Superior Court of California

County of Los Angeles

Department 50

MISS JENNIFER L. JACKSON, Plaintiff, vs. DR. KYEONG-HEE ALEX KIM, Defendant.	Case No.:	22STCV07028
	Hearing Date:	October 3, 2023
	Hearing Time:	2:00 p.m.
	TENTATIVE RULING RE: MOTION FOR SUMMARY JUDGMENT ON BEHALF OF KYEONG-HEE ALEXANDER KIM, M.D

Background

Plaintiff Miss Jennifer L. Jackson (“Plaintiff”) filed this action on February 25, 2022 against Defendant Dr. Kyeong-Hee Alex Kim. Plaintiff filed the operative Second Amended Complaint (“SAC”) on May 5, 2023, alleging one cause of action for general negligence.

In the SAC, Plaintiff alleges that Dr. Kyeong-Hee Alex Kim negligently performed breast reduction surgery on Plaintiff in violation of the standard of care. (SAC, p. 4.) Plaintiff alleges that she is “left with grossly disfigured breasts, the right breast being an ‘A’ cup and the left a ‘C’ cup, with surgical incisions, much larger and longer…than described and consented to pre-opp, and with left breast pain, and chronic bilateral shoulder pain, all of which has caused [Plaintiff] pain and suffering, past and future medical expenses, and the need for future restorative surgery performed during 2022.” (SAC, p. 4.)

Kyeong-Hee Alexander Kim, M.D., erroneously sued and served as Dr. Kyeong-Hee

Alex Kim (“Defendant”) now moves for an order granting summary judgment in his favor and

against Plaintiff. The motion is unopposed.

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) 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.)¿

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

Discussion

As set forth above, Plaintiff’s first (and only) cause of action is for general negligence. Paragraph 10(f) of the SAC alleges “medical malpractice.” (SAC, p. 3.)

“¿The elements of a medical malpractice claim are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his 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.¿” (¿Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2 [internal quotations omitted]¿.)

Defendant asserts that here, Plaintiff’s action is without merit because the care provided by Defendant was within the applicable standard of care. Specifically, Defendant asserts that
“Dr. Kim can successfully negate the essential element of breach of duty by proving the care and treatment rendered by him to plaintiff complied with the applicable standard of care. His supporting declaration establishes that the care rendered to Ms. Jackson complied with the standard of care required of physicians providing services to patients like Ms. Jackson, and under similar circumstances.” (Mot. at p. 7:11-15.)

The Declaration of Kyeong-Hee Alexander Kim, M.D. was submitted in support of the motion. Defendant states that he is a “physician licensed to practice medicine in the State of California.” (Kim Decl., ¶ 1.) Defendant states that “[b]ased on my care and treatment of Ms. Jackson and a review of her medical records, as well as my education, training, and experience, it is my opinion that the care and treatment that I provided to Ms. Jackson was at all times within the applicable standard of care.” (Kim Decl., ¶ 16.)

Defendant states that “[Plaintiff’s] breast reduction surgery was indicated based on excessively large breasts and associated neck and shoulder pain. In a breast reduction procedure on an obese person, [Plaintiff] was 5’2” and weighed 248 lbs. at the time of her initial consultation, it is common for a large amount of excess fat to remain on the side of the chest. As the result of the excess fat, a second procedure is indicated, as it was in [Plaintiff’s] case, to remove the excess fat.” (Kim Decl., ¶ 17.) “[Plaintiff] consented to both procedures, the breast reduction and removal of excess skin, and an authorization was requested from her medical insurance provider for the procedures to be performed on the same day.” (Kim Decl., ¶ 18.)

Defendant states that “[Plaintiff’s] insurance company denied the removal of the excess skin as being medically unnecessary. Prior to the breast reduction surgery, [Plaintiff] was informed that her insurance had denied the removal of excess skin. She was further informed that as a result, the breast reduction would need to be performed first, and then after approximately six months when her surgical wound healed from the breast reduction, approval for the removal of excess skin would be obtained.” (Kim Decl., ¶ 19, emphasis omitted.) Defendant further states that “[Plaintiff] consented to the breast reduction procedure, which was performed on October 8, 2021, without complications.” (Kim Decl., ¶ 20.) Plaintiff “did not return to [Defendant] for follow up regarding the second part of the procedure to remove the excess skin, but instead sought treatment from another physician.” (Kim Decl., ¶ 21.)

Defendant also asserts that “[t]here is no evidence to support Plaintiff’s contention that the care provided by [Defendant] caused or contributed to any harm to Plaintiff.” (Mot. at p. 9:21-22.) Defendant states in his declaration that “[b]ased on my treatment of [Plaintiff] and a review of her medical records, as well as my education, training, and experience, it is my opinion that to a reasonable degree of medical probability, nothing I did or did not do during my care and treatment of [Plaintiff] contributed to or was a substantial factor in causing her alleged injuries because I complied with the standard of care at all times.” (Kim Decl., ¶ 22.)

Based on the foregoing, the Court finds that Defendant has met his initial burden of demonstrating that Plaintiff’s cause of action for general negligence is without merit. Plaintiff did not file any opposition to the instant motion. Thus, the Court does not find that Plaintiff has raised a triable issue of material fact as to her cause of action for general negligence. Accordingly, the Court grants Defendant’s motion for summary judgment.

Lastly, the Court notes that Defendant filed a “Notice of Lodging Exhibits ‘G,’ ‘H,’ and ‘I’ in support of Defendant Kyeong-Hee Alexander Kim, M.D.’s motion for summary judgment.” Defendant’s Exhibits G, H, and I do not appear to be referenced in Defendant’s separate statement in support of the motion, and are not cited in the instant order on Defendant’s motion. However, Exhibits G, H, and I were not attached to the “Notice of Lodging” Defendant filed on July 14, 2023. The Court notes that it is improper to provide “courtesy copies” of documents that have not been filed. Thus, the Court orders Defendant to immediately file a copy of Defendant’s “Notice of Lodging” with Exhibits “G,” “H,” and “I” attached.

Conclusion

Based on the foregoing, Defendant’s motion for summary judgment is granted. The Court orders Defendant to file and serve a proposed judgment within 10 days of the date of this Order.

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Defendant is ordered to provide notice of this Order.

DATED: October 3, 2023 ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court