Judge Loren G. Freestone, Case 37-2021-00040885-CU-MM-CTL 2024-03-22 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2021-00040885-CU-MM-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 21, 2024

03/22/2024 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited Medical Malpractice Summary Judgment / Summary Adjudication (Civil) 37-2021-00040885-CU-MM-CTL NOYER VS UNIVERSITY OF CALIFORNIA SAN DIEGO [E-FILE] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants The Regents of the University of California's (the Regents) motion for summary judgment as to the first amended complaint filed by Plaintiff Heidi Noyer is GRANTED.

The Individual Defendants The motion purports to have been filed not only by the Regents, but also by Jeffrey Chen M.D., Rachel Sennett M.D. Ph.D., Ellen Haddock M.D., Brian Hinds M.D., and Alexander Kim M.D (the Individual Doctors). The Individual Defendants also purported to answer the first amended complaint.

Although the Individual Doctors were named as defendants in the initial complaint, they were not named as defendants in the first amended complaint. (Compare ROA #1 with ROA #41.) By not naming them as defendants in the first amended complaint, Noyer effectively dismissed them without prejudice. (See Mac v. Minassian (2022) 76 Cal.App.5th 510, 517 ['it has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them'].) As the Individual Defendants were already dismissed, there was no basis for them to answer without properly intervening. Thus, as to them, the answer is stricken.

As the Individual Defendants are not parties to this case, there is no basis for them to move for summary judgment. Thus, as to them, the motion is off calendar.

The Regents The first amended complaint alleges a single cause of action for medical malpractice. Noyer alleges that the Regents negligently injected her with too much Botox, injuring her face and skin, and then failed to 'help' her.

'The 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. 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, unless the conduct required by the particular circumstances is within the common knowledge of the layman.' Calendar No.: Event ID: TENTATIVE RULINGS

3060234 52 CASE NUMBER: CASE TITLE: NOYER VS UNIVERSITY OF CALIFORNIA SAN DIEGO [E-FILE] 37-2021-00040885-CU-MM-CTL (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983–984.) Similarly, 'where the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation.' (Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 290–292.) '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.' (Munro, supra, 215 Cal.App.3d at pp. 984–985; accord Webster, supra, 26 Cal.App.5th at pp. 288–289.) The standard of care for Botox injections and the treatment of dermatological issues is generally beyond a layman's knowledge. The cause of skin irritation and other dermatological issues is also generally beyond a layman's knowledge. As such, expert testimony is required.

The Regents therefore submitted a declaration from physician specializing in pain management and anesthesiology (Carl Hess M.D.). Dr. Hess details Noyer's treatment at UCSD, including the Botox injections to treat her migraines and her several appointments thereafter for dermatological concerns.

Based on his review of the medical records, Dr. Hess opines that the Regents and treating physicians all complied with the applicable standards of care and were not the cause of Noyer's dermatological issues.

More specifically, Dr. Hess opines: 'Dr. Chen appropriately examined Ms. Noyer and counseled Ms. Noyer on the Botox procedure and the associated benefits, alternatives, and risk (which included allergic reaction). The patient provided informed consent to proceed with Botox injections prior to administration during both visits. In performing the procedure, Dr. Chen used the appropriate technique and dosing, and the chosen injection sites were all appropriate for this patient's presenting migraine complaints. Even with the benefit of retrospect, I cannot find any substandard care provided to Ms. Noyer by Dr. Chen.' 'Dr. Sennet, Dr. Haddock, Dr. Hinds, and Dr. Kim each appropriately examined Ms. Noyer, addressed her complaints, provided the appropriate mediation(s) and treatment options for the patient when indicated. Even with the benefit of retrospect, I cannot find any deviation of the applicable standard of care provided to Ms. Noyer by these physicians.' '[I]t is my unequivocal opinions that Defendants the Regents of the University of California, Jeffrey Chen, M.D., Rachel Sennett, M.D., PhD, Ellen Haddock, M.D., Brian Hinds, M.D., and Alexander Kim, M.D., did not, to a reasonable degree of medical probability, commit any negligent act and/or omission that caused and/or contributed to any harm or injury to Ms. Noyer. It is my opinion that Ms. Noyer's skin concerns were a result of rosacea and not a delayed allergic reaction to Botox injections.' This is sufficient to meet the Regents' initial burden.

The opposition (which the Regents asserts was never properly served) does not contain any expert evidence addressing the standard of care, how the Regents' treatment fell below that standard, and how that treatment caused any dermatological issues. It is therefore insufficient to raise a triable issue of material fact. (Munro, supra, 215 Cal.App.3d at pp. 984–985; Webster, supra, 26 Cal.App.5th at pp.

288–289.) Noyer also failed to file a responsive separate statement. That, too, is grounds for granting the motion.

(See Code Civ. Proc., § 437c, subd. (b)(3); Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1105.) Conclusion The Individual Defendants are not named defendants in the first amended complaint. Their answer to the first amended complaint is therefore stricken and their motion is off calendar. The Individual Calendar No.: Event ID: TENTATIVE RULINGS

3060234 52 CASE NUMBER: CASE TITLE: NOYER VS UNIVERSITY OF CALIFORNIA SAN DIEGO [E-FILE] 37-2021-00040885-CU-MM-CTL Defendants are deemed dismissed.

The Regents' motion for summary judgment is granted. The Regents is directed to revise the proposed judgment to reflect the dismissal of the Individual Defendants and to enter judgment only in its own favor.

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