Judge: Salvatore Sirna, Case: 23PSCV00412, Date: 2023-11-09 Tentative Ruling

Case Number: 23PSCV00412    Hearing Date: November 9, 2023    Dept: G

Plaintiff Jeffrey Ito’s Motion for Summary Judgment

Respondent: Defendant Kaiser Foundation Health Plan, Inc.

TENTATIVE RULING

Plaintiff Jeffrey Ito’s Motion for Summary Judgment is DENIED.

BACKGROUND

This is an action for medical malpractice. From April 2021 to May 2022, Plaintiff Jeffrey Ito received healthcare insurance coverage through Defendant Kaiser Foundation Health Plan, Inc. (Kaiser). In June 2021, Ito met with John Darrell Waldren, M.D. and requested a consultation with an expert neuroscientist who could properly diagnose ongoing issues with Ito’s brain. In particular, Ito alleges people were spying on the contents of his conscious experience with holography or connectionism. Ito alleges Dr. Waldren failed to make the referral to a neuroscientist, diagnosed Ito with obsessive compulsive disorder (OCD), and referred Ito to a psychiatrist.

In July 2021, Ito met with Rhiana Roque, M.D. and again requested help from an expert neuroscientist and high-resolution brain imaging. In response to Ito’s request, Ito alleges Dr. Roque diagnosed Ito with “schizophrenia vs. delusional disorder” and prescribed ziprasidone. In February 2023, Ito alleges a CT scan demonstrated there was no organic cause for Ito’s brain issues. Ito then alleges Dr. Waldren and Dr. Roque still refused to refer Ito to a neurologist.

On February 14, 2023, Ito filed a complaint against Defendant Kaiser Permanente, alleging a cause of action for medical negligence.

On March 20, 2023, Ito filed a First Amended Complaint (FAC) against Kaiser, alleging the same cause of action.

On July 25, 2023, Ito filed the present motion for summary judgment. On October 24, Kaiser filed their own motion for summary judgment or summary adjudication.

A hearing on Ito’s motion for summary judgment and a case management conference/status conference re: ADR are set for November 9, 2023. A hearing on Kaiser’s motion is set for January 9, 2024.

ANALYSIS

Ito moves for summary judgment on Ito’s sole cause of action for medical negligence. For the following reasons, the court DENIES Ito’s motion.

Legal Standard

Summary Judgment

A motion for summary judgment provides “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.) It must be granted “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, quoting Code Civ. Proc., § 437c, subd. (c).) To establish a triable issue of material fact, the opposing party must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 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.)

Medical Negligence

A cause of action for medical negligence consists of the following elements: “(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.” (Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230, quoting 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 488 et seq., p. 2749.)

“In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [Citation], except in cases where the negligence is obvious to laymen. [Citation.]” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) And “[w]hen a defendant moves for summary judgment and supports [their] motion with expert declarations that [their] conduct fell within the community standard of care, [they are] 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, quoting Hutchinson v. United States (9th Cir. 1988) 838 F.2d 390, 392.) Similarly, “[w]here the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation.” (Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal.App.4th 1563, 1569.) Plaintiffs must establish “that defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of [their] injury.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509.)

Discussion

In this case, Ito failed to provide any expert opinion testimony that establishes whether Dr. Waldren and Dr. Roque breached the applicable standard of care. Instead, Ito argued such evidence is unnecessary in light of Kaiser’s admissions. But while Ito claims Kaiser admitted “to the breach of the standard of care and/or the causation of harm,” Ito failed to point to a single discovery response or piece of evidence that establishes Kaiser made such an admission. In fact, Kaiser’s responses to Ito’s requests for admissions state the opposite. In them, Kaiser stated it does not provide healthcare services or medical treatment and instead contracts with the Southern California Permanente Medical Group to provide those services. (MSJ, p. 46:21-24, 50:14-20, 51:4-10, 51:22-28, 53:23-54:1, 54:13-19, 55:21-27, 56:12-18, 57:3-12, 57:24-58:2, 58:14-20, 59:4-10, 59:22-60:1, 60:13-20, 61:4-11, 61:22-62:1, 62:13-19, 63:2-7, 63:19-24, 64:9-15, 65:16-22, 66:6-12, 66:25-67:2, 67:14-20, 68:4-9.) Kaiser also denied that it and its employees were responsible for treating and diagnosing Ito. (MSJ, p. 46:26-47:9.)

Because Ito failed to provide any expert opinion testimony that establishes whether Dr. Waldren and Dr. Roque breached the applicable standard of care, the court finds Ito failed to carry the burden of demonstrating an absence of triable issues of material fact that justifies the granting of Ito’s motion for summary judgment. Furthermore, Ito failed to address and establish how Kaiser is liable for Dr. Waldren and Dr. Roque’s alleged negligence in light of Kaiser’s discovery responses.

Accordingly, Ito’s motion is DENIED.

CONCLUSION

Based on the foregoing, the court DENIES Ito’s motion for summary judgment.