Judge: Serena R. Murillo, Case: 19STCV02317, Date: 2022-10-06 Tentative Ruling
Case Number: 19STCV02317 Hearing Date: October 6, 2022 Dept: 29
TENTATIVE
Defendant Andre Maginot, M.D.’s motion for summary judgment is GRANTED.
Legal Standard
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.) CCP Section 437c(c)
“requires the trial judge to grant summary judgment 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.) “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima
(1991) 231 Cal. App. 3d 367, 381-382.)
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. (CCP § 437c(p)(2); 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.)
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 that cause of action or a defense thereto.
To establish a triable issue of material fact, the party opposing the
motion must produce substantial responsive evidence. (Sangster v. Paetkau
(1998) 68 Cal.App.4th 151, 166.)
Discussion
Medical Malpractice
The
elements of medical malpractice are: “(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.” (Simmons v.
West Covina Medical Clinic (1989) 212
Cal.App.3d 696, 701-702 (citations omitted).) “Both the
standard of care and defendants’ breach must normally be established by
expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th
at p. 467.)
Thus, in a medical
malpractice case, “[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, 984-985 (citations omitted).) An expert
declaration, if uncontradicted, is conclusive proof as to the prevailing
standard of care and the propriety of the particular
conduct of the health care provider. (Starr v. Mooslin (1971) 14
Cal.App.3d 988, 999.)
To meet his burden on summary
judgment, Defendant has submitted a declaration by Stephen Wilson, M.D., who is
board-certified in general surgery and colon and rectal surgery. (Wilson
Decl., ¶ 2.) Dr. Wilson opines that, based on a review of Plaintiff’s
medical records and responses to discovery, and his knowledge, education,
training, and experience, Defendant’s care and treatment of Plaintiff was
appropriate and complied with the standard of care. (Id., ¶ 5.)
More specifically, Dr. Maginot’s initial evaluation of the patient on August
14, 2017, was appropriate. The patient presented with complaints of changes in
his bowel movements with off and on diarrhea and blood stools. Dr. Maginot
reviewed the patient’s colonoscopy results and performed a physical
examination. He appropriately assessed the patient with sigmoid colon cancer.
Given the patient’s condition, Dr. Maginot’s recommendation for the patient to
undergo a left colectomy with spleen flexure takedown and possible stoma was
indicated and necessary. Further, he appropriately recommended the patient
undergo a carcinoembryonic antigen (CEA) blood test, CT of his abdomen and
pelvis with contrast and obtain medical and cardiac clearances for surgery.
(Id.) The records also indicate that Dr. Maginot discussed the procedure and
related risks and benefits with the patient, including the likelihood of
success as well as the problems related to recuperation and the patient wanted
to proceed with surgery. In addition, the patient signed a consent form prior
to the surgery. (Id.) Dr. Maginot’s performance of the resection of
rectosigmoid and transanal anastomosis were performed appropriately and within
the standard of care. The postoperative care Dr. Maginot provided to the
patient was also consistent with the standard of care. The patient remained at
the hospital for pain control and to ensure he was able to eat and pass gas.
Dr. Maginot subsequently saw the patient in October and November 2017 and the
patient’s incision had healed well and he was complaining of intermittent
constipation but otherwise doing well. Dr. Maginot’s subsequent surgical
consultation with the patient on January 18, 2018, was also appropriate. The
patient had complaints of a low stricture and had previously been seen by
colorectal surgeon, Dr. Newman. Dr. Maginot spoke with Dr. Newman prior to
seeing the patient and he agreed with Dr. Newman’s recommendation for further
work-up and surgery. The decision to stay out of the patient’s pelvis was
reasonable and appropriate given the patient’s prior surgery and ongoing cancer
treatment, including radiation. Dr. Maginot’s recommendation to hydrate the
patient and provide antibiotics was also appropriate. Given the patient’s
ongoing complaints of pain and that he could not move his bowels, Dr. Maginot’s
recommendation to proceed with a right traverse colostomy with lysis of
adhesions was indicated and necessary. Dr. Maginot’s performance of the right
transverse colostomy with lysis of adhesions was performed appropriately and
within the standard of care. The postoperative care provided by Dr. Maginot was
also appropriate. When Dr. Maginot saw the patient on March 1, 2018, the patient had been asymptomatic for the past 4 days, denied nausea and vomiting,
had normal filling of his colostomy and reported some intermittent anal
drainage, some bright red blood spots and urinary urgency. Therefore, Dr.
Maginot's recommendation for the patient to wait 2 months and then undergo a
lower barium enema and possible scope to dilate
was appropriate. When the patient returned again on June 4, 2018, Dr. Maginot appropriately
recommended the patient undergo a colonoscopy to determine
if they could close the colostomy. Lastly, Dr. Wilson opines that, to a
reasonable degree of medical probability, no act or omission on Defendant’s
part led to Plaintiff’s injuries. (Id.)
The Court finds
Defendant’s expert declaration is sufficient to satisfy Defendant’s burden of
proof to show that Defendants’ care and treatment of Plaintiff complied with
the standard of care and that no act or omission on Defendant’s part led to
Plaintiff’s injuries. The burden shifts to Plaintiff.
As Plaintiff has failed to file an opposition, Plaintiff has
failed to meet his burden of demonstrating triable issues of material fact
exist as to breach of duty and causation.
Accordingly, Defendant has shown that he cannot be held
liable for medical malpractice.
Conclusion
Based on the
foregoing, Defendant’s motion for summary judgment is GRANTED.
Moving party is
ordered to give notice.