Judge: Stephen P. Pfahler, Case: 20STCV43673, Date: 2023-01-24 Tentative Ruling

Case Number: 20STCV43673    Hearing Date: January 24, 2023    Dept: F49

Dept. F-49

Date: 1-24-23 c/f 9-29-22

Case #20STCV43673

Trial Date: Not Set

SUMMARY JUDGMENT

MOVING PARTY: Defendant, Erin Gale Stone, M.D.

RESPONDING PARTIES: Plaintiff, Sherie Buckley

RELIEF REQUESTED

Motion for Summary Judgment

SUMMARY OF ACTION

On an unspecified date in January 2019, plaintiff Sherie Buckley presented to third party Kasier Permanente with a broken shoulder. Plaintiff was referred to third party West Valley Post-Acute skilled nursing facility for physical therapy. Following a treatment period from January 7, 2019 to March 24, 2019, Plaintiff “suffered an adverse reaction to medication,” which led to admission at third party Northridge Hospital for seven days. Following the discharge from Northridge Hospital, Plaintiff was transferred to defendant Stoney Point Healthcare Center (SPHC) for further physical therapy. Defendant, Dr. Gale Stone, was Plaintiff’s supervising physician at SPHC.

Plaintiff alleges that in ordering the rehabilitation services, no “exercise restriction” were charted. Plaintiff was subsequently assigned use of two and three pound weights as well, as “manual resistance” exercises. In August 2019, Plaintiff complained to Dr. Stone about the pain, and was transferred back to Kaiser Permanente for an evaluation. A “non-union healing fracture” was diagnosed, and surgery performed in July 2020. Plaintiff alleges the physical therapy regimen was improperly prescribed and supervised.

On November 16, 2020, Plaintiff filed a complaint for Negligence and Professional Negligence. The action was transferred from Department 28 to Department 49 on January 14, 2022. Dr Stone answered the complaint on November 5, 2021. SPHC answered on April 29, 2022. The action was transferred from Department 31 to Department 49 on September 29, 2022.

RULING: Granted.

Evidentiary Objections to the Declaration of Eric Millstein, M.D.: Overruled.

Evidentiary Objections to the Declaration of Sherie Buckley: Overruled/Not Relied Upon (Code Civ. Proc., § 437c, subd. (q).)

Defendant Erin Gale Stone, M.D. moves for summary judgment on the second cause of action for professional negligence. Dr. Stone moves on grounds that the care and treatment provided complied with the standard of care, and no act or omission of Dr. Stone caused or contributed to the injuries of Plaintiff. Dr. Stone submits an expert declaration from Eric Millstein, M.D., in support. Plaintiff in opposition challenges the sufficiency of evidence in support of the motion. Dr. Stone in reply reiterates the propriety of the motion, including the declaration of Dr. Millstein.

“‘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 University of California (1989) 215 Cal.App.3d 977, 984-985.) The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 317.) 

The defense expert declaration of Dr. Millstein sets forth expert qualifications, indicates review of Plaintiff’s medical records, details the care and treatment of Plaintiff, and concludes that the care and treatment provided by Dr. Stone complied with the standard of care, and no act or omission by Dr. Joshi caused or contributed to the development of any injuries. The declaration is in part based on Dr. Stone’s reliance on the prior treatment plan provided in the orthopedic surgical evaluation and treatment plan included with the transfer instructions. The time frame at the facility allowed for the use of weight bearing exercises. Dr. Millstein concludes that the recommendation to continue following the orthopedic surgical guidelines in no way caused or contributed to the subsequently diagnosed non-union fracture.

Plaintiff submits no counter expert declaration and instead depends on a challenge the sufficiency of the expert declaration.  The court finds the declaration of Dr. Millstein sufficiently meets the moving burden on summary judgment.

Without a counter declaration and due to the lack of expert testimony on an area requiring expert evidence, the court finds no triable issues of material fact exist on the issue of the standard of care, and whether the care and treatment provided by Dr. Stone caused or contributed to the injuries of Plaintiff. The motion for summary judgment is therefore granted.

Case Management Conference set for January 25, 2023.

Moving Defendant to give notice to all parties.