burden of proof to show that he acted within the standard of care in the community and did not cause and/or contribute to any harm or injury to Plaintiff. The burden shifts to Plaintiff.

In opposition to Defendant’s motion, Plaintiff relies on the declaration of Jason LaRose, DPM. (Dr. LaRose)

Dr. LaRose attests that he is a board-certified foot surgeon, a Diplomate of the American Board of Podiatric Surgery, a Diplomate of the American Board of Podiatric Orthopedics, a Fellow of the American College of Foot and Ankle Surgeons, and a Fellow of the Institute of Peripheral Nerve Surgery. (Dr. LaRose Decl. ¶ 2.) He has been licensed to practice podiatric medicine in California since 1971. (Dr. LaRose Decl. ¶ 2.) He received his podiatry degree from the California College of Podiatric Medicine. (Dr. LaRose Decl. ¶ 2.) He completed residency in foot and ankle surgery at Highland Hospital and the Podiatric Hospital of San Francisco and serves as an independent Expert Reviewer for the state of California. (Dr. LaRose Decl. ¶ 2.) Dr. LaRose’s opinions are based on a reasonable medical certainty. (Dr. LaRose Decl. ¶ 5.) In reaching his opinions, he has reviewed: a. The medical records of Antonio Cagnolo, b. The deposition of Antonio Cagnolo, c. The deposition of Dr. Richard Moy and exhibits, d. The imaging and photos relating to this mater, e. The website of Dr. Richard Moy, and f. The declaration of Derick Ball, DPM, including the exhibits and records referenced in his declaration. (Dr. LaRose Decl. ¶ 6.)

Dr. LaRose opines that Defendant breached the standard of care, and that his breach was a cause of the damages suffered by Plaintiff. (Dr. LaRose Decl. ¶ 7.) Specifically, Dr. LaRose opines:

· The buninonectomy (Hallux Valgus) procedure should not have been performed because Plaintiff’s condition did not warrant a Hallux Valgus procedure. (Dr. LaRose Decl. ¶ 10a.)

· Whether a Hallux Valgus procedure should have been performed depends on factors such as the “alignment of the metatarsal over the sesamoids” which Defendant does not seem to have considered. (Dr. LaRose Decl. ¶ 10b.)

· Defendant does not appear to have been informed that Hallux Valgus would not “in all medical probability,” cure or relieve his symptoms. (Dr. LaRose Decl. ¶ 11b.)

· It would have been better to do nothing rather than to perform the Hallux Valgus procedure because the consequence of doing the procedure on Plaintiff made his foot “painful and less stable,” whereas the standard of care required a fusion or replacement. (Dr. LaRose Decl. ¶ 11c.)

Based on the foregoing, the court finds that a triable issue exists with regard to whether Defendant’s care and treatment of Plaintiff breached the standard of care.

Specifically, a triable issue exists with regard to whether Defendant breached the standard of care because d of care because the declarations of Dr. Ball and Dr. LaRosa differ with regard to whether Plaintiff was misdiagnosed and consequently, what treatment method was appropriate for Plaintiff. Dr. Ball opines that Plaintiff was correctly diagnosed and that the Hallux Valgus procedure was appropriate given Plaintiff’s existing gout and previous refusal of a fusion. Dr. LaRose opines that Plaintiff was misdiagnosed and that he should have been given a fusion procedure given his medical condition. This constitutes a triable issue of material fact.

Statute of Limitations

Code of Civil Procedure section 340.5 states: “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.”

Brown v. Bleiberg (1982) 31 Cal.3d 426, 436 (Brown) states: ““[t]he question of when there has been a belated discovery of the cause of action, especially in malpractice cases, is essentially a question of fact ... [and] [i]t is only where reasonable minds can draw but one conclusion from the evidence that the question becomes a matter of law.” [citation]”

Defendant argues that Plaintiff’s claims are barred by the statute of limitations because Plaintiff complained of issues with his right foot at post-operative visits between April and August 2018. (Motion, 14-16.) Therefore, the latest Plaintiff knew or should have known about Defendant’s wrongdoing was September 24, 2019, one year after the procedure with Dr. Kaplan to remove the surgical screw on September 24, 2018. Alternatively, the latest that Plaintiff should have filed his claim was December 23, 2019 if a Code of Civil Procedure section 364 Notice of Intent to Sue would be served prior to commencing suit. Therefore, because Plaintiff did not file his Complaint until January 29, 2021, Defendant argues that Plaintiff’s claims are time-barred. (Motion, 14-16.)

In opposition, Plaintiff argues that his claims are not time-barred because no one told him he was misdiagnosed until he obtained an expert through his attorney after he filed suit. (Opposition, 8-9.) Until April 2019, Plaintiff asserts that his symptoms were within the scope of potential outcomes listed in the Consent to Operate form. (Id.) Therefore, Plaintiff alleges that he had no reason to suspect wrongdoing until summer 2020, when his pain increased. (Id.)

Plaintiff’s Declaration in Support of Opposition states: “I followed up for final check up with Dr. Kaplan on 4/2/19 at which time he stated “Unfortunately, there is not much more I would recommend from a surgical point standpoint. He has no pain in his big toe; therefore, I would recommend observation for this. I will see him back as needed.” (See Defendants Exhibit “D” pages 38-39 attached to the declaration of Kevin Metros hereinafter Metros Decl., Exhibit “D”). Although I had some numbness, I felt my foot had somewhat stabilized so I could move on. Dr. Kaplan explained that my condition, although not ideal, was not uncommon. Dr. Kaplan did not intimate or suggest that Dr. Moy was negligent or that there was something wrong with the surgery Dr. Moy performed on me…In or about June or July of 2020, I started to feel immense pain and pressure in my right foot….Because the pain was so intense and worse than ever, I contacted an attorney in or about July/August 2020. My attorney suggested that we file a lawsuit and retain an expert to fully examine the medical records. Shortly thereafter, I formed the opinion that Dr. Moy may have been negligent.” (Plaintiff Declaration, ¶¶ 14, 16, 17.)

Plaintiff’s Declaration constitutes admissible evidence that he neither knew nor should have known earlier that July 2020 that Defendant engaged in wrongdoing. Therefore, pursuant to Brown, the court finds that Plaintiff’s complaint is not barred by the statute of limitations as a matter of law.

In summary, Defendant Richard Raymond Moy, DPM’s (Defendant) Motion for Summary Judgment is DENIED.

Plaintiff is to give notice.

Future hearing dates

5/5/23 – MSC

6/12/23 – Jury Trial