Judge: Sandy N. Leal, Case: 2022-01274802, Date: 2023-07-20 Tentative Ruling

Motion for Summary Judgement and/or Adjudication

Defendant Su-Yong Pak, M.D.’s motion for summary judgment is GRANTED as set forth more fully below.

Although the Complaint does not identify any specific causes of action, the allegations of the Complaint consist of medical negligence against a healthcare provider. Thus, the court views the Complaint as one for medical malpractice.

The elements of a medical malpractice cause of action are:

(1) duty of 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 negligent conduct and resulting injury; and (4) actual loss or damage resulting from professional's negligence. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463.)

In a medical malpractice action, 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 the University of Calif. (1989), 215 Cal. App. 3d 977, 985.)

A defendant moving for summary judgment bears an initial burden of producing admissible evidence sufficient to show that the plaintiff’s action has no merit; i.e. that, as to each cause of action, one or more elements of the cause of action cannot be established or there is a complete defense. (Code Civ. Proc., § 437c, subds. (a), (p)(2).) Only after a defendant meets that burden, does the burden shift to the plaintiff to produce admissible evidence showing the existence of a triable issue as to a cause of action or complete defense. (Id.; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)

Pursuant to the allegations in the Complaint, Plaintiff alleges Defendant prescribed ineffective medication on 8/15/19 that caused negative side effects such as numbness in the feet and right side of the body, chest pain and dizziness.  In addition, about 3 years ago, Plaintiff felt pain on the low left side of his belly, he complained about it to Defendant and Defendant failed to treat it. Defendant told Plaintiff to find another doctor to treat him because Plaintiff refused to take the medication recommended by Defendant.  Plaintiff visited Defendant every six months, but Defendant complained that Plaintiff did not come every three months and Plaintiff refused to take the recommended medication because he was OK and there was no need.  Defendant did not want to see Plaintiff anymore.

In support of the instant motion, Defendant submits the expert declaration of Howard Bland, M.D. to establish that Defendant’s treatment of Plaintiff was at all times within the standard of care, that Defendant did not breach any duty of care and that no negligent act or omission caused or contributed to injury or damage to Plaintiff. (Compendium of Evidence, I.) Based upon Dr. Bland’s review of Defendant’s chart, as well as his education, training and experience, it is his opinion, at all times Dr. Pak's care and treatment of Mr. Goo met or exceeded the standard of care applicable to family physicians practicing in Orange County, California.  Id. at ¶ 47.  His opinions are based on Defendant’s correct diagnoses, appropriate ordering of various tests based upon Plaintiff’s complaints, prescription medication based upon the results of the tests.  Id. at ¶¶ 48-57.  Based upon Dr. Bland’s review of Dr. Pak's chart as set forth above, it is his professional opinion that, to a reasonable degree of medical certainty, no negligent act or omission by Dr. Pak caused or contributed to any injury or damage to Mr. Goo. Id. at ¶ 58.

Based upon the foregoing, Defendant has met the moving burden.  The burden therefore shifts to Plaintiff to submit expert evidence demonstrating a triable issue of material fact as to the standard of care and causation. Because Plaintiff does not oppose the instant motion, he has not met that burden and Defendant has established that no triable issues of fact exist.

The undisputed material facts establish that Plaintiff’s claims against Defendant Dr. Pak are without merit. Defendant is therefore entitled to summary judgment on Plaintiff’s Complaint.

Moving Defendant is ordered to serve notice of this order.