Judge Ralph C. Hofer, Case Number: 21STCV32998, Date: 2023-12-08 Tentative Ruling

Plaintiff John Peter Robinson alleges that on June 25, 2020, plaintiff presented to defendant Urgent Med dba Glendale Urgent Care (Glendale Urgent Care) with a chief complaint of lacerations to the right hand secondary to a dog bite incident. Plaintiff alleges he was attended to by the defendant, including defendant Jeannette Yevette Martello, M.D. who administered a TDAP injection and after irrigating and debriding the wounds went on to suture the lacerations extremely tightly.

On June 26, 2020, plaintiff again presented to Glendale Urgent Care, and was again seen by defendant Dr. Martello. Plaintiff related that he was experiencing swelling and defendant Dr. Martello administered a Rocephin injection and discharged plaintiff.

On June 27, 2020, plaintiff again presented to Glendale Urgent Care, and was seen by defendant Dr. Martello, and related that his entire hand was swollen and stiff. Defendant Dr. Martello instructed plaintiff to self-admit to Huntington Memorial Hospital through the emergency room.

Plaintiff alleges that defendants provided a below standard treatment, so that plaintiff developed a severe infection of the right hand, which was mismanaged by defendants, who negligently failed to properly refer plaintiff to a qualified physician and failed to advise plaintiff of other possible alternative treatment or the risks of diagnosis or treatment, thereby failing to obtain a free and informed consent. Plaintiff alleges that as a result of defendants’ conduct plaintiff was injured, as by the time he reported to the emergency room he had to be admitted to the hospital for IV antibiotics and infection control, surgical incision and drainage of the bite wound, and has suffered injuries, a great portion of said injuries being permanent.

Defendants Glendale Urgent Care and Dr. Martello argue that they are entitled to summary judgment as against plaintiff because no triable issues of fact exist as to whether the care provided to plaintiff by defendants was appropriate and complied with the standard of care. Defendants also argue that the declarations of defendants’ experts establish that nothing defendants did or failed to do caused or substantially contributed to plaintiff’s injuries in this matter.

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. Marcello and Glendale Urgent Care seek to establish that plaintiffs will be unable to establish all elements of the cause of action for medical negligence, as plaintiff will be unable to establish that the moving defendants failed to comply with the standard of care, or that any act or omission on the part of these defendants caused or contributed to any damages claimed by plaintiff through this lawsuit.

“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.”

“’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].)”

“…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].)”

(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...”

The declaration of Dr. Barcay adequately establishes Dr. Barcay’s qualifications to testify as an expert, as Dr. Barcay is a licensed physician with the appropriate education, training and professional experience, board certified in emergency medicine, internal medicine, and critical care medicine and board eligible in pulmonary medicine. [Barcay Decl., para. 1]. Dr. Barcay is currently an attending Emergency Department physician at Cedars Sinai Medical Center and is familiar with the care and treatment provided by urgent care/emergency facilities and urgent care/emergency medicine physicians and is also familiar with the care and treatment provided for dog bite injuries, as well as the relevant standards of care. [Barcay Decl., paras. 2, 7]. Dr. Barcay’s CV is attached as Exhibit L. [Barcay Decl., para. 1, Ex. L].

The declaration also establishes that Dr. Barcay has reviewed the complaint in this matter, plaintiff’s deposition and pertinent declarations, and appropriate patient medical records, including the records from Glendale Urgent Care, Huntington Memorial Hospital, Jeev Puri, M.D., and Accredited Home Healthcare Services. [Barcay Decl., paras. 3, 4].

Specifically, Dr. Barcay states that it is Dr. Barcay’s opinion that the care and treatment provided to plaintiff by Dr. Martello was appropriate and within the standard of care, and that the treatment provided to plaintiff by the nursing and non-physician staff of Glendale Urgent Care complied with the applicable standard of care, as “The decision on how to treat plaintiff’s dog bite was not in the purview of the nursing and non-physician staff of the clinic. This was a physician’s decision.” [Barcay Decl., paras. 17, 18, emphasis in the original]. Dr. Barcay explains that plaintiff’s wound was appropriately irrigated, a tetanus shot was provided, the wounds were properly sutured, and plaintiff was appropriately discharged with a prescription for Augmentin, the standard anti-biotic treatment for dog/cat bites. [Barcay Decl., para. 18-20]. Dr. Barcay also explains that at plaintiff’s subsequent follow-up presentations plaintiff was appropriately examined and treated, and ultimately sent to the hospital for a higher level of care, with Dr. Martello calling the emergency room physician about the reasons plaintiff was being referred. [Barcay Decl., para. 22-23].

Dr. Barcay also opines that defendants were not the cause of plaintiff’s hand infection, as there was no delay in sending plaintiff to the emergency room for intravenous antibiotics, that Huntington Hospital should have promptly opened the sutures and cleaned and cultured the wound, and that the two-day delay contributed to plaintiff’s alleged outcome. [Barcay Decl., paras. 24, 25]. Dr. Barcay opines that, to a reasonable degree of medical probability, nothing Dr. Martello or the nursing and non-physician staff at Glendale Urgent Care did or failed to do caused plaintiff’s alleged injury in this matter. [Barcay Decl., paras. 26, 27].

The declaration of Dr. Pitchon similarly adequately establishes Dr. Pitchon’s qualifications to testify as an expert, as Dr. Pitchon is a licensed physician with the appropriate education, training and professional experience, board certified in internal medicine, with a subspecialty in infectious diseases. [Pinchon Decl., para. 1]. Dr. Pitchon is currently an attending physician in infectious diseases at Cedars Sinai Medical Center and is familiar with the standard of care for treatment of infections related to dog bite injuries. [Pitchon Decl., paras. 1, 2, 7]. Dr. Pitchon’s CV is attached as Exhibit M. [Pitchon Decl., para. 1, Ex. M].

The declaration also establishes that Dr. Pitchon has reviewed the complaint in this matter, plaintiff’s deposition and pertinent declarations, and appropriate patient medical records, including the records from Glendale Urgent Care, Huntington Memorial Hospital, Jeev Puri, M.D., and Accredited Home Healthcare Services. [Pitchon Decl., paras. 3, 4].

Specifically, Dr. Pitchon states that it is Dr. Pitchon’s opinion that the care and treatment provided to plaintiff by Dr. Martello was appropriate and within the standard of care, and that the treatment provided to plaintiff by the nursing and non-physician staff of Glendale Urgent Care complied with the applicable standard of care, as “The decision on how to treat plaintiff’s dog bit was not in the purview of the nursing and non-physician staff of the clinic. This was a physician’s decision.” [Pitchon Decl., paras. 17, 18, emphasis in the original]. Dr. Pitchon refers to the same factual background related by Dr. Barclay above, and further explains in some detail that the correct medications were prescribed by Dr. Martello to treat a dog bite injury to manage plaintiff’s care needs and potential for infection. [Pitchon Decl., paras. 19, 20, 21.]

Dr. Pitchon also opines that plaintiff’s infection was not due to any negligence in the care or treatment provided by Dr. Martello or the nursing or non-physician staff and Glendale Urgent Care, as “dog bite injuries can develop into infections in the absence of any negligence, and in fact, infections are common with dog bites.” [Pitchon Decl., para. 21]. Dr. Pitchon further explains:

“The patient had neurologic symptoms related to his finger prior to his abscess being drained. After the abscess was drained the neurologic symptoms persisted despite drainage of the abscess which would be more indicative, to a reasonable medical probability, that the nerve injury was related to the dog bite and not the abscess.”

Dr. Pitchon opines that, to a reasonable degree of medical probability, nothing Dr. Martello or the nursing and non-physician staff at Glendale Urgent Care did or failed to do caused plaintiff’s alleged injury in this matter. [Pitchon Decl., paras. 24, 25].

Defendants argue that under California law, if the plaintiff cannot establish that Dr. Martello, by reasonable medical probability in excess of 50%, caused plaintiff’s alleged injuries, then Dr. Martello is entitled to summary judgment in her favor. Defendant also argues that based upon Dr. Pitchon’s declaration, Glendale Urgent Care, Dr. Martello’s employer, would also be entitled to summary judgment.

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 declarations of Dr. Barcay and Dr. Pitchon sufficiently establish that the conduct of the moving defendants fell within the applicable standard of care, and no act or omission by the moving defendants was a substantial factor in causing or contributing to the patient’s claimed injuries. The burden accordingly 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 medical provider’s motion for summary judgment should be denied. Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.

Dr. Puri’s declaration establishes Dr. Puri’s qualifications to render opinions in this matter, as Dr. Puri is a licensed physician in private practice in the southern California area in plastic and reconstructive surgery. [Puri Decl., paras. 1, 2, Ex. 1 (CV)].

Dr. Puri has reviewed the pertinent medical records, as well as photographs provided by plaintiff, has reviewed the deposition transcripts of plaintiff, his wife, and Dr. Martello, and personally examined plaintiff and performed incision and drainage surgery on plaintiff to address the infection and abscess in plaintiff’s right hand. [Puri Decl., paras. 2, 4-6].

Dr. Martello’s record keeping, and documentation was subpar and below the accepted standard in the community. Dr. Martello did not document, for example, how much irrigation was used, how much time pressure was applied to the wound, or the bleeding.

Dr. Martello’s watertight closure of the bite wounds, likely without adequate irrigation (not properly documented) was negligent. In addition, Dr. Martello’s instructions to plaintiff to use peroxide and other solutions over a tightly closed wound were ineffectual in addressing a festering infection within a closed wound, and below the standard of care.

The Declaration of Dr. Puri also indicates that Dr. Puri is of the further opinion, to a reasonable degree of medical probability, that the substandard care afforded to plaintiff between June 25, 2020 and June 27, 2020 resulted in significant harm to plaintiff, above and beyond the damage caused by the original dog bite injury, as if Dr. Martello had properly treated plaintiff, he most likely would not have needed a 5 day hospital stay, the D&I procedure, and would have had a better outcome as he would not have had the same level of scarring which is the current cause of plaintiff’s pain. [Puri Decl., para. 10].

This declaration establishes Dr. Puri’s qualifications to render an expert opinion. Dr. Puri’s opinion raises triable issues concerning whether the conduct of Dr. Martello fell within the applicable standard of care and was a medical cause of plaintiff’s injuries.

The opposition also submits evidence establishing that defendant Glendale Urgent Care has admitted in verified discovery responses that at the time period in question, Dr. Martello was an employee acting as an agent for Glendale Urgent Care so that Dr. Martello’s negligence is properly attributed to defendant Glendale Urgent Care. [See Heimanson Decl., Ex. 2, Response to Request for Admission No. 5]. The response to the RFA states, “Admit that Jeannette Yevette Martello, M.D. was an employee of responding party during the period of June 25, 2020 to June 27, 2020.” [Id].

Defendants in reply argue that the opposition has failed to establish that the non-physician medical staff of Glendale Urgent Care engaged in any conduct below the standard of care. However, the opposition sufficiently establishes that Glendale Urgent Care is vicariously responsible for the medical negligence of its employee physician, as discussed above. Defendants do not challenge the evidence of Dr. Martello’s employment with and agency for defendant Glendale Urgent Care.

Defendants also argue that Dr. Puri fails to sufficiently establish medical causation but concedes that Dr. Puri’s declaration states that all opinions expressed in the declaration, “are given to a reasonable degree of medical certainty.” [Puri Decl., para. 3]. Dr. Puri’s opinions also clearly include the opinion concerning causation “to a reasonable degree of medical probability” and that plaintiff “would have had a better outcome,” as he “would not have had the same level of scarring which is the current cause of his pain.” [Puri Decl., para. 10].

Plaintiff has presented admissible expert testimony citing specific factual breaches of duty which raises triable issues of fact with respect to the claim of professional negligence by defendant Jeannette Yevette Martello, M.D., including failure to comply with the applicable standard of care by suturing plaintiff’s dog bite wound extremely tightly, failing to release the sutures at the first sign of infection, and giving plaintiff ineffectual at home care instructions, which conduct or omission to a reasonable degree of medical probability was a substantial factor in causing or contributing to the patient’s alleged injuries. See Hanson v. Grode (1999) 76 Cal.App.4th 601, 607. [Responses to UMF Nos. 19, 21-32, and evidence cited therein; Puri Decl., paras. 1-11].

Plaintiff has also submitted discovery responses from defendant Glendale Urgent Care establishing that Dr. Martello at all relevant times, was acting as an employee of Glendale Urgent Care. [Additional Fact No. 2, and evidence cited; Heimanson Decl., Ex. 2, Response to Request for Admission No. 5].

Plaintiff has presented admissible expert testimony citing specific factual breaches of duty which raises triable issues of fact with respect to the claim of professional negligence by defendant Jeannette Yevette Martello, M.D., including failure to comply with the applicable standard of care by suturing plaintiff’s dog bite wound extremely tightly, failing to release the sutures at the first sign of infection, and giving plaintiff ineffectual at home care instructions, which conduct or omission to a reasonable degree of medical probability was a substantial factor in causing or contributing to the patient’s alleged injuries. See Hanson v. Grode (1999) 76 Cal.App.4th 601, 607. [Responses to UMF Nos. Responses to UMF Nos. 19, 21-32, and evidence cited therein; Puri Decl., paras. 1-11].

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