Judge: Matthew C. Braner, Case: 37-2022-00022770-CU-MM-CTL, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 04, 2024

04/05/2024  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) 37-2022-00022770-CU-MM-CTL MINKLER VS PALOMAR HEALTH [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Palomar Health's unopposed motion for summary judgment is GRANTED.

In professional malpractice 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 Dr. Christopher Lee to support its motion. Dr. Lee is a medical doctor with over 20 years of experience and practices interventional radiology in Walnut Creek, California. For purposes of summary judgment, Dr. Lee appears qualified to offer expert testimony in relation to Plaintiff's claims against this defendant. Dr. Lee opines, to a reasonable degree of medical probability, Defendant's nursing and non-physician staff are not responsible for any foreign object left in Plaintiff's body during the 2008 gastrojejunostomy tube placement procedure, because: 1) the foreign object removed from Plaintiff in 2021 may have been a tack that failed to enter the stomach and exit the body through bowel movements, or otherwise exit the body through no fault of anyone involved in the procedure; 2) in feeding tube procedures, hospital staff have a role ancillary to the physician placing the tube, and therefore are not responsible for ensuring no foreign body is left behind; and 3) it is highly unlikely the removed metallic foreign object would not be seen on an x-ray, and neither Dr. Federhart nor Dr. Goelitz noted the presence of such an object on May 9 and 12, 2008, when they viewed x-rays of Plaintiff's abdomen. Thus, Dr. Lee's expert opinion is sufficient for Defendant to meet its moving burden on summary judgment.

The court will generally grant a defendant's motion for summary judgment in a medical malpractice case when the defendant's expert renders an unopposed expert opinion. (Jambazian v. Borden (1994) 25 Cal.App.4th 836; see also, Willard v. Hagemeister (1981) 121 Cal. App. 3d 406, 409.) Here, Defendant's expert's opinion is unopposed; indeed, Plaintiff intentionally did not oppose Defendant's motion at all.

(ROA #172, Plaintiff's Notice of Non-Opposition.) Accordingly, Defendant Palomar Health's unopposed motion for summary judgment is granted.

Defendant to provide a proposed judgment.

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