Judge: Steven A. Ellis, Case: 22STCV31795, Date: 2024-04-30 Tentative Ruling

Case Number: 22STCV31795    Hearing Date: April 30, 2024    Dept: 29

Motion for Summary Judgment filed by Defendant Evan C. Gill, M.D.

Tentative

The motion is denied.

Background

On September 29, 2022, Roanna Dorimar Baker (“Plaintiff”) filed a complaint against Memorial Hospital of Gardena, Gardena Hospital, LP (collectively, the “Hospital Defendants”), Evan C. Gill, M.D. (“Gill”), Miguel Fuentes, RN (“Fuentes”), and Does 1 through 25 for Professional Negligence as to all Defendants, and Negligent Hiring, Training, Supervision and/or Retention as to the Hospital Defendants, arising from failure to remove a piece of glass from Plaintiff’s hand when she came in for an emergency treatment on July 31, 2021.

On November 8, 2022, Defendant Gill filed an answer to the complaint.

On June 7, 2023, Plaintiff filed a request to dismiss the Hospital Defendants.

Defendant Fuentes has not answered or otherwise appeared.

On February 13, 2024, Defendant Gill (“Defendant”) filed a motion for summary judgment. Plaintiff filed an opposition and objections on April 16, 2024. Defendant has not filed a reply.

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.)

Evidentiary Objections

Plaintiff makes 12 objections to Defendant’s evidence. Evidence presented in support of, or in opposition to, a motion for summary judgment must be admissible. (Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained.” (Code Civ. Proc., § 437c, subd. (c).)

The Court OVERRULES objections 2-3, 5-12. The Court SUSTAINS objection 1 as to improper authentication. The Court SUSTAINS objection 4 as to relevance.

Discussion

In the complaint, Plaintiff asserts one cause of action for professional negligence against Defendant. Specifically, Plaintiff alleges that Defendant failed to conduct the necessary tests to determine if there was a foreign substance in Plaintiff’s hand before placing sutures on the wound. (Complaint, ¶ 20.)

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 contends that he complied with the applicable standard of care in the treatment of Plaintiff and did not cause or contribute to Plaintiff’s injuries. In support of his motion, he offers the expert declaration of Robert T. Goldweber, M.D.

Dr. Goldweber is board-certified in emergency medicine, has been the Associate Director of the Department of Emergency Medicine at Huntington Memorial Hospital since 1987, and served as a clinical professor in the Department of Emergency Medicine at USC from 1985 to 2018. (Goldweber Decl., ¶ 2.) In forming his opinion in this matter, Dr. Goldweber reviewed Plaintiff’s medical records and Plaintiff’s interrogatory responses. (Id., ¶ 5.)

Dr. Goldweber states that, based on his education, training, and experience, he is familiar with the standard of care for patients similar to Plaintiff. (Id., ¶ 4.) Dr. Goldweber opines that, based on his review of Plaintiff’s medical record, Defendant Gill complied with the standard of care and treatment of Plaintiff. (Id., ¶ 8.) Specifically, Dr. Goldweber opines that Gill noted no foreign body was detected after irrigation. (Id., ¶ 9.) Further, there was no evidence of any foreign body. (Ibid.) Lastly, Dr. Goldweber opines that no negligent act or omission by Gill caused or significantly contributed to Plaintiff’s injury. (Id., ¶ 10.)

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 870, 879.) The expert opinion testimony of Dr. Goldweber is evidence that Defendant Gill complied with applicable standard of care and did not cause any injury to Plaintiff.

With this evidence, Defendant Gill 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.)

In opposition, Plaintiff offers the expert declaration of Michael Ritter, M.D. Dr. Ritter is board certified in Emergency Medicine, a Fellow of the American College of Emergency Physicians, a Fellow of the American Academy of Emergency Medicine, the former Associate Medical Director (1999-2012) and Medical Director (2012-2018) of the Emergency Department of Mission Hospital and Children’s Hospital at Mission, and a clinical professor in the Department of Emergency Medicine at UC Irvine (1998 to present). (Ritter Decl., ¶ 4 & Exh. A.) Dr. Ritter states he is familiar with the standard of care for emergency physicians in similar circumstances to this case in the same or similar location. (Id., ¶ 8.) Dr. Ritter bases his opinion on his review of Plaintiff’s medical records, Defendant’s motion for summary judgment and supporting documents, Plaintiff’s discovery responses, photographs of Plaintiff’s left hand with the foreign objection, and a video of the Plaintiff’s left hand with Plaintiff’s supporting declaration. (Id., ¶ 11.)

Dr. Ritter opines that based on his review of these records, as well as his education, training, and experience, it is his opinion that Defendant Gill did not comply with the applicable standard of care in treating Plaintiff. (Id., ¶ 12.) Specifically, Dr. Ritter opines that Dr. Gill failed to take a proper history of Plaintiff and failed to obtain x-rays of the hand before closing Plaintiff’s wound. (Id., ¶ 15.) Dr. Ritter further opines that Dr. Gill’s act or omission caused or contributed to Plaintiff’s injuries. (Id., ¶¶ 16, 19.)

Plaintiff’s evidence, including but not limited to the expert opinion testimony, is sufficient to show that there are triable issues as to breach and causation. At the summary judgment stage, the Court does not weigh the evidence.

Accordingly, the Court concludes that Plaintiff has met her burden in establishing the existence of genuine issues of material fact sufficient to defeat Defendant’s motion for summary judgment.

Conclusion

Defendant’s motion for summary judgment is DENIED.

Moving party is to give notice.