Judge: Steven A. Ellis, Case: 21STCV31619, Date: 2023-10-06 Tentative Ruling
Case Number: 21STCV31619 Hearing Date: November 8, 2023 Dept: 29
Tentative
The motion
for summary judgment is granted.
Background
On August
25, 2021, Plaintiff Fredy Alvarez (“Plaintiff”) filed a Complaint against
Defendants Richard Roe, M.D., Retina Vitreous Associates Medical Group, and
Does 1 through 50. On December 20, 2021,
Plaintiff filed the First Amended Complaint (“FAC”) against the same defendants
asserting a claim for medical negligence against all defendants and a claim for
negligent supervision, hiring, and training against Retina Vitreous Associates
Medical Group. Defendants Richard Roe,
M.D., Retina Vitreous Associates Medical Group filed an Answer on March 8,
2022.
On July 18,
2023, Defendant Richard Roe, M.D. (“Dr. Roe”) filed a motion for summary
judgment. The Court granted the motion on
October 25, 2023.
On August
21, 2023, Defendant Retina Vitreous Associates Medical Group (“Defendant”) filed
the instant motion for summary judgment.
Plaintiff did not filed any 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(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.) 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 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.) 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.)
Discussion
Plaintiff asserts causes of action against
Defendant for (1) medical negligence and (2) negligent hiring, supervision
or retention. Plaintiff alleges he had
eye surgery on December 13, 2019 with Dr. Roe at Defendant’s facility that
caused (among other things) damage to Plaintiff’s retina, pain, and vision
problems. (FAC, ¶¶ 12-24.)
Defendant moves for summary judgment on the grounds that (1) Plaintiff’s
second cause of action for negligent hiring, supervision, or retention lacks
merit because Dr. Roe has at all relevant times been a competent opthamologist
and retinal specialist; (2) Plaintiff’s first cause of action for medical
negligence fails to raise a triable issue of material fact because the care and
treatment Plaintiff received complied with the requisite standard of care; and
(3) absent negligence by Dr. Roe, Defendant cannot be vicariously liable.
Negligent
Hiring, Supervision, or Retention
“[A]n employer can be liable to a third person for
negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50
Cal.App.4th 1038, 1054.) To establish a
cause of action for negligent hiring, retention, or supervision, a plaintiff
must show that the employer knew or should have known that hiring the employee
created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside
(2015) 238 Cal.App.4th 889, 902; Doe, supra, 50 Cal.App.4th at
1054.)
Here, Defendant submits the declaration of David Boyer, M.D. (“Dr.
Boyer”), a medical doctor
licensed to practice in California and a founding member and senior
ophthalmologist/retinal specialist at Defendant. (Declaration of David Boyer,
M.D., ¶ 1.) Dr. Boyer testifies that Defendant
Vitreous confirmed the completion of a background check before hiring Dr. Roe
and that Dr. Roe during periodic performance evaluations by Defendant has
always received positive marks for his skill and competence as a clinician and
retinal surgeon. (Boyer Decl., ¶¶ 3,
5.) Defendant also had not received
notice of a concern about Dr. Roe’s competence as a retinal surgeon before the
eye care provided to Plaintiff. (Id.,
¶ 5.) Further, Dr. Roe confirms his
medical school, internship, residency and fellowship training to become an ophthalmologist
and retinal specialist including his training in the performance of surgery to
treat retinal disease. (Declaration of
Richard Roe, M.D., ¶ 2.) Dr. Roe also testifies
that he passed his board exams, has been certified by the American Board of
Ophthalmology since 2008, and has an academic appointment as an Adjunct Clinic
Professor at USC- Keck School of Medicine.
(Id., ¶¶2-3.)
The foregoing is evidence that Dr. Roe at all relevant times been a competent and well qualified
opthamologist and retinal specialist. The Court finds that Defendant has
therefore satisfied its initial burden of showing that one or more elements of
the cause of action for negligent hiring, supervision, or retention 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.)
Plaintiff has not filed an opposition or
other evidence making this showing.
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, Defendant presents the declaration of
Mark Smith, M.D. (“Dr. Smith”), just as Dr. Roe did in support of his summary
judgment motion. (Declaration of Mark
Smith, M.D.) As set forth in detail in
the order granting Dr. Roe’s summary judgment motion, Dr. Smith presented
competent and admissible expert opinion evidence that Dr. Roe complied with his
duties under California law and the standard of care for a reasonably careful
medical professional under similar circumstances.
Thus, Defendant has satisfied its initial
burden of showing that one or more elements of the medical negligence cause 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.)
Plaintiff has not filed an opposition or
other evidence making this showing.
Vicarious Liability
An employer or
other principal cannot be held liable under a theory of vicarious liability
unless an employee or other agent is liable.
(See Bradley v. Sunset Telephone & Telegraph Co. (1908) 154
Cal. 420, 423 (“a verdict exonerating the agent must necessarily exonerate the
principal, since the verdict exonerating the agent is a declaration that he has
done no wrong, and the principal cannot be responsible for the agent if the
agent has committed no tort”); see also Lanthrop v. Healthcare
Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423 (“The
employer cannot be held vicariously liable unless the employee is found
responsible.”); Miller v. Filter (2007) 150 Cal.App.4th 652, 670.) As the Court has already granted Dr. Roe’s motion
for summary judgment, and Plaintiff in the FAC does not identify any other
employee or agent of Defendant who allegedly injured Plaintiff, Defendant is
entitled to judgment as a matter of law on Plaintiff’s vicarious liability
claim.
Accordingly, Defendant’s motion for summary
judgment is GRANTED.
Conclusion
The
Court GRANTS Defendant Retina-Vitreous
Medical Associates Medical Group’s motion for summary judgment.
Moving
party is ordered to give notice.