Judge Mark A. Young, Case Number: 19SMCV00603, Date: 2023-10-03 Tentative Ruling

Judge: Mark A. Young, Case: 19SMCV00603, Date: 2023-10-03 Tentative Ruling

Case Number: 19SMCV00603 Hearing Date: April 4, 2024 Dept: M

CASE NAME: Nelson v. Cassileth , et al.

CASE NO.: 19SMCV00603

MOTION: Motion for Summary Judgment/Adjudication

HEARING DATE: 4/4/2024

Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

“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 the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (CCP, § 437c(t).)

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP, § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (CCP, § 437c(e).)

Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.)

EVIDENTIARY OBJECTIONS

Plaintiff’s objections are SUSTAINED as to no. 3-4 (hearsay) and OVERRULED as to the remaining objections.

Defendant’s objections are SUSTAINED as to the declaration of Gail Lebovic. As to the Lebovic declaration, Defendant argues that Dr. Lebovic is not a qualified expert to give an opinion on Plaintiff’s plastic surgeon and post-operative care. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747.) Defendant does not explain why an oncoplastic surgeon would not have sufficient expertise to opine on plastic surgery. To the contrary, Dr. Lebovic has sufficient education, training and experience on the subject of breast augmentation surgery and related care, which is the subject procedure of this action. Dr. Lebovic’s CV shows she earned a medical degree from GWU, had a surgical residency at Stanford, had a clinical fellowship at “Plastic Surgery Center for Reconstructive & Aesthetic Surgery of the Breast,” and had a research fellow internship regarding breast cancer. (Supp. Stirrup Decl., Ex. A [Written Designation of Expert Witnesses, attached C.V. and Proof of Service].) Dr. Lebovic has been a licensed surgeon in California and a board certified oncoplastic surgeon since 1994. (Id.) Defendant also concedes that Dr. Lebovic practiced surgery for at least 13 years from 1994 to 2007, and since 2007, Dr. Lebovic has served as the founder and director of an oncoplastic surgery professional organization which provides post-graduate training for “surgeons' skills in the oncologic and reconstructive aspects of breast surgery.” (Lebovic Decl., ¶ 2.) Defendant focuses on the fact that Dr. Lebovic is an oncoplastic surgeon, as if this is a complete separate field from plastic surgery. Defendant does not explain how oncoplastic surgery is so unrelated to plastic surgery generally, or breast augmentation specifically, that Dr. Lebovic would not be qualified to testify as to the standard of care for breast augmentation. Based on the record, expertise in oncoplastic surgery would necessarily include expertise in breast removal and reconstruction for breast cancer patients. If anything, an oncoplastic surgeon would likely have to have greater skill and expertise compared to a general plastic surgeon. Thus, Dr. Lebovic apparently does have knowledge, skill, experience, and training on the subject of plastic surgery, especially where Plaintiff’s post-operative use of immunosuppressants (Methotrexate) may be an important factor to the harm here.

That said, Dr. Lebovic’s declaration lacks foundation, and does not provide a sufficient conclusion to a degree of medical probability. “[E]ven when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. For example, an expert’s opinion based on assumptions of fact without evidentiary support or on speculative or conjectural factors, has no evidentiary value and may be excluded from evidence.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117, citations omitted.) “Regarding causation, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.” (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155, citations and quotations omitted, emphasis added.)

In opposition, Plaintiff failed to submit Dr. Lebovic’s CV as well as certain records Dr. Lebovic relied on to form her opinion. (Garibay v. Hemmat, (2008) 161 Cal. App. 4th 735, 742 [medical records and the operative note relied upon by an expert were not in evidence, and the expert’s declaration and conclusion therefore had “no evidentiary basis”].) While Plaintiff supplemented the record by providing Dr. Lebovic’s missing CV following the reply, Plaintiff did not provide the other missing records, including records from CVS Pharmacy (Lebovic Decl., ¶ 32), Dr. Mahal, M.D. (¶¶ 14, 22), California Rheumatology (¶¶ 11-13, 18), Saint Agnes Medical Center (¶ 9), Operative Report from Medical Arts Ambulatory Surgery Center (¶¶ 10, 64), and the report from Thomas Mitts, M.D. (¶ 10). Dr. Lebovic’s opinions at the specified paragraphs are expressly derived from these records. This undermines Dr. Lebovic’s ultimate opinions, including her opinion that Dr. Min’s course of treatment breached the standard of care by failing to appropriately consider Plaintiff’s rheumatoid arthritis and other medical history which posed a further increased risk of infection. Furthermore, as discussed below, Dr. Lebovic does not conclude that Dr. Min’s breaches of the standard of care caused Plaintiff’s infection, hospitalization and breast removal to a medical degree of certainty.

Analysis

Defendant moves for summary judgment on Plaintiff’s only cause of action for medical negligence. Defendant contends that there are no triable issues of material fact as to whether Defendant met the standard of care for a plastic surgeon in her care and treatment of Plaintiff. Defendant claims that, to a degree of medical probability, she did not cause or contribute to any of Plaintiff’s claimed injuries. Further, Plaintiff provided her informed consent prior to the surgery. Additionally, Defendant claims that the cause is barred by the statute of limitations because Plaintiff filed this action more than one year after having a suspicion of wrongdoing.

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.)

Proof of causation in a medical malpractice action must also be proven within a reasonable medical probability, based on competent expert testimony. (Jennings v. Palomar Pomerado Health Systems, Inc. (2004) 114 Cal.App.4th 1108, 1118.) “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. App. 3d 977, 984-985, citations omitted.) 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.)

Plaintiff alleges “Defendants, and each of them, failed to use reasonable care and/or skill common to medical practitioners in the community and further, failed to use reasonable care in the diagnosis and treatment of said condition, illness, infection and injury, in that they did not provide her with proper treatment or properly refer her for treatment, resulting in injury, multiple breast surgeries, and damage to Plaintiff.” (Compl., at p. 4.)

Defendant provides undisputed evidence that on February 16, 2021, Plaintiff underwent a capsulectomy, mastopexy, silicone nodules excision and nerve block with replacement silicone breast implants, performed by Dr. Min. (UMF 2.) This procedure allegedly resulted in her contracting an infection with painful swelling, redness and oozing. (Id.) It is undisputed that Plaintiff claims the diagnosis of the infection was improperly addressed and delayed, which resulted in her having to undergo additional surgeries to remove her right breast implant and eventually replace the implant. (Id.)

Defendant presents evidence disputing the alleged breach of the standard of care and causation. Dr. Dubrow notes that plaintiff appears to have developed issues with segmental contracture and malpositioning of the right breast implant. (Dubrow Decl., ¶ 53.) Segmental contracture and malpositioning are known risks and complications of breast augmentation. (Id.) Dr. Dubrow also opines that post-operative infection is itself a known risk and complication of breast implant procedures. (Id., ¶53.) It is undisputed that these risks were explained to Plaintiff. Dr. Dubrow also notes that plaintiff has a high risk of sustaining postoperative complications, such as contracture and malpositioning of the breast, due to her history of rheumatoid arthritis and immunosuppressant medication taken as a result, in addition to the patient’s prior extensive history of multiple breast augmentations. (Id.) However, because Plaintiff’s infection was promptly recognized and appropriately treated by Dr. Min, Dr. Dubrow concludes that there was no other medically reasonable action that should have been undertaken at any time that would have changed the ultimate outcome, i.e. development of post-operative infection necessitating implant removal and replacement. (Id.) These issues occurred in the absence of any breach of the standard of care breach. (Id. ¶50.) Dr. Dubrow has opined that, to a reasonable degree of medical probability, Dr. Min did not do or fail to do something that caused or contributed to Plaintiff’s claimed injuries. (Id. at ¶54.)

With this showing, Defendant meets her initial burden of production. Plaintiff therefore needs to present an expert declaration controverting Defendant’s evidence that she was not the proximate cause of Plaintiff’s injuries. As noted above, Plaintiff has failed to do so, and therefore cannot successfully oppose the motion for summary judgment on the merits.

Even if the Court were to consider the merits of Dr. Lebovic’s opinion, the Court would find it insufficient to create a dispute of fact as to causation. Dr. Lebovic’s declaration fails to state on certain terms that any of Defendant’s purported breaches of the duty of care caused Plaintiff’s injuries to a degree of medical probability. (See Lebovic Decl., ¶¶ 65-78.) Dr. Lebovic explains that bilateral breast implant removal, capsulectomies and breast reconstruction with local tissue rearrangement “should have been discussed, recommended and performed as the procedure of choice.” (Id., ¶ 65.) Dr. Min fell below the standard of care by failing to discuss and advise Plaintiff of this proper surgical option. (Id.) Further, Dr. Min should have explained that silicone implants were not appropriate for Plaintiff because of rheumatoid arthritis, Plaintiff’s history of failed breast surgeries and the potential for infection. (¶¶ 66-67) Further, Dr. Min should have disclosed the risks associated with the implantation of AlloDerm, which has not been studied in immune-compromised patients. (Id.) Dr. Lebovic opines that the "General Surgical Risks" was inadequate to fully advise Plaintiff of the actual risks of the procedures. (¶ 68.) Dr. Lebovic concludes that, considering her history, Plaintiff’s risk of infection was “greater” than those posed generally by a routine augmentation procedure, and that the risks were “increased” by Dr. Min’s choice of silicone implants. (¶ 69.) The relatively large implants resulted in “greater tension” on the breast tissue and surgical incisions. (Id.) The silicone implants exposed Plaintiff to “continued risk for long term complications including… increased difficult in diagnosis of breast cancer, sustained and increased autoimmune disease, capsular contracture, implant rupture with extravasation of silicone gel, etc.” (Id.) Due to the displacement of the right implant, Plaintiff “will also require at least one additional surgery to fix this problem in the short term.” (Id.)

Dr. Lebovic does not say that the implant material or failure to advise was more likely than not the cause of Plaintiff’s subsequent infection, hospitalization and breast removal to a reasonable degree of medical probability. Critically, Dr. Lebovic only vaguely refers to increased risks. Dr. Lebovic does not establish to what extent this failure increased Plaintiff’s risk of infection. Without this evidence, Plaintiff cannot establish that the vague “increased” risk caused Plaintiff’s harm. Dr. Lebovic also does not state that an alternative surgical choice or an explanation of such options would have eliminated Plaintiff’s risk of infection. Thus, the evidence is undisputed that these “risks” persisted either way. Further, Plaintiff does not establish that she would have done something different if these risks were explained to her. Thus, Plaintiff has not demonstrated sufficient causation between Dr. Min’s failure to inform of alternative surgical choices and Plaintiff’s subsequent infection, hospitalization and breast removal.

Plaintiff also argues that Dr. Min was dismissive of symptoms that warranted further scrutiny. Dr. Lebovic explains that Dr. Min ignored early signs of infection and that this fell below the standard of care. (Lebovic Decl., ¶¶ 70-78.) Plaintiff first began showing signs of post-operative infection on March 4, 2021, where both Plaintiff and Dr. Min noted swelling in the right breast. Dr. Min mistook this as swelling from overuse of the right arm, but this was likely the first indication of a fluid collection which would be infected. (¶ 70.) Dr. Min fell below the standard of care by failing to scrutinize this symptom, especially since Plaintiff was to resume methotrexate in a week. (Id.) This symptom “warranted” an in-person examination including an ultrasound at this juncture. (Id.) Later, on March 24, 2021, Defendant dismissed an acute onset pain in the left breast as a rheumatoid arthritis flareup. (Id. ¶ 71.) At this juncture, Dr. Lebovic opined that further clinical investigation was warranted, including a laboratory assessment. (Id.)

Additionally, Plaintiff received a Kenalog injection which “further compounded” and “worsened” the situation due to the immunosuppressive effects of steroids. (Lebovic Decl., ¶ 72.) Dr. Min failed to conduct an examination or blood work prior to the injection, which would have alerted the clinical team to the brewing infection. (Id.) Dr. Lebovic states that “[d]etection and appropriate treatment of the infection at an earlier date, with clinical examination, ultrasound and laboratory assessment, may have helped to avert admission to the hospital and potentially even the need for emergent removal of the implant and AlloDerm material.” (Id., emphasis added.) Further, “[c]ontinual use of the same antibiotic combination of augmentin/Bactrim proved to be ineffective on the particular strain of bacteria ultimately cultured from the breast area. Had the fluid been sampled and cultured under ultrasound guidance weeks prior to implant removal, appropriate antibiotic therapy may have been instrumental in changing the course of this patient's treatment. As such, Dr. Min's breach of the standard of care was a direct cause of Ms. Nelson's injuries and damages. As a further breach of Dr. Min's standard of care, it is my opinion with medical certainty that she will need future surgeries. Furthermore, because of the breach of the standard of care, injuries and damages were caused to Ms. Nelson.” (Id., emphasis added.)

Dr. Lebovic also states that Dr. Min breached the standard of care during the April 5, 2021, in person visit when Dr. Min detected potential fluid collection around the right breast implant, but misinterpreted the collection as a capsule formation and only ordered an ultrasound on the left breast. (Id., ¶ 73.) “Because the left breast was imaged, and not the right breast, the patient experienced the cascade of events that followed from the delay in detecting the brewing infection, including the emergent event on May 5, 2021.” (Id.) Dr. Lebovic provides a conclusion that this “was a cause” of Plaintiff’s injuries, but not to any specific degree of certainty. (Id.)

Moreover, the prescription and administration of steroids on April 8, 2021, “further increased the risk of an infection” and “would have been avoided if the infection was detected and treated at an earlier date, such as on April 5, 2021.” (Id., ¶ 74.) According to Dr. Lebovic, failing to catch this infection in a timely manner fell below the standard of care. (Id.) Plaintiff’s report on April 27, 2021, of an oozing wound should have raised even further clinical concern. Lebovic explains that although scabbing and slow healing in this area is common, because of the presence of “other clinical signs of a potential fluid collection, greater scrutiny was warranted.” (Id., ¶ 75.) Lebovic concludes that this failure to scrutinize Plaintiff’s report of oozing, compounded by the patient's immunosuppressive state, “resulted in the unfortunate cascade of clinical events” Plaintiff went through. (Id.) Dr. Lebovic concludes that the "delay in clinical evaluation by omission of the right breast ultrasound as well as omission of timely and clinical laboratory assessment when Ms. Nelson presented with clinical signs suspicious for infection, led to a delay in appropriate treatment of the post procedure infection.” (¶ 78.)

Based on the above language, Dr. Lebovic does not conclude to a medical degree of certainty that Plaintiff’s infection, hospitalization and breast removal would have been avoided if Dr. Min detected the infection earlier, either by preventing the use of immunosuppressants or causing the infection to be treated earlier. At best, Dr. Lebovic suggests that the various breaches were a “direct cause” to her injuries and that different actions “may” have been helpful, but does not aver this to a reasonable degree of medical probability. The only conclusion that Dr. Lebovic makes to that degree is that she is certain that Plaintiff “will need” future, unspecified surgeries. Of course, the certainty of future surgeries would not show causation between Dr. Min’s delay in detecting the infection and any of Plaintiff’s injuries. Therefore, Plaintiff fails to meet their burden to defeat the motion.

Accordingly, Defendant’s motion for summary judgment is GRANTED.