Judge William A. Crowfoot, Case Number: 23AHCV00081, Date: 2024-08-09 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00081, Date: 2024-08-09 Tentative Ruling

Plaintiff Jesus Tucker (“Plaintiff”) filed this action on January 12, 2023, asserting a single cause of action for professional negligence against defendants Haig Chiropractic Corp., P.C. (“Haig”), HLC Health Corp. aka The Joint Chiropractic (“The Joint”) and Vincent S. Manfre, D.C. (“Dr. Manfre”) (collectively, “Defendants”). Plaintiff allegedly sought chiropractic care from Dr. Manfre on or about February 12, 2022, after sustaining neck and lower back injuries in a motor vehicle accident which occurred in 2017. (Compl., ¶ 1.) Plaintiff alleges Dr. Manfre had a duty to review his medical file and if he had done so, he would never have attempted to adjust Plaintiff. Plaintiff alleges Dr. Manfre breached his duty of care by adjusting his neck and back, which resulted in him becoming hemi-paralyzed the following day on the left side for 10 days. (Compl., ¶ 2.)

On April 25, 2024, Defendants filed this motion for summary judgment/adjudication.

In reviewing a motion for summary judgment or summary adjudication, 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).) “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.)

Plaintiff’s evidentiary objections to the Declaration of Wayne Whalen, D.C. are OVERRULED. The declaration is not an improper expert opinion because Dr. Whalen establishes a factual basis for his expert opinion. Further, the declaration is not subject to objections on the grounds of hearsay insofar as it refers to the medical records because medical records are business records and an exception to the hearsay rule. The objections to the Declaration of Jeffrey Wang, M.D. are also OVERRULED for the same reasons.

Defendants’ evidentiary objections to the Declaration of Bruce A. Wasserman are SUSTAINED. Defendants argue that Dr. Wasserman is unqualified to provide an expert opinion as to the care and treatment provided by Defendants. As discussed further below, the Court agrees.

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.)

Defendants argue that Plaintiff cannot establish a breach of the applicable standard of care. Wayne Whalen, D.C. (“Dr. Whalen”), is a licensed and practicing chiropractor who has reviewed Plaintiff’s medical records, pleadings, and discovery responses. (Whalen Decl., ¶¶ 3-4.) Dr. Whalen opines, based on his review of the records, education, background, and experience, that the care provided by Defendants, including Dr. Manfre, was within the standard of care at all times. Dr. Whalen states that complaints of sciatic pain and low back pain in the context of a pre-existing low back injury, including but not limited to disc protrusions, disc extrusions, and/or herniated discs, are routinely evaluated and treated by chiropractors. (Whalen Decl., ¶50.) Dr. Whalen also states that there were no contraindications for chiropractic treatment from January 27 to February 12, 2022, such as an acute change in Plaintiff’s condition, “saddle anesthesia”, or progressive neurological signs or symptoms. (Whalen Decl., ¶ 51.) Dr. Whalen also opines that providing manual spinal manipulation and adjustment was appropriate and within the standard of care, as supported by Plaintiff’s reports that he felt better after receiving them on January 27 and February 12, 2022, and the lack of any complaints of increased pain or injury on January 27 or February 5, 9, or 12, 2022. (Whalen Decl., ¶ 54.) Plaintiff reported a “flare up” on February 19, 2022, which was addressed by providing spinal adjustments using a drop-table, and Plaintiff reported that he felt better after receiving this treatment. (Whalen Decl., ¶¶ 55-56.) Dr. Whalen states that any “flare up” or injuries claimed did not occur as a result of any breach of the standard of care, but a manifestation of the known risks of undergoing chiropractic treatment. (Whalen Decl., ¶¶ 58, 63.)

Defendants also rely on the declaration of Jeffrey Wang, M.D., a board-certified orthopedic spine surgeon, who opines that Defendants’ treatment did not case or contribute to Plaintiff’s injuries because pre- and post-incident MRIs do not show material differences and any potential differences are “likely due to a progression of [Plaintiff’s] existing back pathology (degenerative disc disease and prior spine injuries) and not due to any alleged negligent actions/omissions by Defendants.” (Wang, Decl., ¶¶ 3, 53.)

In opposition, Plaintiff submits the expert witness declaration of Bruce A. Wasserman, O.M.D. (“Dr. Wasserman”). Dr. Wasserman declares that he is a licensed physician, the “founding member of the National Board of Orthopedic Acupuncture” and mainly participates as a medical expert in worker’s compensation cases. (Wasserman Decl., ¶ 1.) He reviews MRIs and nerve conduction studies, as well as all related imaging related to orthopedic injuries and diseases on a daily basis, and has consistently done so since 1981. (Ibid.) He states he has general understanding of MRI review standards and the proper standard of care for patients with the same or similar symptomology as Plaintiff. (Ibid.) Dr. Wasserman opines that Defendants breached the applicable standard of care because “[he] would have . . . refused [Plaintiff] as a client for his condition and referred Plaintiff to an orthopedist” due to Plaintiff’s MRIs showing degenerative disc disease, disc bulges, and disc protrusions. (Wasserman Decl., ¶¶ 3-4.) Dr. Wasserman also states that Defendants “breached the medically accepted standard of care for performing manual adjustments and/or treatments on patients who present with similar or the same symptomology and condition as Plaintiff.” (Wasserman Decl., ¶ 10.) Dr. Wasserman additionally opines that “[b]y not properly evaluating Plaintiffs condition nd symptomology, using reasonable medical probability and applying the proper standard of care when dealing with patients presenting to Defendants’ facility with the same, Plaintiff was injured further by Defendants’ conduct.” (Wasserman Decl., ¶ 9.)

Dr. Wasserman’s opinion is inadmissible. As the question here is whether chiropractic care should have been provided, Dr. Wasserman’s statement that he would have refused to treat Plaintiff is speculative because there is no evidence that Dr. Wasserman is a chiropractor. In fact, Defendants introduce a copy of Dr. Wasserman’s license showing that he is an acupuncturist. Therefore, whether Dr. Wasserman, an acupuncturist, would treat Plaintiff is irrelevant.

Additionally, Dr. Wasserman’s opinion that Defendants breached the standard of care for performing adjustments on “patients who present with similar or the same symptomology and condition as Plaintiffs” is too speculative to create a triable issue of fact as to whether Defendants breached the standard of care with respect to Plaintiff, specifically. (Wasserman Decl., ¶ 10.) Although Dr. Wasserman declares that he is familiar with reading imaging and other studies in connection with worker’s compensation cases and patients demostrating same or similar symptoms as Plaintiff’s symptoms, there is no factual basis establishing a foundation for his assertion that he is familiar with the applicable standard of care, i.e., evaluating a patient as a candidate for chiropractic treatment.

As Plaintiff failed to submit a competent competing expert declaration, Plaintiff did not meet his burden to show that a triable issue of material fact exists.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at AHLDEPT3@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.