Judge: Keri G. Katz, Case: 37-2021-00050985-CU-MM-CTL, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 04, 2024

01/05/2024  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Medical Malpractice Summary Judgment / Summary Adjudication (Civil) 37-2021-00050985-CU-MM-CTL ZAMORA VS ELSHIRE MD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Harry Elshire, M.D.'s motion for summary judgment is DENIED.

The complaint alleges two causes of action – medical negligence on behalf of Plaintiff Eduardo Zamora and loss of consortium on behalf of Plaintiff Amber Zamora [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, further explains, 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].) Munro, 215 Cal.App.3d at 984-985.

Dr. Elshire submits evidence in the form of a declaration from Kenneth Deck, M.D., F.A.C.S. a physician board certified in general surgery. Deck states: 8. Based on my review of the relevant documents and education, training, and experience, it is my opinion that Dr. Elshire, at all times relevant to this case, met the requisite standard of care in the treatment of Plaintiff at El Centro Regional Medical Center.

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10. Based on my review of above-mentioned materials in this case, as well as my education, training, Calendar No.: Event ID:  TENTATIVE RULINGS

3003710  8 CASE NUMBER: CASE TITLE:  ZAMORA VS ELSHIRE MD [IMAGED]  37-2021-00050985-CU-MM-CTL and experience, I have formed the opinion that the care and treatment provided to Eduardo Zamora by Harry Elshire, M.D. complied with the applicable standard of care for a general surgeon called to consult on post-operative complications of a robotic left colon resection for diverticulitis during the relevant time.

Further, based upon a reasonable degree of medical probability, it is my opinion that there was no act or omission below the standard of care on the part of Dr. Elshire which caused, contributed to, or was a substantial factor in causing Plaintiff's colostomy and alleged injuries of pain, emotional distress, deformity, disfigurement, permanent physical impairment, and disability as set forth in his complaint. . . .

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[SSUMF 25, 26; Declaration of Kenneth Deck, M.D., F.A.C.S. ¶¶ 8, 10.] In opposition Plaintiffs rely on the deposition testimony of Plaintiff Eduardo Zamora's treating physician Matthew Schultzel, D.O. Plaintiffs submit evidence that Dr. Schultzel's testimony included testimony that the standard of care required Dr. Elshire to take Plaintiff Eduardo Zamora to the operating room to repair the anastomotic leak and abscess without first having radiology attempt a drainage of the abscess; it was below the standard of care to wait 24 hours before entering orders for Plaintiff Eduardo Zamora and for Dr. Elshire to have ordered interventional radiology drainage of Plaintiff Eduardo Zamora's abscess instead of an emergency operation; the standard practice is to take such patients to the operating room immediately [Plaintiffs' response to SSUMF 25]. Plaintiffs also submit evidence that Plaintiff Eduardo Zamora endured and experienced significant, unnecessary, prolonged pain and severe emotional distress from the failed, unnecessary CT guided drainage procedure, from the continued delay in treatment of his bowel leak that was causing him constant abdominal pain as well as severe emotional distress related to his fear that his care at El Centro Regional Medical Center was being mishandled, which caused him to leave, against medical advice, by personal transport to Scripps Memorial Hospital for definitive treatment, and then required ICU care at Scripps Hospital post Dr. Schultzel's repair of the bowel leak, which ICU care he otherwise would not have needed if his leak immediately had been surgically repaired, and Plaintiff Eduardo Zamora underwent a more extensive surgery by Dr. Schultzel than he otherwise would have needed had Dr. Elshire not failed to proceed with immediate surgical repair of the bowel leak upon being notified of such leak; also Plaintiff Eduardo Zamora's recovery time would have been much faster and he would have been able to return to normal work sooner had his surgery been performed earlier [Plaintiffs' response to SSUMF 26]. Dr. Elshire has not filed a reply to raise any arguments as to Dr. Schultzel's opinions or Plaintiff Eduardo Zamora's testimony.

The court finds the evidence Plaintiffs rely on sufficient to create triable issues of material fact as to whether Dr. Elshire's care of Plaintiff Eduardo Zamora breached the standard of care and whether such care, including the allegedly unnecessary CT guided drainage procedure, the delay in surgery and Plaintiff Eduardo Zamora's decision to travel from El Centro to San Diego for treatment, caused or contributed to Plaintiffs' claimed damages.

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.

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