Judge: Matthew C. Braner, Case: 37-2022-00004061-CU-MM-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Medical Malpractice Summary Judgment / Summary Adjudication (Civil) 37-2022-00004061-CU-MM-CTL ALBANO VS LIFE CARE CENTER OF VISTA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Hanger Prosthetics & Orthotics West, Inc.'s motion for summary judgment is DENIED without prejudice.

Defendant's evidentiary objections to the declaration of Mirwais Saifi, M.D. are overruled.

Summary judgment is appropriate when all the papers submitted by the parties show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code of Civ.

Proc., § 437c, subd. (c).) A defendant who moves for summary judgment has the initial burden of showing each alleged cause of action is without merit. (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant can meet that burden by showing one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ.

Proc., § 437c, subd. (p)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to produce evidence to make a prima facie showing of the existence of a triable issue of material fact as to the cause of action or affirmative defense. (Code of Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-851.) Defendant Failed to Meet Its Burden of Production to Show It Is Not a Health Care Provider Here, Defendant's first and most persuasive argument is that it is not a 'health care provider' within the meaning of Code of Civil Procedure section 340.5, subdivision (a), and therefore cannot be liable for 'professional negligence' against a health care provider, which is the only cause of action asserted in Plaintiff Gabriel Albano's complaint against this defendant. However, whether Defendant is or is not a health care provider is a factual issue, and Defendant has failed to present any evidence that it is not a health care provider and failed to even state that fact in its separate statement. This deficiency necessarily means it has failed to meet its burden of production on this point (that it is not a health care provider), and therefore the burden did not shift to Plaintiff to present evidence Defendant is a health care provider.

Consequently, Plaintiff's allegation that Defendant is a health care provider (Complaint, ¶ 9) remains unchallenged, and the court has no choice but to treat it as a health care provider in ruling on its motion.

Defendant Failed to Meet Its Burden of Production on the Standard of Care Plaintiff's sole cause of action against Defendant is for professional negligence against health care providers. Plaintiff alleges that each defendant, including Defendant Hanger, negligently examined, Calendar No.: Event ID:  TENTATIVE RULINGS

3012139  6 CASE NUMBER: CASE TITLE:  ALBANO VS LIFE CARE CENTER OF VISTA [IMAGED]  37-2022-00004061-CU-MM-CTL diagnosed, and treated him, which caused him to develop bilateral pressure sores and infections underneath orthoses provided by Defendant Hanger, resulting in a below-knee amputation of his left leg on May 5, 2021. (Complaint, ¶¶ 14-15, 19.) In cases such as this, 'expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen.' (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523; see also 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.' (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) Here, Defendant presents the expert declaration of Eric Ouellette, Ph.D. to support its motion. Dr.

Ouellette has a doctorate in bioengineering and possesses expertise in medical devices, including extensive knowledge and experience with knee-ankle-foot orthotics (KAFO's). Dr. Ouellette opines that, 'from a biomedical engineering perspective,' the KAFOs provided to Plaintiff were consist with the standards in the industry, and to a reasonable degree of scientific probability, did not cause or contribute to Plaintiff's injury. Upon his examination of the KAFO's that purportedly caused Plaintiff's injury, Dr.

Ouellette also concluded there is no evidence the KAFO's was defectively manufactured.

It is apparent that Defendant framed its motion based on the assumption that it is not a health care provider, as Dr. Ouellette's opinions are directed primarily towards an assessment of whether the KAFO's at issue was defectively designed. But Plaintiff has not alleged a products liability claim nor even a general negligence claim; the sole claim is for professional negligence against health care providers.

Dr. Ouellette is not a qualified medical expert in terms of the standard of care for health care professionals, and even if he was, his declaration fails to establish a standard of care for Defendant, as a health care provider (which the court must treat it as for purposes of this motion), and fails to offer an expert opinion on whether that standard was met.

Accordingly, Defendant has failed to meet its burden of production and its motion is denied.

However, the denial of Defendant's motion is without prejudice. It appears to the court that Defendant can easily provide the kind of evidence that would meet its burden of production on the issue of whether it is a health care provider, and still has time before the April trial date to file and serve a summary judgment motion that complies with the statutory notice requirements. The court cannot, however, simply allow Defendant to submit such evidence in connection with the instant motion, as it would violate Plaintiff's due process right to the statutory notice period for summary judgment motions.

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