Judge: Steven A. Ellis, Case: 21STCV20011, Date: 2025-05-28 Tentative Ruling
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Case Number: 21STCV20011 Hearing Date: May 28, 2025 Dept: 29
Kim v. Lee
21STCV20011
Tentative
The motion is granted.
Background
On May
27, 2021, Kyung Sil Kim (“Plaintiff”) filed a complaint against Hyo Rang Lee,
M.D. (“Defendant”) and Does 1 through 100 for Medical Malpractice/Professional
Negligence arising from a procedure performed on February 25, 2020.
On
October 3, 2023, Defendant filed his answer.
On July
29, 2024, Defendant filed this motion for summary judgment.
No
opposition has been filed.
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.)
Discussion
Plaintiff brings this action against Defendant for medical
malpractice/professional negligence. Defendant now moves for summary judgment,
arguing that the undisputed facts establish that he complied with the
applicable standard of care.
On February 25, 2020, Plaintiff presented for a cancer screening colonoscopy
with Defendant. (Defendant’s Undisputed Material Facts [DUMF], No. 2.)
Plaintiff signed a consent form which set forth the risks of the colonoscopy
that include “bleeding, infections, pain, anesthesia risks and death.” (DUMF,
No. 3.) Defendant performed the colonoscopy, but stopped when Plaintiff
complained of pain and abdominal distention with gas. (DUMF, No. 4.) Defendant determined
no polyp or mass was detected and that he needed to rule out micro-perforation.
(DUMF, No. 5.) Defendant checked the upper abdominal standing x-ray and
transferred Plaintiff to the emergency room. (DUMF, No. 6.) Plaintiff did have
a perforation, which was treated at Hollywood Presbyterian without incident.
(DUMF, No. 7.)
Defendant complied with the applicable standard of care. (DUMF, No. 8.)
The procedure was performed in the normal and usual fashion. (DUMF, No. 10.) The
decision to terminate the procedure was appropriate. (DUMF, No. 11.) Defendant’s
recommendation to check the x-ray and call 911 for transportation to local
emergency department was appropriate. (DUMF, No. 12.) Bowel perforation is a
known and accepted risk and complication of a colonoscopy. (DUMF, No. 13.)
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.)¿
As framed by the Complaint, Plaintiff alleges that Defendant improperly
performed the colonoscopy on Plaintiff and perforated Plaintiff’s intestines.
(Comp. ¶ 8.)
Defendant present the declaration of Rudolph Bedford, M.D., who is
board-certified in internal medicine. (Bedford Decl., ¶ 2.) Dr. Bedford states
that, based on his education, training, and experience, he is familiar with the
standard of care for treating patients and performing procedures similar to the
one that Defendant performed on Plaintiff. (Id., ¶ 3.) Dr. Bedford
opines that, based on his review of Plaintiff’s medical record, Dr. Lee
complied with the standard of care and treatment of Plaintiff. (Id., ¶ 11.)
Specifically, Dr. Bedford opines that the cancer screening colonoscopy was
indicated given Plaintiff’s age. (Id., ¶ 11a.) Dr. Bedford opines the
procedure was performed in the normal and usual fashion. (Id., ¶ 11b.)
The decision to terminate the procedure was appropriate so the cause could be
evaluated. (Id., ¶ 11c.) Dr. Bedford opines Dr. Lee’s recommendation to
check the upper abdominal standing x-ray and call 911 for immediate transport
to the local emergency department was appropriate and prudent. (Id., ¶
11d.) Dr. Bedford opines that a bowel perforation is a known and accepted risk
and complication of a colonoscopy and can occur in the absence of negligence. (Id.,
¶ 11e.) In all, Dr. Bedford opines that Dr. Lee’s conduct and decision making
was reasonable and within the applicable standard of care.
This evidence meets Defendant’s initial burden, as a party moving for summary judgment, of showing that Defendant met the standard of care and was not negligent. The burden then shifts to Plaintiff to show that a question of material fact remains. Plaintiff does not oppose the motion or otherwise present any evidence that there is a triable issue of material fact.
Accordingly, the motion for summary judgment is granted.
Conclusion
The Court
GRANTS the motion for summary judgment filed by Hyo Rang Lee, M.D.
The Court
sets an Order to Show Cause re Entry of Judgment on __/__/25 at 8:30 a.m. in
Department 29 of the Spring Street Courthouse.
Moving party is to give notice.