Case Number: BC654659 Hearing Date: April 02, 2018 Dept: 92

ANAMARIE RODRIGUEZ,

Plaintiff(s),

vs.

RACHEL I. WHITE, M.D., ET AL.,

Defendant(s).

CASE NO: BC654659

[TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Dept. 92

1:30 p.m.

April 2, 2018

1. Background Facts

Plaintiff, Anamarie Rodriguez filed this action against Defendants, Rachel I. White, M.D., Saber J. Patrus, M.D. and Henry Mayo for medical malpractice/wrongful death. Plaintiff alleges Defendants were negligent in their care and treatment of her father, who had a disease called esophageal varacies. She alleges her father, in light of his condition, was to have a very reduced sodium diet. Her father told Defendants he had this condition, and they did not believe him; he died in the ICU as a result of their failure to treat him for this condition.

2. Motions for Summary Judgment

At this time, Drs. White and Patrus move for summary judgment, contending they complied with the standard of care at all times, and nothing they did caused or contributed to Decedent’s death.

a. General Law Governing Summary Judgment in the Medical Malpractice Context

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id.

A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘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.App.3d 977, 984-985.

In order to establish that defendant’s negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm. “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. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. 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. This is the outer limit of inference upon which an issue may be submitted to the jury.” Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.

b. Motion of Defendant, Dr. White

Dr. White supports her motion with the Declaration of Russell C. Klein, M.D. Klein sets forth his expert credentials, details Defendant’s care and treatment of Decedent, and ultimately concludes Dr. White complied with the standard of care at all times and nothing she did caused or contributed to Decedent’s death. Notably, Dr. Klein addresses the allegations concerning esophageal varices at ¶14 of his declaration.

The Expert Declaration of Dr. Klein is sufficient to meet Defendant’s moving burden to establish she is entitled to judgment as a matter of law. The burden therefore shifts to Plaintiff to raise a triable issue of material fact in this regard. Any opposition to the motion was due on or before 3/19/18. The Court has not received any opposition to the motion. Plaintiff therefore necessarily failed to meet the shifted burden, and the motion is granted.

c. Motion of Defendant, Dr. Patrus

Dr. Patrus moves for summary judgment on the same grounds as Dr. White, and provides a substantially similar Declaration of Dr. Klein in support of his motion. His motion is granted for the reasons set forth above in connection with Dr. White’s motion.