Judge: Michelle C. Kim, Case: 19STCV42929, Date: 2023-04-07 Tentative Ruling

Case Number: 19STCV42929    Hearing Date: April 7, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Dusty Anderson (“Dusty”) and Michael Anderson (“Michael”) (collectively, “Plaintiffs”) filed this action against defendants Robert W. Mower, D.D.S. and Ryan Colletta, D.D.S. relating to dental care provided to Dusty.  Dusty asserts a cause of action for professional negligence against defendants, and Michael asserts a cause of action loss of consortium.  In particular, Plaintiffs allege that on September 26, 2018, and October 26, 2018, Dusty underwent surgery performed by defendants and thereafter continued to treat with defendants.  Plaintiffs allege that defendants negligently examined, diagnosed, cared, and treated Dusty.  (CCP §§ 7, 9.)  On October 7, 2022, Plaintiffs filed a request for dismissal dismissing Ryan Colletta, D.D.S. only. 

Defendant Robert W. Mower, D.D.S. (“Defendant”) now moves for summary judgment.  Plaintiffs oppose the motion, and Defendant filed a reply.  This matter was last heard on October 17, 2022, where it was continued to January 27, 2023, to allow Plaintiffs additional time to conduct discovery to oppose the motion.  (Min. Order, Oct. 17, 2022.)  Plaintiffs were to file their supplemental opposition at least 14 court days before the hearing, and Defendant was to file any supplemental reply five days before the continued hearing date.  Plaintiffs filed their supplemental opposition on January 13, 2023, and Defendant filed his supplemental reply on January 20, 2023.[1]  On the Court’s own motion, the hearing was continued to April 7, 2023.  The Court now rules as follows:

2. Motion for Summary Judgment

a. Moving Argument

Defendant argues that he is entitled to summary judgment because the evidence establishes Defendant’s treatment of Dusty met the applicable standard of care for a dentist and maxillofacial surgeon at all times during his treatment of Dusty.  Defendant contends that he did not cause or contribute to Plaintiffs’ claimed injuries.  Defendant supports the motion with the expert declaration of Mary Delsol Dobon, D.S.S. (“Dr. Dobon”).  Dr. Dobon opines the care and treatment rendered to Dusty by Defendant was within the standard of care and that Defendant did not cause or contribute to Dusty’s injuries.

b. Opposition Argument

In connection with their opposition filed on October 3, 2022, Plaintiffs requested a continuance of Defendant’s motion pursuant to CCP § 437c(h).  Plaintiffs asserted that Defendant failed to produce CT images of Dusty’s jaw that Defendant obtained during the course of treatment, so additional time was required to allow Plaintiffs’ experts to evaluate the records.  Further, Plaintiffs asserted additional time was required to take Defendant’s deposition to inquire about inconsistencies in his records and to depose additional treating physicians.  Plaintiffs’ supplemental opposition is addressed below. 

c. Supplemental Briefs

Plaintiffs assert that Defendant failed to timely respond to complications following extraction of an impacted wisdom tooth in September 2018 that resulted in Dusty developing osteomyelitis of the mandible and the need for extensive medical management by infectious disease and maxillofacial surgeons at Kaiser Permanente.  Plaintiffs provide that they are not alleging that the surgery itself was negligently performed, but instead Plaintiffs allege that Defendant was negligent in his post-surgical care and treatment of Dusty and in failing to timely consider and address signs and symptoms of a developing osteomyelitis of the mandible.  Plaintiffs contend that the delay resulted in progression of the infection and the need for many months of treatment by other physicians.  Plaintiffs assert that their expert, Michael A. Cobin, D.M.D. (“Dr. Cobin”), addresses the contentions raised by Dr. Dobon and raises triable issues of fact concerning both the standard of care and causation. 

In his supplemental reply, Defendant asserts that Plaintiffs fail to raise a triable issue of material fact as to either the standard of care or causation.  Defendant contends that Plaintiffs do not provide any evidence refuting Dr. Dobon’s opinion that Defendant provided adequate and appropriate post-wisdom tooth extraction care and treatment to Dusty in light of Dusty’s development of osteomyelitis.  Defendant contends that Dr. Cobin’s opinions are conclusory, speculative and lack any reasoned basis.  Further, Defendant asserts Plaintiff does not effectively dispute any of Defendant’s material facts asserted in his separate statement filed with the motion. 

d. Law Governing Standard of Care

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts.  (Elcome v. Chin (2003) 110 Cal.App.4th 310, 317.)  Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony.  (Id.)  If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded.  (Id.) 

A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice.  (CACI 506.)  Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances.  (CACI 505.)

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons.  (See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844.)  “‘When 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.)

e. Law Governing Causation

In order to establish that defendant's negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm.  (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498.)  “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.  Mere possibility alone is insufficient to establish a prima facie case.  [Citations.]  That there is a distinction between a reasonable medical ‘probability’ and a medical 'possibility' needs little discussion.  There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. 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.  This is the outer limit of inference upon which an issue may be submitted to the jury.”  (Id.; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.)

f. Objections  

Defendant, with his supplemental reply, submits 17 objections to Dr. Cobin’s declaration filed with the supplemental opposition. 

            Objections 1 and 4 are overruled.  Objection 12 is sustained as Dr. Cobin relates and relies on case-specific facts relayed by Dusty of which Dr. Cobin has not established independent knowledge of.  (See People v. Sanchez (2016) 63 Cal.4th 665, 685-86 [An expert cannot “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.”].)

As to objections 2-3, 5-11, and 13-17, Defendant argues that Dr. Cobin’s statements objected to are speculative, conclusory and lack any reasoned basis.  In ruling on these objections, the Court is guided as follows: an expert opinion must be supported “by a reasoned explanation connecting the factual predicates to the ultimate conclusion” or it lacks evidentiary value.  (See, e.g., Sanchez v. Kern Emergency etc. (2017) 8 Cal.App.5th 146, 155.)

In Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123-124, the court of appeals considered this issue at length.  The Court noted that the standard of review for the plaintiff’s opposing declaration was lower than the standard of review for the defendant’s moving declaration.  Declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed.

However, “[t]his does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.’ [Citation.]”  (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.)

In Fernandez v. Alexander, the plaintiff fractured her wrist, and her doctor allegedly “failed to recommend, encourage [or] perform surgery … instead ordering a cast.”  (Id. at 772.)  The doctor's expert declared that the doctor had engaged in medical treatment within the standard of care by ordering a cast.  (Id. at 776.)  The plaintiff's expert declared that the “failure to discuss surgical treatment options was a breach of the standard of care” and that to “a reasonable degree of medical probability” the care provided to plaintiff breached the standard of care.  (Id.)  “On the causation issue, he simply stated that, based on the records and his training and experience, his opinion, based on a reasonable degree of medical probability, was that defendant’s care and treatment ‘caused Plaintiff’s further deformity of her left wrist.’”  (Id. at 781.)  His declaration did not “explain[], for example, … how the failure to discuss surgery at the initial consultation caused” plaintiff's injury. Nor did the declaration “opine that surgery would have produced a better outcome” or “challenge or even address [the defendant's expert's] opinion that what happened to plaintiff's hand … was a potential outcome of both treatments [i.e., surgery or casting].”  (Id. at p. 781.)  The plaintiff’s expert offered “no reasoned explanation connecting the factual predicates to the ultimate conclusion [Citation], and that is the very definition of a purely conclusory opinion.”  (Id. at 781-82 [internal quotations omitted].)  Although the plaintiff contended she was entitled to all favorable inferences, the inferences the plaintiff suggested could not “reasonably be derived” from a barebones statement that defendant’s treatment “caused plaintiff’s further deformity.”  (Id. at 782.) 

In this case, objections 2-3, 5-11, and 13-17 are sustained because Dr. Cobin fails to provide a reasoned explanation supporting the ultimate conclusions asserted, as will be discussed further below. 

g. Analysis  

Summary judgment may only be granted when a moving party establishes the right to the entry of judgment as a matter of law.  (Code of Civil Procedure § 437c (c).)  A “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.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  Once the moving party meets this initial burden, the burden then shifts to the party opposing summary judgment to establish, by means of competent and admissible evidence, that a triable issue of material fact still remains.  (Id. at 850-851.)

            Here, Plaintiffs allege that Defendant negligently failed to conform to the standard of care of dentists, oral and maxillofacial surgeons when providing Plaintiff Dusty Anderson (“patient”) with dental services related to an oral surgery that occurred on or about September 26, 2018.  (Mot. Undisputed Material Facts 6-7.)  Defendant removed Dusty’s lower left wisdom tooth on September 26, 2018,[2] and Dusty then first saw Defendant post-surgery on October 3, 2018, where the wound was healing well, and Dusty was instructed to follow up as needed.  (Id. at 10-11.)  Dusty returned to Defendant on October 5, 2018, with complaints of pain, and after evaluation, Defendant did not observe any signs of infection.  (Id. at 12.)  A dry socket was suspected, and a standard dry socket ointment was placed into the socket.  (Id.)  Defendant saw Dusty again on October 9, 2018, where Dusty was evaluated, and no signs of infection were noted.  (Id. at 13-14.)  A dry socket was still suspected.  (Id. at 14.) 

Dusty returned on October 10, 2018, with continued complaints of pain and dry socket paste was placed in the extraction area.  (Id. at 15.)  Dusty was seen again on October 12, 2018, for repacking with iodoform gauze and paste.  (Id. at 16.)  A CT scan was taken at this visit, with Defendant asserting that no significant findings were noted.  (Id.)  Dusty was then seen on October 15, 2018, for repacking with iodoform gauze and paste, and on October 16, 2018, Dusty reported that the packing helped but the pain and pressure returned.  (Id. at 17-18.)  On October 17, 2018, Dusty reported that the pain was gone and on exam there was no sign of infection; the dry socket appeared to have resolved.  (Id. at 19.)  On October 22, 2018, Dusty returned to Defendant’s office and was seen by Defendant’s partner, Dr. Ryan Colletta, who noted that the patient’s extraction site was healing well and there were no signs of infection.  (Id. at 20.)  

Defendant saw Dusty the next day, October 23, 2018, and Dusty reported slight swelling and tenderness on the left mandible.  (Id. at 21.)  A new CT scan was ordered, and Defendant noted there was some reactive bone on the lateral cortex and some minor lytic changes in the buccal cortex on the scans.  (Id.)  Defendant suspected possible osteomyelitis and added Flagyl to Augmentin that Dusty was previously placed on.  (Id.)  A further CT scan was performed on October 26, 2018, and revealed slightly increased lytic changes in the cortex with no improvement in pain.  (Id. at 22.)  Defendant thereafter obtained patient consent and proceeded with biopsy and wound culture to rule out osteomyelitis.  (Id.)  Dusty subsequently began experiencing diarrhea and disclosed a history of C-Diff, so Defendant sent the patient to Kaiser urgent care to start the process of IV antibiotics and for hospital level care through Kaiser.  (Id.)  On October 26, 2018, Defendant communicated with Dusty’s primary care provider at Kaiser Permanente providing a history of his care of Dusty, and on October 27, 2018, Dusty presented to urgent care.  (Id. at 23-25.)  Thereafter, Dusty treated for her conditions with Kaiser and other physicians.  (Id. at 26-52.)  On November 2, 2018, Dusty was assessed with acute osteomyelitis of the mandible, and after further treatment, Dusty was noted to not have osteomyelitis on February 20, 2019.  (Id at 34, 49.) 

Defendant avers that he met the standard of care at all times in his care and treatment of Dusty, and that to a reasonable degree of medical probability, no negligent act or omission by Defendant caused or was a substantial factor in causing Dusty’s injuries.  (Mot. Dr. Dobon Decl. ¶¶ 43-52.)  Defendant’s expert, Dr. Dobon, opines:

Dr. Mower’s care and treatment of the patient was, within a reasonable degree of medical probability, at all times compliant with the standard of care. The extraction of tooth #17 was indicated, presurgical antibiotic medication was provided, and Dr. Mower’s post-extraction follow-ups with the patient were reasonable and timely. Dr. Mower also appropriately escalated care when the patient had persistent pain 1 month after the patient’s wisdom tooth extraction, which was an appropriate timeframe given that the patient developed a dry socket in her initial post-operative course. In an effort to rule in or out a possible infection, multiple rounds of imaging were then performed, antibiotics were initiated (both penicillin and broad-spectrum antibiotics), and cultures were obtained within 3 days of Dr. Mower's noting a suspicion for osteomyelitis and exactly 1 month post-operatively. When Dr. Mower noted a suspicion for osteomyelitis, he promptly referred the patient to a higher level of care for treatment. Moreover, developing a post extraction infection, such as osteomyelitis and its sequelae, are a known risk and complication of tooth extraction. Osteomyelitis does not typically manifest in a patient until 4 - 6 weeks postoperatively. Thus, to a reasonable degree of medical probability nothing Dr. Mower did or failed to do caused the patient's claimed damages.

(Mot. Dr. Dobon Decl. ¶ 53.)

            The evidence is sufficient to meet Defendant’s moving burden to show that he is entitled to judgment as a matter of law on the ground that Defendant complied with the standard of care and did not cause or contribute to Dusty’s injuries.  The burden therefore shifts to Plaintiffs to raise a triable issue of material fact in this regard.  However, Plaintiffs do not demonstrate with admissible or competent evidence that there is a triable issue of material fact as to either issue.  

            Plaintiffs rely on Dr. Cobin’s declaration, who states:

Succinctly stated, it is my opinion that Dr. Mower had sufficient information as early as October 10, 2018, to raise concern that the patient had something more than a "dry socket", causing prolonged, severe, pain. CT scanning done on October 12, 2018, should have added to that suspicion, and required Dr. Mower to consider causes other than dry socket, principally, early osteomyelitis. His failure to do so was a breach of the standard of care. This breach led to delay in introducing antibiotics into the treatment regimen, thus allowing the infection to advance. Had earlier antibiotic treatment been instituted, to a reasonable medical probability, this patient would not have required as extensive medicl [sic] treatment as she ultimately needed. The delay disabled her for months.

(Opp. Dr. Cobin Decl. ¶ 8.) 

            Dr. Cobin states in a conclusory manner that Defendant has sufficient information as of October 10, 2018, to raise a concern that Dusty had something more than dry socket, and that the October 12, 2018 CT scan should have required Defendant to consider early osteomyelitis.[3]  But Dr. Cobin does not explain what facts or circumstances show that Defendant had sufficient information to suspect Dusty had early osteomyelitis as of October 10, 2018.  Dr. Cobin provides, “[o]n October 10, 2018, [Dusty] is again at Dr. Mower's office with complaints of pain”, and that because Dusty’s pain and dry socket would have been fully resolved by this date, Defendant was required to consider that the cause of the pain was something other than dry socket.  (Id. at ¶¶ 15, 20.)  However, Dr. Cobin does not provide a reasoned explanation as to why or how the complaints of pain on October 10, 2018, should have made Defendant suspect that Dusty had early osteomyelitis.  Similarly, regarding Dr. Cobin’s statements about the CT scan on October 12, 2018, Dr. Cobin offers no reasoning for why the scan required Defendant to consider the cause of Dusty’s condition was early osteomyelitis.  While Dr. Cobin states that Defendant stated in correspondence to Dusty’s primary care physician that the CT scan indicated “some osteolytic changes”, Dr. Cobin provides no explanation as to how osteolytic changes “may be suggestive” of early osteomyelitis.  (Id. at 18.)[4] 

            Dr. Cobin further opines that Defendant fell below the standard of care by failing to start Dusty on broad spectrum antibiotics on October 12, 2018, by not considering that Dusty had an infection, and by not ordering a culture and biopsy.  (Id. at ¶¶ 22, 31, 37.)   However, Dr. Cobin does not explain why the standard of care required Defendant to start Dusty on the subject antibiotics on October 12, 2018, or why Defendant was required to order a culture and biopsy earlier in October 2018.  Further, while Dr. Cobin states that an infection should have been considered earlier in Defendant’s treatment of Dusty, Plaintiffs do not dispute that Plaintiff was evaluated on October 3, 5, 9, 17, and 22, 2018, and that no signs of infection were noted or observed.  Dr. Cobin does not otherwise provide any specific facts or explanation as to why Defendant should have still treated Dusty for an infection, or early osteomyelitis, despite these findings.  Dr. Cobin’s opinion thus relies on the assumption that Defendant could have earlier determined that Dusty had early osteomyelitis without any specific facts or explanation as to how Defendant could have done so in this case. 

            Furthermore, regarding causation, Dr. Corbin states, “I respectfully submit that Dr. Mower" s handling of this patient's post-extraction complications was below the standard of care for the reasons stated herein, and resulted in a more virulent infection and more intense and prolonged treatment than would have been necessary had antibiotic therapy been instituted earlier.”  (Id. at ¶ 39.)  Dr. Cobin’s declaration, however, does not offer any explanation or opinion demonstrating to a reasonable degree of medical probability that Defendant’s alleged failure to consider or diagnose Dusty with early osteomyelitis would have prevented Dusty’s claimed injuries, including the additional treatment Dusty required to treat the osteomyelitis.  Moreover, Dr. Cobin does not otherwise dispute Dr. Dobon’s opinion that developing a post extraction infection, such as osteomyelitis, is a known risk and complication of tooth extraction, and that osteomyelitis does not typically manifest in a patient until four to six weeks postoperatively, which would be around the time that Defendant referred Dusty to her primary care physician for additional treatment. 

In sum, Dr. Cobin does not provide a reasoned explanation disputing Dr. Dobon’s statements and fails to “connect[] the factual predicates to the ultimate conclusions” sufficiently to show that Defendant’s actions or inactions were the cause of Decedent’s death.  (Fernandez, 31 Cal.App.at 781; see also Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 228 [If plaintiff would still have suffered the same injuries, regardless of the treatment plaintiff received, there is no causation].)

Based on the foregoing, Dr. Cobin’s declaration is insufficient to raise a triable issue of fact concerning standard of care and causation.

3. Conclusion

Defendant’s motion for summary judgment is granted.

Moving Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• 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. 

Dated this 7^th day of April 2023