Case Number: BC699882 Hearing Date: May 22, 2019 Dept: 2

Motion for Summary Judgment by Defendant, Tracey Childs, M.D., filed on 3/5/19, is DENIED. Defendant has not established that she is entitled to judgment in her favor based on the undisputed material facts asserted. Cal. Code Civil Procedure §437c(p)(2).

To support a claim for medical malpractice, 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.’” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607.

The required standard of care owed by a medical professional is a matter peculiarly within the knowledge of experts.

“’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 [citations] ….’” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607.

Causation must also be proven with expert testimony.

“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.” Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402.

The undisputed facts establish the following: Plaintiff consulted with Defendant, Tracey Childs, M.D. for a painful mass in her midepigastric area underneath the sternum. UF 1. Dr. Childs diagnosed the mass as an incarcerated epigastric hernia, despite the ultra sound findings suggested the mass was a lipoma. Dr. Childs recommended hernia repair. UF 2.

Plaintiff signed a consent form for hernia repair to be performed by Defendant. UF 3. Dr. Childs excised the mass without complications. Plaintiff was discharged the same day. UF 6.

Defendant’s evidentiary objections.

Declaration of Keeran Kumar, M.D.

Objections 1, 2, 4. Sustained. Dr. Kumar is an anesthesiologist and declares that he is familiar with the standard of care for anesthesiologists in California. Kumar Declaration ¶ 1. He does not declare his qualifications to opine as to the standard of care of surgeons. Dr. Childs performed surgery on Plaintiff. UF 3.

Objections 3, 5. Overruled.

Declaration of Fred J. Simon, Jr., M.D.

All objections are overruled.

Triable issues of fact remain as to whether Defendant complied with the standard of care or caused Plaintiff’s injuries.

The Declaration of Fred Simon, M.D. sufficiently explains the manner in which Defendant’s conduct violated the standard of care and caused Plaintiff’s injuries. Simon Declaration ¶ 6-9.

Defendant argues in Reply that that misdiagnosis of the lipoma as a hernia did not change the location of the mass. Defendant argues that Plaintiff is implying that the misdiagnosis changed the location of the procedure. Dr. Simon opines that the misdiagnosis caused the unnecessary first surgery, and that Dr. Childs dissected the wrong anatomical location. Dr. Childs was not able to locate the mass during surgery. Simon Declaration ¶ 7.b.c. Facts 7, 8, 9 are disputed.

Plaintiff disputes Defendant’s claim that after locating the mass, Plaintiff consented to the second procedure after she was removed from anesthesia. Plaintiff’s expert, Dr. Kumar, an anesthesiologist, states Plaintiff was unable to give informed consent 18 minutes after arriving in recovery because she was significantly intoxicated from anesthesia drugs. Kumar Declaration, ¶ 7. Facts 5 and 10 are in dispute.

Defendant argues in Reply that Plaintiff signed a written consent to the 9/7/17 procedure, which states that unforeseen circumstances may necessitate different operations and procedures, implying that additional consent to the second procedure was not necessary.

This is a triable issue. Plaintiff’s expert opines that written consent to the second surgery was required. Simon Declaration ¶ 7.d. This is disputed by Defendant’s expert who states “verbal consent was suitable.” Fallas Declaration ¶ 17.

Fact 11, addressing the issue of causation is disputed by Plaintiff’s expert.

Moving party is ordered to give notice.