Judge: Mark A. Young, Case: 23SMCV00751, Date: 2024-09-05 Tentative Ruling
Case Number: 23SMCV00751 Hearing Date: September 5, 2024 Dept: M
CASE NAME: Manning v.
Rodeo Drive Plastic Surgery, et al.
CASE NO.: 23SMCV00751
MOTION: Motion
for Summary Judgment
HEARING DATE: 9/5/2024
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 ISSUES
Plaintiff’s evidentiary objections are OVERRULED.
Plaintiff’s request for judicial notice is DENIED as to
exhibits C-E. The parties’ correspondence, discovery in this action, and
Plaintiff’s medical records are reasonably subject to dispute and are not capable
of immediate and accurate determination by resort to sources of reasonably
indisputable accuracy. The Court notes that counsel provides an independent
foundation for the documents. (Sulahian Decl., ¶¶ 1, 4-6.) Further, the medical
records are already before the Court as a defense exhibit, including
Plaintiff’s medical records from Huntington Memorial Hospital. (See Shugart
v. Regents of University of California (2011) 199 Cal.App.4th 499, 506.)
Defendants object to the declaration of Plaintiff’s
expert, Dr. Kristin Karlyn, M.D. Defendants contend that Dr. Karlyn is not qualified
to provide an expert opinion on the post-operative care and infection at issue
here because she has no special knowledge, skill, experience, training or
experience as a plastic surgeon. Defendants note that Dr. Karlyn is an
internist. Defendants fail to explain why an internist would lack the
qualifications or experience necessary to testify to the standard of care
pertinent to Plaintiff’s alleged injuries. Generally, an expert would not need
specialized skill, knowledge or experience in “plastic surgery” because of the
nature of the injuries at issue here. Plaintiff alleges Defendants’ negligence
in post-operative recovery care which resulted in infections and other
damages. As an internist, Dr. Karlyn is qualified to opine on the standard of
care applicable in the post-operative recovery context. Defendants point to no
part of the record which would require the Court to conclude that an infection
would require specialized knowledge of plastic surgery to diagnose and treat
Plaintiff. Dr. Karlyn provides her education, training and experience
background, showing her extensive practical experience in internal medicine
since 1996. Dr. Karlyn has sufficient knowledge, skill, experience and training
to diagnose an infection, without specialization in plastic surgery. Therefore,
Defendants’ objections to Dr. Karlyn’s declaration are OVERRULED.
Defendants’ objection to paragraph 7 of the Manning
Declaration is SUSTAINED on relevance and speculation grounds as to “This made
me wonder if he had lost his opiate license and was just getting back on his feet,
if not starting over completely.” All remaining objections are OVERRULED,
including those to the Sulahian declaration.
Analysis
Defendants Rodeo Drive Plastic
Surgery and Lloyd Krieger MD move for summary judgment, or in the alternative,
summary adjudication on Plaintiff Katherine Manning’s First Amended Complaint
(FAC) for medical malpractice.
In a medical malpractice action,
the elements 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 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 negligence
(citations omitted).” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604,
612.) As the practice of medicine is not within the common knowledge of lay
persons, expert opinion testimony is necessary to establish the standard of
care. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) “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.) 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.)
Defendants present evidence that on
November 15, 2021, 71-ycar-old Plaintiff was seen for an initial consultation
to replace her 25-ycar-old implants. (UMF 1.) Plaintiff’s implants were
capsulated, which caused her worsening, ongoing pain. During this initial
consultation, Plaintiff was also interested in receiving injections to her
lips. (UMF 2.) On December 9, 2021, Plaintiff underwent an implant exchange
with capsulectomy with Dr. Krieger. (UMF 3.) During that same procedure, Dr.
Krieger also injected Restylane into Plaintiff’s lip. (UMF 4.) Following her
surgery, Plaintiff was seen in the office on December 13, 2021, where she had
no complaints and there were no signs of fluid collections or other problems.
(UMF 5.)
On December 16, 2021, Plaintiff was
supposed to be seen in the office, however she elected to be seen by video
conference. (UMF 6.) Again, Plaintiff had no complaints and Dr. Krieger noted
that the implants were in good position and incisions were intact. (UMF 7.) On January 12, 2022, Plaintiff cancelled her office
visit, and again chose to be seen by video conference. (UMF 8.) It was during
this appointment that Plaintiff started complaining of bilateral breast
firmness. (UMF 9.) Dr. Krieger requested Plaintiff to come into the office for
an in person visit to address her complaints, however Plaintiff was having
scheduling issues, and could not be seen in the office until a week later. (UMF
10.)
On January 19, 2022, Dr. Krieger
examined Plaintiff and found formation of capsular
contracture in both breasts. (UMF 11.) Dr. Krieger showed
Plaintiff how to do breast massages and also sent her a video demonstrating
this. (UMF 12.) Dr. Krieger prescribed Singulair, advised Plaintiff to continue
wearing a sports bra and to use lateral towels to maintain implant position,
and to follow-up in one week. (UMF 13.) On February 2, 2022, Plaintiff
cancelled her appointment stating that her breasts were getting softer. (UMF
14.) Eight weeks post-surgery, on February 5, 2022, Plaintiff telephonically contacted
Dr. Krieger's office reporting her breast was more painful than it had been
previously, and she had flu-like symptoms. (UMF 15.) Dr. Krieger advised
Plaintiff to stop wearing the tight dressing and to stop doing all massages.
(UMF 16.) Dr. Krieger felt safe to observe this for now, via video, but advised
Plaintiff that if her condition worsened, she should go to the emergency room
of a hospital. (UMF 17.) Two days later, on February 7, 2022, Dr. Krieger
evaluated Plaintiff by video conference where she reported complete resolution
of her symptoms. (UMF 18.)
On February 13, 2022, Plaintiff
informed Dr. Krieger that her Primary Care Physician, Kristin Karlyn, diagnosed
her with MRSA, thus Dr. Krieger advised her to go to the emergency room. (UMF 19.)
On February 15, 2022, Plaintiff presented to Huntington Memorial Hospital
Emergency Room with an elevated WBC and she was admitted to Huntington Memorial
Hospital. (UMF 20.) Plaintiff underwent a right breast ultrasound, which
revealed two small fluid collections, consistent with abscesses. (UMF 21.) The
following day, on February 16, 2022, Plaintiff underwent a Chest CT Scan with
contrast. (UMF 22.) Based on the limited CT evaluation, there was suspected
evidence of bilateral breast implant intracapsular ruptures. (UMF 23.)
Plaintiff was ultimately diagnosed with bilateral breast infected implant as
well as lip necrotic tissue. (UMF 24.) On February 17, 2022, Plaintiff
underwent surgery to remove her bilateral implants, which were intact and not
ruptured, as well as excisional debridement of her lip, skin, and subcutaneous
tissue. (UMF 25.) On February 21, 2022, Plaintiff underwent a second surgery to
her lip and bilateral breast for incision, drainage, and complex closure to
both. (UMF 26.) On February 23, 2023, Plaintiff was discharged home with IV antibiotics,
pain medication, and was to follow-up with Premiere Plastic Surgery in one
week. (UMF 27.)
On January 11. 2024, Plaintiff
underwent an Independent Medical Examination (IME) with Dr. Dubrow. (UMF 28.) A
physical examination revealed that the left upper lip had a 4-mm hypopigmented
scar in the wet mucosa with some mild induration. (UMF 29.) Dr. Dubrow described
her left upper lip as symmetrical and normal appearing. (UMF 30.) Dr. Dubrow
noted a small scar on the inside of the lip, which is not a candidate for
surgical revision. (UMF 31.) Thus, Dr. Dubrow recommended no treatment for this
area. (UMF 32.) Dr. Dubrow noted a showing of bilateral deflation with grade 3
ptosis. (UMF 33.) Dr. Dubrow stated that Plaintiff was a clear candidate for
breast augmentation and mastopexy. (UMF 34.)
In support of their motion, Defendants
present the declaration of their expert, Dr. Dubrow. Dr. Dubrow explains that
Dr. Krieger acted within the standard of care in properly advising Plaintiff of
the risks, benefits, and alternatives to the bilateral implant exchange surgery
and Restylane lip injection, as well as the heightened risks associated with
surgery and injection. (UMF 35.) Plaintiff was advised that infections, the
need for re-operation, recurrent capsulation possibility with pain, and pain
and pain syndromes are a known and inherent complication of undergoing an
implant exchange with capsulectomy. (UMF 36.) Plaintiff was specifically
advised that bleeding, infections, scarring, and need for re-operation are
known and inherent complications of receiving lip injections. (UMF 37.)
Plaintiff was provided with two informed consent forms prior to undergoing the
bilateral implant exchange surgery and Restylane lip injection, which she
signed on November 15, 2021. (UMF 38.) Dr. Krieger appropriately discussed the
risks, benefits, and alternatives of both the implant exchange surgery and injection
to the lips. (UMF 39.) Dr. Krieger's surgical technique, choice of procedure,
and performance of the procedure were appropriate and within the applicable
standard of care. (UMF 40.) Dr. Krieger acted within the standard of care in
his post-surgery treatment of Plaintiff. (UMF 41.) Dr. Krieger only saw Plaintiff
in the office twice, on December 13, 2021, and January 19, 2022, following her
procedures, where the rest of her visits were either cancelled or done through
video calls. (UMF 42.) Dr. Krieger
stressed the importance of in-person examination in his follow-up care and
readily made himself available to see Plaintiff. (UMF 43.)
Dr. Dubrow concluded that to a
reasonable degree of medical probability, Plaintiff's infected bilateral breast
implants, as well as lip necrotic tissue do not appear to have been related to
the alleged improper treatment by Defendants. (UMF 44.) Thus, Dr. Krieger along
with Dr. Krieger's staff and employees of Rodeo Drive Plastic Surgery, acted at
all times within the standard of care during their involvement in the care and
treatment of Plaintiff. (UMF 45.)
The above evidence, if credited, shows
that Dr. Krieger did not breach the standard of care in his explanation of the
risks of surgery, performance of the surgery, and post-operative care.
Defendants thereby meet their burden demonstrating that Dr. Krieger did not
breach the pertinent professional duty as alleged in the FAC. “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.)¿Plaintiff therefore has the burden of providing a
conflicting expert declaration to show Dr. Krieger’s conduct breached the
standard of care.
Plaintiff proffers the declaration
Dr. Karlyn, her personal
physician and a percipient witness. (Karlyn Decl., ¶2-3.) Dr. Karlyn declares
that Dr. Krieger fell below the standard of care in diagnosing and treating Plaintiff’s
infection post-surgery. (UMF 41; Karlyn Decl., ¶¶ 8-9.) Dr. Krieger fell below the
standard of care when Plaintiff informed him multiple times that she was experiencing
abnormal levels of pain, and he did not investigate the possible causation of
the pain or try to rule out an infection. (¶ 8b-8h.) Despite almost a dozen
opportunities to diagnose the infection, Dr. Krieger failed to do so, causing
Plaintiff a life-threatening infection which required hospitalization and multiple
surgeries. (¶ 8i.) Dr. Karlyn concludes that, to a reasonable degree of medical
probability: 1) Plaintiff’s infection of her bilateral implants and lip
necrotic tissue was the direct result of Dr. Krieger’s failure to investigate,
diagnose, and treat Plaintiffs condition (¶ 9); and 2) Dr. Krieger acted below
the standard of care in his post-surgery treatment of Plaintiff’s infection of
her bilateral implants and lip necrotic tissue (¶ 10). Dr. Krieger’s staff and
employees of Rodeo also acted below the standard of care during their
post-surgery care and treatment of Plaintiff. (¶ 11.)
Plaintiff’s conflicting evidence of
her reports of pain to Dr. Krieger also disputes many of the material facts
underlying Defendant’s expert’s declaration, including UMFs 5, and 7-18. Defendants
contend that Plaintiff made no complaints of pain to Dr. Krieger until eight
weeks post-surgery – February 5, 2022. (UMF 5-15.) To the contrary, Plaintiff
indicated to Dr. Krieger her breasts were very painful, which would be a common
symptom of an infection. (Manning Decl., ¶¶ 13, 15, 19, 22.) For instance, UMF
18 claims that Plaintiff reported a “complete resolution of her symptoms,” but
Plaintiff declares that she did not see Dr. Krieger on February 7, 2022, due to
her high fevers. (Id., ¶24.) Dr. Dubrow rendered his opinion on Dr. Krieger’s
breach of the standard of care based on Dr. Krieger’s notes, which apparently
did not include Plaintiff’s complaints of pain. As shown by Dr. Karlyn’s
declaration, Dr. Krieger ignoring Plaintiff’s reports of pain would tend to
show that Defendants breached the standard of care. (Karlyn Decl., ¶¶ 5, 8.) For these reasons, there is a dispute of
material facts mandating a denial of Defendants’ motion.
Accordingly, the motion for summary
judgment is DENIED.