Case Number: GC050933    Hearing Date: August 22, 2014    Dept: 31

Plaintiff Daniel A. Perez’s Motion for New Trial is DENIED. Plaintiff’s request to file his previously sealed medical records under seal is granted.
Legal Standard
A motion for new trial is governed by CCP § 657, which states in relevant part:
The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

. . .

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

. . .

When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated.

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.

Discussion
Plaintiff filed the instant action alleging medical malpractice and general negligence against Defendants Dr. Kislinger and Foothill Eye Care Center (“Foothill”). Plaintiff alleged that Dr. Kislinger and Foothill breached the appropriate standard of care during his eye surgery on or about February 2010. Complaint, Count 1, ¶¶ 2, 12, 13. As a result of this breach, Plaintiff alleged that he suffered a laceration, permanent blindness and pain to his right eye. Complaint, Count 1, ¶ 14.
In moving for summary judgment, Dr. Kislinger and Foothill presented the expert declaration of Dr. Salz, who rendered an opinion regarding the appropriate standard of care, whether said standard was breached during Plaintiff’s cataract surgery, and the cause of Plaintiff’s injuries. The Court’s ruling on the motion for summary judgment declined to consider Plaintiff’s late-filed opposition or grant Plaintiff a continuance of the hearing. The Court made the following ruling:
Defendants present the expert declaration of Dr. James J. Salz, M.D., who is board certified in ophthalmology and has been practicing medicine in California since 1966. Dr. Salz’s declaration sufficiently establishes the qualifications of his ability to testify as an expert on the standard of care and medical causation. Motion, Salz DecI. ¶ 1-3; Exh. A. Dr. Salz has reviewed the relevant medical records from Dr. Kislinger as well as the Declaration of Dr. Kislinger. Motion, Salz DecI. ¶ 4. The medical records are submitted with this motion, along with the Declarations of Dr. Salz and Dr. Kislinger. Motion, Salz Decl. ¶ 5; Exh. B.

Dr. Kislinger first saw Plaintiff, who has significant eye problems, in September of 2007 for a retina consult and determined that Plaintiff suffered from clinically significant macular edema, proliferative diabetic retinopathy and cataracts in both eyes. Motion, Salz Decl. ¶¶ 7(a)-(c). Between 2007 and 2010, Plaintiff underwent various surgeries on his right eye, and was informed of a need to undergo surgery on his left eye. Motion, Salz Decl. ¶¶ 7(d)-(l). In June and August of 2010, Plaintiff experienced severe issues with both eyes, and both Dr. Kislinger and Dr. Gallemore evaluated the Plaintiff. Motion, Salz Dccl. ¶¶ 7(m)-(r). On September 13, 2010, Dr. Gallemore performed a vitrectomy with oil removal and lensectomy (removal of the lens) on the Plaintiff. Motion, Salz Decl. ¶ 7(s). On October 12, 2010, Dr. Kislinger performed an OCT and fluorescein angiogram on the Plaintiff. Motion, Salz Decl. ¶ 7(s). Sometime later, plaintiff scheduled an appointment for his cataract extraction and IOL placement. Apparently, Plaintiff was unaware that Dr. Gallemore had already removed his cataract during the September 2010 surgery. Motion, Salz Decl. ¶ 7(x). In December, Dr. Kislinger began to perform the cataract surgery, only to discover that there was no lens present, so he ended the surgery. Motion, Salz Decl. ¶ 7(aa).

Dr. Salz opines that Dr. Kislinger’s treatment of Plaintiff was appropriate because Dr. Gallemore had already removed Plaintiffs cataract and Dr. Kislinger, who had no knowledge of the removal, did not end up performing surgery on the Plaintiff. Dr. Kislinger had examined Plaintiffs eyes in June and August of 2010 and recommended various treatments, including recommending him to Dr. Gallemore for some of those treatments. Motion, Salz Decl. ¶ 9(a)-(b). Dr. Gallemore removed Plaintiff‘s cataract in September of 2010, which neither Plaintiff nor Dr. Kislihger were aware of when Dr. Kislinger began surgery in December of 2010. Motion, Salz Decl. ¶ 9(e). Once Dr. Kislinger began surgery and found that the cataract was already removed, he immediately stopped; therefore, there was no harm done. Motion, Salz Decl. ¶ 9(f)-(g).

Order Re: Defendants Mark D. Kislinger, M.D., and Foothill Eye Care Center’s Motion for Summary Judgment, pp. 3:22-5:3. In granting the motion for summary judgment, the Court determined that Dr. Salz’s declaration sufficiently explained that because Dr. Kislinger did not perform any eye surgery on Plaintiff, he did not breach any standard of care and did not cause Plaintiff any injury.
Duty and Breach of Duty
Plaintiff now argues that whether Dr. Kislinger knew or should have known that the cataract in Plaintiff’s right eye had been removed prior to the subject surgery “is a crucial issue pertinent to Dr. Kislinger’s duty and breach of such duty.” Motion, pp. 11:14-12:2. Plaintiff, however, provides no expert evidence with respect this claim. Whenever the plaintiff claims negligence in the medical context, the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff. Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983-84; Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1166.
The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36; Landeros v. Flood (1976) 17 Cal.3d 399.) “’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], unless the conduct required by the particular circumstances is within the common knowledge of the layman.’ [Citations.]” ( Landeros v. Flood, supra, 17 Cal.3d at p. 410.)

Id. (emphasis added). Here, Plaintiff fails to provide a supporting expert declaration that opines Dr. Kislinger and Foothill had a duty to know that the cataract in Plaintiff’s right eye had already been removed, that their lack of knowledge amounts to a breach of that duty, or that this lack of knowledge caused Plaintiff’s injuries.
Instead of relying on expert evidence, Plaintiff seeks to demonstrate the existence of a triable issue based on contradictions in Dr. Kislinger and Foothill’s evidence. First, Plaintiff points to notes attached to Dr. Salz’s declaration to argue that as of October 2010, Dr. Kislinger knew Plaintiff’s cataract had been removed. Motion for Summary Judgment, Salz Decl., Exh. B (“Perez Records”), p. 108. In a note by Dr. Kislinger, apparently dated October 12, 2010, he explained to Plaintiff that the cataract was out. Motion for Summary Judgment, Perez Records, p. 108. Dr. Kislinger and Foothill attempt to explain this note away by arguing that it is likely just an addendum to the October 12, 2010 notes that post-dates the subject surgery. Dr. Kislinger and Foothill contend this is a reasonable assumption, as demonstrated by their expert’s declaration. The declaration of Dr. Salz, however, does not mention these notes or explain on what date Dr. Kislinger told Plaintiff that the cataract surgery had been performed by Dr. Gallemore. See Motion for Summary Judgment, Salz Decl., ¶¶ 7(a)(a)-(c)(c); 9(f). Dr. Kislinger and Foothill’s argument that the note post-dates the subject surgery in December 2010 constitutes their own interpretation of the medical records. Tellingly, there is no declaration from Dr. Kislinger supporting this interpretation. Therefore, whether Dr. Kislinger was aware Plaintiff’s cataract had been removed in October 2010 is a disputed fact.
Second, Plaintiff points to records showing that Dr. Kislinger conducted examinations of Plaintiff’s eyes in November 2010. Motion, Perez Records, pp. 20, 26. Finally, Plaintiff points to records made by Dr. Gallemore prior to the subject cataract surgery, which state that the earlier procedures performed by Dr. Gallemore included a vitrectomy and lensectomy. Motion, pp. 176, 200. The motion, however, does not explain how these examinations and procedures are relevant to the subject cataract surgery.
A careful review of Plaintiff’s motion for new trial and his dissection of the medical records demonstrates the existence of a disputed issue of material fact regarding duty: whether Dr. Kislinger was aware Plaintiff’s cataract had been removed prior to starting the subject cataract surgery in December 2010. In order for the Court to determine whether Dr. Kislinger and Foothill had a duty to Plaintiff to refrain from performing cataract surgery in light of this knowledge it must either have an expert declaration stating as much, or it must find that “the issue presented is one within the conduct required by the particular circumstances is within the common knowledge of the layman.”
The ‘common knowledge’ exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson ‘is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.’

Carson v. Mercury Ins. Co. (2012) 210 Cal.App.4th 402, 422. This issue of duty in this scenario is arguably one that can be determined based on common knowledge: a surgeon has a duty to refrain from attempting to surgically remove a cataract that he knew had already been removed. In light of the contradictory evidence in Dr. Salz’s declaration and the medical records on which he relies, a triable issue of material fact exists as to Dr. Kislinger and Foothill’s compliance with the appropriate standard of care notwithstanding the lack of submission of an expert declaration by plaintiff.
Causation
The question then becomes whether the breach of the standard of care cause plaintiff’s injury. With respect to causation, Plaintiff argues that a triable issue of fact exists as to whether Dr. Kislinger and Foothill’s failure to insert an IOL during the subject surgery caused his injuries. Dr. Salz stated in his declaration that:
On December 6, 2010 Mr. Perez presented to Dr. Kislinger’s office for the cataract surgery. Dr. Kislinger took the patient into the operating room and began the surgery only to discover that there was no lens present.
Due to this unexpected development and the fact that Dr. Kislinger saw silicone oil coming forward he did not think it was safe to place an IOL and he canceled the surgery.

Motion for Summary Judgment, Salz Decl., ¶¶ 7(a)(a)-(b)(b). Plaintiff again tries to create a triable issue by pointing to evidence in his medical records. Specifically, Plaintiff was seen the next day by Dr. Gallemore, whose notes state: “[o]n today’s exam the retina remains attached and there is still good oil fill.” Motion, Perez Records, p. 169. Plaintiff contends that this finding by Dr. Gallemore contradicts Dr. Kislinger’s determination that oil was coming forward. This contention, however, is unsupported by any expert declaration. The Court cannot determine based on common experience whether the findings by Drs. Kislinger and Gallemore are contradictory especially given that they were made on different days. Furthermore, even if the Court could make such a determination, Plaintiff presents no expert declaration to contradict Dr. Salz’s statement that no harm was done when Dr. Kislinger refrained from inserting an IOL during the subject cataract surgery. Plaintiff merely asserts his own unsupported lay opinion that the failure to insert an IOL caused his legal blindness. Motion, p. 15:3-5. Therefore, no evidence of a triable issue of material fact exists with respect to the cause of Plaintiff’s injuries, even in light of the triable issue with respect to the duty of care. For these reasons, the motion for new trial is properly denied.
Defendants Dr. Kislinger and Foothill Eye Care Center are ordered to give notice.