Judge: John J. Kralik, Case: 21STCV27531, Date: 2023-12-01 Tentative Ruling

Case Number: 21STCV27531    Hearing Date: December 1, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Sunshine Williams (“Plaintiff”) alleges that on September 14, 2018, she presented to Defendant Orthopedic Surgery Specialists Burbank (“OSSB”), complaining of a twisting injury to the left foot/ankle, where she was treated by Defendant Mark Mikhael, M.D. (“Dr. Mikhael”).  Plaintiff alleges that she underwent a series of tests while confined at the hospital and that she underwent treatment of the subject injury until August 6, 2019.  Plaintiff alleges that because the injury to her left ankle never resolved, she sought treatment at another facility in the area of her new residence in Texas, where she underwent an MRI on September 18, 2020. It was then revealed that she had injuries Defendants did not discover.  Plaintiff alleges that Defendants failed to properly administer, test, diagnose, and/or treat her medical condition, which resulted in serious, debilitating, and permanent injuries.

The complaint, filed July 27, 2021, alleges a single cause of action for medical malpractice.

B.     Motion for Summary Judgment

On September 13, 2023, Defendants Dr. Mikhael and OSSB filed a motion for summary judgment against Plaintiff on the grounds that the complaint has no merit and there are no triable issues of material fact.  They argue that they have met the standard of care in the care and treatment of Plaintiff and that no act or omission by Defendants caused or contributed to Plaintiff’s injuries. 

On November 17, 2023, Plaintiffs filed opposition papers.

On November 22, 2023, Defendants filed reply papers.  

LEGAL STANDARD

A defendant moving for summary judgment has the burden of proving that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action.  In a medical malpractice action, the elements 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) 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 negligence (citations omitted).”  (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612, emphasis in original.)  Additionally, the standard of care against which doctors are measured is a matter within the knowledge of experts. Breach of the standard of care may only be proven by expert testimony.  (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)  

EVIDENTIARY OBJECTIONS

            With the reply brief, Defendants submitted evidentiary objections to Plaintiff’s evidence submitted with the opposition papers.  The Court rules as follows:

·         Expert declaration of Dr. Daniel Kaplan: Objection no. 1 overruled in part and sustained in part.  Objection no. 1 is directed at paragraphs 2-5, on the basis that Dr. Kaplan has not provided his qualifications to render expert opinion and has not reviewed the pertinent materials (Defendants’ records and Defendants’ expert Dr. Scott Forman’s declaration, Plaintiff’s discovery responses, etc.).  The Court will sustain the objection to paragraph 2, which states that a copy of Dr. Kaplan’s curriculum vitae is attached as Exhibit A as there are no exhibits attached to the declaration.  However, the Court will allow the remainder of Dr. Kaplan’s declaration to remain.  He has stated in his declaration that he is an orthopedic surgeon and that he has reviewed Plaintiff’s medical records, as well as the complaint and Defendants’ motion for summary judgment papers—meaning, he has reviewed Dr. Forman’s declaration, Plaintiff’s discovery responses, and Plaintiff’s medical records.  (Kaplan Decl., ¶¶1, 3, 4.) 

·         Plaintiff’s Declaration: Objection no. 2 is overruled.

·         Plaintiff’s counsel’s Declaration: Objection no. 3 is overruled.

·         Objection 4 to the “disputed facts” are overruled.  Objecting to separate statement facts is not proper.

DISCUSSION

Defendants for summary judgment, arguing that there are no triable issues of material fact regarding any breach of the standard of care and causation.

In support of their initial burden, Defendants provide the following facts.  Plaintiff filed the Complaint against Dr. Mikhael on July 27, 2021.  (Def.’s Fact 1.)  The complaint alleged a single cause of action for Medical Malpractice.  (Id. at 2.)  Plaintiff’s complaint alleges that “Defendants … carelessly and negligently treated, tested, evaluated and cared for Plaintiff, and so negligently failed to conform to the standards of care required of them as medical practitioners, surgeons, nurses and physicians, and that by reason thereof, plaintiff was caused to and did suffer irreparable, serious personal injuries and damages as described hereinabove.”  (Id. at 3.)  Defendants served Special Interrogatories (“SROG”) seeking information as to the alleged negligence and Plaintiff responded as follows:

“Plaintiff initially presented to Defendants on September 14, 2018 for treatment of a left foot/ankle injury. Dr. Mikhael of Orthopaedic Surgery Specialists performed some tests and recommended physical therapy. . . the physical therapy never made a difference or any improvement to Plaintiff’s pain and mobility. Plaintiff was treated by Defendants from September 14, 2018 through August 6, 2019 and throughout Defendants’ medical care, Plaintiff reported that the pain and mobility was not improving. Plaintiff even asked Defendants to perform an MRI on the left foot/ankle but Dr. Mikhael told Plaintiff that an MRI was not needed. . . .Dr. Mikhael only spent a few minutes with Plaintiff during each visit and simply continued to prescribe more physical therapy…. Dr. Mikhael simply told Plaintiff that the pain would go away eventually, even though by the time Defendants released Plaintiff from their care, it had been approximately 10 months and the pain had not improved. Thereafter, because of the persistent pain and mobility issues, Plaintiff consulted with a different provider, who did prescribe an MRI and properly diagnosed a tendon tear in or around September 2020.”

(Id. at 4.)

            Defendants provide the expert declaration of Scott K. Forman, a medical doctor who completed his residency in orthopedics and has a practice specializing in foot and ankle injuries since 1992.  (Forman Decl., ¶2.)  Dr. Forman opines that Defendants complied with the applicable standard of care in the care and treatment of Plaintiff.  (Def.’s Fact 5.)  He states that when Plaintiff initially presented to Dr. Mikhael at OSSB, Dr. Mikhael appropriately evaluated Plaintiff on September 14, 2018, appropriately prescribed X-rays of the left ankle which showed an avulsion fracture of the navicular, but no dislocation; there was no dislocation or fracture of the right foot.  (Id. at 6.)  He states that Dr. Mikhael recommended aggressive range of motion exercises and weight bearing as tolerated; weaning of the walking boot; referred her to PT to use a stationary bike and swimming pool exercises; and recommended an MRI of the right foot, and that given the findings of an ankle sprain, an MRI was not required at this time.  (Id.)  He states that Plaintiff showed improvement over the next couple of months; at physical therapy on October 4, 2018, the patient showed minimal pain, with improved left ankle pain; and she continued to show improvement over the course of treatment. (Id.)  Dr. Forman opines that the standard of care does not require an MRI for an ankle sprain and that Plaintiff ultimately developed tendinosis, which is due to wear and tear, not due to any negligence of Dr. Mikhael.  (Id.)  He states that the standard of care included observation which was provided such that Dr. Mikhael and OSSB complied with the standard of care in the treatment of Plaintiff.  (Id.)  Dr. Forman opines that no act or omission by Dr. Mikhael and/or OSSB, caused or contributed to the injuries alleged by Plaintiff.  (Id. at 7.)  He opines that Defendants complied with the standard of care in the treatment of Plaintiff.  (Id. at 8.)  He states that the September 18, 2020 MRI and the December 14, 2020, surgery performed by Dr. Chaim confirms Plaintiff did not suffer a complete rupture or tear of the tendon, instead that she had tendinosis, and there was no evidence of retraction on MRI or at surgery, which is evidence that she did not suffer a complete rupture or tear of the tendon.  (Id.)  Dr. Forman states that as Plaintiff did not have a complete tear, there was no reason to rush her to surgery because surgery is only required when the patient has pain, which was improving during the time of Plaintiff’s treatment with Dr. Mikhael.  (Id.)  Thus, Dr. Forman opines that to a reasonable degree of medical probability, no act or omission by Defendants, caused or contributed to the alleged injuries in this case. (Id.)

Based on the expert opinion of Dr. Forman, the Court finds that Defendants have upheld their initial burden in summary judgment on the sole cause of action for medical malpractice.  They have established in their initial burden that Defendants adhered to the standard of care when treating Plaintiff’s ankle injury and that their care (acts and/or omissions thereto) did not cause or contribute to Plaintiff’s injury.  Thus, the burden shifts to Plaintiff to raise a triable issue of material fact.

In opposition, Plaintiff provides her own declaration stating that while she felt some relief from physical therapy during her entire treatment with Dr. Mikhael and OSSB, she continually complained about pain in the back of her left ankle and asked Defendants to perform an MRI, but Dr. Mikhael had told her that an MRI was not needed.  (Pl.’s Decl., ¶4.)  She states that she was treated by Defendants from September 14, 2018 to August 6, 2019 and that when she stopped treating with them, she still had pain in the back of her left ankle.  (Id., ¶¶5-6.)  She states that she was forced to endure the pain until she moved to Texas and underwent an MRI, which revealed the cause of her pain: tears in the tendons in the back of her left ankle.  (Id., ¶7.)  She states that she underwent a surgical procedure to repair the tendon tears in her left ankle, which ultimately alleviated her pain.  (Id., ¶8; Pl.’s Additional Material Facts [AMF] 1-3.) 

Plaintiff also provides the opposing expert declaration of Daniel E. Kaplan, M.D., who is an orthopedic surgeon.  He states that he has examined Plaintiff’s medical records and reviewed the complaint and motion papers.  (Kaplan Decl., ¶¶3-4.)  He opines that if Plaintiff had been complaining for a period of at least 10 months regarding pain in the back of her left ankle which remained despite physical therapy treatment, Defendants should have ordered an MRI examination to determine the cause of the continued pain, regardless of the degree of that pain; and had an MRI of Plaintiff’s left ankle been conducted in the case (as it was in Texas), the cause of the pain would likely have been determined and surgical intervention could have taken place earlier, reducing the length of time Plaintiff was in pain.  (Id., ¶5; Pl.’s Fact 5-8; Pl.’s AMF 4.) 

At the summary judgment stage, the Court finds that Plaintiff’s declaration and the opposing expert declaration raise sufficient triable issues of material fact that warrant denying the motion for summary judgment as to Plaintiff’s sole cause of action for medical malpractice claim.  (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [stating that courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”]; Zavala v. Arce (1997) 58 Cal.App.4th 915, 935 [liberally construing plaintiff’s expert witness declaration and resolving any doubts as to the propriety of granting the motion in favor of the plaintiff, finding that the declaration was sufficient to raise triable issues of material fact].)  In the reply brief, Defendants object to the evidence presented by Plaintiff in opposition.  However, the Court has discussed its ruling on the evidentiary objections above and the Court will consider the evidence and declaration statements provided by Plaintiff.  After considering the parties’ papers, the Court finds that Plaintiffs have raised triable issues of material fact in their shifted burden on Defendants’ summary judgment motion. 

As such, the motion for summary judgment is denied. 

CONCLUSION AND ORDER

Defendants Mark Mikhael, M.D. and Orthopedic Surgery Specialists Burbank’s motion for summary judgment is denied. 

Defendant shall provide notice of this order.   

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