Judge: Theodore R. Howard, Case: 21-1189212, Date: 2022-12-08 Tentative Ruling

Defendants Orthowest dba Platinum Orthopaedics (“ORTHOWEST”) and Gary Rosenberg, D.O. (“ROSENBERG”) (collectively “Defendants”) seek an order granting them summary judgment on Plaintiff Christopher Lachance (“Plaintiff”) Complaint which asserts one cause of action for medical negligence.

Plaintiff alleges that on May 9, 2019 he began treatment at Defendant ORTHOWEST for low back issues; that on January 21, 2020, he underwent surgery at Defendant HOSPITAL at the hands of Defendant ROSENBERG and that during the surgery, Defendant ORTHOWEST and ROSENBERG negligently placed a surgical screw into his left L-5 nerve root causing him permanent injury and damage to his spine and spinal nerves.

Medical Negligence.

The elements of a claim for “medical malpractice” are: (1) a duty 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 injury; and (4) resulting loss or damage. (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571).

The standard of care and defendant’s breach must normally be established by expert testimony in a medical malpractice case. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) Thus, in the context of medical malpractice, when a Defendant moves for summary judgment and supports his motion with an expert declaration stating Defendant’s conduct fell within the community standard of care, that Defendant is entitled to summary judgment unless Plaintiff comes forward with conflicting expert evidence. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985; Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.)

Here, in support of the Motion, Defendants present the Declaration of Richard S. Lee, M.D., who is a licensed to practice medicine in California and is board certified in Orthopedic Surgery with a spine specialization. (See Dr. Lee Decl., ¶ 1.) Dr. Lee sets sets forth his educational background and work history and his C.V. is attached to his declaration. (Id.)

Dr. Lee appropriately identifies the records he reviewed and relied upon in forming his opinions. (Id., ¶¶ 4 and 5.) The documents relied upon have been attached and are authenticated as required by Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743. (See Ting Decl., ¶¶ 2-10; see Exhibit Packet, Exhs. A-H.)

Dr. Lee declares that he is familiar with the standard of care applicable to orthopedic spine surgeons such as ROSENBERG in treating patients such as Plaintiff and that based upon his background, training, experience and review of the records identified in his declaration, it is his opinion to a reasonable degree of medical probability that:

(1)      “[T]he care and treatment provided to plaintiff by Dr. Rosenberg, and by Orthowest was well within the standard of care of an orthopedic spine specialist in the Southern California medical community.” 

(2)      “The care and treatment provided by Dr. Rosenberg and the Orthowest staff to plaintiff was reasonable and appropriate, both preoperatively and postoperatively. The appropriate preoperative orders were made and carried out, and Dr. Rosenberg and the Orthowest staff provided appropriate postoperative care and treatment.”

(3)      “Dr. Rosenberg performed the spinal fusion surgery on 1/22/20 within the standard of care. Dr. Rosenberg used navigation guidance to perform the procedure, which would decrease the chance of misalignment of instruments and screws. However, a misaligned screw is still a known risk of the procedure even with navigation guidance. It is my opinion no negligence by Dr. Rosenberg caused the screw to be misaligned.”

(4)      “Dr. Rosenberg then provided appropriate care and treatment in diagnosing the misaligned screw, and appropriately performed surgery to remove the left-sided screws and instrumentation.”

(5)      “[N]o act or omission to act by Dr. Rosenberg and Orthowest either caused or was a substantial factor in causing the injuries and damages being claimed by plaintiff in this matter.”

(6)      “[T]he misaligned screw was not the cause of the plaintiff’s subsequent pain symptoms.”

(See Dr. Lee Decl., ¶¶ 8, 9, 12-15.)

Based on the above, Defendants have met their initial burden to show that to a reasonable degree of medical probability, they complied with the applicable standard of care and did not cause or contribute to Plaintiff’s injuries. Accordingly, the burden shifts to Plaintiff to establish a triable issue of fact.

Here, although Plaintiff filed an Opposition, Plaintiff did not submit an expert declaration contradicting the expert testimony above. As such, the Court finds Plaintiff failed to submit any evidence to refute the testimony by Defendants’ expert, Dr. Lee.

Further, Plaintiff failed to file a responsive separate statement as required by Code of Civil Procedure section 437c(b)(3). This alone is a basis for granting of the Motion.

Accordingly, the Court finds that Plaintiff failed to establish that there is a triable issue of fact as to his claims alleged in the Complaint against Defendants. The Motion is GRANTED.

Moving Party is to give notice.