Judge: Serena R. Murillo, Case: 19STCV07659, Date: 2022-09-26 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

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IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV07659    Hearing Date: September 26, 2022    Dept: 29

Lisa Samore v. Hyun W. Bae

Motion for Summary Judgment filed by Defendant Hyun W. Bae

TENTATIVE

Defendant Hyun W. Bae’s motion
for summary judgment is DENIED.

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.)

Evidentiary Objections

Defendant’s
Objections to Plaintiff’s Evidence:

·       The following objections are overruled: 1, 2,
3, 4, 5, 6, 7, 8, 10, 11, 12

·       The following objections are sustained: 9 (Only as to
Melamed Decl., 12, 4:5-6; overruled as to lines 3-4.)

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.) 

Defendant presents the expert opinion of Mark
Spoonamore, M.D., an orthopedic surgeon with a specialty in spine surgery, who
opines that Dr. Bae complied with the standard of care. Dr. Spoonamore opined
that the surgery performed By Dr. Bae on April 25, 2016 of the C5- C6 C6-C7
cervical discectomy and decompression with anterior cervical insertion of an
artificial disc replacement was indicated and was performed correctly and
within the standard of care. Plaintiff had tried conservative treatment of
chiropractic measures, physical therapy and medications, to no avail, and the
imaging supported an attempt at surgical repair to alleviate her pain symptoms,
which were described by her in some of the medical records as debilitating.
(UDF 4.)

The reports of the imaging that were ordered and
performed by Dr. Bae and others support that the discs were placed correctly.
The x-ray of the cervical spine taken on May 16, 2016, and June 3, 2016, along
with the interpretation by Dr. Bae of the films, indicate no migration and
excellent placement of the spacers. Dr. Spoonamore opined that the standard of
care does not require extension flexion x-rays be taken. The x-ray orders
issued by Dr. Bae were adequate and within the standard of Care. (UDF 5.)

Although the MRI ordered by plaintiff’s primary care
provider and performed on July 22, 2016 was limited by artifact, the CT of July
18, 2016 showed right sided uncovertebral osteophytes at C5- C6 causing
moderate right foraminal narrowing with no significant bony spinal canal or
bony left foraminal narrowing. C6-C7 showed no significant bony spinal canal or
bony foraminal narrowing. The interbody disc spacers at C5-C6 and C6-7 were
identified without evidence of solid osseous fusion at this time. (UDF 6.)

Dr. Spoonamore notes that the findings of
osteophytes identified at C5-C6 causing right foraminal narrowing, did not
indicate that Dr. Bae failed to perform the initial surgery correctly or that
he negligently failed to attempt to remove the osteophytes at that level during
the initial surgery. The operative report indicates that a medial uncusectomy
was performed at C5-6 and C6-7 which is essentially describing removal of
osteophytes. Bone removal is a “balancing act,” and that removal of some bone
is necessary, but too much bone removal can make the prothesis unstable. As
such, the amount of removal is a judgment call, and it was not substandard even
if the osteophyte at C5-C6 was not completely removed at the time of the
initial surgery by Dr Bae. (UDF 7.)

The CT myelogram of August 21, 2017 reveals that: - the
C5-C6 disc prothesis was in place but positioned slightly to the left of
midline with no gross displacement with asymmetric disc space narrowing on the
right with a posterior projecting calcified disc and/or osteophyte indenting
the thecal sac and deforming the spinal cord; -“Uncovertebral the joint
degeneration results in moderate right and mild left neural foraminal
stenosis.” - the C6-C7 artificial disc prosthesis was in place and positioned
on the midline with no asymmetric disc space narrowing; - just inferior to the
space a projecting osteophyte was indenting the sac but did not result in
significant spinal stenosis; - uncovertebral joint degeneration resulted in
right neural foraminal stenosis. According to Orthopedic expert Dr. Spoonamore,
these results in no way indicated the spinal surgery was performed negligently.
The initial imaging reveled that the discs were placed correctly, discs can
shift over time and the fact that a disc shifts is not malpractice. Further,
the presence of osteophytes post-surgery, does not mean the initial surgery was
performed negligently. (UDF 8.)

Dr. Spoonamore further opines, to a
reasonable medical probability, that there is nothing Dr. Bae did, or failed to
do, in violation of the applicable standard of care, that caused or contributed
to any injury or harm to plaintiff. (UDF 2-9.) The initial surgery was
indicated and necessary as evidenced by Plaintiff’s condition and complaints,
the findings shown by the x-rays and MRI studies and the findings of Dr. Bae on
physical examination. Further, Plaintiff’s condition did not improve with
conservative treatment. Dr. Spoonamore notes that while it is indeed
unfortunate that Plaintiff reported she had no real relief of symptoms after
the surgery and seemed to have developed further and worsening symptoms
thereafter, this does not mean that the surgery was performed negligently, or
that malpractice occurred. It is a medical fact that just because a procedure
doesn’t cure the problem, this does not mean that the procedure was not
indicated and necessary or that it was done improperly. (Id.)

The Court finds Defendant’s expert declaration is
sufficient to satisfy Defendant’s burden of proof to show that Defendant’s care
and treatment of Plaintiff complied with the standard of care and did not cause
or contribute to Plaintiff’s injuries.  The burden shifts to
Plaintiff. 

To
meet her burden, Plaintiff presents the expert opinion of Hooman Melamed, M.D.,
a board-certified orthopedic spine surgeon, who opines that when a patient,
such as Plaintiff, presents with the pain and symptoms that she presented with
to Defendant after his April 25, 2016 surgery, the standard of care requires
proper and prompt follow-up and a thorough and careful investigation into the
patient’s complaints, especially when the patient’s complaints are not
consistent with the usual post-surgery recovery; here, this required that
Defendant promptly order and review a CT scan, an MRI, and cervical
flexion/extension x-rays of the patient’s cervical spine, as Plaintiff’s
signs and symptoms were highly suggestive of potential spinal cord injury,
irritation, compression, myelopathy, and/or compromise. By failing to comply
with the above – specifically, by failing to timely order and review cervical
flexion/extension x-rays – Defendant violated the standard of care. Time is of
the essence in evaluating and addressing a patient who has evidence and
symptoms of spinal cord injury, irritation, compression, myelopathy and/or
spinal cord compromise. (Melamed Decl., ¶ 9.) The
nature and chronology of Plaintiff’s post-surgery symptoms, including their
timing and proximity to the April 25, 2016 surgery, and her subsequent imaging
and work-up, suggest, very likely, that “instability” was the cause of Plaintiff’s
post-surgery pain and symptoms. (Id., ¶ 10.) The only
x-rays that were taken of Plaintiff were “neutral” x-rays – not
flexion/extension x-rays. Unlike the “neutral” x-rays, flexion/extension
x-rays would have revealed whether or not the artificial discs were moving
abnormally when Plaintiff would flex and/or extend her neck. (Id. 12.)  By failing to timely order and review (or
order and review at all) cervical flexion/extension x-rays, Defendant violated
the standard of care. (Id., ¶ 9.)

Had
Defendant promptly ordered and reviewed flexion/extension x-rays on Plaintiff,
he would have quickly discovered the instability in her cervical spine that was
caused by the artificial discs. Defendant would then have had the opportunity
to address and rectify the situation through the performance of another surgery
and Plaintiff would, more than likely, not have been injured and damaged to the
degree that she actually was. (Id., ¶ 13.)

The Court finds that triable issues of material fact
exist as conflicting expert testimony has been provided opining on whether
Defendant violated the standard of care when he did not promptly order and
review cervical flexion/extension x-rays of Plaintiff’s cervical
spine, and whether that caused Plaintiff her injuries. Therefore, the motion
for summary judgment must be denied.

In reply, Defendant
argues that Dr. Melamed’s declaration is inadmissible, as Dr. Melamed relies on
multiple documents, but the most critical one is not before the court. However,
the Court finds that because the other medical documents are before the Court,
his declaration relying on those documents is sufficient. The objection to the
portion of Dr. Melamed’s declaration where he relies on the x-ray images from
Cedars Sinai has been sustained, and only that portion of his declaration is
inadmissible. Further, Plaintiff has filed a notice of errata, whereby Dr.
Melamed declares under penalty of perjury that he has read Dr. Bae’s deposition
transcript. As such, Plaintiff has still met her burden on summary judgment
without the excluded piece of evidence, as Dr. Melamed has otherwise opined
that Plaintiff’s pain and symptoms, of which she constantly advised Dr. Bae
post-surgery, were very likely a result of the instability caused by improper
movement of her artificial discs, (Melamed Decl., ¶ 11), and
unlike the “neutral” x-rays, flexion/extension x-rays would have revealed
whether or not the artificial discs were moving abnormally when Plaintiff would
flex and/or extend her neck. (Id., ¶ 12:3-4.)

Conclusion

Based on the foregoing, Defendant’s motion for summary judgment is DENIED.

Defendant is ordered to give notice.