Judge: Mark A. Young, Case: 23SMCV00947, Date: 2025-06-11 Tentative Ruling
Case Number: 23SMCV00947 Hearing Date: June 11, 2025 Dept: M
CASE NAME: Vickers v. Wallen,
et al.
CASE NO.: 23SMCV00947
MOTION: Motion
for Summary Judgment
HEARING DATE: 6/11/2025
Defendants Mark S. Wallen, D.P.M., and Santa Monica
Podiatry Group, Inc., move for summary judgment or adjudication of Plaintiff
Rose Vickers’s sole cause of action for medical negligence.
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/PROCEDURAL
ISSUES
On June 5, 2025, the Court continued the hearing on this
motion for Plaintiff to address several evidentiary and procedural issues. As to the declaration of Dr. Peter Bregman,
Plaintiff filed a revised declaration compliant with Code of Civil Procedure
section 2015.5, and therefore, Defendant’s objection no. 1 is overruled. The remaining objections to the Bregman Declaration
are also OVERRULED.
The objections to Dr. Lara Edinger’s deposition testimony
are OVERRULED (nos. 12-22). There is sufficient foundation on the record to
conclude that Dr. Edinger, a neurologist, is able to form competent expert
opinions as to the posterior tibial nerve block, including whether the standard
of care was breached by injecting into the nerve or by not using an ultrasound.
Dr. Edinger testified that, although she has not performed a posterior tibial
nerve block, she performs other nerve blocks. (Edinger Depo. at 158-160.) She
personally performed a physical examination of Plaintiff and found an injury to
the nerve. (Id. at 160-168.) In light of the circumstances, such as Plaintiff’s
report of pain during the procedure, Dr. Edinger concluded that Dr. Wallen must
have injected the nerve. (Ibid.) Thus, her conclusion as to the cause of the
injury is not speculative. She is also familiar with the standard of care for
use of ultrasounds. (Id., at 172.)
Finally, Plaintiff filed a signed
opposition, which is compliant with California Code of Civil Procedure section
128.7.
Analysis
Defendants present three issues: 1)
the undisputed material facts (UMFs) establish that Dr. Wallen complied with
the standard of care during his treatment of Plaintiff, 2) the UMFs establish
that Dr. Wallen did not cause or contribute to the alleged injury; and 3) the
UMFs do not establish the elements of Vicarious Liability as to SMPG.
Issue 1-2: Medical Malpractice
A prima facie case for medical
malpractice consists of (1) a duty to conform to the relevant standard of care;
(2) a breach of that duty, i.e., the negligent conduct; (3) a proximate causal
connection between the negligent conduct and the injury; and (4) resulting
damage. (Lattimore v. Dickey¿(2015) 239 Cal.App.4th 959, 968.)¿Duty is
measured by the standard of care in the medical community.¿(Munro v. Regents
of the University of California¿(1989) 215 Cal.App.3d 977.) A¿healthcare
provider is negligent if he or she fails to use the level of skill, knowledge,
and care in diagnosis and treatment that other reasonably careful healthcare
providers of the same type would use in the same or similar circumstances. (Landeros¿v.
Flood¿(1976) 17 Cal.3d 399, 408.)
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.) “The law is well settled that in a personal injury
action causation must be proven within a reasonable medical probability based
upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp.
(1985) 163 Cal.App.3d 396, 402.) “Mere possibility alone is insufficient to
establish a prima facie case.” (Id.) “There can be many possible
‘causes,’ indeed, an infinite number of circumstances which can produce an
injury or disease.” (Id. at 403.) “A possible cause only becomes
‘probable’ when, in the absence of other reasonable causal explanations, it
becomes more likely than not that the injury was a result of its action.” (Id.)
A defendant moving for summary
judgment in a medical malpractice action must “present evidence that would
preclude a reasonable trier of fact from finding it was more likely than not
that their treatment fell below the standard of care.”¿(Johnson v. Superior
Court (2006) 143 Cal.App.4th 297, 305.) “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.)¿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.)¿
The FAC alleges on March 2, 2022,
Plaintiff presented to Defendants with toe discoloration on her left foot. (FAC
¶ 13.) Defendants noted no signs or symptoms of worsening frostbite, skin loss,
or vascular changes, and diagnosed Plaintiff with superficial frostbite of the
left foot and pain in left foot. (Id.) Dr. Wallen negligently recommended a
left posterior tibial nerve block on the left foot “to increase blood flow to
foot and reduce pain in foot” and refused
to use ultrasound guidance for the nerve block in blatant
disregard of patient safety. (Id.)
During the nerve block procedure,
Dr. Wallen negligently caused nerve damage to Plaintiff. (FAC ¶13.) Plaintiff
experienced a jolt of extreme pain during the procedure and loudly demanded Dr.
Wallen “take [the needle] out”. (Id.) Despite this request, Dr. Wallen
continued with the nerve block procedure causing Plaintiff further extreme pain
during the procedure and long-term injury following the procedure. (Id.) Dr.
Wallen again failed to provide proper care after the procedure when he
dismissed Plaintiff’s report two days later that she still did not have feeling
in her toes and foot. (Id.) As a result of this negligence, Plaintiff was
injured. (FAC ¶¶13-16.)
Defendants agree that Dr. Wallen
performed a Posterior Tibial “PT” Nerve block to her left ankle “to increase blood
flow to foot and reduce pain in foot.” (UMF 3; Ex. I [WAL(1)004].) Dr. Wallen also
discussed referring Plaintiff to a pain management specialist and/or vascular
specialist if she did not progress. (UMF 4.)
Defendants submit the expert
declaration of Derick Ball, D.P.M., who opines that the care and treatment
provided by Dr. Wallen to Plaintiff at all times complied with the standard of
care. (UMF 5.) In particular, Dr. Ball opines that Dr. Wallen appropriately
diagnosed Plaintiff, determined that a PT Nerve block was appropriate
treatment, obtained Plaintiff’s informed, verbal consent for the procedure, and
that the nerve block was “partially successful” as Plaintiff reported that the
injection “helped some.” (Ball Decl., ¶ 9.A-E.) Dr. Ball provides that it is acceptable
and standard practice to perform this block with or without an ultrasound. (Id.,
¶ 9.A.3.) Particularly relevant, Dr. Ball opines that it is unlikely that Vickers
suffered “permanent” nerve injury or Complex Regional Pain Syndrome (CPRS) from
Dr. Wallen’s acts/omissions. (Id., ¶ 9.F.) He opines that Plaintiff’s symptoms
are due to ongoing chronic pain with her foot that she experienced before
seeing Dr. Wallen, and also due to long-term complications from her thermal
injury. (Ibid.) Dr. Ball therefore concludes that Defendants’ care and
treatment provided to Plaintiff, including the March 2nd PT nerve block,
complied with the standard of care. (Id., ¶9.)
The Ball declaration demonstrates
that Defendants’ PT nerve block did not fall below the standard of care when
Dr. Wallen failed to use an ultrasound. According to the declaration, Defendants’
PT nerve block also did not cause the alleged nerve damage because it is
attributable to her pre-existing chronic foot pain and thermal injury. Therefore,
the declaration meets Defendants’ burden of production on summary judgment as
to the standard of care and causation.
Plaintiff
presents statements from two experts which contradict Defendants’ evidence on the
applicable standard of care and medical causation. Both doctors conclude that the
lack of use of an ultrasound when requested resulted in the direct injury of
the tibial nerve and the subsequent CPRS. (Bregman Decl., ¶¶ 17-18, 23, 25;
Edinger Depo., at 172-175.) Considered
together, the Court concludes that there is a dispute of material fact as to
whether the standard of care would require Defendants to use an ultrasound when
requested by a patient, and whether Defendants’ failure to use the ultrasound
caused or contributed to Plaintiff’s injuries.
The declarations demonstrate that Defendants
caused the alleged nerve damage by directly injecting into the nerve. (Bregman
Decl., ¶¶ 12-13, 19, 24-25; Edinger Depo., at 158-169.) An evidentiary foundation
exists in the record for Dr. Bregman and Dr. Edinger’s conclusions that Dr.
Wallen injected directly into the tibial nerve. It is undisputed that Plaintiff
experienced a “jolt” of pain during the procedure. Plaintiff expressly alleges
this jolt of pain during the injection, and Defendants never presented evidence
to the contrary. The jolt of extreme pain is not consistent with the Paresthesia
(numbing, tingling, “pin and needles” pain) described by Dr. Ball. (Ball Decl.,
¶ 9.) Both of Plaintiff’s doctors also opine that Plaintiff’s cold injury alone
was insufficient to cause CRPS. (Bregman Decl., ¶ 24; Edinger Depo. at 192,
240.) The record also shows that her pain increased following the injection
to a “worst,” “10/10,” and “sharp, throbbing and stabbing” pain. (Bregman
Decl., ¶ 12; Ball Decl., at 7:12-21.) Dr. Edinger personally performed a physical exam on plaintiff and found
injury to the nerve. (Edinger Depo. at 160-168.) From these circumstances,
Plaintiff’s experts are certain to a reasonable degree of medical probability that
Dr. Wallen must have hit Plaintiff’s nerve and continued to inject into her
nerve despite her protests. (Bregman Decl., ¶25; Edinger Depo at 158.) The expert
doctors unequivocally conclude that this would be below the standard of care. The
doctors’ conclusions that Defendants’ direct injection fell below the standard
of care and contributed to Plaintiff’s nerve injury are therefore supported.
Accordingly, the motion is DENIED
as to issue nos. 1-2.
Issue 3 - Vicarious Liability
SMPG also argues that it is
entitled to summary judgment because Plaintiff has no evidence supporting the
elements of vicarious liability. Generally, an employer may be held vicariously
liable for torts committed by an employee within the scope of employment. (Maria
D. v. Westech Residential Security, Inc. (2000) 85 Cal.App.4th 125, 134.) Dr.
Wallen is the alleged agent, servant, representative, partner, or employee of
SMPG. (FAC ¶ 7.)
SMPG
presents no affirmative evidence that Dr. Wallen is not an agent, servant,
representative, partner, or employee of SMPG as alleged. Instead, SMPG attempts
to shift the burden by presenting factually devoid discovery responses. A defendant
may meet its initial burden on summary judgment by introducing the plaintiff’s factually-devoid
discovery responses. (See Union Bank v. Superior Court (1995) 31 Cal.App.4th
573, 590 [factually-devoid responses to discovery requests may show that one or
more elements of their claim “cannot be established”].) The discovery responses
must fail to set forth facts and identify evidence supporting plaintiff’s
allegations such that the court can reasonably infer that plaintiff is unable
to produce any additional evidence. (Andrews v. Foster Wheeler LLC
(2006) 138 Cal.App.4th 96, 102-103.) A plaintiff must have been afforded
adequate opportunity for discovery or have declared no further information
following extensive discovery. (Union Bank, supra, 31 Cal.App.4th at
590; Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-1442.) A
party does not satisfy its burden of proof by producing discovery responses
that do not exclude the possibility that plaintiff may possess or may
reasonably obtain evidence sufficient to establish the claim. (Id.)
SMPG presents Plaintiff’s responses
to SROG nos. 1, 3, 4, and 6. (UMF 7.) These questions generally pertain to
SMPG’s liability. Plaintiff provided substantive, responsive information. No. 1
and 3 asking for all facts supporting SMPG’s liability. Plaintiff provides detailed
facts concerning Dr. Wallen’s negligent acts on behalf of SMPG. SROG No. 4 asks
for all documents in support of SMPG’s liability, and Plaintiff appropriately
cites such documents, including her medical records. No. 6 asks for
identification of individuals who have knowledge of SMPG’s negligent care and
treatment. Plaintiff identifies several individuals with the requested contact
information. The substantive responses do not suggest that Plaintiff lacks
evidence of SMPG’s liability. The responses do not suggest that Plaintiff
cannot reasonably obtain sufficient evidence to establish Dr. Wallen’s employment.
Thus, SMPG has not met its burden to produce factually devoid discovery
responses.
Accordingly, issue no. 3 is DENIED.
The motion for summary judgment is
DENIED.