Judge: Steven A. Ellis, Case: 20STCV37181, Date: 2023-10-23 Tentative Ruling
Case Number: 20STCV37181 Hearing Date: October 23, 2023 Dept: 29
Tentative
Defendant’s motion for summary judgment
is GRANTED.
Background
This case arises out of an alleged act of
medical malpractice during eye surgery on October 5, 2019.
On September 29, 2020, Plaintiff Charles
Collins (“Plaintiff”) filed this action against Defendants Dana Tannenbaum, M.D.,
Freedom Vision Surgery Center, and Does 1 through 25, for one cause of action
for medical negligence.
The named defendants filed their answers on
December 14 and 20, 2021. On March 21, 2022, Plaintiff dismissed Defendant
Freedom Vision Surgery Center with prejudice.
On August 3, 2023, Defendant Dana
Tannenbaum (“Defendant”) filed this motion for summary judgment. On October 6,
2023, Plaintiff submitted a Notice of Non-Opposition.
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.)
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.)
Discussion
Plaintiff alleges in the Complaint that Defendant negligently performed
surgery on Plaintiff, cutting Plaintiff’s left eyelid muscles resulting in
vision loss, pain and facial deformation. (Complaint ¶ 4.) Defendant moves for
summary judgment on the grounds that Plaintiff’s cause of action for medical
negligence fails to raise a triable issue of material fact because the care and
treatment provided by Defendant complied with the requisite standard of care.
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 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.” (Galvez v. Frields (2001) 88 Cal.App.4th
1410, 1420.) “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 his 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 it was more likely than not that their treatment fell below the
standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th
297, 305.) “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.3d 977, 984-85.) 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, Defendant presents the declaration of Brian Francis, M.D., a
board-certified ophthalmologist. (Francis Decl. ¶ 1.) Dr. Francis states that
he is familiar with the procedures for performing various glaucoma surgeries,
including trabeculectomy bleb revision. He states he is familiar with the
indications of such treatment, the inherent known risks, and the standard of
care applicable to ophthalmologists who diagnose and treat glaucoma. (Francis
Decl. ¶ 1, 3.) Dr. Francis reviewed the deposition of Plaintiff, Charles
Collins, the deposition of Defendant, Dana Tannenbaum, the Declaration of
Defendant, and the medical records regarding Plaintiff Charles Collins. (Francis
Decl. ¶ 2, Ex. A.) Dr. Francis opines that Defendant’s care complied with the
requisite standard of care for ophthalmologists specializing in the diagnosis
and treatment of glaucoma. (Francis Decl. ¶ 4.)
Dr. Francis opines that the bleb revision surgery was indicated for the left
eye, and Defendant appropriately performed the June 5, 2023 bleb revision
surgery. (Francis Decl. ¶ 7.) Dr. Francis states that there are recognized
risks of bleb revision surgery, including loss of vision, double vision, and a
droopy eyelid that can occur despite an appropriately performed surgery.
(Francis Decl. ¶ 8.) Dr. Francis opines that Plaintiff’s droopy eyelid and
double vision did not result from any deviation in the standard of care. (Francis
Decl. ¶ 8.) Dr. Francis states that he did not see any evidence that a rectus
muscle was cut or otherwise compromised during the bleb revision surgery.
(Francis Decl. ¶ 8.)
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
879, 879.)¿ This evidence shows that Defendant complied with her duties under
California law and the standard of care for a reasonably careful medical
professional under similar circumstances.
With this evidence, Defendant
has satisfied the initial burden of proof of showing that one or more elements
of the cause of action cannot be established. This shifts the burden to Plaintiff
to show there is triable issue of one or more material facts as to the cause of
action.
Plaintiff has not filed an opposition or other evidence making this showing.
Accordingly, Defendant’s motion for summary judgment is GRANTED.
Conclusion
The Court
GRANTS Defendant’s motion for summary judgment.
Moving party
is ordered to give notice.