Judge: Ralph C. Hofer, Case: 21STCV28645, Date: 2024-02-09 Tentative Ruling
Case Number: 21STCV28645 Hearing Date: February 9, 2024 Dept: NCD
TENTATIVE RULING
Calendar: 3
Date: 2/9/2024
Case
Number: 21STCV28645 Trial date: August 12 ,2024
Case
Name: Wilson v. New Smiles Studio, et al.
MOTION FOR SUMMARY JUDGMENT
Moving Party: Defendants Melanie Marshall,
D.D.S., Inc. dba New Smiles Studio and
Melanie Marshall,
D.D.S.
Responding Party: Plaintiff Edward Wilson
Relief Requested:
Summary
judgment in favor of defendants Melanie Marshall,
D.D.S., Inc. dba New Smiles Studio and Melanie Marshall, D.D.S. as to
plaintiff’s First Amended Complaint.
CAUSES OF ACTION: from
First Amended Complaint
1)
Dental/Medical
Malpractice and Res Ipsa Loquitur
2)
Lack of Informed
Consent
SUMMARY OF COMPLAINT:
Plaintiff Edward Wilson alleges
that in August of 2020, plaintiff had consulted and engaged the services of
defendants New Smiles Studio and Melanie Marshall, D.D.S for the purposes of
examination, consultation, evaluation, diagnosis, a routine exam, x-rays and
root canal.
Plaintiff alleges that while under
the care of defendants, defendant Dr. Marshall, without plaintiff’s consent or
knowledge, picked up an un-sanitized failed implant abutment that plaintiff had
brought with him in a plastic sandwich baggie, and proceeded to place the
abutment over and inside plaintiff’s mouth, while saying, “I just want to
see…” The FAC alleges that the abutment
dropped from Dr. Marshall’s grip and fell into plaintiff’s throat.
Plaintiff alleges that instantly
plaintiff stood out of the chair and began to choke and violently cough, having
no idea what had just happened.
Defendant seemed equally stunned and said, “I have never done that before,”
several times before saying, “I dropped it.”
Plaintiff tried to cough up the
dropped abutment to no avail, and Dr. Marshall suggested that plaintiff stick
his fingers down his throat to induce vomiting.
After several minutes of attempts to induce vomiting, no abutment was
recovered. Plaintiff and Dr. Marshall
then discussed the possibility of passing the abutment, and Dr. Marshall
advised plaintiff to seek medical attention and see a physician or go to the
emergency room, advising that he should have a chest x-ray done to verify the
abutment went down the throat, and not into the windpipes because they led to
the lungs. Plaintiff alleges that
plaintiff understood the risks and was extremely upset and feared for his life.
Plaintiff
presented to the emergency room, complaining of a possible aspirated foreign
body, and x-rays and physicians confirmed plaintiff had a foreign body in the
right lower bronchus, causing pain and discomfort, and ultimately requiring a
bronchoscopy, which plaintiff underwent two days later, and the object was
retrieved successfully.
Plaintiff alleges that defendants
failed to possess and use the level of skill, knowledge and care in diagnosis
and treatment that other reasonably careful dentists would use, resulting in
plaintiff suffering damages, significant physical pain, and severe mental and
emotional distress.
It is also
alleged that defendants failed to seek and obtain plaintiff’s informed consent
to place the implant abutment into the mouth of plaintiff, which constitutes
medical malpractice.
ANALYSIS:
Substantive
Under CCP § 437c(p)(2) a defendant
“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, even if
not separately pleaded, cannot be established, or that there is a complete
defense to the cause of action. Once the
defendant... has met that burden, the burden shifts to the plaintiff... to show
that a triable issue of one or more material facts exists as to the cause of
action or a defense thereto.”
Defendants Dr.
Marshall and Melanie Marshall, D.D.S., Inc. dba New Smiles Studio seek to
establish that plaintiff will be unable to establish all elements of his causes
of action for dental/medical malpractice and res ipsa loquitur, and lack of
informed consent. Defendants argue that
Dr. Marshall met the standard of care in the community as it relates to her
dental care and treatment of plaintiff, that no negligent act or omission on
the part of Dr. Marshall caused or contributed to plaintiff’s injuries or
damages, and that res ipsa loquitur does not apply to plaintiff’s case.
The notice of motion indicates the
motion is brought as a motion for summary judgment, not summary adjudication of
the separate causes of action.
CCP section 437c(c) provides:
“The motion for summary judgment
shall be granted if all the papers submitted 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.”
Accordingly, it is held that when
the notice of motion seeks only summary judgment, the presence of any triable
issue requires denial of the motion; a court may not summarily adjudicate
claims or defenses unless requested in the notice of motion.
To establish a cause of action for
professional negligence against health care providers such as Dr. Marshall and
her professional corporation, plaintiff must plead and prove the following
elements:
1) Defendant owed a legal duty to
use due care;
2) Defendant’s breach -- the
negligent act or omission; and
3) The breach as the proximate or
legal cause of the resulting injury.
Elam v. College Park Hospital (1982) 132 Cal.App.3d
332, 338.
The California Supreme Court has
noted in connection with professional malpractice claims against health care
providers that it has:
“consistently held that a physician
is required to possess and exercise, in both diagnosis and treatment, that
reasonable degree of knowledge and skill which is ordinarily possessed and
exercised by other members of his profession in similar circumstances.”
Landeros v. Flood (1976) 17 Cal.3d 399, 408,
citations omitted.
With respect to a claim for medical
negligence:
“’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.’ (Sinz v. Owens
(1949) 33 Cal.2d 749, 753
[205 P.2d 3, 8 A.L.R.2d 757]; accord, Brown v. Colm (1974) supra,
11 Cal.3d 639, 643; Cobbs v. Grant (1972) 8
Cal.3d 229, 236-237 [104 Cal.Rptr. 505, 502 P.2d 1]; Huffman v. Lindquist
(1951) 37 Cal.2d 465, 473
[234 P.2d 34, 29 A.L.R.2d 485].)”
Landeros v. Flood (1976) 17 Cal.3d 399. See also Barris v. County of Los Angeles
(1999) 20 Cal.4th 101, 114.
With respect
to medical causation:
“…medical causation can only be determined by expert medical
testimony. (Gin Non Louie v. Chinese Hospital Assn. (1967) 249 Cal.App.2d 774, 784 [57 Cal.Rptr. 906]; Stephenson v. Kaiser Foundation Hospitals (1962) 203 Cal.App.2d 631, 635 [21 Cal.Rptr. 646].)”
Salasguevera v. Wyeth Laboratories, Inc. (1990) 222
Cal.App.3d 379, 385.
Under Evidence Code section 801,
the opinion testimony of an expert is limited to opinions:
“(a) Related to a subject that is
sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact; and
(b) Based on matter (including his
special knowledge, skill, experience, training, and education) perceived by or
personally known to the witness or made known to him at or before the hearing,
whether or not admissible, that is of a type that reasonably may be relied upon
by an expert in forming an opinion upon the subject to which his testimony
relates...”
Defendants submit the declaration
of Gary Harmatz, D.D.S. [Compendium of Exhibits, Ex. G].
The declaration adequately
establishes Dr. Harmatz’s qualifications to testify as an expert, as Dr. Harmatz
is a licensed dentist with the appropriate education, training, and
professional experience, and is familiar with the standard of care required for
dentists practicing in communities within California. [Harmatz Decl. ¶¶ 3, 4]. Dr. Harmatz has experience restoring dental
implants, both as a treating dentist and as a professor at USC School of Dentistry
and has experience with patients swallowing or aspirating dental instruments
during dental treatment. [Harmatz Decl. ¶ 4].
Dr. Harmatz’s CV is attached as Exhibit 1. [Harmatz Decl. ¶ 3, Ex. 1].
The declaration also establishes
that Dr. Harmatz has reviewed the appropriate patient medical records,
including the records from Dr. Marshall, and various subpoenaed records from
other health care providers. [Harmatz
Decl. ¶ 5]. Dr. Harmatz has also reviewed the complaints in this matter,
various discovery responses, and the transcripts of the depositions of
plaintiff and Dr. Marshall. [Hartmatz Decl. ¶ 5]. Copies of the medical records from Dr.
Marshall’s office are submitted with the declaration of Dr. Marshall
authenticating the records. [Ex. G, Marshall
Decl., Ex. 1].
Dr. Harmatz provides substantial
testimony setting forth an understanding of the facts, and the reasons for Dr. Harmatz’s
opinions.
Specifically, Dr. Harmatz states
that the dental care and treatment related to Dr. Marshall’s attempt to confirm
the orientation of the implant abutment so that she could reattach the implant
abutment and crown was at all times appropriate and met the standard of care,
as Dr. Marshall took full mouth radiographs, completed a comprehensive
examination, and prepared a plan for treatment recommended for plaintiff, then
appropriately took steps to confirm the implant abutment and crown that had
fallen off of the implant would still fit and Dr. Marshall could get a proper
orientation to place the abutment.
[Harmatz Decl. ¶ 7]. Dr. Harmatz indicates that there are several
reasons the abutment may not have been proper for placement, and it was within
the standard of care to confirm the circumstances and whether Dr. Marshall had
the proper instruments to perform the procedure, and that Dr. Marshall
appropriately placed a piece of gauze in plaintiff’s mouth to act as a throat
pack to prevent objects going down a patient’s throat. [Harmatz Decl. ¶
7]. Dr. Harmatz states:
“Unfortunately, as DR. MARSHALL was
attempting to confirm the proper orientation, the abutment dropped off of her
periodontal probe onto the back side of the gauze and fell down plaintiff’s
throat. Again, this is a known rare risk of dental treatment and can and does
occur absent any negligence by the treating dentist. There is no evidence to
support any claim that DR. MARSHALL was negligent in her treatment of
plaintiff. DR. MARSHALL took the proper precautions in an attempt to avoid this
rare risk, but unfortunately, it can still happen.”
[Harmatz Decl. ¶ 7D].
Dr. Harmatz also explains that Dr.
Marshall’s conduct after plaintiff swallowed or aspirated the implant abutment,
to instruct plaintiff to immediately go to an emergency room for a chest x-ray,
was appropriate and within the standard of care, as were her other follow-up
calls and conversations with plaintiff.
[Harmatz Decl. ¶ 7E].
Dr. Harmatz also states, with
respect to informed consent, his opinion that “[t]he occurrence of a patient
swallowing or aspirating a dental instrument is so rare that the standard of
care does not require that a dentist advise a patient of this rare risk and
obtain informed consent prior to performing dental treatment.” [Harmatz Decl. ¶ 7F].
Dr. Harmatz states his professional
opinion with respect to medical causation:
“Based upon my education, training
and experience, as well as my review of the records and documents set forth
above in paragraph 5, it is my professional opinion, to a reasonable degree of
medical probability, that no negligent act or omission on the part of DR.
MARSHALL caused or contributed to plaintiff’s aspiration of the implant
abutment.”
[Harmatz Decl. ¶ 8].
It is held that “[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, 985, quotation
omitted.
Here, the declaration of Dr.
Harmatz sufficiently establishes that the conduct of the moving defendants fell
within the applicable standard of care, and the burden shifts to plaintiff to
raise triable issues of material fact.
The Second District holds that in a
medical malpractice case, if a plaintiff’s expert declaration in opposing
summary judgment sets forth specific factual breaches of
duty, the defendant doctor’s motion for summary judgment should be
denied. Hanson v. Grode (1999) 76
Cal.App.4th 601, 607.
Here, in opposition to the motion,
plaintiff submits the expert declaration of Cheri Lewis, D.D.S. [Nissen Decl., Ex. 1].
Dr. Lewis’ declaration establishes the
expert’s qualifications to render opinions on the medical-dental standard of
care applicable in Southern California to the treatment of patients like the
plaintiff in this case by dentists, as Dr. Lewis is a licensed and board
certified dentist, has authored many articles for medical journals, and
received honors from the Los Angeles Dental Society, and has worked in private
practice in Los Angeles and Beverly Hills since 1976. [Lewis Decl. ¶¶ 1-5; See also CV attached as Ex. 2].
Dr. Lewis has reviewed the
pertinent medical records, documentation, discovery responses, deposition
transcripts, as well as the moving papers, and is of the opinion that Dr. Marshall
breached the standard of care by, among other things, failing to take a health
history within the recommendations of the American Dental Association, failing
to conduct a proper periodontal exam, failing to recognize or document tissue
growth over the area of No. 14 which would have prevented proper assessment of
the viability of restoration of the implant, failing to properly examine the
abutment outside the mouth, which would have revealed a lingual groove,
rendering placement in the mouth unnecessary, and failing to take any
preventative measures, such as a gauze barrier, to prevent the aspiration of
dropped foreign bodies down the throat.
[Lewis Decl. ¶¶ 11, 13, 14, 16, 18, 19].
Dr. Lewis indicates that there is
evidence from plaintiff that no gauze was in fact inserted into his mouth and
indicates that dropping foreign bodies and the resulting aspiration is a known
risk, so that the “failure to take any preventative measures” was below the
standard of care. [Lewis Decl. ¶¶ 9I,
17].
Specifically with respect to
informed consent, Dr. Lewis indicates:
“No records show that informed
consent had been granted or that EDWARD WILSON received information about the
nature of crown restoration, the benefits, risks, complications, and potential
alternatives to crown/implant restoration treatment or procedure, or the
potential consequences of declining the treatment, which is below the standard
of care.”
[Lewis Decl. ¶ 12].
Dr. Lewis is also of the opinion
that the care and treatment provided to plaintiff by defendants, “violated
several applicable standards of care in and that failure was the cause of
EDWARD WILSON’s injuries.” [Lewis Decl.
¶ 10].
The declaration sufficiently set forth
specific factual breaches of duty to raise triable issues of fact with respect
to whether the conduct of defendants fell within the standard of care and was
the cause of plaintiff’s claimed injuries, as well as triable issues with
respect to whether plaintiff will be able to establish his second cause of
action for lack of informed consent. As
noted above, triable issues as to either of the causes of action warrants
denial of the motion for summary judgment in its entirety. The motion therefore is denied.
Plaintiff in opposition requests
that the court impose sanctions against defendants under CCP section 128.5,
arguing that defendants presented plaintiff with the Lewis Declaration, but
defendants continued to pursue their motion.
CCP section 128.5, however,
requires that a safe harbor be provided with respect to motions such as this
one, which could have been withdrawn.
Although CCP § 128.5, in contrast
to CCP § 128.7, does not ordinarily require the provision of a safe harbor, the
statute includes a provision evidently intended to prevent motions which should
be brought under §128.7 with the safe harbor from being brought under §128.5 to
avoid this requirement.
The statute
provides, in pertinent part, at CCP § 128.5 (f):
“(f) Sanctions ordered pursuant to this section shall be ordered
pursuant to the following conditions and procedures:
(1) If, after notice and a reasonable opportunity to respond, the
court issues an order pursuant to subdivision (a), the court may, subject to
the conditions stated below, impose an appropriate sanction upon the party, the
party's attorneys, or both, for an action or tactic described in subdivision
(a). In determining what sanctions, if any, should be ordered, the court shall
consider whether a party seeking sanctions has exercised due diligence….
(B) If the alleged action or tactic is the making or opposing
of a written motion or the filing and service of a complaint, cross-complaint,
answer, or other responsive pleading that can be withdrawn or appropriately
corrected, a notice of motion shall be served as provided in Section 1010, but
shall not be filed with or presented to the court, unless 21 days after service
of the motion or any other period as the court may prescribe, the challenged
action or tactic is not withdrawn or appropriately corrected.”
This request for sanctions, then
addressed to the making of a written motion which could have been withdrawn, should
have been served prior to the hearing on that motion, but then not filed until
21 days later to permit that motion to be withdrawn. This procedure was not followed here, as the
opposition was served and filed on the same date, January 26, 2024. No sanctions can be imposed.
RULING:
Defendant Melanie Marshall, D.D.S. and Melanie Marshall,
D.D.S., Inc.’s Motion for Summary Judgment is DENIED.
Plaintiff has submitted admissible expert
testimony citing specific factual breaches of duty which raises triable issues
of fact with respect to the establishment of medical negligence. See Hanson
v. Grode (1999, 2nd Dist.) 76 Cal.App.4th 601, 607. Specifically, plaintiffs have presented
evidence which raises triable issues of fact with respect to whether the
conduct of defendants fell within the standard of care and whether those acts
or omissions caused or contributed to plaintiff’s alleged injuries. [See Response to UMF Nos. 22- 28, 30, and
evidence cited, Lewis Decl. ¶¶ 10-19; Deposition of Plaintiff
Edward Wilson].
Plaintiff has also submitted admissible
expert testimony raising triable issues of material fact with respect to
whether plaintiff will be able to establish his cause of action for lack of
informed consent. [See Response to UMF
Nos. 28, 29, and evidence cited; Lewis Decl.
¶ 12].
Plaintiff’s Evidentiary Objections to the Declaration of
Gary R. Harmatz, D.D.S., FACD, FICD, FAGD are OVERRULED.
DEPARTMENT D IS CONTINUING
TO CONDUCT AND ENCOURAGE
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