Judge: Michael E. Whitaker, Case: 23SMCV02544, Date: 2024-10-01 Tentative Ruling

Case Number: 23SMCV02544    Hearing Date: October 1, 2024    Dept: 207

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
2. Declaration of Julia E. Murray, Esq.
3. Appendix of Exhibits
4. Declaration of John R. Morris
5. Separate Statement of Undisputed Material Facts

OPPOSITION PAPERS:

1. Plaintiffs’ Notice of Non-Opposition

BACKGROUND

On June 6, 2023, Plaintiffs Enrique Enriquez and Colleen Enriquez, individually and on behalf of the Estate of their Deceased Mother, Esther Gonzalez (“Plaintiffs”) filed suit alleging three causes of action: (1) negligence against Defendant Specialty Surgical Center of Wilshire; (2) negligence against Defendant Sherman Shlomo Elpas, M.D.; and (3) negligence against Defendant Michael Schiffman, M.D.

Defendant Michael Schiffman, M.D. (“Schiffman” or “Defendant”) now moves for summary judgment.  Plaintiffs have filed a notice of non-opposition.

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[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”].) 

DISCUSSION

1.     PROFESSIONAL NEGLIGENCE

“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.     Defendant’s Evidence          

Defendant relies on the Declaration of John R. Morris, M.D. (“Morris”), who is a California licensed and board certified orthopedic surgeon with an additional qualification/certification in Hand Surgery, who completed his residency at the LAC/USC Medical Center.  (Morris Decl. ¶ 2.) 

Morris reviewed the following in order to craft his declaration and form his opinions: (1) Summons and Complaint filed by Plaintiffs in this matter; (2) Plaintiffs’ Responses to Special Interrogatories; (3) Records for Specialty Surgical Center for subject surgery; (4) Discharge summary from Cedars Sinai Medical Center; and (5) the Autopsy report from the L.A. County Coroner.  (Morris Decl. ¶ 4.)   Morris declares:

7. Based on my review of the medical records, discovery responses, as well as my education, training, and experience, it is my opinion that Dr. Schiffman’s care and treatment of Esther Gonzales was all within the standard of care for the following reasons:

(a) The carpal tunnel release surgery was indicated based on the subjective complaints of the plaintiff and the objective findings on examination and testing.

(b) Dr. Schiffman appropriately had Mrs. Gonzales undergo a preoperative examination with Dr. Lin. She was cleared for surgery by Dr. Lin. Dr. Schiffman requiring this preoperative examination was appropriate and complied within the standard of care.

(c) Dr. Schiffman noted in his preoperative notes which are contained in the Surgical Center chart all of plaintiff’s co-morbidities and prior surgeries. Dr. Schiffman appropriately provided the patient’s prior history before surgery.

(d) Dr. Schiffman had an assistant surgeon and Dr. Elspas as the anesthesiologist. As the surgeon and performing the operation Dr. Schiffman is entitled to rely on the anesthesiologist to monitor the patient during surgery including her vital signs, including temperature, blood pressure, respiration oxygen saturation and general status. Dr. Schiffman acted within the standard of care by operating and relying on Dr. Elspas to inform of any changes in conditions or problems.

(e) The surgical center records indicate that at the end of the surgery when Dr. Schiffman closed he was no apprised of any problems with the patient’s condition by Dr. Eslsas (sic) or anyone else. It is within the standard of care for the surgeon such as Dr. Schiffman to leave the operating theater after he has completed his surgery and to leave the patient such as Mrs. Gonzales in the care of the anesthesiologist and the PACU nurses.

(f) When Dr. Schiffman ended his procedure and had been informed the patient was stable he doesn’t have a duty to continue monitoring the patient – that duty lies with the anesthesiologist and the PACU staff. His actions were within the standard of care.

8. It is also my opinion, and for all the reasons stated above, to a reasonable degree of medical probability, that the injuries complained of by plaintiff were not the result of anything Dr. Schiffman did or failed to do for the following reasons:

(a) As Dr. Schiffman was not negligent for all of the reasons stated above, therefore he is not the cause of Mrs. Gonzales’ death or the damages claimed by the plaintiffs.

(b) According to the surgical center records, the patient went into distress after surgery and on her way to the PACU. Dr. Schiffman had not (sic) duty to monitor the patient’s vitals in the OR during surgery and none after he is informed the patient was stable and being taken to the PACU.  Therefore he would not be a substantial factor or even contributing cause to any injuries that occurred to Mrs. Gonzales on her way to or in the PACU.

(Morris Decl. ¶¶ 7-8.)

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

b.     Plaintiffs’ Evidence 

Plaintiffs have filed a notice of non-opposition in lieu of an opposition. 

CONCLUSION AND ORDER

Therefore, having found Defendant met his initial burdens of production and persuasion, the Court grants Defendant’s unopposed motion for summary judgment.  The Court will enter the proposed Order and Judgment.   

Defendant shall provide notice of the Court’s ruling and file the notice the notice with a proof of service forthwith.   

DATED:  October 1, 2024                                                     ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court