Judge Steven A. Ellis, Case Number: 21STCV42420, Date: 2023-09-18 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV42420, Date: 2023-09-18 Tentative Ruling

Case Number: 21STCV42420 Hearing Date: April 4, 2024 Dept: 29

Defendants’ Motions for Summary Judgment, or in the Alternate, Summary Adjudication

TENTATIVE

The motions are granted.

Background

On November 17, 2021, Plaintiff Norma Berry (“Plaintiff”) filed the Complaint in this action against Defendants Mercy Eye Care Medical, Inc. (“Mercy”), Miguel Unzueta, M.D. (“Unzueta”), Sandeep Khanna, M.D. (“Khanna”), and Does 1 through 25, asserting causes of action for medical malpractice and lack of informed consent, arising out of medical care and several procedures for cataracts during the period of June through September 2020.

Mercy and Khanna filed an answer on January 27, 2022. Unzueta filed an answer on January 28, 2022.

On October 5, 2023, Khanna filed a motion for summary judgment, with a hearing date of December 19, 2023.

On October 6 2023, Mercy filed a motion for summary judgment, with a hearing date of December 20, 2023.

On October 13, 2023, Unzueta filed a motion for summary judgment, with a hearing date of January 8, 2024.

On December 5, 2023, Plaintiff filed a consolidated opposition to the motions of Mercy and Khanna, along with objections. Mercy and Khanna filed their replies on December 14 and 15, 2023.

The Court, on its own motion, continued the hearings on the motions filed by Mercy and Khanna. Subsequently, on Plaintiff’s ex parte application, the Court continued the hearings on all three motions to April 4, 2024.

On February 22, 2024, the Court granted the motion of Plaintiff’s counsel to be relieved.

Plaintiff did not file any opposition to Unzueta’s motion.

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

The Motion for Summary Judgment of Defendant Unzueta

Unzueta moves for summary judgment on the grounds that the undisputed facts show that he met the standard of care, that he did not cause Plaintiff’s injury, and he adequately disclosed all important risks in obtaining Plaintiff’s consent.

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, Unzueta presents the declaration of Jonathan M. Davidorf, M.D. (“Dr. Davidorf”), who is a Diplomate of the American Board of Ophthalmology, a Clinical Assistant Professor of Ophthalmology at UCLA School of Medicine, Jules Stein Institute, and has been in private practice in the field of ophthalmology for approximately 28 years. (Davidorf Decl., ¶¶ 1, 3-4 & Exh. A.) Dr. Davidorf is familiar with the standard of care in the medical profession that applies to ophthalmologists within the community. (Id., ¶ 6.)

Dr. Davidorf has reviewed Plaintiff’s medical records. (Id., ¶ 7.) Based upon that review, Dr. Davidorf opines that Unzueta acted at all relevant times within the standard of care related to his care and treatment of Plaintiff. (Id., ¶¶ 9-17.) Dr. Davidorf also opines that no action or inaction by Unzueta caused or contributed to the injuries of which Plaintiff complains. (Id., ¶¶ 18-19.)

Dr. Davidorf’s opinion testimony 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. Davidorf is evidence that Unzueta complied with his duties under California law and the standard of care for a reasonably careful medical professional under similar circumstances.

With this evidence, Unzueta has satisfied the initial burden of showing that one or more elements of the causes of action in the complaint 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. Accordingly, Defendant Unzueta’s motion for summary judgment is GRANTED.

The Motions for Summary Judgment of Defendants Mercy and Khanna

As an initial matter, Plaintiff’s objections to the evidence presented by Defendants Mercy and Khanna (collectively, “Defendants”) are overruled.

Khanna moves for summary judgment on the grounds that the undisputed facts show that he met the standard of care, that he did not cause Plaintiff’s injury, and he adequately disclosed all important risks in obtaining Plaintiff’s consent.

Mercy moves for summary judgment on the ground that Plaintiff’s theory is that it is derivatively liable as the principal or employer of Unzueta and Khanna, and the undisputed facts show that both Unzueta and Khanna met the standard of care, that neither Unzueta nor Khanna caused Plaintiff’s injury, and that both Unzueta and Khanna adequately disclosed all important risks in obtaining Plaintiff’s consent.

Here, Khanna presents the declaration of Michael Reynard, M.D. (“Dr. Reynard”), who is board certified by the American Board of Ophthalmology, is a former Chief of Ophthalmology at Providence-St. John’s Health Center in Santa Monica, and is currently an Attending Physician in Ophthalmology at UCLA School of Medicine. (Reynard Decl., ¶ 2 & Exh. 1.) Dr. Reynard is familiar with the standard of care in the medical profession that applies to ophthalmologists treating patients such as Plaintiff. (Id., ¶ 4.)

Dr. Reynard has reviewed Plaintiff’s medical records and discovery materials in this litigation. (Id., ¶ 5.) Based upon that review, Dr. Reynard opines to a reasonable medical probability that Khanna acted at all relevant times within the standard of care related to his care and treatment of Plaintiff. (Id., ¶¶ 10-15.) Dr. Reynard also opines to a reasonable medical probability that there is nothing that Khanna did or failed to do in violation of the standard of care that caused or contributed to any injury alleged by Plaintiff. (Id., ¶¶ 16-17.)

Dr. Reynard’s opinion testimony 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, supra, 95 Cal.App.4th at p. 879.) The expert opinion testimony of Dr. Reynard is evidence that Khanna complied with his duties under California law and the standard of care for a reasonably careful medical professional under similar circumstances.

With this evidence, Khanna has satisfied the initial burden of showing that one or more elements of the causes of action in the complaint 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 filed an opposition but presents no evidence (expert or otherwise) to make this showing. Accordingly, Defendant Khanna’s motion for summary judgment is GRANTED.

Because Mercy’s liability is, at most, derivative of the liability of Unzueta and Khanna, Mercy’s motion for summary judgment is GRANTED as well.

Conclusion

The Court GRANTS all the motions for summary judgment filed by Defendants Mercy, Khanna, and Unzueta.

Moving Parties are ordered to give notice.