Judge: Steven A. Ellis, Case: 21STCV45558, Date: 2024-04-12 Tentative Ruling

Case Number: 21STCV45558    Hearing Date: April 12, 2024    Dept: 29

Tentative

The Court will hear from counsel, including (but not limited to) on the following:

The Complaint includes fairly general negligence allegations against Defendant Kagan. Plaintiff alleges that Kagan “did negligently and carelessly examine, diagnose, advise, care, treat and administer to Plaintiff” and failed to meet the standards of care in regard to his “examination, diagnosis, advice, care, treatment and administration of medical care to Plaintiff. (Complaint, ¶ 10.) Plaintiff alleges that Kagan performed surgery on Plaintiff’s left eye, the eye “became infected during the procedure,” and as a result “Plaintiff suffered permanent blindness in his left eye.” (Ibid.)

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.) 

Kagan moved for summary judgment and supported the motion with the expert declaration of John A. Hovanesian, M.D. Dr. Hovanesian states (among other things) that it is his medical opinion that Kagan “acted within the standard of care in the community for physicians practicing ophthalmology.” (Hovanesian Decl., ¶ 15.) Dr. Hovanesian also states that it his medical opinion “that no negligent act or omission on the part of [Kagan] caused, or contributed to, plaintiffs’ alleged injuries. (Id., ¶ 16.) “Instead, plaintiff most likely developed a suture abscess that go into the eye five weeks after the subject surgery.” (Ibid.)

“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.)

Dr. Hovanesian’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. Hovanesian is evidence that Kagan complied with his duties under California law and the standard of care for a reasonably careful medical professional under similar circumstances and that Kagan did not do, or fail to do, anything that caused Plaintiff’s injury.

With this evidence, Kagan has satisfied the initial burden of showing that one or more elements of the professional negligence cause 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.)

In his opposition, Plaintiff presents the expert declaration of Duane Bryant, M.D. Dr. Bryant states (among other things) that it his opinion that Plaintiff “was not given proper informed consent as required by the standard of care.” (Bryant Decl., ¶ 8.) In particular, Dr. Bryant states, Plaintiff was not properly informed of the possible complications associated with the procedure, including “loss of vision, blindness, or loss of the eye.” (Id., ¶ 11.) “Unfortunately, [Plaintiff] did develop endophthalmitis following the surgery and did lose his left eye.” (Id., ¶ 12.)

The testimony of Dr. Bryant appears to create a triable issue of material fact on the issue of whether Kagan met, or failed to meet, the standard of care.

Dr. Bryant does not, however, provide an opinion on the separate element of causation, as Kagan argues in his reply brief.

Question
No. 1: What evidence (if any) in the summary judgment record establishes the
existence of a triable issue of material fact on the issue of causation?

Question
No. 2: Is it sufficient, to defeat the motion for summary judgment, for Plaintiff
to show (1) that there is evidence from which a finder of fact could reasonably
conclude that there was not proper informed consent; (2) a reasonable person in
Plaintiff’s position would not have given informed consent; and (3) Plaintiff
was harmed by an undisclosed risk. (Wilson v. Merritt (2006) 142
Cal.App.4th 125, 1133-1139; see also, e.g., Flores v. Liu (2021) 60
Cal.App.5th 278, 298.) What evidence is required on the “reasonable person”
element? Is expert opinion testimony required? On this record, is this a
question for the trier of fact?