Judge: Matthew C. Braner, Case: 37-2022-00038025-CU-MM-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023  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) 37-2022-00038025-CU-MM-CTL CLICHE VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant The Regents of the University of California's motion for summary judgment, or in the alternative summary adjudication, is DENIED.

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. Scott Cunneen to support its motion. Dr.

Cunneen is a medical doctor with 30 years of experience and is currently the Director of Bariatric Surgery at the Center for Minimally Invasive Surgery at Cedars-Sinai Medical Center. For purposes of summary judgment, Dr. Cunneen appears qualified to offer expert testimony in relation to Plaintiff's claims. As a qualified expert, Dr. Cunneen opines that, to a reasonable degree of medical probability, Defendant complied with the standard of care at all times in its care of Decedent Steven Cliche. Dr.

Cunneen opines that Decedent was a good candidate for bariatric surgery because the benefits outweighed the elevated risks, that Defendant's pre-operative clearance for surgery was reasonable and appropriate, that the surgery was performed appropriately, and that it was appropriate to discharge Decedent the day after surgery.

In opposition, Plaintiff Joleen Cliche presents the expert declaration of Dr. Jonathan Slone. Dr. Slone is an experienced general surgeon with specialized training and experience in gastrointestinal surgery, colorectal surgery, and bariatrics. Dr. Slone appears qualified to offer expert testimony in relation to Plaintiff's claims, and opines that, to a reasonable degree of medical probability, Defendant provided care that fell below the standard of care. More specifically, Dr. Slone opines that Decedent should not have been discharged less than 24 hours after surgery because he was at a very high risk of developing a venous thromboembolism ('VTE'), given his risk factors and that he had developed one prior to the July 6, 2021 sleeve gastrectomy surgery. Dr. Slone opines that Decedent's difficulty breathing in the hours after his discharge was inconsistent with a opioid overdose, which presents with somnolence followed by respiratory collapse. Instead, Decedent's symptoms just before he became unresponsive on the way to the hospital, particularly his lucidity and repeated complaints about difficulty breathing, are consistent with an acute respiratory event related to a life-threatening pulmonary embolus. Dr. Slone concludes that Decedent should have been held for at least one additional day for post-op observation, Calendar No.: Event ID:  TENTATIVE RULINGS

2965394  12 CASE NUMBER: CASE TITLE:  CLICHE VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA  37-2022-00038025-CU-MM-CTL and should have been started on anticoagulants post-operatively.

The court concludes these competing expert declarations are sufficient to raise a triable issue of material fact on Plaintiff's cause of action for medical malpractice as to compliance with the standard of care.

Defendant takes issue with Dr. Slone's failure to use the correct buzz words in his declaration (i.e., 'to a reasonable degree of medical probability' and 'below the standard of care'). However, on a motion for summary judgment the court must give all reasonable inferences to the evidence presented by the opposing party and must view it in the light most favorable to the opposing party. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.) Taken as a whole, the reasonable and most favorable inference to be drawn from Dr. Slone's statements about what 'should' have happened is an opinion that what did happen fell below the standard of care, and that given the short window of time from his discharge to his death, that his overly aggressive discharge and the failure to give him anticoagulants was a substantial factor in causing his death. Plaintiff has also adequately plead a survivor claim for professional negligence as the successor to her husband's estate.

Accordingly, Defendant's motion is denied.

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