Judge: William A. Crowfoot, Case: 19STCV26696, Date: 2022-09-29 Tentative Ruling

Case Number: 19STCV26696    Hearing Date: September 29, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION 

On July 31, 2019, Plaintiffs Lance Lobdell (“Plaintiff”) and Debra Lobdell (“Debra”) (collectively “Plaintiffs”) filed this action for damages for medical negligence and loss of consortium. In addition to moving defendant N’deya Kama, M.D. (“Defendant”), Plaintiffs named: (1) Regal Medical Group, Inc., (2) Lakeside Community Healthcare, (3) Northridge Hospital Medical Center, (4) Michael R. Shapiro, M.D., (5) Michael R. Shapiro, M.D., Inc., (6) Ryan McBirney, P.A., (7) Mary Ann H. Trephan, M.D., (8) Hrair Darakjian, M.D., (9) Mission Community Hospital, (10) Aaron M. Shelub, M.D., (11) Ali Ozhand, M.D., (12) Emily Alexiadis, NP, and (13) Kalpesh Patel, M.D.

On July 12, 2022, Defendant filed this motion for summary judgment.  On September 12, 2022, Plaintiffs filed a notice of non-opposition. 

II.      FACTUAL BACKGROUND

On August 4, 2018, Plaintiff was transported to Northridge Hospital after falling off a ladder.  Studies were performed and he was diagnosed with a comminuted intraarticular fracture distal right ulna and comminuted intraarticular fracture distal right humerus.  (Defendant’s Undisputed Material Fact (“UMF”) No. 2.)  Dr. Michael Shapiro, an orthopedic surgeon, was consulted and agreed to see the patient and perform a surgical repair.  (UMF No. 3.)  On August 4, 2018, at 20:59, Plaintiff was transferred to Mission Community Hospital due to insurance reasons.  (UMF No. 4.)

On August 5, 2018, Nurse Practitioner Mythi Nguyen and Defendant, a hospitalist, performed a history and physical.  (UMF No. 5.)  Defendant noted that Plaintiff complained of 8 out of 1 0 right arm pain. Vital signs were taken and showed a blood pressure of 1 34/82, pulse 75, temperature 98.2, respirations 19 and O2 sat 92% on room air. He was in no apparent distress. The neurological examination was normal.  The overall physical exmimation was normal.  It was noted that overnight he developed some nausea, treated with Zofran and IV fluids were initiated. Plaintiff was reporting a relief of symptoms, though expressed anxiety regarding the upcoming procedure.  (UMF No. 6.)  Plaintiff also was concerned with the CT scan results from Northridge.  (UMF No. 7.)  On review, the CT results were revealing of an enlarged fatty liver and a mass on the posterior aspect of the right kidney. There was a question of renal cell carcinoma versus oncocytoma.  There was no evidence of local extension or metastatic disease.  Kidney functions were normal.  (UMF No. 7.)  It was determined that Plaintiff could proceed with the planned operation with Dr. Shapiro.  (UMF No. 9.) 

Defendant did not see Plaintiff again during the hospitalization after this assessment.  (UMF No. 10.) 

III.     LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.     DISCUSSION

A.   Medical Malpractice

In a medical malpractice 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 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.  [citations.]”  (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.) 

“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.)  Thus, in a medical malpractice case, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he 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, 984-85 (citations omitted).)  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.)

          Defendant submits the expert declaration of Andrew S. Wachtel, M.D. (“Dr. Wachtel”), a licensed physician board certified in pulmonology, critical care, and internal medicine.  (Wachtel Decl., ¶ 1.)  Dr. Wachtel declares that he is familiar with the standard of care in the medical profession for internists such as Defendant.  (Wachtel Decl., ¶ 3.)  Based upon his education, training, and years of experience, as well as his review of Plaintiff’s medical records, the Complaint, and Plaintiff’s discovery responses, Dr. Wachtel opines that Defendant met the standard of care in all aspects regarding the evaluation, assessment, examination, and treatment recommendations for Plaintiff when she saw Plaintiff and performed a history and physical during Plaintiff’s hospitalization at Mission Community Hospital on August 5, 2018.  (Wachtel Decl., ¶¶ 3-4, 36-39.)  Dr. Wachtel states that Defendant properly addressed Plaintiff’s complaints during her assessment.  (Wachtel Decl., ¶ 35.)  Dr. Wachtel opines that Defendant was not required to make further orders or referrals because a surgical plan had already been made and she performed a thorough and appropriate assessment to determine whether he was able to have the surgery.  (Wachtel Decl., ¶ 35.) 

          Dr. Wachtel also opines that no act or omission on the part of Defendant caused Plaintiff’s medical complaints or issues.  (Wachtel Decl., ¶ 37.)  Dr. Wachtel declares that Defendant was not a surgeon and had no involvement in the decision as to whether to perform surgery or the timing for the surgery.  (Wachtel Decl., ¶ 40.)  Dr. Wachtel states Defendant saw Plaintiff in a timely manner and did not cause any delay in surgery.  (Wachtel Decl., ¶ 39.) 

Dr. Wachtel’s declaration is sufficient for Defendant to meet her burden of demonstrating she did not breach the duty of care or cause or contribute to Plaintiff’s alleged injuries.

Plaintiffs have filed a notice of non-opposition. Plaintiffs have thus conceded that no triable issues of material fact exist as to breach and causation.

Accordingly, Defendant is entitled to judgment on the first cause of action for medical negligence.

B. Second Cause of Action for Loss of Consortium

“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)  As Defendant is entitled to judgment on the first cause of action, Defendant is also entitled to judgment on the second cause of action for loss of consortium.

V.      CONCLUSION

          In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice. 

          Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.