Judge: Linda S. Marks, Case: 2022-01239435, Date: 2023-07-31 Tentative Ruling

Motion for Summary Judgment and/or Adjudication filed Aaron Fowler, MD, Inc. and Aaron Fowler on 5/16/23

Plaintiffs allege in the Complaint that Defendants negligently failed to diagnose and treat plaintiff Kimberly Montoya’s left middle cerebral artery infarct in a timely manner and, as a result, she suffered permanent and catastrophic injuries. (Compl. ¶23.) Plaintiff Kimberly Montoya asserts a cause of action for medical negligence and her husband, Andrew Montoya, asserts a cause of action for loss of consortium.

First Cause of Action for Medical Negligence

The elements of a professional negligence cause of action 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   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. (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420; Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.)

“The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment a reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 983-984.)

“The standard of care against which the acts of a medical practitioner 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, unless the conduct required by the particular circumstances is within the common knowledge of laymen.” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.)

When a defendant moves for summary judgment on a professional negligence claim 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. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of Univ. of California (1989) 215 Cal.App.3d 977, 984-985.)

Defendants submitted a declaration from Robbin Cohen, M.D., who states his qualifications and the records he reviewed to support his opinion. (Cohen Decl., ¶¶2, 4-5.) He ultimately opines that “Dr. Fowler met the standard of care for cardiothoracic surgeons in the State of California in 2021 in all respects in the care and treatment provided to Kimberly Montoya.” (Cohen Decl., ¶8.) He also opines that “there is nothing Dr. Fowler did or failed to do in violation of the standard of care that was a substantial factor in negligently causing or contributing to any injury of the plaintiff.” (Cohen Decl., ¶10.)

Defendants also submitted a declaration from Thomas Ela, M.D. Dr. Ela states his qualifications and the records he reviewed to support his opinion. (Ela Decl., ¶¶2, 4-5.) Dr. Ela opines that, at the time Dr. Fowler first saw Mrs. Montoya, calling a code stroke, including obtaining a CT scan of the brain would not have changed Mrs. Montoya’s treatment and outcome. (Ela Decl. ¶12.)

In opposition to the motion, Plaintiffs submit declarations from their own experts, Robert Shuman, M.D. and Todd Lempert, M.D.

Dr. Shuman states his qualifications and the records he reviewed to support his opinion. (Shuman Decl., ¶¶4-12.) Dr. Shuman opines that the standard of care required Dr. Fowler to immediately call a Code Stroke and/or order a STAT CT scan of Mrs. Montoya’s head, which he did not do. (Shuman Decl. ¶20.)

Plaintiff’s other expert, Dr. Lempert, states his qualifications and the records he reviewed to support his opinion. (Lempert Decl., ¶¶4-10.) Dr. Lempert is a physician with experience in thrombectomies and embolectomies for patients with evolving strokes. (Lempert Decl. ¶9.) He testifies that “an interventional radiologist such as [himself] is the medical specialist who determines whether a thrombectomy will medically benefit a stroke patient.” (Id.) Dr. Lempert opines that the calling of a Code Stroke at around 0800 on February 20, 2021 would have changed Kimberly Montoya’s treatment and her ultimate catastrophic outcome. (Lempert Decl., ¶18.) Dr. Lempert opines that, to a reasonable degree of medical probability, Mrs. Montoya’s stroke occurred sometime after 1505 when the anesthesiologist gave her Protamine to reverse the effect of heparin (an anticoagulant). (Lempert Decl., ¶17.) Had a Code Stroke been called at 0800, a CT scan and CT perfusion scan of the head would have been performed. To a reasonable degree of medical probability, these studies would have shown salvageable brain tissue and she would have undergone mechanical thrombectomy. (Lempert Decl., ¶18.) According to Dr. Lempert, this treatment would have significantly improved her clinical functioning in the area of her brain where the stroke occurred. (Id.)

Defendants contend that Dr. Lempert’s causation opinion is speculative and not supported by reasoned facts. The court disagrees. In connection with a motion for summary judgment, “[t]he moving party's evidence is strictly construed, while that of the opponent is liberally construed, and any doubts as to the propriety of granting the motion are resolved in the opponent's favor.” (Smith v. Freund (2011) 192 Cal.App.4th 466, 471, citing Greenberg v. Superior Court (2009) 172 Cal.App.4th 1339, 1346.)

Contrary to Defendants’ assertion, the declarations at issue in this case are distinguishable from those at issue in Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146. In Sanchez, Plaintiff’s expert testified that Plaintiff “should have been transported immediately.” (Sanchez at 157.) However, the expert ignored the undisputed evidence that Plaintiff could not have been transported any faster. Thus, his opinion was based on assumed facts that were contrary to the undisputed facts of the case. In addition, Defendant’s expert testified that there was no medical literature supporting the theory that delays in treatment of less than thirty minutes affect patient outcome in cases of subdural hematoma. Plaintiff’s expert provided nothing to rebut that testimony. (Id. at 162.)

Here, unlike in Sanchez, the testimony of Dr. Lempert has been supported with reasoned facts. Defendants do not disagree with the facts relied upon by Dr. Lempert, but, rather, argue that his opinion is not supported by enough facts.

Based on the parties’ expert declarations, there are triable issues of fact as to whether the conduct of Defendants fell below the standard of care and as to causation.

Second Cause of Action for Loss of Consortium

As Plaintiff Andrew Montoya’s claim for loss of consortium is wholly dependent on his wife’s medical negligence claim, there are triable issues of fact as to that cause of action as well. (See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746 (“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.”; “The elements of a loss of consortium claim are: 1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff's spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant's act.”)

Tentative Ruling: The motion of Defendants Aaron Fowler, M.D. and Aaron Fowler, M.D., Inc. (“Defendants”) for summary judgment or, in the alternative, for summary adjudication, is DENIED.

Defendants’ objections to the declarations of Dr. Lempert and Dr. Shuman are OVERRULED.

Moving parties to give notice.