Judge Michael E. Whitaker, Case Number: 22SMCV01579, Date: 2024-05-21 Tentative Ruling

Judge: Michael E. Whitaker, Case: 22SMCV01579, Date: 2024-05-21 Tentative Ruling

On or about July 21, 2021, Plaintiff Lamar Hawkins (“Plaintiff”) was admitted to Defendant Providence St. John’s Health Center (“Providence”) to undergo a laparoscopic left spigelian hernia and umbilical hernia repair, performed by Defendant Tracey Childs, M.D. (“Childs”) and assisted by Defendant Denita Price, PA-C (“Price”) as well as a sacrocolpopexy and cystocscopy performed by Defendant Lauren Cadish, M.D. (“Cadish”) and assisted by Defendant Tracey Childs, M.D. (“Childs”), with Defendant Matthew Cho, M.D. (“Cho”) administering anesthesia. (First Amended Complaint [“FAC”] at ¶ 20.)

Plaintiff alleges that during the treatment, Defendants failed to properly administer the IV drip or monitor Plaintiff’s IV drip during the surgery, which fell below the applicable standard of care. (FAC at ¶¶ 21-23.) As a result, Plaintiff suffered burns, tissue injury, nerve damage, and scarring. (FAC ¶¶ 29-30.) Plaintiff’s operative First Amended Complaint alleges a single cause of action against Defendants for medical negligence.

Childs moves for summary judgment, arguing (1) the medical treatment and care provided to Plaintiff by Childs complied with the standard of care at all times; and (2) nothing Childs did or failed to do caused or contributed to Plaintiff’s claimed injuries.

“[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”].)

“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.)

Childs relies on the Declaration of Raymond Shofler, M.D. (“Shofler”), who is a physician licensed to practice in the State of California, who is board certified in surgery. (Declaration of Raymond Shofler, M.D., ¶ 2.) Shofler completed his general surgery residency at the University of Southern California Medical Center in Los Angeles, was on staff at Providence St. Joseph Medical Center in Burbank, California from 1984-2022, and was chairman of the Department of Surgery from 2000-2001 and 2017-2022. (Ibid.)

Shofler reviewed the following in order to craft his declaration and form his opinions: Plaintiff’s medical records from Providence Saint John’s Health Center. (Declaration of Raymond Shofler, M.D., ¶ 4.)

Shofler states, in pertinent part, that “I am familiar with the applicable standard of care for general surgery physicians in the Southern California community at all times relevant to this action” (Declaration of Raymond Shofler, M.D., ¶ 3.) Shofler’s qualifications are sufficient to establish that Shofler has the requisite medical training and experience in Los Angeles County to opine on the applicable standard of care for a surgeon. Shofler further declares:

11. Based upon my review of the above-delineated records, as well as my education, training, and experience, it is my opinion that the care and treatment rendered to plaintiff Lamar Hawkins by the general surgery physician at Kaiser Permanente complied with the standard of care.

12. Dr. Childs had no involvement in the ordering of the fluorescein, administration of the fluorescein or the monitoring of the IV at issue. The administration of fluorescein was only used during Dr. Lauren Cadish’s surgery, which was after the surgery performed by Dr. Childs and assisted by physician’s assistant Ms. Price.

13. There were no issues by Dr. Childs during the surgery which could have impacted the dislodgment of the IV going into the left arm which is at issue.

14. Nothing the general surgeon physician did or did not do contributed to plaintiff’s infiltration of the soft tissue by the fluorescein and resulting injury because the fluorescein was not used during Dr. Childs’ surgery and Dr. Childs had no involvement in the ordering of the fluorescein, administration of the fluorescein or the monitoring of the IV at issue

15. All of the aforementioned opinions are based upon my education, training, and experience and are made to a reasonable degree of medical probability. I reserve the right to withdraw, amend, or revise the above opinions in the event additional information is discovered or provided.

Plaintiff does not present any evidence to create a triable issue of material fact. Instead, Plaintiff raises evidentiary objections to the Shofler declaration which the Court has addressed above.

Therefore, Plaintiff has not met her burden of production to create a triable issue of material fact.

In considering the competent evidence proffered by Childs, the Court finds that there are no triable issues of material fact, and determines, as a matter of law, that Childs complied with the applicable standard of care in relation to the treatment and care of Plaintiff, and that no alleged negligent act or omission on the part of Childs caused, contributed to, or was a substantial factor in bringing about the injuries alleged by Plaintiff.

Therefore, the Court grants Childs’ motion for summary judgment, and will enter the proposed Order and Judgment lodged with the Court on March 1, 2024. Childs shall provide notice of the Court’s ruling and file the notice with a proof of service.

[1] “An expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, [Evidence Code section] 802 properly allows an expert to relate generally the kind and source of the matter on which the opinion rests. What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (1 Witkin, Cal. Evid. 6th Opinion Evid § 38 (2023) [cleaned up].) Here, with respect to Undisputed Material Facts 5, 6, 7 and 8, Childs advances competent evidence, apart from the Declaration of Raymond Shofler, M.D., to support such material facts, overcoming the objections pursuant to People v. Sanchez (2016) 63 Cal.4th 665. (See Declaration of Yuk K. Law, Exhibit C.)

Further, Plaintiff contends that Raymond Shofler, M.D.’s reference to Plaintiff’s medical records improperly “reveal[s] the content of reports prepared or opinions expressed by non-testifying experts” in contravention of People v. Campos (1995) 32 Cal.App.4th 304, 308. The Court disagrees. Dr. Shofler is laying the foundation upon which he bases his expert opinions. Plaintiff’s medical records from Providence are not expert reports prepared by non-testifying experts. Rather they are the record of Plaintiff’s medical treatment at Providence Saint John’s Health Center.

[2] Plaintiff asserts that the Declaration of Raymond Shofler, M.D., paragraph 11, references Kaiser Permanente instead of Providence Saint John’s Health Center. The Court finds that the reference in paragraph 11 to be a harmless typographical error as illustrated by Plaintiff’s health care records advanced in support of the motion, including Exhibits C and E, and the Declaration of Raymond Shofler, M.D., executed October 20, 2023 in which the declarant references Providence Saint John’s Health Center, and not Kaiser Permanente. (See Declaration of Paul S. Cook, Exhibit A.) In short, the Court finds the statement as set forth in paragraph 11 to be trustworthy and reliable.

Cadish moves for summary judgment, arguing (1) the medical treatment and care provided to Plaintiff by Cadish complied with the standard of care at all times; and (2) nothing Dr. Cadish did or failed to do caused or contributed to plaintiff’s claimed injuries.

Cadish relies on the Declaration of Kathryn Arendt, M.D. (“Arendt”), who is a physician licensed to practice in the State of Washington, who is board certified in obstetrics/gynecology and female pelvic medicine and reconstructive surgery. (Declaration of Kathryn Arendt, M.D., ¶ 2.) Arendt completed her obstetrics/gynecology residence at the University of New Mexico School of Medicine in Albuquerque, completed a two-year pelvic surgery fellowship at Virginia Mason Medical Center in Seattle, and has been in private practice specializing in robotic and vaginal reconstructive surgery, urinary incontinence and surgical gynecology and menopause in Washington state since 1998. (Ibid.)

Arendt reviewed the following in order to craft her declaration and form her opinions: Plaintiff’s medical records from Providence Saint John’s Health Center. (Declaration of Kathryn Arendt, M.D., ¶ 4.)

Arendt states, in pertinent part, that “I am familiar with the standard of care in the community for the field of urogynecological surgery in Southern California in 2021 at the time of the incident” and “I am familiar with the applicable standard of care for urogynecological surgeons in the Washington community which also applies to the Southern California community at all times relevant to this action.” (Declaration of Kathryn Arendt, M.D., ¶¶ 2-3.) Dr. Arendt further declares:

10. Based upon my review of the above-delineated records, as well as my education, training, and experience, it is my opinion that the care and treatment rendered to plaintiff Lamar Hawkins by the urogynecology physician at Kaiser Permanente complied with the standard of care.

11. Dr. Cadish had no involvement in the administration of the fluorescein or the monitoring of the IV at issue.

12. There were no issues by Dr. Cadish during the surgery which could have impacted the dislodgment of the IV going into the left arm which is at issue.

13. The use of fluorescein was indicated and entirely appropriate in order to better visualize the ureteral orifices at the time of Dr. Cadish’s surgery.

14. Nothing the urogynecology physician did or did not do contributed to plaintiff’s infiltration of the soft tissue by the fluorescein and resulting injury because Dr. Cadish had no involvement in the administration of the fluorescein or the monitoring of the IV at issue.

Cadish’s evidence is sufficient to meet Cadish’s burdens of persuasion and production of evidence to show that Plaintiff will be unable to establish that Cadish breached the standard of care with respect to the treatment and care of Plaintiff, and Cadish’s breach of the standard of care caused or contributed to Plaintiff’s claimed injuries. Thus, Cadish has shifted the burden of production to Plaintiff to raise triable issues of material fact.

Plaintiff does not present any evidence to create a triable issue of material fact. Instead, Plaintiff raises evidentiary objections to the Arendt declaration which the Court has addressed above.

Therefore, Plaintiff has not met her burden of production to create a triable issue of material fact.

In considering the competent evidence proffered by Cadish, the Court finds that there are no triable issues of material fact, and determines, as a matter of law, that Cadish complied with the applicable standard of care in relation to the treatment and care of Plaintiff, and that no alleged negligent act or omission on the part of Cadish caused, contributed to, or was a substantial factor in bringing about the injuries alleged by Plaintiff.

Therefore, the Court grants Cadish’s motion for summary judgment, and will enter the proposed Order and Judgment lodged with the Court on March 1, 2024. Cadish shall provide notice of the Court’s ruling and file the notice with a proof of service.

[1] “At one time, in medical malpractice cases generally, the standard of care required that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality. More recently, however, the Supreme Court has formulated the standard of care as that of physicians in similar circumstances rather than similar locations. Today, neither the Evidence Code nor Supreme Court precedent requires an expert witness to have practiced in a particular locality before he or she can render an opinion in an ordinary medical malpractice case.” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310–311 [cleaned up], citing Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463 (hereafter Avivi).) “[T]he appropriate test for expert qualification in ordinary medical malpractice actions is whether the expert is familiar with circumstances similar to those of the respondents; familiarity with the standard of care in the particular community where the alleged malpractice occurred, while relevant, is generally not requisite . . . .” (Avivi, supra, 159 Cal.App.4th at p. 465.) As set forth in the Declaration of Kathryn Arendt, M.D., the Court finds the expert to be familiar with circumstances similar those herein.

[2] “An expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, [Evidence Code section] 802 properly allows an expert to relate generally the kind and source of the matter on which the opinion rests. What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (1 Witkin, Cal. Evid. 6th Opinion Evid § 38 (2023) [cleaned up].) Here, with respect to Undisputed Material Facts 5, 6 and 7, Cadish advances competent evidence, apart from the Declaration of Kathryn Arendt, M.D., to support such material facts, overcoming the objections pursuant to People v. Sanchez (2016) 63 Cal.4th 665. (See Declaration of Yuk K. Law, Exhibit C.)

Further, Plaintiff contends that Kathryn Arendt, M.D.’s reference to Plaintiff’s medical records improperly “reveal[s] the content of reports prepared or opinions expressed by non-testifying experts” in contravention of People v. Campos (1995) 32 Cal.App.4th 304, 308. The Court disagrees. Dr. Arendt is laying the foundation upon which he bases her expert opinions. Plaintiff’s medical records from Providence are not expert reports prepared by non-testifying experts. Rather they are the record of Plaintiff’s medical treatment at Providence Saint John’s Health Center.

[3] Plaintiff lists two Objection 3s.

[4] Plaintiff asserts that the Declaration of Kathryn Arendt, M.D., paragraph 10, references Kaiser Permanente instead of Providence Saint John’s Health Center. The Court finds that the reference in paragraph 10 to be a harmless typographical error as illustrated by Plaintiff’s health care records advanced in support of the motion, including Exhibits C and E, and the Declaration of Kathryn Arendt, M.D., executed October 25, 2023 in which the declarant references Providence Saint John’s Health Center, and not Kaiser Permanente. (See Declaration of Paul S. Cook, Exhibit A.) In short, the Court finds the statement as set forth in paragraph 10 to be trustworthy and reliable.

DEPARTMENT	207
HEARING DATE	May 21, 2024
CASE NUMBER	22SMCV01579
MOTION	Motion for Summary Judgment
MOVING PARTY	Defendant Tracy Childs, M.D.
OPPOSING PARTY	Plaintiff Lamar Hawkins

DEPARTMENT	207
HEARING DATE	May 21, 2024
CASE NUMBER	22SMCV01579
MOTION	Motion for Summary Judgment
MOVING PARTY	Defendant Lauren Cadish, M.D.
OPPOSING PARTY	Plaintiff Lamar Hawkins