Judge Jill Feeney, Case Number: 21STCV24611, Date: 2023-11-03 Tentative Ruling

This is an action for medical malpractice arising from knee surgery which Plaintiff underwent in July 2020. Plaintiff first underwent surgery under Defendant Kerlan’s care on July 1, 2020. (Compl., ¶12.) After surgery, Plaintiff presented to Defendant Jung complaining of ankle pain. (Compl., ¶¶12-13.) Plaintiff underwent a second surgery on July 28, 2021 performed by the surgeon, Jung, and the anesthesiologist, Defendant Yamazaki. (Compl., ¶14.) Plaintiff was administered a nerve block prior to surgery which was supposed to have worn off the same day and did not. (Compl., ¶15.) At a follow-up appointment, Plaintiff complained of numbness and pain radiating from his left knee to his left foot. (Compl., ¶16.) Dr. Jung believed that Plaintiff had a derangement of the lateral meniscus due to an old tear or injury to his left knee and referred him to a sports neurologist, Vernon B. Williams. (Compl., ¶16.) Williams Diagnosed Plaintiff with an injury of the left tibial nerve. (Compl., ¶17.) Plaintiff began physical therapy. (Compl., ¶17.) In August 2020, electrodiagnostic testing revealed reduced amplitude of the peroneal motor and sensory responses and denervation in the distal peroneal greater than the tibial distribution on an EMG. (Compl., ¶18.) In September 2020, Plaintiff underwent another MRI on his left foot and ankle and Dr. Williams diagnosed Plaintiff with nerve damage. (Compl., ¶19.) Plaintiff alleges that the nerve damage was caused by the two knee surgeries conducted in the same month. (Compl., ¶21.)

The purpose of a motion for 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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “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 . . . cannot be established.” (Code Civ. Proc., section 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., section 437c(c).)

Yamazaki objects to Antoin’s familiarity with the standard of care in Southern California. However, Antoin’s Curriculum Vitae states he has been working in Los Angeles County since 2005. (Nordean Decl., Exh. A.) It is reasonable to infer from the length of time he has practiced in California that Dr. Antoin is familiar with the community standard of care. Additionally, the standard of care is the reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 470.) Geographic location is just one factor in determining familiarity with the standard of care. (Id.) There is no inherent unfairness in allowing an expert who practices in another locality to testify if that locality’s standard of care is not higher than the standard of care in the locality where the proceeding is taking place. (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 312.) Here, the Court is satisfied that Dr. Antonin is familiar with the standard of care because his education, experience, and extended time practicing in California show that he is familiar with the community standard of care.

Expert affidavits and declarations must show affirmatively that the expert is competent to testify to matters stated. (Lowery v Kindred Healthcare Operating, Inc. (2020) 49 CA5th 119, 124–125; Salasguevara v Wyeth Labs, Inc. (1990) 222 CA3d 379.) Work in a particular field is not an absolute prerequisite to qualification as an expert in the field. (Chavez v Glock, Inc. (2012) 207 CA4th 1283, 1319.) Where a licensed and practicing physician has knowledge of the standard of care that the physician is not engaged in, but as the physician has an opinion based on education, experience, observation, or association with that specialty, that physician’s opinion is competent. (Fett v Medical Bd. of Cal. (2016) 245 CA4th 211, 221–222.)

Here, Yamazaki specifically objects to Dr. Antoin’s testimony that Plaintiff’s leg was already swollen at the time of the second procedure. This testimony does not require specific knowledge of orthopedic surgery. Additionally, it is reasonable to infer that observing the condition of the area where anesthetic is to be administered is within Dr. Antoin’s education and experience because he is a licensed anesthesiologist who has worked in hospitals and surgical centers since 2005.

The elements of medical malpractice 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.”¿(Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 (citations omitted).)¿“Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.”¿(Avivi, supra, 159 Cal.App.4th at p. 467.)¿

Thus, 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.)¿ 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. “Mere possibility alone is insufficient to establish a prima facie case.” (Id.) “There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.” (Id. at 403.) “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.” (Id.)

Dr. Loder testifies that he is a board certified anesthesiologist who has been practicing anesthesiology since 2005. (Loder Decl., ¶¶3-4.) After reviewing Plaintiff’s medical records, Dr. Loder opines that to a reasonable degree of medical certainty, there is nothing Yamazaki did or did not do that breached the standard of care for anesthesiologists in her treatment. (Id., ¶6.) Additionally, Yamazaki did not breach the standard of care for anesthesiologists in Plaintiff’s treatment. (Id.) Yamazaki had no role in recommending Plaintiff for surgery. (Id.) Loder opines that Yamazaki’s decision to use a nerve block on an arthroscopy and osteophyte-debridement of Plaintiff’s ankle because he is a professional athlete and nerve blocks generally tend to avoid or minimize post-operative use of narcotic analgesics. (Id.) Additionally, nerve injuries may result despite a perfect block and Plaintiff signed a consent form acknowledging the risks of the nerve block. (Id.) Relying on the Ultrasound Guided Regional Anesthesia video images recorded during Plaintiff’s nerve block, Loder opines that Yamazaki met the standard of care administering the nerve block. (Id.) Finally, Loder believes Plaintiff’s post-operative symptoms may be explained by Complex Regional Pain Syndrome. (Id.)

Loder’s testimony shows that the decision to use a nerve block during Plaintiff’s second surgery was an appropriate anesthetic decision because it would reduce Plaintiff’s use of narcotic painkillers after the procedure, which Plaintiff would not be able to use as a professional athlete with limited time for recovery. Additionally, Loder, an expert anesthesiologist, opines that nerve damage is a known risk of nerve blocks and that Yamazaki performed the nerve block according to the standard of care as evidenced by ultrasound scans of the procedure. Yamazaki’s evidence shows that she complied with the community standard of care because her expert opines that she performed the nerve block according to the standard of care. Yamazaki meets her burden of showing no triable issues of material fact remain over whether she met the community standard of care and whether her conduct caused Plaintiff’s injury. The burden shifts to Plaintiff.

Plaintiff in opposition provides the declaration of another expert, Dr. Hussam Y. Antoin, a board-certified anesthesiologist who has been practicing anesthesiology since 2003. (Antoin Decl., ¶2.) Antoin testifies that during the July 28, 2020 procedure, Yamazaki administered a left popliteal block consisting of 30cc of local anesthetic as well as a left adductor canal block. (Id., ¶6d.) After the procedure, Plaintiff complained of diffuse numbness and pain. (Id., ¶16e.) Dr. Williams evaluated Plaintiff and testing revealed decreased amplitude of the peroneal nerve motor and sensory responses, as well as denervation of the distal peroneal greater than the tibial nerve. (Id.) During Plaintiff’s first procedure, Plaintiff’s leg was already swollen. (Id., ¶¶7-9.) Yamazaki failed to administer the nerve block because she administered a large volume of local anesthetic to an already swollen extremity less than one month after Plaintiff’s last procedure. (Id., ¶9.) Antoin opines that Yamazaki administering 30cc of local anesthetic caused Plaintiff’s left peripheral nerve damage and fell below the standard of care. (Id., ¶¶10-11.) Although Plaintiff did sign a consent form, it was Yamazaki’s responsibility as the anesthesiologist to refuse to administer the anesthetic because Plaintiff was at higher risk for nerve damage because he had already received anesthetic in the area less than one month prior and had residual swelling. (Id., ¶12.) Yamazaki could have and should have administered a lesser volume of anesthetic. (Id.) To a reasonable degree of medical certainty, Plaintiff would not have suffered nerve damage if Yamazaki had refused to administer the anesthetic. (Id., ¶13.) Thus, Yamazaki’s conduct fell below the standard of care. (Id.)

Plaintiff’s evidence shows that Yamazaki’s conduct fell below the standard of care because she should have noted that Plaintiff’s leg was already swollen and that anesthetic was previously administered in the area less than one month before Plaintiff’s second procedure. Additionally, Yamazaki’s conduct injecting such a large volume of anesthetic in the area caused Plaintiff’s nerve damage. Although Yamazaki objected to Dr. Antoin’s testimony, the Court overruled the objections. Because Dr. Antoin’s expert testimony controverts the testimony of Yamazaki’s expert, a triable issue of material fact remains over whether Yamazaki’s conduct fell below the standard of care and whether her conduct caused Plaintiff’s injury.