Judge Lynne M. Hobbs, Case Number: 21STCV21174, Date: 2023-10-27 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV21174, Date: 2023-10-27 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

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Case Number: 21STCV21174 Hearing Date: October 27, 2023 Dept: 30

LIDIA WEST, AN INDIVIDUAL, et al. vs JONATHAN SHIFREN, M.D., AN INDIVIDUAL, et al.

Defendants Jonathan Shifren, M.D. and Wave Plastic Surgery Center's Motion for Summary Judgment

TENTATIVE

Defendants Jonathan Shifren, M.D. and Wave Plastic Surgery Center's Motion for Summary Judgment is GRANTED. Moving party to give notice.

RATIONALE:

On June 4, 2021, Plaintiffs Lidia West and Brian Jeff West (collectively “Plaintiffs”) filed a Complaint against Defendants Jonathan Shifren, M.D., Wave Plastic Surgery Center, Inc., The Doctor’s Choice HHS, Good Samaritan Hospital, and Does 1 to 25 alleging causes of action for medical negligence, negligence, and loss of consortium. The Complaint alleges Defendants were negligent in Plaintiff Lidia West’s care and treatment involving a plastic surgery liposuction and gluteal augmentation.

Defendants’ motion for summary judgment is based on that there are no triable issues of material fact as Plaintiffs cannot establish the elements necessary for their medical negligence, loss of consortium, and negligence causes of action. Specifically, Plaintiffs cannot establish breach and causation to support a cause of action for medical negligence; Plaintiffs cannot establish a claim of negligent hiring and supervision; and the loss of consortium cause of action fails since Plaintiffs cannot establish elements to support a cause of action of negligence.

First Cause of Action for Medical Negligence

The elements of medical malpractice 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) 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.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02 [citations omitted].) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “‘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.’ [Citation.]” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985 [citations omitted].)

Here, to prove that Defendants’ conduct fell within the requisite standard of care and that no act or omission by Defendant Dr. Shifren caused injury to Plaintiff Lidia West, Defendants submit the expert declaration of Athleo Cambre JR., M.D. (“Dr. Cambre”), a physician licensed to practice medicine in California and Diplomate of the American Boad of Plastic Surgery since 1992. (Declaration of Athleo L. Cambre, JR., M.D., ¶¶ 2, 4; Ex. “F.”) Dr. Cambre is familiar with the standard of care and causation issues relating to the practice of Plastic Surgery and the claims in this action. (Cambre Decl., ¶ 7.) Dr. Cambre testifies that the materials he has reviewed include the medical records pertaining to Plaintiff Lidia West from the medical providers attached to the Separate Volume of Documentary Evidence, attached to Defendants’ Motion for Summary Judgment, and identified in the Declaration of Jade Yang, Esq. (Cambre Decl., ¶ 7.) Based on the review of the materials as well as his education, training, and experience, it is Dr. Cambre’s opinion that the medical care and treatment rendered by Defendants to Plaintiff Lidia West with respect to the surgical procedure and/or treatment of her plastic surgery as well as post-operative care and treatment, was at all times compliant with the standard of care for reputable and practicing plastic surgeons practicing in the Southern California community, and that no negligent action or omission by Defendants caused or contributed to Plaintiff Lidia West’s claimed injuries and damages. (Cambre Decl., ¶¶ 10-11.)

Further, Defendants also submit the expert declaration of Irving Posalski, M.D. F.A.C.P. (“Dr. Posalski”) to prove that no act or omission by Defendant Dr. Shifren caused injury to Plaintiff Lidia West. Dr. Posalski is licensed to practice medicine in California and has been a Diplomate of the American Board of Internal Medicine since 1976 and a Diplomate of the American Board of Infectious Diseases since 1978. (Declaration of Irving Posalski, M.D., F.A.C.P., ¶¶ 2, 6; Ex. “G.”) Dr. Posalski is familiar with the standard of care and causation issues relating to the practice of treating infections and infectious diseases and the claims set forth in the lawsuit brought by Plaintiffs. (Posalski Decl., ¶ 7.) Dr. Posalski testifies that the materials he has reviewed include the medical records pertaining to Plaintiff Lidia West from the medical providers attached to the Separate Volume of Documentary Evidence, attached to Defendants’ Motion for Summary Judgment, and identified in the Declaration of Jade Yang, Esq. (Ibid.) Based on the review of the materials as well as his education, training, experience, and knowledge, it is Dr. Posalski’s expert opinion, that to a reasonable degree of medical probability, no negligent action or omission by Defendant Dr. Shifren caused or contributed to Plaintiff Lidia West’s alleged injuries. (Posalski Decl., ¶¶ 8-10.)

The Court finds that Defendants have met their burden of showing that Plaintiffs’ first cause of action for medical negligence against Defendants has no merit by showing that at least one element for that cause of action cannot be established. (Civ. Code Proc., § 437c, subd. (p)(2).) Therefore, the burden shifts to Plaintiffs to show that a triable issue of one or more material facts exists as to their medical negligence cause of action. (Civ. Code Proc., § 437c, subd. (p)(2).) However, Plaintiffs failed to demonstrate the existence of any triable issues of material fact because Plaintiffs do not present any expert testimony to refute Dr. Cambre’s and Dr. Posalski’s contentions. An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999 [“Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony. [Citation.] This rule has been applied in California to medical malpractice cases …”].)

Since Dr. Cambre’s and Dr. Posalski’s declarations are uncontradicted, they remain conclusive proof of the standard of care and causation issues and the propriety of Defendants’ conduct. The Court therefore finds that Plaintiffs have failed to meet their burden showing a triable issue of one or more material facts exists as to the first cause of action for medical negligence. Thus, summary judgment is granted as to the first cause of action for medical negligence.

Second Cause of Action for Negligent Hiring and Supervision

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.) “California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “Negligence liability will be imposed on an employer if it knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Phillips v. TLC Plumbing, Inc. (2009) 172Cal.App.4th 1133, 1139.)

Here, Defendants argue summary judgment is appropriate because Plaintiffs cannot establish that Defendant Dr. Shifren was incompetent or unfit to perform the liposuction and gluteal augmentation surgeries. In support, Defendants note that it is Dr. Cambre’s opinion that, to a reasonable degree of medical probability, all the care and treatment provided to Plaintiff Lidia West was at all relevant times compliant with the standard of care for practicing Plastic Surgeons in the California Community. (Cambre Decl., ¶ 8.) Also, it is Dr. Cambre’s and Dr. Posalski’s expert opinion that, to a reasonable degree of medical probability, no negligent action or omission by Defendant Dr. Shifren caused or contributed to Plaintiff’s injuries. (Cambre Decl., ¶11; Posalski Decl., ¶10)

Additionally, Defendants argue they are entitled to summary judgment because Plaintiffs cannot establish that Defendant Wave Plastic Surgery Center, Inc. knew of should have known of Defendant Dr. Shifren’s incompetence or that his incompetence posed a risk to others, since no incompetence can be shown. In support, Defendants submit the declaration of Peter Geon Lee, M.D. F.A.C.S. (“Dr. Lee”), founder and CEO of Defendant Wave Plastic Surgery Center, Inc. (Declaration of Peter Geon Lee, M.D. F.A.C.S., ¶ 1.) Dr. Lee is responsible for the screening, hiring, and monitoring of the performance of Defendant Dr. Shifren. (Ibid.) Dr. Lee testifies that Wave Plastic Surgery Center, Inc. did not fail to use reasonable care to hire and regularly evaluate and supervise its staff as Wave Plastic Surgery Center, Inc. did not know or had reason to know that Defendant Dr. Shifren was incompetent or that his incompetence posed a risk to others including Plaintiff Lidia West as Defendant Dr. Shifren has not been the subject of any other medical malpractice proceedings. (Lee Decl., ¶¶ 5-9.)

Based on the foregoing, the Court finds that Defendants have met their initial burden of showing that the cause of action for negligent hiring and supervision has no merit because at least one of the elements of the cause of action cannot be established. Therefore, the burden shifts to Plaintiffs to show that a triable issue of one or more material facts exists as to their medical negligence cause of action. (Civ. Code Proc., § 437c, subd. (p)(2).) Plaintiffs, however, failed to dispute any of this in their opposition, and as such, failed to meet their burden. Thus, summary judgment is granted as to the second cause of action for negligent hiring and supervision.

Third Cause of Action for Loss of Consortium

“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.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

Here, as Defendants are entitled to judgment on the first cause of action for medical negligence, Defendants are also entitled to judgment on the third cause of action for loss of consortium.

In conclusion, based on the foregoing, the Court grants the motion for summary judgment.