Judge Kerry Bensinger, Case 20STCV01515 2023-02-16 Tentative Ruling

On January 13, 2020, plaintiff Otis Vann, Jr. (“Plaintiff”) filed this action against defendants Christopher G. Goring, M.D. (“Dr. Goring”), Jamie L. Taylor, M.D., St. Vincent Medical Center, and Verity Health System (collectively, “Defendants”) for medical malpractice and lack of informed consent relating to the administration of a flu vaccine to Plaintiff prior to undergoing hip surgery on October 16, 2018. Plaintiff alleges that Defendant’s malpractice and failure to obtain informed consent subsequently resulted in the amputation of Plaintiff’s hands and feet. Dr. Goring moves for summary judgment. No opposition has been filed.

On October 16, 2018, Plaintiff went to St. Vincent Medical Center for the next stage of a left hip reimplantation surgery with no fever and normal vital signs. (Undisputed Material Fact “UMF” No. 14.) Dr. Goring documented that Plaintiff’s preoperative labs were within normal range and proceeded to perform the surgery, during which no acute inflammation was identified. (UMF No. 14.) Plaintiff’s medical history included a splenectomy resulting from a gunshot wound to his abdomen (UMF No. 5.) Given that history, Dr. Goring ordered a pneumococcal vaccine before the reimplantation surgery, in order to decrease the risk of sepsis from an encapsulated organism infection. (UMF No. 15.) Dr. Goring explained the expected result, technique, and risks, including risks of infection, weakness, persistent numbness, residual pain, injury to blood vessels, and awareness under anesthesia. Dr. Goring also explained the possibility of success and the risks of the procedures, including the risk of infection, complications, loss of blood, etc. (UMF No. 16.) Plaintiff executed informed consents to anesthesia service and the surgical procedure of reimplantation of left total hip arthroplasty with navigation. Dr. Goring also documented that this surgery was held following Mr. Vann's informed consent. (UMF No. 17.) Cultures obtained from Plaintiff’s hip during the reimplantation surgery were negative for any bacteria. (UMF No. 20.) Two days later and in the months that followed, Plaintiff’s medical condition deteriorated, eventually resulting in amputation of Plaintiff’s arms and legs at LAC+USC Medical Center. (UMF Nos. 24-58.)

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

In a medical malpractice action, a plaintiff must establish the following elements: “(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. [citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “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 University of California (1989) 215 Cal.3d 977, 984-985.) The defendant may support the summary judgment motion with his or her own declaration. (O’Connor v. Bloomer (1981) 116 Cal.App.3d 385, 391.)

Dr. Goring submits his own declaration in support of his motion for summary judgment. Dr. Goring reviewed Plaintiff’s medical records, Plaintiff’s complaint, and Plaintiff’s statement of damages. (Goring Decl., ¶ 9.) Based on his review, education, training and experience, Dr. Goring opines that the care and treatment he provided to Plaintiff conformed to the standard of care governing an orthopedic surgeon. (Goring Decl., ¶ 68.) Specifically, Dr. Goring opines that he reasonably and properly treated Plaintiff during Plainitff’s hospitalization at Good Samaritan Hospital by consulting Plaintiff’s medical histories, conducting assessments and consultations, evaluating surgical conditions, ordering medications, and consulting regarding Plaintiff’s discharge condition. (Goring Decl., ¶ 67.) Dr. Goring further opines that he reasonably and properly treated Plaintiff during Plainitff’s hospitalization at St. Vincent Medical Center by consulting Plaintiff’s medical histories, conducting assessments and consultations, ordering medications and labs, reviewing lab results, making plans of management, discussing surgical options with Plaintiff and his family, obtaining informed constent from Plaintiff and/or his family, conducting pre-operative evaluation, performing surgical procedures, evaluating surgical conditions, ordering post-operative care, performing post-operative assessments and procedures, cooperating with other physicians from other divisions, notifying Plaintiff and his family of significant changes in Plaintiff’s medical condition, disclosing foreseeable medical alternative treatments and working on transferring Plaintiff to a higher level of care. (Goring Decl., ¶ 67.) As for the cause of Plaintiff’s amputations due to necrosis on distal extremities, Dr. Goring opines that Plaintiff’s amputations were not a result of alleged vaccinations, but were because of the necessary use of vascular pressors during Plaintiff’s care in the ICU because it is a rare but known risk that vascular pressors may cause tissue necrosis and gangrene. (Goring Decl., ¶ 75.) In sum, Dr. Goring opines that he did not engage in any substandard act or omission that, to a reasonable medical probability, caused or contributed to any medical complications or alleged injury that Plaintiff may have experienced, nor did he breach the applicable standard of care due to a lack of informed consent. (Goring Decl., ¶¶ 69, 70, 74, 77.)

Dr. Goring has met his burden of showing, by expert declaration, that he did not breach the standard of care or fail to provide informed consent. The burden shifts to Plaintiff to show, by contrary expert declaration, that a triable issue of fact exists. However, Plaintiff has not filed an opposition. Therefore, Dr. Goring is entitled to summary judgment.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court