Judge: John C. Gastelum, Case: 21-01217155, Date: 2023-08-15 Tentative Ruling
Motion for Summary Judgment and/or SAI
Tentative Ruling: Defendants Surgical Neurophysiology, Inc. and Reza Rad’s (“Moving Defendants”) Motion for Summary Judgment is GRANTED.
A defendant moving for summary judgment bears an initial burden of producing admissible evidence sufficient to show plaintiff’s action has no merit, i.e. that, as to each cause of action, one or more elements of the cause of action cannot be established or there is a complete defense. (Code Civ. Proc., § 437c(a), (p)(2).) Only after a defendant meets that burden does the burden shift to the plaintiff to produce admissible evidence showing the existence of a triable issue as to a cause of action or complete defense. (Id.; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)
In a medical malpractice action, 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. (Munro v. Regents of the University of Calif. (1989) 215 Cal.App.3d 977, 985.)
The only cause of action alleged against Moving Defendants in plaintiff’s Complaint is negligence (medical malpractice).
To prove medical malpractice, plaintiff must establish: (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. (Gami v. Mulliken Medical Center (1993) 18 Cal.App.4th 870, 877.) When the facts constituting the alleged malpractice are beyond the comprehension of lay people, expert testimony is conclusive on the standard of care. Indeed, CACI No. 501 instructs the trier of fact to consider only the testimony of expert witnesses in determining compliance with the professional standard of care. Likewise, “medical causation can only be determined by expert medical testimony. [Citations.]” (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385.) “In much the same way that laymen are not qualified to judge whether a doctor has been negligent because of their lack of common knowledge on the subject, they also are not qualified from a medical standpoint to determine the effects of the ‘negligent’ acts on the plaintiff.” (Barton v. Owen (1977) 71 Cal.App.3d 488, 506.)
Here, Moving Defendants offer testimony from their medical expert, Dr. Jay Shils, to show to a reasonable medical probability Moving Defendants were not negligent, their professional services were at all times within the standard of care, and they were not the cause of harm or a contributing factor to any of plaintiff’s injuries. (UMF 3-13.) Dr. Shils is qualified to render these opinions. Dr. Shils is a Diplomat of the American Board of Neurophysiological Monitoring as well as a Professor of Anesthesiology at Rush University and Associate Professor in the Department of Neurological Surgery at Albert Einstein College of Medicine. Dr. Shils earned his undergraduate degree in Electrical Engineering from Syracuse followed by a Masters' Degree in Biomedical Engineering from the University of Pennsylvania and a PhD in Biomedical Engineering from the same institution. Based upon his education, training, experience, and practice, including his work as a specialist and Professor in the field of electrophysiology- intraoperative monitoring, he has experience with and is familiar with the duties and standard of care for persons providing neurophysiologic monitoring services during spinal surgery. (UMF 2; Shils Decl. ¶¶1-2, 4.)
Thus, Moving Defendants met their burden of proof to show Plaintiff’s sole claim against them, i.e. medical malpractice, has no merit because their conduct was within the standard of care. As such, Plaintiff cannot establish the requisite elements of breach of duty or causation.
The burden of proof then shifted to Plaintiff to present evidence that creates a triable issue of material fact or challenges defendant’s evidence. Plaintiff has failed to meet his burden. Plaintiff presents no opposition to counter any of Moving Defendants’ evidence (ROA 229), and therefore, concedes the merit of this motion. Consequently, summary judgment in favor of Moving Defendants is warranted and appropriate.
Moving Defendants are ordered to prepare the judgment and give notice.