Judge: Steven A. Ellis, Case: 20STCV23672, Date: 2023-11-07 Tentative Ruling
Case Number: 20STCV23672 Hearing Date: November 20, 2023 Dept: 29
TENTATIVE
The motion is GRANTED in part and
DENIED in part.
Defendant’s motion for summary judgment
is DENIED.
Defendant’s motion for summary
adjudication as to the First Cause of Action is DENIED.
Defendant’s motion for summary
adjudication as to the Second Cause of Action is GRANTED.
Background
This action
arises out of an outpatient procedure conducted at the USC Norris Comprehensive
Cancer Center on November 19, 2019. In the First Amended Complaint (“FAC,” the operative
complaint), Plaintiff Richard Hyman (“Plaintiff”) asserts claims for Medical
Negligence and Medical Battery against Defendant Russell Alexander, M.D. (“Defendant”).
Plaintiff alleges, among other things, that he did not consent to morphine or
anything other than the “exact regional spinal anesthetic” that had been “previously
administered” and “successfully used for pain control during his prior
procedures.” (FAC, ¶ 12.) Nonetheless, Plaintiff alleges, Defendant administered
0.3 milligrams of morphine, causing Plaintiff to suffer a severe adverse
reaction. (Id., ¶¶ 13-18.)
Plaintiff
filed his initial complaint on June 23, 2020, and his FAC on November 30, 2020.
After Defendant’s demurrer to the FAC was overruled, and his motion to strike
denied, Defendant filed his Answer to the FAC on May 26, 2021.
Defendant
filed this motion for summary judgment, or in the alternative for summary
adjudication, on May 16, 2023. Plaintiff filed his opposition on October 26. Defendant
filed his reply and objections to Plaintiff’s evidence on November 2.
The hearing
was initially set for November 7, 2023. The Court, on its own motion, continued
the hearing to November 20.
Legal Standard
“The purpose
of the law of summary judgment is to provide 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.) Code of Civil
Procedure section 437c, subdivision (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
cause of action as framed by the complaint, a defendant moving for summary judgment
or summary adjudication must satisfy the initial burden of proof by presenting
facts to show “that one or more elements of the cause of action ... cannot be
established, or that there is a complete defense to the cause of action.” (Code
Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25
Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th
1510, 1520.) 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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd.
(p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)
A plaintiff
or cross-complainant moving for summary judgment or summary adjudication must
satisfy the initial burden of proof by presenting facts to show “that there is
no defense to a cause of action if that party has proved each element of the
cause of action entitling the party to judgment on the cause of action.” (Code
Civ. Proc., § 437c, subd. (p)(1).) Once
the plaintiff or cross-complainant has met that burden, the burden shift to the
defendant or cross-defendant to show that a “triable issue of one or more
material facts exists as to the cause of action or a defense thereto.” (Ibid.)
The party
opposing a motion for summary judgment or summary adjudication may not simply
“rely upon the allegations or denials of its pleadings” but must instead “set
forth the specific facts showing that a triable issue of material fact exists.”
(Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). 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.)
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.)
Evidentiary
Objections
Defendant
objects to portions of the declaration submitted by Plaintiff’s expert witness
David A. Gutman, MD, MBA, FASA. Evidence presented in support of, or in
opposition to, a motion for summary judgment must be admissible. (Code Civ.
Proc., § 437c, subd. (d); Perry
v. Bakewell Hawthorne LLC
(2017) 2 Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and sustained.” (Code
Civ. Proc., § 437c, subd. (c).)
Defendant’s
objections to the declaration of Dr. Gutman are OVERRULED. Dr. Gutman has appropriate credentials and his testimony relates
to a subject that is sufficiently beyond common experience that the opinion of
an expert witness would assist the trier of act; is based on information of the
type on which an expert may reasonably rely; is based on reasons supported by
the information on which the expert relies; and is not speculative (Evid. Code,
§§ 801-02; Sargon Enterprises v. USC (2012) 55 Cal.4th 747, 771-21.).
Discussion
First Cause of Action – Medical Negligence
In a
medical negligence action a plaintiff must establish the following elements:
“(1) the duty of the professional to use such
skill, prudence, and diligence as other members of [the] 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.” (Galvez
v. Frields (2001) 88 Cal.App.4tha 1410, 1420; Simmons v. West Covina
Medical Clinic (1989) 212 Cal.App.3d 696, 701-02.) “Both the standard of care and defendants’ breach must normally be
established by expert testimony in a medical malpractice case.” (Avivi v.
Centro Medico Urgente Medical Center (2008), 159 Cal.App.4th 463, 467.)
A medical professional breaches the duty of
professional care by failing to act in accordance with the prevailing industry
standard of care. (See Folk v. Kilk (1975) 53 Cal.App.3d 176, 186.) “The
standard of care against which the acts of a physician are to be measured is a
matter peculiarly within the knowledge of experts; it presents the basic issue
in a malpractice action and can only be proved by their testimony …, unless the
conduct required by the particular circumstances is within the common knowledge
of the layman.’” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)
A defendant moving for summary judgment in a medical
malpractice action must “present evidence that would preclude a reasonable
trier of fact from finding that it was more likely than not that their
treatment fell below the standard of care.” (Johnson v. Super. Ct. (2006)
143 Cal.App.4th 297, 305.) “When a defendant moves for summary judgment and
supports [the] motion with expert declarations that [their] conduct fell within
the community standard of care, [the defendant] 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.)¿ 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.)¿
Here, Defendants present the declaration of Richard
Ruffalo, M.D., Pharm. D. Mark Smith, M.D. (“Dr. Smith”), a board certified
medical doctor in anesthesiology, a diplomat of the American Board of Anesthesiology,
a fellow of the American College of Clinical Pharmacology, and an Assistant
Clinical Professor Anesthesiology at UCLA School of Medicine. Dr. Ruffalo
reviewed various materials related to this matter and, based upon his training
and experience, as well as the review of the records, opines that, to a
reasonable degree of medical probability, the care and treatment rendered to
Plaintiff by Defendant – including administering 0.3 mg of morphine – complied
with the applicable standard of care. (Ruffalo Decl., ¶¶ 8, 9(l).) Dr. Ruffalo
also opines that neither the administration of the morphine nor anything else that
Defendant did or failed to do caused Plaintiff any harm or injury. (Id.,
¶¶ 9, 9(m).)
This is “evidence which, if
uncontradicted, would constitute a preponderance of evidence that an essential
element of the plaintiff’s case cannot be established.” (Kids’ Universe v.
In2Labs (2002) 95 Cal.App.4th 870, 879.) The expert opinion testimony of
Dr. Ruffalo is evidence that Defendant complied with applicable standard of
care and did not cause any injury to Plaintiff.
With this
evidence, Defendant satisfied his initial burden of showing that one or more
elements of each of the causes of action in the FAC cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) This
shifts the burden to Plaintiff to show that there is a triable issue of one or
more material facts as to the causes of action. (Ibid.)
In support of his case, Plaintiff offers evidence
that he told Defendant that he did not want to receive morphine or any form of
sedation. (Greenslade Decl., Exh. 1, at 31:13-24, 38:17-22.) In addition,
Plaintiff presents the testimony of his expert witness, Dr. Gutman, a board
certified medical doctor in anesthesiology, and an Associate Professor
of Anesthesiology at the Medical University of South Carolina. Dr. Gutman reviewed
various materials related to this matter and, based upon his training and
experience, as well as the review of the records, opines that, to a reasonable
degree of medical probability, the administration of 0.3 mg of morphine to
Plaintiff by Defendant under all of the circumstances, including the comorbidities
of the patient, breached the standard of care. (Gutman Decl., ¶ 6(e), (g), (h).
Dr. Gutman also opines that the administration of the morphine caused Plaintiff
to suffer serious side effects. (Id., ¶ 6(f), (g).) And Dr. Gutman
opines that the post-procedure medications offered by Defendant (which
Plaintiff refused) were not appropriate to treat the adverse reactions that
Plaintiff was suffered. (Id., ¶ 6(j).)
Plaintiff’s evidence, including but not limited
to the expert opinion testimony, is sufficient to show that there are triable
issues as to breach and causation. At the summary judgment stage, the Court
does not weigh the evidence.
Accordingly, the Court concludes that Plaintiff
has met his burden in establishing the existence of genuine issues of material
fact sufficient to defeat Defendant’s motion for summary adjudication of the
First Cause of Action for Medical Negligence.
Second Cause of Action – Medical Battery
In analyzing the Second Cause of Action for Medical Battery,
the Court of Appeal’s opinion in Burchell v. Faculty Physicians &
Surgeons of Loma Linda University School of Medicine (2020) 54 Cal.App.5th
515, 523-524 is instructive. There, the Court of Appeal explained:
“Our Supreme Court has distinguished between two
qualitatively different types of medical battery. … The first, an intentional
tort, occurs when a physician obtains the patient's consent to perform one type
of treatment, but performs a substantially different treatment for which the
plaintiff gave no consent. … The second type occurs when a physician performs
the treatment for which consent was obtained and an infrequent complication
occurs that the physician failed to disclose when obtaining the patient's
consent.” (Id. at pp. 523-524, citing, among other cases, Cobbs v.
Grant (1972) 8 Cal.3d 229.)
The first type is medical battery. The second is
medical negligence. (Burchell, supra, 54 Cal.App.5th at p. 524;
see also, e.g., Cobbs, supra, 8 Cal.3d at p. 240; Saxena v. Goffney (2008)
159 Cal.App.4th 316, 324.)
Here, as Defendant argues in his motion, the
injuries that Plaintiff alleges occurred (if at all) as the result of an
infrequent complication that Defendant failed to disclose. There is no evidence
that Plaintiff was subjected to a procedure as to which he did not consent at
all. Indeed, in his Opposition, Plaintiff does not contest this point.
Accordingly, based on the evidence in the record,
including the allegations of the Plaintiff, Defendant has shown “that one or more elements of the cause of
action ... cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).)
Accordingly, the Court grants Defendant’s motion
for summary adjudication of the Second Cause of Action for Medical Battery.
Conclusion
The Court GRANTS in part and DENIES in
part Defendant’s motion.
The Court DENIES Defendant’s motion for
summary judgment.
The Court DENIES Defendant’s motion for
summary adjudication as to the First Cause of Action.
The Court GRANTS Defendant’s motion for
summary adjudication as to the Second Cause of Action.
Moving party is ordered to give notice.