2016-00204835-CU-MM

Mackenzie Sanders vs. Sutter Health Sacramento Sierra Reg.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Shinjiro Hirose, MD)

Filed By: Dahl, Sonja M.

Defendant Shinjiro Hirose, M.D.’s (“Dr. Hirose”) motion for summary judgment is UNOPPOSED and GRANTED.

Plaintiff has filed a notice of non-opposition.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Dr. Hirose’s counsel is ordered to notify responding parties immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event the responding parties appear without following the procedures set forth in Local Rule 1.06(B).

This case concerns the alleged medical negligence of numerous health care providers relating to medical care and treatment provided to infant-plaintiff Mackenzie Sanders (“Plaintiff”) on or about August 17, 2016, and thereafter, by moving defendant Dr. Hirose, and numerous others. Plaintiff’s Complaint alleges a cause of action for medical malpractice as to the infant-plaintiff. A derivative cause of action for NIED as to the infant plaintiff’s parents, Ken Sanders and Annie Miller, has been dismissed.

Dr. Hirose has established by admissible evidence that his treatment of Plaintiff was at all times reasonable and within the standard of care. (See UMFs Nos. 1-12, Declaration of John Waldhausen, M.D.) Dr. Hirose’s expert opines that Dr. Hirose’s care and treatment of Plaintiff was at all times reasonable and within the standard of care given that Dr. Hirose’s first contact with Plaintiff was after the complication requiring placement of the chest tube, that Dr. Hirose was a covering physician not required to scrutinize the care provided by all her previous treating physicians, that Dr. Hirose’s second contact with Plaintiff was after she had already suffered some degree of brain damage, and that Dr. Hirose’s final evaluations were entirely appropriate and

had no effect on the patient’s outcome. (Declaration of John Waldhausen, M.D. ¶¶ 7-11.)

Once the moving party meets the burden of production, the burden shifts to the opposing party to produce admissible evidence demonstrating the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Here, the evidence is sufficient to shift to Plaintiff the burden of demonstrating the existence of a triable issue of material fact.

To rebut Dr. Hirose’s showing by its expert, Plaintiff was required to submit evidence of a prima facie case of medical malpractice in the form of expert witness testimony to prove a breach of the standard of care by the health care professional and that the defendant’s breach of the standard of care was the cause of the patient’s injury, and this must be established by testimony from a competent medical expert. (See Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.) Given that Dr. Hirose supported the motion with an expert declaration that the care and treatment he provided to Plaintiff met the applicable standard of care and did not cause or contribute to Plaintiff’s injuries, he is “entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of Univ. of Cal. (1989)

215 Cal.App.3d 977, 984-985.) The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) In other words, once the moving party meets this burden of production, the burden shifts to the opposing party to produce admissible evidence demonstrating the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at 849; Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) Such opposition generally must be established by testimony from a competent medical expert. (See Alef, supra, 5 Cal.App.4th at 216.)

Having expressly filed a statement of non-opposition, Plaintiff cannot meet her burden.

Dr. Hirose is therefore entitled to judgment as a matter of law.

The motion for summary judgment as to Dr. Hirose is GRANTED.

Dr. Hirose’s counsel shall submit an order and judgment of dismissal pursuant to CRC 3.1312 and CCP § 437c.