Judge: Steven J. Kleifield, Case: 20STCV37931, Date: 2023-03-14 Tentative Ruling
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IM v. SONG 20STCV37931
TENTATIVE RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In this professional negligence case, Plaintiff sued Defendant, a physician, for medical malpractice arising from Defendant's alleged improper examination, diagnosis, and treatment of Plaintiffs problem with her knee. Defendant moved for summary judgment. The Court's tentative decision is to grant the motion.
In support of the motion, Defendant submitted a declaration of an expert in the relevant medical field, Dr. Daniel Laster. Dr. Laster' declaration states that he reviewed Plaintiff's medical records, which, in this Court's view, are admissible under Evidence Code Section 1270's business records exception to the hearsay rule, and the transcript of Plaintiff's deposition in this case. Based on his review of that material and in light of his training and experience, Dr. Laster opined that (1) Defendant's care and treatment of Plaintiff's knee was appropriate and within the proper standard of care at all times, and (2) nothing that Defendant did or did not do caused or contributed to any injury that Plaintiff incurred.
When as in this case, a defendant's motion for summary judgment on a medical malpractice claim is supported by a declaration of a medical expert with training and experience in the relevant field who reviewed admissible medical records of the plaintiff in opining that the defendant did not commit malpractice and did not cause plaintiff's alleged injuries, it is incumbent on the plaintiff to respond with a rebutting expert declaration to create a triable issue of fact and thereby fend off summary judgment. (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) Plaintiff failed to do that here. Plaintiff submitted only her own declaration. She is not, however, an expert. Thus, Dr. Laster's expert opinions that Defendant did not breach the standard of care and did not cause Plaintiff's injuries stand unrefuted. And, as a result, Defendant is entitled to summary judgment.
In her opposition to Defendant's summary judgment motion, Plaintiff states that there is a triable issue of fact as to whether she provided informed consent to the procedure that the Defendant performed on her knee. The problem for the Plaintiff is that her complaint makes no allegation of the lack of informed consent. She is raising this issue for the first time in her opposition to the summary judgment. That is not permissible. Motions for summary judgment and oppositions thereto are circumscribed by the allegations in a complaint. A defendant moving for summary judgment thus need not refute a theory or claim that the plaintiff did not plead and only belatedly advances in seeking to defeat summary judgment. (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.)
