Case Number: BC693964 Hearing Date: May 15, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT TIFFANY ROGERS, M.D.’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On February 14, 2018, Plaintiffs Michelle Friedman and Robert Friedman (collectively, “Plaintiffs”) filed this action against Defendants Torrance Memorial Medical Center, Tiffany Rogers, M.D. (“Dr. Rogers”), and Mark Ancheta, M.D. (collectively, “Defendants”) for medical negligence relating to June 21, 2016 spinal surgery performed on Michelle Friedman. Dr. Rogers moves for summary judgment. Plaintiffs filed a Notice of Non-Opposition.

II. FACTUAL BACKGROUND

On March 25, 2015, Plaintiff first presented to Dr. Rogers complaining of moderate to several low back and gluteal pain for the prior two years. The pain occurred gradually without injury and MRI revealed lumbar stenosis. (Undisputed Material Fact “UMF” No. 1.) Dr. Rogers ordered an updated MRI, prescribed Gabapentin 300 mg and tramadol, and gave a brace to wear. Michelle Friedman was to follow up after the MRI was completed. (UMF No. 2.) On April 1, 2015, she had an MRI of her lumbar spine performed (UMF No. 3) and returned to Dr. Rogers on April 22, 2015 (UMF No. 5). She stated her lower back, left flank, and right flank pain were at 3/10 and she could not walk. She had been to physical therapy and had injections without improvement. (UMF No. 5.) Plaintiff Michelle Friedman did not return to Dr. Rogers until January 11, 2016. (UMF No. 6.) An updated MRI on May 24, 2016 showed degenerative scoliosis. (UMF No. 10.) On June 6, 2016, she visited Dr. Rogers and stated she could not live with her continuing symptoms and pain and wanted surgery. Her left leg pain was worsening. Plaintiff Michelle Friedman reviewed and signed a surgical consent form. (UMF No. 11.) Dr. Rogers performed surgery and post-operative care, including when Plaintiff Michelle Friedman experienced post-operative bleeding at the surgical site. Plaintiff Michelle Friedman was discharged on July 20, 2016 with diagnosis of Disseminated Intravascular Coagulation (DIC). (UMF No. 32.)

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 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. 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.)

Dr. Rogers submits the expert declaration of Robert Watkins, M.D. (“Dr. Watkins”), an orthopedic spine surgeon familiar with the standard of care for orthopedic spine surgeons. (Declaration of Robert Watkins, ¶ 5.) Dr. Watkins reviewed Plaintiff Michelle Friedman’s medical records and based on his review, education, training, and experience, opines that Dr. Rogers’s care and treatment complied with the standard of care at all times. Specifically, based on Plaintiff’s history of symptoms, failed conservative measures, and pre-operative MRI findings, the June 21, 2016 surgery performed by Dr. Rogers was medically indicated and appropriate. Before surgery, Plaintiff’s PT, INR, and PTT levels were within normal range and she denied any significant bleeding disorder. Dr. Rogers’s surgical technique was appropriate and did not deviate from the standard of care. Dr. Rogers communicated with the anesthesiologist about changes in the patient’s vital signs and confirmed no significant surgical bleeding intraoperatively. When homeostasis could not be achieved, Dr. Rogers timely and correctly performed a re-exploration of the wound and made proper attempts at stopping the bleeding. After the procedure, Dr. Rogers requested all necessary consultations and continued to monitor Plaintiff Michelle Friedman. When she received neurologic deficits in her lower extremities, Dr. Rogers performed an irrigation and debridement and drain replacement without delay. (Watkins Decl., ¶ 9.) Finally, Dr. Watkins opines that Dr. Rogers did not cause or contribute to the plaintiff’s claimed injuries or damages and that disseminated intravascular coagulation is very rare. Based on the lack of preoperative risk factors for developing a bleeding disorder, it could not have been predicted that she would go into DIC or that she would need a blood transfusion or blood products. (Watkins Decl., ¶ 10.)

Plaintiffs do not oppose this Motion by Dr. Rogers and present no contrary expert opinion showing a triable issue of fact exists.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED as to Dr. Rogers.

Moving party to give notice.