Judge Michael E. Whitaker, Case 21STCV26728 2022-10-10 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21STCV26728, Date: 2022-10-10 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Plaintiff Alyson T. Marchiondo (“Plaintiff”) sued Defendants El Segundo Dermatology, Inc. & Courtney E. Phillips, M.D. for negligence and lack of informed consent. Plaintiff alleges that Defendants incorrectly administered a steroid injection causing Plaintiff to sustain injuries to her buttocks. Defendants move for summary judgment. Plaintiff opposes the motion.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

With respect to Plaintiff’s objections to the Declaration of Patrice M. Healey, M.D., the Court rules as follows:

With respect to Defendants’ objections to the Declaration of Plaintiff, the Court rules as follows:

“Civil Code section 1714, subdivision (a) establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. When applied to medical professionals, this duty of care imposes a duty to use such skill, prudence and diligence as other members of his profession commonly possess and exercise.” (Flores v. Liu (2021) 60 Cal.App.5th 278, 290 [cleaned up].) To prevail on a claim for negligence against a medical professional, a plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.)

“[T]he legal standard of care required by doctors is the standard of practice required by their own profession. The courts require only that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. Thus, liability is not found, and the label of malpractice is not placed upon a physician's actions, unless some deviation by the physician from the standard of care that his peers consider appropriate in the situation under review is proven.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1081 [cleaned up].)

Expert testimony is generally the only admissible and relevant evidence on whether a medical professional has breached the standard of care. (Landeros v. Flood (1976) 17 Cal.3d 399, 410 [“ ‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony (citations), unless the conduct required by the particular circumstances is within the common knowledge of the layman’ ”].) As the Court of Appeal has held, in reversing summary judgments for medical professionals: “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony. California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607 [cleaned up].) Further, a plaintiff “is entitled to all favorable inferences that may reasonably be derived from” an expert’s declaration which must be liberally construed. (See Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 782.)

“A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324; see also Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129 [“[I]n soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision”].) “[W]e hold, as an integral part of the physician's overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 243.)

[T]he patient's right of self-decision is the measure of the physician's duty to reveal. That right can be effectively exercised only if the patient possesses adequate information to enable an intelligent choice. The scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is whatever information is material to the decision. Thus the test for determining whether a potential peril must be divulged is its materiality to the patient's decision. . . . There must be a causal relationship between the physician's failure to inform and the injury to the plaintiff. Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given. Here the record discloses no testimony that had plaintiff been informed of the risks of surgery he would not have consented to the operation.

(Id. at p. 245 [cleaned up]; see also CACI No. 533 (2021 ed.).)[2] “The burden of going forward with evidence of nondisclosure rests on the plaintiff. Once such evidence has been produced, then the burden of going forward with evidence pertaining to justification for failure to disclose shifts to the physician.” (Ibid.)

Defendants argue Plaintiff cannot establish that Defendants breached the standard of care in their treatment and care of Plaintiff, nor that an act or omission by Defendants caused or contributed to Plaintiff’s alleged injuries.

Defendant relies on the declaration of Patrice M. Healey, M.D. (“Healey”), who is a physician certified in Dermatology and familiar with the standard of care and practice for dermatologists licensed and practicing in Southern California. Healey reviewed the following in order to craft her declaration and form her opinions: (i) Plaintiff’s medical records from El Segundo Dermatology and Marcus Facial Plastic Surgery; (ii) the Complaint; (iii) the transcript of Plaintiff’s deposition; and (iv) Plaintiff’s responses to Defendants’ Request for Production, set one. (Declaration of F. Patrice M. Healey, M.D., ¶ ¶ 4-7; see also Declaration of Jennifer K. Villebro, Exhibits B [Records from Defendants regarding Plaintiff] & C [Records from Marcus Facial Plastic Surgery].)

Based upon her review of the referenced materials and her education, training and experience, Healey opines as follows:

Foremost, the Court notes that the only evidence advanced by Plaintiff is her declaration. Plaintiff did not proffer a declaration from an expert witness to counter Healey’s opinions.

[1] The Court notes that Defendants’ Memorandum of Points and Authorities in support of the motion does not squarely address the second cause of action – lack of informed consent. Defendants’ memorandum focuses on the first cause of action – professional negligence.

[2] [Name of plaintiff] claims that [name of defendant] was negligent because [he/she/nonbinary pronoun] performed [a/an] [insert medical procedure] on [name of plaintiff] without first obtaining [his/her/nonbinary pronoun] informed consent. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] performed [a/an] [insert medical procedure] on [name of plaintiff];

2. That [name of defendant] did not disclose to [name of plaintiff] the important potential results and risks of[, and alternatives to] the [insert medical procedure];

3. That a reasonable person in [name of plaintiff]'s position would not have agreed to the [insert medical procedure] if that person had been adequately informed; and

4. That [name of plaintiff] was harmed by a result or risk that [name of defendant] should have explained. (CACI No. 533 (2021 ed.).)

[3] The motion for summary judgment, if granted, would not dispose of the entire action vis-à-vis Defendants because Plaintiff has advanced sufficient competent evidence, raising triable issues of material fact in relation to the second cause of action – lack of informed consent. As a result, the Court is without authority to grant Defendants’ summary judgment as to the entire action. (See Code. Civ. Proc., § 437c, subd. (a) [“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding”]; see also 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1215, fn. 12 [“Because these defendants established an affirmative defense to all of the claims against them, summary judgment . . . is the appropriate remedy”].)

DEPARTMENT	32
HEARING DATE	October 10, 2022
CASE NUMBER	21STCV26728
MOTION	Motion for Summary Judgment
MOVING PARTIES	Defendants El Segundo Dermatology, Inc. & Courtney E. Phillips, M.D.
OPPOSING PARTY	Plaintiff Alyson T. Marchiondo