Judge Lisa K. Sepe-Wiesenfeld, Case Number: 19STCV46364, Date: 2023-10-19 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 19STCV46364, Date: 2023-10-19 Tentative Ruling

Defendant Perry Liu, M.D. (“Defendant”) moves for summary judgment as to Plaintiff Mengxue Deng (“Plaintiff”)’s single cause of action for negligence on the grounds that the care and treatment related to the ice packs and wound care provided to Plaintiff by Defendant was, to a reasonable degree of medical probability, appropriate and within the applicable standard of care in the community, and no negligent act or omission by Defendant was the cause of, or a substantial factor in causing, Plaintiff’s alleged injuries.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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).) “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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

Defendant presents evidence that Plaintiff presented to Avant Plastic Surgery on October 17, 2018, and Defendant recommended Kybella for Plaintiff’s chin. (Def.’s UMF Nos. 4, 6.) Plaintiff initially refused but later agreed to receive the injection, and at that visit, Defendant administer Botox in the forehead area and one unit of Kybella in the chin area. (Def.’s UMF Nos. 6, 7.) Plaintiff did not have a negative reaction on that date, and ice was used following the injection. (Def.’s UMF No. 8.) Plaintiff agreed to try Kybella on her legs, and on October 31, 2018, Plaintiff returned to Avant Plastic Surgery to undergo Kybella injunctions to her bilateral calves. (Def.’s UMF Nos. 9, 10.) After the injections, Defendant left the room, and a nurse places ice packs on the bilateral calves. (Def.’s UMF No. 11.) Plaintiff fell asleep with ice packs on her calves, and when she woke up, Plaintiff called out for help, and a nurse removed the ice. (Def.’s UMF Nos. 12, 13.) Plaintiff was unable to say how long the ice packs were on her legs. (Def.’s UMF No. 14.) Defendant did not see Plaintiff on that date after the ice packs were removed, and the day after the injections, Plaintiff contacted Avant Plastic Surgery to report swelling and blistering on her calves. (Def.’s UMF Nos. 15, 16.) Plaintiff presented to the Emergency Department at Hoag Hospital in Irvine due to continuing pain, and the physician at the hospital could not say whether Plaintiff’s blisters were the result of an allergic reaction or some other condition. (Def.’s UMF Nos. 17, 18.) Defendant visited Plaintiff at her aftercare facility, and Plaintiff was found to have blisters on her calves. (Def.’s UMF Nos. 19, 20.) Defendant debrided the blisters, removed the blister skin shell, cleansed the base with normal saline, covered the wounds, and wrapped Plaintiff’s calves loosely with a Kerlix dressing. (Def.’s UMF No. 21.) Defendant and his associate continued to provide wound care for the next month before Plaintiff returned to China in early December 2018. (Def.’s UMF No. 22.)

Defendant’s expert witness Neal Handel, M.D., a physician certified by the American Board of Plastic Surgery (Mot., Handel Decl. ¶ 1), opines that Plaintiff’s injuries were caused by ice packs, as the location, appearance, and description of the injury is consistent with an ice-related injury, and to a reasonable degree of medical probability, while the Kybella injections in the calves was an off-label use of the product, the Kybella injections did not cause or contribute to Plaintiff’s injury in any way. (Def.’s UMF No. 23.) Dr. Handel states that the medical decision to place ice packs on Plaintiff’s calves was indicated and within the standard of care, the decision to place ice packs following a fat-reducing injection, like Kybella, is indicated and within the standard of care in the community, and the placement of the 1cc packs and monitoring of the patient following placement of the ice packs was the exclusive responsibility of the nurse, such that Defendant did not violate the standard of care in relation to the placement of the ice packs. (Def.’s UMF No. 24.)

Dr. Handel further opines that the wound care and treatment provided by Defendant following Plaintiff’s injury was appropriate and within the standard of care, as Defendant appropriately debrided the blisters, removed the blister skin shell, and cleansed the wounds, and Defendant and his associate continued appropriate wound care until Plaintiff left the United States. (Def.’s UMF No. 25.) Dr. Handel concludes that Plaintiff’s injuries were not caused by Kybella injections, but rather that Plaintiff’s injuries are consistent with ice burns, and Defendant’s order to place ice packs on Plaintiff’s legs following the procedure was indicated. (Def.’s UMF No. 26.) Further, the administration and monitoring of the placement of the ice packs was not performed by Defendant, but by a nurse, such that, to a reasonable degree of medical probability, none of Defendant’s actions or omissions caused or contributed to Plaintiff’s injuries. (Ibid.)

This evidence allows Defendant to meet his burden of establishing that there is no triable issue of material fact as to Plaintiff’s negligence claim because Defendant’s care was within the standard of care, and Defendant did not cause Plaintiff’s harm. In opposition, Plaintiff provides the declaration of Janet DeWitt, R.N., a Registered Nurse who states that she is knowledgeable of the proper application of Kybella and has trained healthcare professionals on how to properly administer Kybella injections. (Opp’n, DeWitt Decl. ¶ 2.) Ms. DeWitt does not state the basis for her purported knowledge of the application of Kybella, and her resume states only that her experience with Kybella is extensive, which does not allow the Court to conclude that she is familiar with the standard of care for a physician administering Kybella injections. (See Hutton v. Brookside Hospital (1963) 213 Cal.App.2d 350, 355 [nurse was not qualified to give a medical opinion as to whether a patient was too ill to be moved]; MacCoy v. Gage (1918) 38 Cal.App. 672, 675 [opinion of nurse was not competent evidence to show that medical treatment administered by physician and surgeon plaintiff was improper].)

The Court also cannot rely on the Kybella labels themselves, as the Court is not itself qualified to interpret medical labels and make conclusions about the application and use of medical products. Thus, Plaintiff has failed to provide the Court with competent evidence to establish that a triable issue of material fact exists as to Plaintiff’s claim for negligence against Defendant. Accordingly, Defendant Perry Liu, M.D.’s Motion for Summary Judgment is GRANTED. Defendant Perry Liu, M.D. shall prepare, serve, and submit a proposed judgment as per statute.