Judge: James L. Crandall, Case: 21-1184751, Date: 2022-07-28 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Defendant Jill Byers, M.D.’s Motion for Summary Judgment against plaintiffs Herbert Shack, O.D. and Lisa Lauer is GRANTED.

Dr. Byers’ Motion for Summary Adjudication is MOOT.

“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).)

The Complaint alleges claims for negligence and loss of consortium against defendant Dr. Byers.

Medical Negligence:

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.)

In support of this motion, Dr. Byers relies on the declaration of Edward J. Yun, M.D. Dr. Yun is a physician licensed to practice medicine in the State of California. (Dr. Yun Decl., ¶ 1.) Dr. Yun received his Medical Degree in 1998 from Columbia University College of Physicians and Surgeons. (Dr. Yun Decl., ¶ 2.) He completed a surgical internship at University of California, San Francisco in 1999 and completed his urology residency at the same institution in 2004. (Dr. Yun Decl., ¶ 2.)

Since 2004, Dr. Yun has been in private practice at the Urology Center of Southern California. (Dr. Yun Decl., ¶ 2.) In 2009, Dr. Yun became an Assistant Clinical Professor in the Department of Urology at the University of California, Irvine, an academic position that he still holds. (Dr. Yun Decl., ¶ 2.)

Dr. Yun is an attending and consulting physician at seven hospitals, including Corona Regional Medical Center and Riverside Community Hospital. (Dr. Yun Decl., ¶ 2.) He is also currently Vice Chair of Urology at Riverside Community Hospital. (Dr. Yun Decl., ¶ 2.) He has been Board Certified in Urology since 2006 and recertified in 2014. (Dr. Yun Decl., ¶ 2.) Based upon his education and experience, Dr. Yun is qualified to render an expert opinion in this case on behalf of urologist Dr. Byers.

Dr. Yun states that he has reviewed Herbert Shack’s medical records from Hoag Memorial Hospital and that based upon my education, training, experience, and review of the above-noted records, it is his opinion that Dr. Byers complied with the standard of care in the community and did not cause or contribute to any urologic injury or harm to Mr. Shack. (Dr. Yun Decl., ¶ 4.)

Specifically, Dr. Yun states that:

At the time of her initial consultation on November 26, 2019, Dr. Byers performed an appropriate evaluation and work up of the patient, including a complete history and physical and an assessment of Mr. Shack’s symptoms. She appropriately removed and replaced the 24F 3-way Foley catheter with a 22F 2-way silicon Foley catheter to  allow draining and irrigation of clots. She appropriately recommended conservative management of the patient’s gross hematuria, including manual irrigation of clots followed by CBI until reversal of anticoagulation, prior to subjecting the patient to surgery. She also appropriately recommended considering a cystoscopy if the patient became hemodynamically unstable, or required blood transfusions. Based on the patient’s history, clinical picture, imaging studies and work up, Dr. Byers’ medical decision making, plan and recommendations regarding Mr. Shack were appropriate and within standard of care. The patient’s clinical condition was stable at the time of the initial consult. (Dr. Yun Decl., ¶ 8.)

Dr. Byers appropriately recommended and discussed a cystoscopy and fulguration of bleeding with Mr. Shack on November 27, 2019, as he had persistent gross hematuria, he experienced a drop in his hemoglobin and he required a blood transfusion. Dr. Byers appropriately consented Mr. Shack for the procedure as she discussed the risks, benefits and alternatives to the procedure with Mr. Shack, and Mr. Shack agreed to proceed with the surgery. Mr. Shack also signed the consent form. (Dr. Yun Decl., ¶ 9.)

Dr. Byers performed the surgery within the standard of care. Dr. Byers’ surgical approach and technique were appropriate. She timely and appropriately recognized the perforation intraoperatively, and appropriately addressed the perforation by inserting a 20F Foley catheter into the urethra and irrigating the catheter with drainage of clear light red irrigant. It is within the standard of care to conservatively manage an extraperitoneal bladder perforation with a Foley catheter which was done in this case. This type of perforation generally closes on its own. In addition, it was appropriate to first attempt conservative treatment for an extraperitoneal perforation given Mr. Shack’s comorbidities, medical condition, and medical history. (Dr. Yun Decl., ¶ 10.)

The post-operative care provided by Dr. Byers was performed within the standard of care, including follow up, evaluation, treatment, orders, and recommendations. While the patient was in the PACU, Dr. Byers returned to the patient’s bedside and attended to the patient attentively. She appropriately increased the size of the catheter to improve irrigation of clots, and appropriately placed the patient on continuous bladder irrigation to prevent the formation of blood clots after surgery. She also appropriately arranged for board certified urologist Dr. Bae to provide coverage in her absence and contacted Dr. Bae regarding the patient. (Dr. Yun Decl., ¶ 11.)

While Mr. Shack experienced an intraoperative complication during the November 27, 2019 surgery, bladder perforation is a well-known and accepted complication for this type of procedure, and is not an indication of negligence. This intraoperative complication can and did occur in the absence of negligence, and Mr. Shack was consented pre-operatively. There was no delay on the part of Dr. Byers in addressing and/or treating the perforation. (Dr. Yun Decl., ¶ 12.)

Based on the declaration of Dr. Yun, Dr. Byers has met her initial burden of proof to show that she 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.

Plaintiff has not opposed the Motion and has not shown that there is any triable issue of material fact as to the standard of care and causation.

Accordingly, judgment is GRANTED on the medical negligence cause of action.

Loss of Consortium:

Plaintiff Lisa Lauer’s claim for loss of consortium is derivative of her husband’s claim for medical negligence. Since the court GRANTS judgment on the medical negligence claim, summary judgment on Plaintiff’s Lisa Lauer’s claim is also GRANTED. (Blain v. Doctor’s Company (1990) 222 Cal.App.3d 1048, 1067.)

Based on the foregoing, the Motion for Summary Judgment should be GRANTED.

Moving Defendant to give notice.

Future hearing dates:

3/10/23 – MSC

4/10/23 – Jury Trial