Judge Randolph M. Hammock, Case Number: 22STCV23446, Date: 2024-06-20 Tentative Ruling

Plaintiff Cormelean Butler Kizzee brings this action for medical negligence against Defendants Cedars-Sinai Medical Center and Cedars-Sinai Health System. Plaintiff alleges she visited Cedars for a biopsy of her left kidney to address the potential spread of her cancer. Plaintiff alleges that the treating physician conducted the biopsy on her right kidney instead of her left. In her First Amended Complaint, Plaintiff asserts a single cause of action for medical negligence.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294). Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.)

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action. (Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.) Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (§ 437c(o)(2).)

Objection #5: “It was abundantly clear that the biopsy of the left kidney was to identify whether the cancer was spreading within the body; thus, the procedure was specific and targeted from a CT Scan which identified a possible spread in the left kidney.” (Kizzee Decl. ¶ 6.)

In support of the foregoing objections, Defendants argue that Plaintiff offers an “improper and unqualified expert opinion” or “lay opinion” in these portions of her declaration. The court agrees that Plaintiff lacks expertise to testify on the applicable standard of care or the exact contours or purpose of her procedure. That is why the objections to this specific language are being sustained. However, as discussed later in this ruling, even if this Court were to overrule these objections, and to consider these statements, they are still ultimately insufficient to carry Plaintiff’s burden to establish a triable issue of material fact.

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

While fighting cancer, Plaintiff visited Defendant Cedars for a biopsy of her left kidney, as ordered by her primary treating physician. (FAC ¶¶ 15, 21.) The purpose of the biopsy “was to identify whether the cancer was spreading within the body.” (Id. ¶ 18.) Plaintiff alleges she “confirmed with Defendant Cedars that the biopsy was for the left kidney when she called Defendant Cedars to schedule her appointment,” and then “signed for consent to perform a biopsy on her left kidney.” (Id. ¶¶ 20, 21.) Plaintiff further alleges the treating physician, Yaniv Raphael, M.D., committed medical negligence by performing the biopsy on Plaintiff’s right kidney instead of the left. (Id. ¶ 22.)

“A defendant moving for summary judgment has the initial burden of showing, with respect to each cause of action set forth in the complaint, the cause of action is without merit. A defendant meets that burden by showing one or more elements of the cause of action cannot be established, or there is a complete defense thereto.” (Leyva v. Garcia (2018) 20 Cal. App. 5th 1095, 1101.)

First, Defendants argue that Dr. Raphael, the treating physician, was not an employee or agent of Defendants, and therefore, Defendants are not liable for Dr. Raphael’s alleged professional negligence. In support, Defendant submits a declaration from Tara O’Shea, Vice President of Academic Human Resources at Cedars-Sinai Medical Center. (O’Shea Decl. ¶ 1.) Ms. O’Shea attests:

CSMC’s faculty database and CSMC’s Human Resources Information system reflect that at the time of the events relevant to this incident, July 2021, Yaniv Raphael, M.D. (“Dr. Raphael”) was not a CSMC clinical staff faculty member, nor was he under a professional services agreement with CSMC. Therefore, Dr. Raphael was not, in July 2021, an employee or agent of CSMC.

A hospital, “as an entity that is not a natural person, cannot practice medicine.” (Ermoian v. Desert Hosp. (2007) 152 Cal. App. 4th 475, 501.) Thus, a hospital’s liability for medical malpractice “must be based upon a theory of vicarious liability.” (Id.) In general, a principal is not vicariously liable for the negligent acts of an independent contractor. (Hill Brothers Chemical Co. v. Superior Court (2004) 123 Cal.App.4th 1001, 1008.)

However, courts have recognized that hospitals may be liable for acts of independent contractors under an “ostensible agency” theory. The essential elements are “(1) conduct by the hospital that would cause a reasonable person to believe there was an agency relationship and (2) reliance on that apparent agency relationship by the plaintiff.” (Mejia v. Cmty. Hosp. of San Bernardino (2002) 99 Cal. App. 4th 1448, 1457.) “Ultimately, ‘there is really only one relevant factual issue: whether the patient had reason to know that the physician was not an agent of the hospital.’” (Markow v. Rosner (2016) 3 Cal. App. 5th 1027, 1038.) “[H]ospitals are generally deemed to have held themselves out as the provider of services unless they gave the patient contrary notice, and the patient is generally presumed to have looked to the hospital for care unless he or she was treated by his or her personal physician. Thus, unless the patient had some reason to know of the true relationship between the hospital and the physician—i.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physician—ostensible agency is readily inferred.” (Id.)

“In the physician-hospital-patient context, ostensible agency is a factual issue ‘[u]nless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital's agent, such as when the patient is treated by his or her personal physician’ or received actual notice of the absence of any agency relationship.” (Markow, supra, 3 Cal. App. 5th at 1039 [citing Mejia, supra, 99 Cal. App. 4th at 1458].)

For example, in Wicks, a patient “had been in defendant's emergency room for a little over an hour” and “signed and initialed an admission form” stating that physicians “are not employees, representatives or agents of the hospital. They are independent practitioners.” (Wicks v. Antelope Valley Healthcare Dist. (2020) 49 Cal. App. 5th 866, 882.) In other words, the patient “signed a straightforward notice, with no obtuse legalese, telling him the staff physicians were independent contractors and not employees or agents.” (Id. at 883.) The Court held that this evidence—which was undisputed by the plaintiff—established that the doctors were not the hospital’s ostensible agents, and thus, the hospital was not liable for the doctor’s acts. (Id.)

Accordingly, the law requires that Defendants negate the ostensible agency theory to accomplish their initial burden. (See Franklin v. Santa Barbara Cottage Hosp. (2022) 82 Cal. App. 5th 395, 404 [hospital satisfied its initial burden of production for summary judgment purposes by presenting agreement stating there was no employer-employee relationship between doctor and hospital, at which point the burden shifted to appellant to establish a triable issue of material fact “as to the existence of an actual agency relationship”].)

Here, neither party has addressed ostensible agency. Defendant has provided no evidence it gave Plaintiff notice that Dr. Raphael was an independent contractor or otherwise not an agent of the hospital. There are no facts or arguments in the record demonstrating that Plaintiff reasonably should have known that Dr. Raphael was not Defendants’ agent.

The pleadings “set the boundaries of the issues to be resolved at summary judgment.” (Nativi v. Deutsche Bank Nat'l Tr. Co. (2014) 223 Cal. App. 4th 261, 289–90.) A moving defendant has “the burden on summary judgment of negating only those theories of liability as alleged in the complaint and [are] not obliged to refute liability on some theoretical possibility not included in the pleadings.” (Id. [cleaned up].)

On summary judgment, “trial courts are empowered to read the pleadings broadly, ‘in the light of the facts adduced in the summary judgment proceeding,’ if those pleadings give fair notice to the opposing party of the theories on which relief is generally being sought.” (Howard v. Omni Hotels Mgmt. Corp. (2012) 203 Cal. App. 4th 403, 422.) “The test is whether such a particular theory or defense is one that the opposing party could have reasonably anticipated would be pursued, and whether a request for leave to amend accordingly would likely have been granted (in that case, to add a potentially meritorious defense).” (Id.)

In the First Amended Complaint, Plaintiff alleged that “each of the Defendants sued herein are the agents…of each other, and in doing the things herein alleged acted within the course and scope of such agency…and with the full knowledge and consent of the other.” (FAC ¶ 7.)

Therefore, Plaintiff adequately alleged an ostensible agency theory in the FAC, thereby placing it at issue for purposes of this motion. Because Defendants did not negate this theory, they cannot meet their initial burden. Accordingly, Defendants’ first argument fails.

Defendants next argue the motion should be granted because Plaintiff consented to the biopsy of her right kidney. However, Defendants provide no authority stating that informed consent is a defense to professional negligence. Professional negligence and lack of informed consent are distinct theories of liability and stand independently of the other. (See, e.g., Cobbs v. Grant (1972) 8 Cal.3d 229, 240–244.)

Finally, Defendants argue that Plaintiff’s medical negligence cause of action fails because they complied with the relevant standard of care. “The elements of a cause of action for professional negligence are failure to use the skill and care that a reasonably careful professional operating in the field would have used in similar circumstances, which failure proximately causes damage to plaintiff.” (Jameson v. Desta (2013) 215 Cal. App. 4th 1144, 1166.)

Defendant submits an expert declaration from Dr. Howard S. Kaufman, M.D. Dr. Kaufman has been a practicing surgeon since 1990 and details his experience in the academic and clinical setting. (Kaufman Decl. ¶¶ 4-6; SSUMF 9, 10.) Prior to offering his declaration, Dr. Kaufman reviewed “Plaintiff’s First Amended Complaint; Plaintiff’s Amended Responses to Form and Special Interrogatories, Set One; Plaintiff’s Deposition Transcript; Plaintiff’s subpoenaed medical records from Aslan Pirouz, M.D.; [and] Plaintiff’s subpoenaed medical records from Cedars-Sinai Medical Center.” (Id. ¶ 7.) Plaintiff did not offer any objections to Dr. Kaufman’s declaration or establish that he is incompetent to testify as an expert.

Based on his review of those records, Dr. Kaufman attests to the following: Starting in 2020, Plaintiff began taking the drug Pembrolizumab. (Id. ¶ 9(a).) Then, “[i]n January 2021 plaintiff developed signs of renal insufficiency. Her physicians were concerned that she had or could develop nephritis, which is a kidney injury associated with use of Pembrolizumab and ordered a biopsy of her kidney to evaluate its health and function.” (Id. ¶ 9(b).) “Accordingly, Plaintiff’s primary doctor, nephrologist Aslan Pirouz, M.D., ordered a biopsy of plaintiff’s left kidney on or about July 15, 2021.” (Id. ¶ 9(c).)

Plaintiff initially appeared at CSMC for the biopsy of her left kidney on July 15, 2021. (Id. ¶ 9(d).) However, because of Plaintiff’s elevated blood pressure, the biopsy was cancelled. (Id.) Then, on July 20, 2021, Plaintiff returned to CSMC, based on an “order, by Dr. Pirouz, for biopsy of her right kidney.” (Id. ¶ 9(e) [emphasis added].) Thus, for reasons not clear, the biopsy was switched from the left to right kidney. At that point, Dr. Raphael performed the biopsy on plaintiff’s right kidney “without complication,” and Plaintiff was discharged the following day. (Id. ¶ 9(g).)

Dr. Kaufman attests that “the care provided to Plaintiff” under these circumstances complied with the standard of care. (Id. ¶ 11.) Importantly, Dr. Kaufman suggests that the purpose of the biopsy was not, as Plaintiff alleged in the First Amended Complaint, “to identify whether the cancer was spreading within the body.” (FAC ¶ 18.) Instead, Dr. Kaufman states, “Plaintiff’s physicians ordered a kidney biopsy to evaluate the health of her kidneys in order to inform their decisions insofar as continuing her treatment with Pembrolizumab.” (Kaufman Decl. ¶ 11(a).) Significantly, when performing a kidney biopsy for injury such as nephritis, “it does not matter which kidney is biopsied,” because the “biopsy of either would allow for a kidney injury to be diagnosed or ruled out.” (Id. ¶ 11(b).) “As such,” states Dr. Kaufman, “it was appropriate and within the standard of care, to biopsy either plaintiff’s right or left kidney.” (Id.) He continues that “no action or inaction by plaintiff’s medical providers at CSMC during her admission from July 20, 2021 to July 21, 2021, was a substantial cause of any injury or damage.” (Id. ¶ 12.)

To summarize, based on the identified medical purpose of the biopsy—to diagnose a kidney injury of the type associated with the use of Pembrolizumab—Dr. Kaufman concludes that it “does not matter” if the left or right kidney was biopsied. (Id. ¶ 12(a).) He also concludes that the biopsy to the right kidney did not cause any injury or the spread of Plaintiff’s cancer. (Id. ¶ 12(b).)

Considering this evidence, Defendants have met their initial burden to demonstrate that the physicians complied with the relevant standard of care. This switches the burden to Plaintiff to show via specific facts that a triable issue of material facts exists. (§ 437c(o)(2).)

In opposition, Plaintiff argues that Dr. Raphael “definitely breached the standard duty of care.” (Opp. 9: 11.) She states it “preposterous” for Defendants to claim they were not negligent and states it is “abundantly clear” that Dr. Raphael was in breach of his professional duty. (Opp. 9: 26; 10:5.) But for her burden, Plaintiff again submits only her own declaration. She states, in conclusory terms, that “Defendant Raphael failed to meet any proper medical standards for his profession.” (Kizzee Decl. ¶ 15.) In short, the opposition essentially attempts to comport regular negligence with medical malpractice. Unfortunately for Plaintiff, this is not the type of res ipsa loquitor situation which would justify that type of analysis.

This court is well aware that it must “liberally construe the evidence in support of the party opposing summary judgment and resolve any doubts concerning the evidence in favor of that party.” (Medina v. Equilon Enterprises, LLC (2021) 68 Cal. App. 5th 868, 874.) However, “[b]oth the standard of care and defendants' breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal. App. 4th 463, 467.) “Whenever the plaintiff claims negligence in the medical context, the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff.” (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 153; see also Munro v. Regents of Univ. of California (1989) 215 Cal. App. 3d 977, 985 [“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”].)