Judge: William A. Crowfoot, Case: 20STCV45374, Date: 2022-09-21 Tentative Ruling

Case Number: 20STCV45374    Hearing Date: September 21, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On November 25, 2020, plaintiff Daniel Shanesheibani Davidson (“Plaintiff”) filed this action for professional negligence against defendants White Memorial Medical Center dba Adventist Health White Memorial (“Defendant”) (erroneously sued separately as “Adventist Health White Memorial” and “White Memorial Medical Center”), Los Angeles Orthopedic Surgery Specialists, and Matthew D. Longacre, M.D. (“Dr. Longacre”).  Plaintiff alleges there was a breach of care when he underwent a connection surgery on August 30, 2019, for repair of his right bicep tendon. 

On May 26, 2022, Defendant filed this motion for summary judgment/summary adjudication.  On September 9, 2022, Plaintiff filed a notice of non-opposition.

II.      FACTUAL BACKGROUND

On August 9, 2019, Plaintiff presented to LA Orthopaedic Surgery Specialists and was seen by Dr. Kevin Pelton (“Dr. Pelton”) and Felipe Nunez, PA-C (“Nunez”) for complaints related to his right arm.  (Defendant’s Undisputed Material Fact (“UMF”) No. 1.)  Plaintiff reported that while lifting a door two months prior, he heard a pop in his right bicep followed by a tingling and numbing sensation.  (UMF No. 1.)  Plaintiff was diagnosed with a distal biceps tendon rupture and was informed that reconstruction of the distal biceps tendon was indicated.  (UMF No. 1.)  Plaintiff was instructed to follow up with sports surgeon Dr. Longacre the following day.  (UMF No. 1.) 

On August 20, 2019, Plaintiff returned for a consultation with Dr. Longacre, and presented to Defendant’s facility for surgery with Dr. Longacre on August 30, 2019.  (UMF Nos. 2-3.)  Dr. Longacre performed a right distal bicep tendon repair with Achilles tendon allograft augmentation with no documented complications.  (UMF No. 4.)  Plaintiff was transferred to Post Anesthesia Recovery (“PAR”) in stable condition and was monitored by nursing staff until discharge.  (UMF No. 5.)  After approximately 2 hours, Plaintiff was noted to be moving all extremities and his vital signs were stable.  (UMF No. 5.)  He was noted to be without pain or bleeding, and his right arm was a sling.  (UMF No. 5.)  He was dischargedin stable condition.  (UMF No. 5.) 

On September 1, 2019, Plaintiff returned to Defendant’s emergency department (“ED”) with complaints of extensor deficit in his right hand, a slight wrist drop, and difficulty moving his fingers.  (UMF No. 6.)  ED physician Christopher Wang, M.D. (“Dr. Wang”) discussed the case with Dr. Longacre and the two doctors agreed that Plaintiff was likely suffering from posterior interosseous nerve palsy.  (UMF No. 6.)  Dr. Wang noted that Dr. Longacre recommended placing Plaintiff’s right arm in a splint with a follow-up later that week for reevaluation.  (UMF No. 6.) 

On October 1, 2019, Plaintiff returned to the ED with complaints of chest pressure that was radiating to his neck and left shoulder as well as mild shortness of breath.  (UMF No. 9.)  An electrocardiogram performed in the ED was interpreted as showing Plaintiff with sinus tachycardia and he was admitted to the telemetry unit for further workup and evaluation.  (UMF No. 9.)  Labs and diagnostics, including a stress test, showed no stress-induced ischemia and Plaintiff was discharged on October 3, 2019.  (UMF No. 10.) 

On November 5, 2019, Plaintiff presented to Defendant for an initial occupational therapy evaluation.  (UMF No. 11.)  Plaintiff continued with occupational therapy for 12 treatments.  (UMF No. 12.)  Plaintiff presented for his last occupational therapy visit on March 5, 2020.  (UMF No. 13.)  He was discharged on July 27, 2020 and noted to have met his goals.  (UMF No. 14.) 

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

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.) 

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.”  (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)  “When 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.3d 977, 984-985.)

Defendant submits the expert declaration of Ranjan Gupta, M.D. (“Dr. Gupta”), a board-certified orthopedic surgeon.  (Gupta Decl., ¶ 3.)  Based on his background, education, training, and experience, as well a review of Plaintiff’s medical records, physical and occupational therapy records, Plaintiff’s deposition transcript, and Plaintiff’s discovery responses, Dr. Gupta opines that the care and treatment provided by Defendant’s employees and nursing staff was appropriate and within the standard of care.  (Gupta Decl., ¶¶ 5-7.)  Dr. Gupta notes that there is no evidence that Defendant’s nurses or staff failed to apprise the physicians of any significant changes in the Plaintiff’s condition and there is no evidence that any nurses or staff failed to appropriately or timely carry out any physician orders.  (Gupta Decl., ¶ 7.)  Also, Dr. Gupta states that there is no evidence that Defendant’s nursing staff applied improper, excessive and/or aggressive force on the patient’s arm during surgery.  (Gupta Decl., ¶ 7.) 

Defendant has met its moving burden to show that Plaintiff cannot establish that the treatment he received breached the applicable standard of care.  Accordingly, the burden shifts to Plaintiff to raise a triable issue of material fact.  As Plaintiff filed a notice of non-opposition, Plaintiff fails to meet his burden.  Therefore, summary judgment of the sole cause of action for medical malpractice is appropriate. 

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.