Judge: Michael D. Washington, Case: 37-2023-00019465-CU-PO-NC, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 27, 2024

06/28/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2023-00019465-CU-PO-NC KEE JR. VS. KOLB [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 05/22/2024

The Motion for Summary Judgment brought by defendant Fredrick Kolb M.D. (Doctor Kolb) and The Regents of the University of California (collectively, Defendants) is DENIED without prejudice.

Evidentiary Objection(s) The Evidentiary Objection brought by Defendants is SUSTAINED.

Procedural Issues The Court notes for clarity that the hearing on this motion was initially reserved for a time that was code-compliant. However, due to scheduling difficulties, plaintiff Thomas Kee, Jr. (Plaintiff) made an ex parte request to have the hearing date moved. (See ROA 77.) As the Court declined to continue the trial date at the time of that request, and as Plaintiff was unavailable on the previously-reserved date, Plaintiff stipulated to the setting of a briefing schedule that was shorter than as provided by code. As such, the motion is properly noticed and properly before the Court in terms of timing and notice.

Merits of Motion 'The pleadings serve as the 'outer measure of materiality' in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings.' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2024) § 10:51.1, citing Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258, also citing Nieto v. Blue Shield of Calif. Life & Health Ins.

Co. (2010) 181 Cal.App.4th 60, 74, also citing Hutton v. Fidelity Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493, also citing Johnson v. Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 636.) The point was made previously by this Court that the claims of plaintiff Thomas Kee, Jr. (Plaintiff) are 'somewhat confusing and difficult to read...' (ROA 48, p. 2) and that 'Plaintiff's allegations are not a model of clarity...' (ROA 48, p. 3). A similar point is made in the declaration from Doctor Kolb's expert, which reads: 'While Plaintiff's operative Complaint is difficult to comprehend...' (Notice of Lodgment, Ex. C, ¶ 30.) This difficulty creates some notable challenge in resolving – and ruling on – the matter presently being brought before the Court. Said another way, if it is difficult to pin-down what is being claimed, it is derivatively difficult to layer-over or match-up the evidence being brought to contest those claims. Thus, in an effort to first clear-up the framing of what is being claimed, the Court will reiterate from its prior ruling on an earlier demurrer: This is a medical malpractice case. Plaintiff Thomas Kee (Plaintiff) is a cancer patient who has been undergoing radiation therapy. One of his doctors, Doctor Kolb, allegedly warned that radiation (i.e. Proton Therapy) would cause the tissues in his nose to become raw such that they might grow together if he did not use 'nostril trumpets.' According to the allegations, a custom trumpet had already been ordered for Calendar No.: Event ID:  TENTATIVE RULINGS

3120966 CASE NUMBER: CASE TITLE:  KEE JR. VS. KOLB [IMAGED]  37-2023-00019465-CU-PO-NC Plaintiff's right nostril, but after his surgery there was some risk to his left side nostril such that a left-side trumpet needed to be ordered.

Allegedly, there was some delay in the order for the left-side trumpet and Plaintiff had plans to travel to France. Plaintiff expressly alleges that Doctor Kolb: 'had a duty to make sure KEE was protected even if he [Doctor Kolb] was in France, and KEE believes he failed to uphold his duty...' Plaintiff further alleges: 'KEE believes... he did not supply the left side trumpet to protect KEE, and therefore that he had not been actively paying attention to his obligations, not making sure his patient was being taken care of, or making sure his instructions were followed, while he was in France, which is his professional duty.' ...

Though somewhat confusing and difficult to read, it appears that Plaintiff's claim comes down to the following assertion: 'Point of liability: ... if [Doctor Kolb] ordered a left side trumpet and it did not come in time he would have caused damage to [Plaintiff]...' (emphasis added) because a left side trumpet is what Plaintiff actually needed. Thus, if that is true, Plaintiff's position is that Doctor Kolb sought to avoid liability by confusing Plaintiff about ordering a left side trumpet that came late.

Instead, Plaintiff takes the position that Doctor Kolb lied and told Plaintiff that he never ordered a left-side trumpet in the first place. That allegation reads as follows: '[Doctor Kolb] said he had never ordered a new left side trumpet, but instead his order was for a second right side trumpet, and not a left side trumpet.' (Emphasis added.) According to Plaintiff, this would exculpate Doctor Kolb from liability: 'Point of liability: If [Doctor Kolb] indeed ordered a second right hand trumpet and it did not come in time there would be no liability, because the right side nostril was fine (there was already a right side trumpet and it was used to protect the right side)...' (Emphasis added.) As this Court previously opined: This legal theory is not entirely sound. It would seem to be a matter of medical negligence whether Doctor Kolb properly ordered trumpets for both sides and one simply did not come in time such that Plaintiff had to undergo surgery without, or whether Doctor Kolb mistakenly ordered two trumpets for the same side such that, again, Plaintiff had to undergo surgery without.

Plaintiff's claim seems to suggest that the act of ordering the left-side trumpet acts as a sort of admission that it was medically necessary such that the failure to have it by the time the procedure was administered amounts to damages caused by medical negligence. But, Plaintiff's allegations also seem to take the position that the failure to order a left-side trumpet might absolve Doctor Kolb of liability. That seems strange. On the contrary, it would seem that it was Doctor Kolb's responsibility to diagnose what was necessary for the procedure, such that if he failed to diagnose the need for a left-side trumpet he could be liable for the improper diagnosis, whereas if he did properly diagnosed it and failed to timely order it he could be liable for failing to take the necessary actions to ensure the success of the procedure.

As such, the Court is not entirely clear on what the purpose would be in the alleged fraudulent misrepresentation.

At any rate, from the allegations it appears that a left-side trumpet arrived later, but when it arrived Doctor Kolb allegedly represented that it was another right-side trumpet. Strangely, it seems from the allegations that Doctor Kolb encouraged Plaintiff to go ahead and use this new trumpet (which was actually fitted for Plaintiff's left-side and thus proper to use on his left side) but under the guise that it was an improper right-side trumpet that probably would not fit too well.

The bottom line of these allegations seems to be that Plaintiff had to 'do without' a left-side trumpet for some time and it caused him damages. Whether that damage was due to Doctor Kolb either improperly diagnosing the need for a left-side trumpet, or failing to timely follow-up on ordering the left-side trumpet such that it would be available in time for Plaintiff's procedure is not particularly determinative at this juncture – it is sufficient that Plaintiff suffered damages as a result of some failure of judgment (either Calendar No.: Event ID:  TENTATIVE RULINGS

3120966 CASE NUMBER: CASE TITLE:  KEE JR. VS. KOLB [IMAGED]  37-2023-00019465-CU-PO-NC medical or clerical follow-up to order the left-side trumpet).

(ROA 48, pp. 1-2.) Doctor Kolb is now moving for summary judgment, as is defendant The Regents of the University of California (collectively, Defendants). The primary claim against Defendants appears to be for 'medical malpractice/negligence,' though there is also some reference in the operative complaint to 'Over/improper billing.' (ROA 36, p. 3.) Defendants' evidence in support of their motion for summary judgment reads, in pertinent part, as follows: 30. While Plaintiff's operative Complaint is difficult to comprehend, it appears he is alleging that, as a result of not having a nasal trumpet for the left side following his surgical procedure in December 2020, he experienced difficulty breathing and required surgical intervention in December 2022.

31. The standard of care does not require a nasal trumpet for either nasal cavity following the type of procedure Dr. Kolb performed on December 30, 2020, even in situations where a patient is scheduled for future radiotherapy.

32. The placement of nasal trumpets is not common practice for Opthalmologists in the community following the procedures performed by Dr. Kolb. The same is true even if said patient is scheduled for future radiotherapy.

33. In this instance, Dr. Kolb requested a left nasal trumpet be made by outside provider Dr. Kristallis, as a potential preventative measure.

34. Text messages between Dr. Kolb and Dr. Kristallis indicate that Dr. Kristallis informed Dr. Kolb that Plaintiff's trumpet was available and he would contact Plaintiff for an appointment. This exchange occurred on February 11, 2021.

35. For reasons unknown, Dr. Kristallis did not provide Plaintiff with the left nasal trumpet.

36. Given the attestations by Dr. Kristallis, the standard of care did not require Dr. Kolb to ensure Plaintiff received the left side trumpet, as he had handed off fulfillment of that order to Dr. Kristallis and Dr.

Kristallis accepted it.

37. It appears that Plaintiff was aware of Dr. Kristallis' role in providing him the trumpet as Plaintiff emailed Nurse Practitioner Selby on February 5, 2023 stating that he was 'trying to resolve an issue with Dr. Kristallis about him not giving you guys the trumpet that Dr. Kolb prescribed for me until it was too late.' 38. In any case, as mentioned above, the standard of care does not require the ordering or placement of a nasal trumpet, for either nostril, following the reconstruction of the right orbital socket and maxillary sinus – whether or not the patient is scheduled for future radiation treatment.

39. In light of the above, it is my opinion, to a reasonable degree of medical probability, neither Dr. Kolb, nor any provider at The Regents, were negligent at any time in caring for and treating Plaintiff. At all times, the care received by Plaintiff was within the standard of care.

(Notice of Lodgment, Ex. C, ¶¶ 30-39.) From the Court's perspective, the challenge of melding the pleadings with the expert declaration here can be thought of along classic lines of the legal distinction between misfeasance and nonfeasance.

Simply put, misfeasance occurs when the defendant's affirmative actions create a risk of harm to the plaintiff; nonfeasance involves the failure to save the plaintiff from a peril that was not of the defendant's Calendar No.: Event ID:  TENTATIVE RULINGS

3120966 CASE NUMBER: CASE TITLE:  KEE JR. VS. KOLB [IMAGED]  37-2023-00019465-CU-PO-NC making. [Citation.] All persons are ordinarily obligated to exercise due care in their own actions so as not to create an unreasonable risk of injury to others. [Citation.] This standard applies to instances of misfeasance. Nonfeasance requires a special relationship obligating the defendant to act to protect the plaintiff. [Citation.] Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4th 985, 908 (citation omitted).

While that classical distinction does not directly apply to the instant case (since the instant case does not involve general duties of care, but, rather, those obligations that are unique between a doctor and a patient), it helps to highlight the mismatch between the claim being made by the plaintiff and the evidence submitted by Defendants to contest that claim. Specifically, the expert declaration appears to focus on the issue of whether the standard of care 'requires' a nasal trumpet 'following the type of procedure' Plaintiff had. (Notice of Lodgment, Ex. C, ¶ 30.) That issue falls more along nonfeasance lines – i.e. the failure to provide a nasal trumpet at all is not, according to the expert, a breach of the standard of care because nasal trumpets are not a normally-required part of the procedure.

To be fair, as referenced above, Plaintiff's claims are not so clear as to avoid confusion about the difference between the failure to provide a nasal trumpet at all and the providing of the wrong nasal trumpet. Moreover, there is a further distinction to be made between the more general or objective fact that nasal trumpets may not be typically required for the type of procedure that Plaintiff had and the more specific and subjective fact that a nasal trumpet was medically-warranted in Plaintiff's particular case.

Indeed, it would appear from the defendants' own expert testimony, and from Doctor Kolb himself, that a nasal trumpet was appropriate in Plaintiff's case: Plaintiff underwent surgical invention on December 9, 2022, to debride the left nostril as a result of synechiae (adhesion between both walls of the nostril). The same was performed by Dr. Kolb. Multiple crusts were removed, and a nasal trumpet was placed. The surgery was performed without complication. (Notice of Lodgment, Ex. C, ¶ 26 (emphasis added).) Thus, whether or not nasal trumpets were 'required' – or even typical – for the procedure Plaintiff had, it appears from the facts provided that a medical determination was made to provide them in Plaintiff's case. If this were a case in which Plaintiff was claiming that he requested a nasal trumpet and Doctor Kolb made the medical determination that a nasal trumpet was not medically necessary or appropriate – thus effectively denying access or hypothetically misdiagnosing – the expert testimony being provided would be more on-point. Plaintiff's claim, however, seems to be a bit different. Plaintiff is claiming that Doctor Kolb essentially diagnosed that a nasal trumpet was somewhere along the spectrum between medically necessary and medically appropriate because the facts indicate that Doctor Kolb actually ordered a nasal trumpet – though there is a lot of confusion in the facts about what Doctor Kolb ordered and when he ordered it given that the case is not just about ordering a nasal trumpet but about the distinctions between properly ordering a left-side-fitted or a right-side-fitted nasal trumpet.

Defendants' position, via the expert testimony they provide, seems to be that Doctor Kolb cannot be liable for failing to timely order the proper-fitted nasal trumpet since a nasal trumpet was never required in the first place. But, from a misfeasance/nonfeasance perspective, it appears that Doctor Kolb himself felt a nasal trumpet was necessary or appropriate (which is slightly vague because 'a' nasal trumpet does not really specify whether a left-side trumpet, a right-side trumpet, or both were necessary and/or appropriate), such that when he ordered it and/or when he placed it in Plaintiff's nostril, he was not free from professional liability for doing so in a manner that harmed his patient.

Ultimately, the expert declaration here does not prove-up facts that address the core issue, and, as a result, there is a bit of a 'square peg in a round hole' problem in resolving the instant Motion for Summary Judgment.

...Moving Party's Initial Burden: ..., the moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. [Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 850...] Calendar No.: Event ID:  TENTATIVE RULINGS

3120966 CASE NUMBER: CASE TITLE:  KEE JR. VS. KOLB [IMAGED]  37-2023-00019465-CU-PO-NC ...Not affected by opponent's failure to controvert: The opposing party's failure to file counter-declarations does not relieve the moving party of its burden: 'There 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 CA4th 454, 468... (emphasis in original; internal quotes omitted)] While it is true, a Defendants' argue, that in a medical malpractice case a complaining patient must have expert testimony to prove that the medical standard of care has been breached (absent application of unique doctrines not raised by the parties in the briefing), procedurally, the burden to do so does not shift to the complaining patient until the medical provider has first met their initial burden of producing medical expert testimony that makes a prima facie showing that the medical standard of care has not been breached. Here, Defendants have produced medical expert testimony, but that testimony does not go to the issue that seems to be raised within the four corners of the pleadings – which, again, serve as the 'outer measure of materiality.' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2024) § 10:51.1, citing Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258, also citing Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74, also citing Hutton v. Fidelity Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493, also citing Johnson v. Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 636.) As such, the Court concludes that Defendants have not met their initial burden of production with the evidence presented, and as such, even in the absence of an opposition or competing evidence, it would be improper to grant the motion.

Additionally, the Court notes that even if the evidence provided were sufficient to shift the burden, Plaintiff has provided testimony from a nurse in an attempt to establish a triable issue of fact regarding whether or not the medical standard of care was breached. Defendants object to that testimony – and to the introduction of any evidence really – on the grounds that the nurse in question is not a qualified expert, is providing improper expert testimony, and, procedurally, the evidence is not submitted in the format of a responsive separate statement as required under California Rules of Court, rule 3.1350.

If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. (Code of Civil Procedure § 437c(h).) While the objections to the nurse 'testimony' appear to be meritorious at present (though immaterial to the outcome of the motion given that Defendants have not met their initial burden of production), were it necessary to reach this issue the Court would still deny the motion on grounds it appears that some aspects of the nurse's testimony could establish facts that may justify opposition to the motion – provided they could be submitted for consideration as formal and admissible evidence whether via discovery confirming the nurse's statements or via a deposition transcript testifying to similar facts.

Ultimately, evidentiary doubts are to be resolved in favor of the party opposing summary judgment. (See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2024) § 10:241.20, citing Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) On the other hand, summary judgment is no longer a 'drastic' or 'disfavored' remedy. (See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2024) § 10:278 (citations omitted).) As such, while the Court finds the evidence in support of the instant motion to be insufficient to meet the moving party's initial burden of production, the Court also does not find the evidence in opposition (some of which is inadmissible at present) to overcome the motion outright. In such circumstances, the Court will exercise the discretion provided under Code of Civil Procedure § 437c(h) to 'make any other order as may be just' and deny the motion as it presently stands, but issue such denial without prejudice such that both parties may have an opportunity to re-raise these issues with clearer, stronger, more admissible, and more on-point evidence – and perhaps by utilizing the tools of discovery to clarify and firm-up the parameters of the less-than-clear allegations that serve as the 'outer measure of materiality' for the claims in this lawsuit – should they so choose.

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3120966 CASE NUMBER: CASE TITLE:  KEE JR. VS. KOLB [IMAGED]  37-2023-00019465-CU-PO-NC Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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