Judge Michelle C. Kim, Case 19STCV19710 2023-04-13 Tentative Ruling

Plaintiff Ryan Brown (“Plaintiff”) filed this action against defendants Dale Alan Prokupek (“Prokupek”) and Soma Surgery Center, Inc. (“Soma”) for medical malpractice relating to injuries arising from a colonoscopy that led to a perforation of Plaintiff’s bowel. On June 23, 2021 Christina Menor (“Menor”) was substituted in for Doe 1.

Menor (hereinafter “Defendant”) now moves for summary judgment as to the Complaint.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”¿ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)¿ “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”¿ (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)¿ A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿ (Code Civ. Proc., § 437c(p)(2).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (See Code Civ. Proc. §437c(f)(1).)

“Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”¿ (Code Civ. Proc., § 437c(p)(2).)¿ “If the plaintiff cannot do so, summary judgment should be granted.”¿ (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)¿ “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”¿ (Id. at p. 467; Code Civ. Proc., § 437c(c).)¿

Defendant moves for summary judgment as to the Complaint, on the grounds that Plaintiff cannot prove the following elements for a medical malpractice cause of action: breach of duty, causation, and resulting damages.

The elements of medical malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 701-02 (citations omitted).) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at 467.)

Thus, in a medical malpractice case, “[w]hen 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.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985 (citations omitted).) An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)

“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) “Mere possibility alone is insufficient to establish a prima facie case.” (Id.) “There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.” (Id. at 403.) “A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.” (Id.)

Defendant was the acting anesthesiologist during Plaintiff’s colonoscopy. (Def. UMF No. 1.) Defendant presents expert evidence through William Mazzei, M.D., a board certified anesthesiologist, that Defendant’s care and treatment of Plaintiff was appropriate and within the standard of care required of an anesthesiologist. (Def. UMF No. 1-8.) Specifically, Dr. Mazzei opines that the informed consent that was given to Plaintiff was within the standard of care, and Defendant’s records show that she discussed the risks, benefits, and alternative procedures with Plaintiff, and answered all of Plaintiff’s questions. (Def. UMF No. 3.) In addition, the anesthesia care that Defendant provided was not related to Plaintiff’s bowel perforation. (Def. UMF Nos. 4-5.) Furthermore, the care for Plaintiff after the colonoscopy procedure was “exemplary” because once Plaintiff’s complaints of pain became abnormal, Defendant contacted the surgeon and arrangements were made to transfer Plaintiff. (Def. UMF No 6.) Plaintiff was transferred in an appropriate timeframe and there was no delay. (Def. UMF Nos. 6-7.) Dr. Mazzei further opines to a reasonable medical probability that no negligent act or omission by Defendant caused or contributed to any injury or harm to Plaintiff. (Def. UMF Nos. 2-9.) While Plaintiff did have a perforation, it was not caused by a negligent act on the part of Defendant. (Def. UMF No. 7.)

Here, Defendant has provided evidence to establish that she did not breach a duty, as her care of Plaintiff was within the community standard of care for an anesthesiologist. In addition, Defendant has provided evidence to establish that she did not cause Plaintiff’s perforation, or any of the resulting damages arising from that perforation.

Accordingly, Defendant has negated the elements for breach of duty, causation, and damages for Plaintiff’s medical malpractice cause of action. This shifts the burden to Plaintiff to offer evidence to establish a triable issue of material fact as to the elements of breach of duty, causation, and damages.

Plaintiff failed to file an opposition and meet his burden by providing evidence to establish triable issue of facts, as to the elements that Defendant negated.

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Hon. Michelle C. Kim

Judge of the Superior Court