Judge: William A. Crowfoot, Case: 21STCV13187, Date: 2022-08-24 Tentative Ruling

Case Number: 21STCV13187    Hearing Date: August 24, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On April 7, 2021, Plaintiff Joy Drews (“Plaintiff”) filed a complaint against Defendants PIH Health Hospital – Whittier (“PIH Hospital”); Justin Braverman, M.D. (“Dr. Braverman”); and John Lah, M.D. (“Dr. Lah”) (collectively “Defendants”) for general negligence.

On June 8, 2022, Defendant Dr. Braverman filed a motion for summary judgment.  Plaintiff filed opposition papers on August 10, 2022.  Dr. Braverman filed reply papers on August 19, 2022.

II.          FACTUAL BACKGROUND

On January 20, 2020, Arthur F. Drew (“Decedent”) presented at Defendant PIH Hospital’s facility for a routine Roux-en-y gastric bypass procedure with Defendant Dr. Braverman.  (Complaint, GN-1.)  Following the procedure, Decedent began spitting up blood, but was informed by Dr. Braverman that it was normal.  (Id.)  On January 21, 2020, swelling was present at the surgery site and Decedent was placed on an ice chip diet.  (Id.)  Decedent continued to throw up blood and was kept overnight for observation.  (Id.)  On January 22, 2020, Decedent was discharged and instructed to remain on a liquid diet for the following two weeks.  (Id.)  At his three-week post-op appointment, Dr. Braverman instructed Decedent to start on a pureed food diet.  (Id.)  Decedent followed Dr. Braverman’s instructions.  (Id.)

On February 6, 2020, Decedent became extremely nauseous and dizzy, once again began throwing up bright red blood, and had a bowel movement of dark and bloody stool.  (Id.)  Plaintiff, who is Decedent’s wife, immediately took Decedent to the emergency room at PIH Hospital.  (Id.)  Plaintiff called Dr. Braverman on the way to the hospital and Dr. Braverman assured her that there was nothing to worry about because he would perform an endoscopy and a cauterization.  (Id.)  Plaintiff alleges Dr. Braverman and attending PIH Hospital staff and physicians failed to timely perform an endoscopy or a CT scan of Decedent to properly access the source of the bleeding, despite Decedent continuing to throw up blood and having bloody stool and a low blood count.  (Id.)  Although Decedent had a GI consultation with Defendant Dr. Lah, no procedure was performed during Decedent’s hospitalization to access the source of GI bleed or to stop the continued blood loss.  (Id.)  Decedent was pronounced dead on February 7, 2020.  (Id.)

III.        LEGAL STANDARD

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 facia 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.         EVIDENTIARY OBJECTIONS

Defendant Dr. Braverman has submitted evidentiary objections to the declaration of Plaintiff’s expert, Anton J. Bilchik, M.D.  The Court rules on the objections as follows:

1.   OVERRULED

2.   OVERRULED

3.   OVERRULED

4.   OVERRULED

5.   OVERRULED

Regarding the failure to submit or authenticate the medical records, Defendant is correct that an expert may not rely on case-specific hearsay evidence unless the evidence relied upon has been admitted through an applicable hearsay exception.  (People v. Sanchez  (2016) 63 Cal.4th 665, 679, 694; Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 538.)  Here, Plaintiff has not submitted the medical records upon which Dr. Bilchik relied.  Generally, this would mean Dr. Bilchik’s declaration is inadmissible as it relies on evidence that has not been properly admitted.  However, Dr. Bilchik has declared that he reviewed Defendant’s motion for summary judgment in forming his opinion.  Given that Defendant lodged Decedent’s medical records from PIH Health Hospital – Whittier and PIH Health Physicians Clinic in support of his motion for summary judgment and Dr. Bilchik specifically declares he relied upon Decedent’s PIH Hospital medical records, the Court finds there are properly admitted medical records upon which Dr. Bilchik can base his opinion. 

Additionally, Dr. Bilchik’s declaration that he reviewed Decedent’s PIH Hospital medical records and that these records include operative and post-operative care reports, emergency room reports, and CT imaging is sufficient to establish the matters he relied upon in forming his opinion.  The Court notes that any material Dr. Bilchik considered or did not consider in forming his opinion goes towards his credibility, which is not at issue in this motion.

V.           DISCUSSION

Defendant Dr. Braverman moves for summary judgment in his favor and against Plaintiff on the sole cause of action for general negligence asserted against him in the complaint.

The Court notes that the general negligence claim asserted by Plaintiff in the complaint is a medical malpractice claim.  The elements of medical malpractice 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.”  (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02 [citations omitted].)

“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.)

“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.”  (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)  “Mere possibility alone is insufficient to establish a prima facie case.”  (Id.)  “There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.”  (Id. at 403.)  “A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.”  (Id.)

Defendant Dr. Braverman has submitted a declaration from Carson Liu, M.D., a licensed physician who has been practicing surgery since 1998.  (Liu Decl., ¶¶ 1-2.)  Dr. Liu opines that, based on a review of Plaintiff’s complaint Decedent’s medical records, records from the L.A. County Coroner’s office, the radiology films and studies for Decedent, and Plaintiff’s deposition, as well as his education, training, and experience, the care and treatment provided to Decedent by Defendant Dr. Braverman complied with the standard of care at all times.  (Id., ¶¶ 4-5, 30, 41.)  According to Dr. Liu, the records confirm Decedent was an appropriate candidate for gastric bypass surgery as he was very obese and at a risk for death if he did not undergo gastric bypass surgery and lose weight.  (Id., ¶ 31.)  Dr. Liu states that Dr. Braverman ensured he had all of the appropriate clearances for gastric bypass surgery before it was performed and that Dr. Braverman appropriately evaluated Decedent for surgery and ensured he understood the nutrition and follow up that would be required after surgery.  (Id.)  Dr. Liu states that Dr. Braverman obtained an informed consent from Decedent prior to performing surgery; that Decedent specifically initialed documents that indicated gastric bypass/bariatric surgery carried the risks of death, bleeding and ulcers; and that Plaintiff, having previously had gastric bypass surgery, acknowledged at deposition that she understood the surgery carried those risks.  (Id., ¶ 32.)  Dr. Liu declares that Dr. Braverman appropriately performed Decedent’s gastric bypass surgery and appropriately ordered a GI hypaque study, which indicated edema at the anastomosis site but that contrast material could get through his anastomosis.  (Id., ¶¶ 33-34.)  Dr. Liu explains that the fact Decedent was able to tolerate fluids and pureed foods after surgery confirms that his gastric bypass was patent and that the edema was likely resolving as expected.  (Id., ¶ 34.) 

Dr. Liu states that Decedent was appropriately seen following his discharge at Dr. Braverman’s office and the records confirm he was tolerating his diet and doing well following surgery.  (Id., ¶ 35.)  Dr. Liu states that Decedent was also seen by his primary care physician following surgery who noted he was tolerating his Phase 2 diet of pureed foods and that the laboratory testing performed on February 5, 2020 showed Decedent’s hemoglobin was at his baseline.  (Id.) 

According to Dr. Liu, Decedent reportedly ate clam chowder and a diet coke for lunch on February 6, 2020, and that both food choices were inappropriate for Decedent’s Phase 2 diet plan.  (Id., ¶ 36.)  Decedent thereafter developed bloody emesis and bloody bowel movements.  (Id.)  Dr. Liu states that the records indicated Decedent had a significant GI bleed; that Dr. Braverman was contacted from the emergency department (“ED”); and that Dr. Lah, who was a gastroenterologist, was also consulted.  (Id., ¶ 37.)  Dr. Liu explains that the standard of care did not require Dr. Braverman to go to the hospital that night and that Dr. Braverman could rely on the ED physicians and later the critical care physicians to stabilize Decedent with blood products, hydration and Protonix before an endoscopy procedure would be performed.  (Id.)  Dr. Liu states Dr. Braverman could also reasonably rely on Decedent’s treaters at the hospital to perform radiological studies and other treatment modalities while he was being stabilized and on Dr. Lah to determine when Decedent was stable enough to undergo endoscopy to investigate and treat the source of the bleeding.  (Id.)  Dr. Liu explains that Dr. Braverman is a bariatric surgeon who specializes in surgeries, including gastric bypasss and gastric sleeve surgeries; that Dr. Braverman is not a gastroenterologist; and that it is appropriate for a bariatric surgeon to rely on a gastroenterologist to perform endoscopy because gastroenterologists are more specialized in investigating and treating sources of GI bleeding.  (Id., ¶ 38.)  Dr. Liu thus opines that the outcome would not have been any different if Dr. Braverman had gone into the hospital to see Decedent the night of February 6, 2020, because Dr. Braverman would not have recommended any other treatment if he had gone to the hospital that night as Decedent was already being stabilized and optimized for his GI bleed in anticipation of an endoscopy procedure to be performed by Dr. Lah.  (Id., ¶ 39.)  Dr. Liu explains it is important to stabilize him prior to the procedure and the fact that Decedent’s hemoglobin rose to 9 on the morning of February 7, 2020, indicated that all appropriate steps were being taken.  (Id.)

Dr. Liu further opines that, to a reasonable degree of medical probability, no negligent act or omission by Dr. Braverman led to Decedent’s death.  (Id., ¶¶ 40, 41.)  Dr. Liu explains that ulcerations at the anastomosis site are a risk of gastric bypass surgery and occur without any negligence on the part of the surgeon.  (Id., ¶ 40) Dr. Liu opines that the clam chowder eaten by Decedent at lunch on February 6, 2020, may have exacerbated his ulcer and led to the bleeding.  (Id.)  Decedent was also at greater risk for death due to a GI bleed because of his many medical comorbidities and very poor health and was at an increased risk for bleeding due to the blood thinner he required as a result of his medical comorbidities.  (Id.)

The Court finds Dr. Liu’s declaration is sufficient for Defendant Dr. Braverman to meet his burden of demonstrating he did not breach the duty of care or cause or contribute to Decedent’s injuries or death. 

Plaintiff argues in opposition that Dr. Liu’s declaration does not meaningfully address the key issue and failure of Dr. Braverman to properly and timely communicate with the emergency room or a gastroenterologist when Dr. Braverman learned of Decedent’s symptoms of a GI bleed and his need for an emergency endoscopy.  A review of the Plaintiff’s complaint shows that the allegations do not specifically assert Dr. Braverman breached his duty of care by failing to properly and timely communicate with the emergency room or a gastroenterologist regarding Decedent’s symptoms of a GI bleed and his need for an emergency endoscopy.  To this extent, Defendant need not specifically negate this theory.  (Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493 (“[T]he burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.”) (emphasis in original).)  With respect to any general assertions regarding timely provision of services, the Court finds Dr. Liu’s declaration explaining the need for stabilization before performing an endoscopy and Dr. Braverman’s reasonable reliance on hospital staff and Dr. Lah to determine when Decedent was stabilized enough to undergo endoscopy to be sufficient to demonstrate Dr. Braverman did not breach his duty of care.

As Defendant Dr. Braverman has met his burden, the burden shifts to Plaintiff to demonstrate triable issues of material fact exist as to breach of duty and causation.

In opposition, Plaintiff has submitted a declaration from Anton J. Bilchik, M.D., a general surgeon and surgical oncologist specializing in gastrointestinal diseases.  (Plaintiff’s Compendium of Evidence, Ex. 1, Bilchik Decl., ¶ 1.)  Dr. Bilchik opines that, based on a review of Decedent’s medical records, Plaintiff’s deposition transcript, Dr. Braverman’s deposition transcript, and this motion, Defendant Dr. Braverman breached the applicable standard of care in his treatment of Decedent during Decedent’s post-operative care.  (Id., ¶¶ 4-6, 11.)  Dr. Bilchik states that, at all times before and after the surgery, Dr. Braverman knew or should have known based on Decedent’s other health issues that Decedent had a significant risk of complications from bariatric surgery and that Dr. Braverman knew or should have known from the risks that Decedent would need close monitoring and evaluation for any post-operative complications in the weeks following the bariatric surgery.  (Id., ¶ 7.)  Dr. Bilchik declares that, on February 6, 2020, Decedent experienced symptoms indicative of gastrointestinal bleeding; that Plaintiff contacted Dr. Braverman to inform him of the symptoms; that Dr. Braverman advised Decedent to present to the emergency room and would likely need an endoscopy; and Dr. Braverman was contacted by the emergency room and informed his patient was bleeding.  (Id., ¶ 8.)  Dr. Bilchik explains that, because of the significant bleed, the appropriate standard of care would be to perform an emergency endoscopy, which Dr. Braverman did not do nor ensure that it would be done by a qualified physician.  (Id.)  According to Dr. Bilchik, because Dr. Braverman performed the bariatric surgery and had knowledge of Decedent’s conditions and symptoms, the standard of care for a physician in Dr. Braverman’s position would be for Dr. Braverman to contact the gastroenterologist on duty at the hospital to inform the gastroenterologist of the nature of the issue and ensure the gastroenterologist understood the need for an emergency endoscopy.  (Id., ¶ 9.)  Dr. Bilchik explains that a surgeon has a duty to ensure his patient receives proper post-operative care and that duty includes communicating with other physicians in a situation such as this to ensure the patient may receive proper and prompt testing, diagnosis, and treatment.  (Id., ¶ 10.)  Dr. Bilchik states that it was below the standard of care for Dr. Braverman to have no discussion with the endoscopist to ensure the patient he recently operated on was getting the appropriate care.  (Id., ¶ 9.)  According to Dr. Bilchik, had Dr. Braverman ensured the procedure was performed, he and the hospital, to a reasonable degree of medical probability, would have identified the source of Decedent’s bleeding and would have undertaken procedures to stop the bleeding and save Decedent’s life.  (Id., ¶ 8.)  Dr. Bilchik states that, as a result of the failure to communicate with the gastroenterologist on call, an emergency endoscopy was not performed in a timely manner that would have allowed diagnosis and treatment of the condition.  (Id.) 

Dr. Bilchik further opines that, to a reasonable degree of medical certainty, Dr. Braverman’s breaches of the standard of care in not communicating with the endoscopist resulted in the failure to stop the bleeding, which was a substantial factor in and ultimately caused Decedent’s death.  (Id., ¶ 11.)

Dr. Bilchik’s declaration is sufficient to demonstrate triable issues of material fact exist as to whether Dr. Braverman breached his duty of care and caused Decedent’s death.

Accordingly, Defendant Dr. Braverman is not entitled to summary judgment.

VI.     CONCLUSION

          In light of the foregoing, the Motion for Summary judgment is DENIED.

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 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.