Judge: Keri G. Katz, Case: 37-2020-00020684-CU-MM-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023  08:25:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Medical Malpractice Summary Judgment / Summary Adjudication (Civil) 37-2020-00020684-CU-MM-CTL FOSTER VS SHARP MEMORIAL HOSPITAL [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Sharp Memorial Hospital's unopposed motion for summary judgment is GRANTED. CCP 437c.

The complaint alleges a cause of action for negligence on behalf of Plaintiff Jennifer Foster and a cause of action for loss of consortium on behalf of Plaintiff David Salow [ROA 1].

Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493 explains, [i]n a matter such as this, where the conduct required of a medical professional is not within the common knowledge of laymen, a plaintiff must present expert witness testimony to prove a breach of the standard of care. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142; Landeros v. Flood (1976) 17 Cal.3d 399, 410, 131 Cal.Rptr. 69, 551 P.2d 389.) Plaintiff also must show that defendants' breach of the standard of care was the cause, within a reasonable medical probability, of his injury. (Jennings v. Palomar Pomerado Health Systems, Inc.

(2003) 114 Cal.App.4th 1108, 1117–1118, 8 Cal.Rptr.3d 363 (Jennings ).) Bushling, 117 Cal.App.4th 493, 509. Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, also relying on Landeros, further elaborates.

[t]he standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. ( Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36 [210 Cal.Rptr. 762, 694 P.2d 1134]; Landeros v. Flood (1976) 17 Cal.3d 399, 408 [131 Cal.Rptr. 69, 551 P.2d 389, 97 A.L.R.3d 324].) ''The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.' [Citations.]' ( Landeros v. Flood, supra, 17 Cal.3d at p. 410.) Munro, 215 Cal.App.3d at 983-984. Munro goes on to explain, California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. 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. ( Hutchinson v. United States (9th Cir. 1988) 838 F.2d 390, 392, citing Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412 [175 Cal.Rptr. 365].) Calendar No.: Event ID:  TENTATIVE RULINGS

2988202  2 CASE NUMBER: CASE TITLE:  FOSTER VS SHARP MEMORIAL HOSPITAL [IMAGED]  37-2020-00020684-CU-MM-CTL Munro, 215 Cal.App.3d at 984-985.

Sharp submits evidence in the form of a declaration from Sean Patrick Nordt, M.D., Pharm.D. a physician board certified in, inter alia, Emergency Medicine. Nordt states that the medical care and treatment provided by Sharp complied with the standard of care and that the Urgent Care physicians and staff complied with the standard of care. [Declaration of Sean Patrick Nordt, ¶¶ 4, 7]. The court finds Sharp meets its burden of establishing the absence of triable issues of material fact as whether Sharp's care and treatment of Plaintiff Foster breached the standard of care. As this motion is unopposed, Plaintiffs offer no evidence in dispute. As such, summary judgment is proper as against Plaintiff Foster. Absent a viable negligence cause of action, Plaintiff David Salow's loss of consortium cause of action fails as well. Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1067. Accordingly, Defendant Sharp Memorial Hospital's motion for summary judgment is GRANTED.

The court notes that Sharp also submits a declaration from Alan Lo, M.D., however, the Lo declaration in the court file at both ROA 148 and 157 is missing page 2. The court does not consider the Lo declaration in ruling on this motion.

The court orders Sharp to submit a judgment, consistent with this ruling, within 10 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Calendar No.: Event ID:  TENTATIVE RULINGS

2988202  2