Case Number: BC699886 Hearing Date: February 14, 2020 Dept: A

Borel v Cpngress Medical Associates

Motion for Summary Judgment

Calendar:

08

Case No.:

BC699886

Hearing Date:

February 14, 2020

Action Filed:

March 27, 2018

Trial Date:

Not Set

MP:

Defendants Congress Medical Associates, Inc. d/b/a Congress Orthopaedic Associates, Inc.; and William Costigan, M.D.

RP:

N/A

ALLEGATIONS:

This action arises out of a medical procedure that caused Plaintiff Lisa Borel (“Plaintiff”) to lose her kidney and suffer other damages. Plaintiff alleges that she placed her trust in the hands of various medical providers for an anterior spinal procedure for a two-level back fusion. While under Defendants Congress Medical Associates, Inc. d/b/a Congress Orthopaedic Associates, Inc.; and William Costigan, M.D. (“Defendants”) care, she alleges that she experienced a significant amount of bleeding, loss of her left kidney, and a minor stroke.

The First Amended Complaint (“FAC”), filed June 20, 2018, alleges causes of action for: (1) Willful Misconduct; (2) Negligence; (3) Fraudulent Concealment; (4) Constructive Fraud; (5) Breach of Fiduciary Duty; (6) Medical Battery; and (7) Lack of Informed Consent. Following the Court’s April 12, 2019, ruling sustaining a demurrer to all causes of action except the Second Cause of Action with 20 days leave to amend, and Plaintiff’s failure to file an amended complaint, the sole cause of action remaining for Defendants is the Second Cause of Action for Medical Negligence.

PRESENTATION:

The instant motion for summary judgment was filed on July 29, 2019, and was originally set for oral argument on October 18, 2019. Plaintiff, however, petitioned the Court for a continuance in order to obtain medical expert testimony to oppose the summary judgment motion. The Court heard and granted Plaintiff’s request for a continuance on September 20, 2019, setting the new date for the hearing on the instant motion for February 14, 2020. To date, no opposition has been filed.

RELIEF REQUESTED:

Defendants move for judgment on the sole remaining cause of action on the grounds that: (1) Defendants complied with the requisite standard of care, and (2) Defendants did not cause Plaintiff’s injuries.

DISUCSSION:

Organizational Note – Prior to commencing its analysis, the Court notes that the relevant declarations of Yu-Po Lee, M.D., and Sasan Najibi, M.D. are included as part of the 100 pages of the memorandum of points and authorities, rather than included as separately filed documents. This practice is discouraged because it creates difficulties for the court and its staff..

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Standard of Review – Summary Judgment – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Code Civ. Proc. §437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the 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 or a defense thereto.” Code Civ. Proc. § 437c(p)(2).

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal. App. 4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.

With a summary judgment motion, a three-step analysis is required of the trial court. AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65. First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. Id. Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. Id. When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. Id. On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. Code of Civ. Proc. §437c(o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.

Second Cause of Action (Medical Negligence) – The primary elements of a medical negligence action are: (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. Tortorella v. Castro (2006) 140 Cal. App. 4th 1, 4, fn. 2. In order for a defendant to obtain relief on summary judgment, the defendant must establish that the plaintiff is unable to raise a triable issue of material fact as to any of the elements, thereby requiring an entry of judgment in favor of the moving party.

On review of the unopposed moving papers, the Court finds that Defendants have failed to provide a prima facie showing that they met the standard of care. As stated by the Supreme Court of California:

Evidence Code section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter … that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Italics added.) Subdivision (b) clearly permits a court to determine whether the matter is of a type on which an expert may reasonably rely.

In Lockheed Litigation Cases (2004) 115 Cal. App. 4th 558, 563 [10 Cal. Rptr. 3d 34], the plaintiffs argued that under Evidence Code section 801, subdivision (b), “a court should determine only whether the type of matter that an expert relies on in forming his or her opinion is the type of matter that an expert reasonably can rely on in forming an opinion, without regard to whether the matter relied on reasonably does support the particular opinion offered.” The Court of Appeal disagreed. “An expert opinion has no value if its basis is unsound. [Citations.] Matter that provides a reasonable basis for one opinion does not necessarily provide a reasonable basis for another opinion. Evidence Code section 801, subdivision (b), states that a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on ‘in forming an opinion upon the subject to which his testimony relates.’ (Italics added.) We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.” (Lockheed Litigation Cases, supra, at p. 564, 10 Cal. Rptr. 3d 34.)

….

Thus, under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony. [Emphasis added].

See, Sargon Enterprises, Inc. v. Univ. of S. California (2012) 55 Cal. 4th 747, 769–70.

As further stated by the Court:

…“[A] properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact.” (Bushling v. Fremont Medical Center (2004) 117 Cal. App. 4th 493, 510, 11 Cal. Rptr. 3d 653 (Bushling ).) “However, even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. For example, an expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value and may be excluded from evidence. Similarly, when an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’ ” [Emphasis added] (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal. App. 4th 1108, 1117, 8 Cal. Rptr. 3d 363 (Jennings ).) “An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.” (Id. at pp. 1117–1118, 8 Cal. Rptr. 3d 363.) Regarding causation, “the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.” [Emphasis added] (Id. at p. 1118, 8 Cal. Rptr. 3d 363.)

These rules apply to expert witness declarations submitted in connection with a motion for summary judgment. (Powell, supra, 151 Cal. App. 4th at p. 123, 59 Cal. Rptr. 3d 618); (Bushling, supra, 117 Cal. App. 4th at p. 510, 11 Cal. Rptr. 3d 653.) “Cases dismissing expert declarations in connection with summary judgment motions do so on the basis that the declarations established that the opinions were either speculative, lacked foundation, or were stated without sufficient certainty.” (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal. App. 4th 703, 718, 128 Cal. Rptr. 2d 529.) “[U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion.” (Sargon, supra, 55 Cal. 4th at p. 770, 149 Cal. Rptr. 3d 614, 288 P. 3d 1237.) “[T]he gatekeeper’s role ‘is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’ ” [Emphasis added] (Id. at p. 772, 149 Cal. Rptr. 3d 614, 288 P. 3d 1237.)

See, Sanchez v. Kern Emergency Med. Transportation Corp. (2017) 8 Cal. App. 5th 146, 153 and 155–56, as modified (Feb. 16, 2017).

Here, neither the Declaration of Yu-Po Lee nor the Declaration of Sasan Najibi, M.D. express what the standard of care is, and how Defendants met the requisite standard. Instead, the experts provide only the conclusory assertion that the Defendants met the standard of care, whatever that undefined undeclared standard may be. Decl. of Lee, ¶6, 9; Decl, of Najibi, ¶6.

Further, the Court cannot find that Defendants have established a prima facie right to relief on the grounds of causation. Specifically, the Court relies on the Declaration of Sasan Najibi, M.D., ¶9(a)-(f) which attests that Plaintiff’s injuries were ultimately the result of the unusual presence of two renal veins instead of one, leading to the complications with visualization of the second vein during surgery, and ultimately causing Plaintiff’s injuries due to the unknown presence of the second vein. Without being able to determine the appropriate standard of care, the Court cannot credit Dr. Najibi’s representation that “As an orthopedic spine surgeon, Dr. Costigan should not be faulted” with being the proximate cause of tearing of the vena cava, that ultimately resulted in Plaintiff’s injuries. Decl, of Najibi, ¶9(e).

Accordingly, the Court will deny the motion.

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RULING: Deny

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Congress Medical Associates, Inc. d/b/a Congress Orthopaedic Associates, Inc.; and William Costigan, M.D.’s Motion for Summary Judgment came on regularly for hearing on February 14, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS DENIED.

DATE: _______________ _______________________________

JUDGE