Case Number: BC714125 Hearing Date: May 24, 2019 Dept: 4A

Motion for Summary Judgment

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On March 30, 2017, Plaintiffs Judith Bahan and Joseph Bahan (“Plaintiffs”) filed a complaint against Defendant Steven J. Weiss, M.D. (“Defendant”) alleging medical malpractice and loss of consortium relating to the care of Plaintiff Judith Bahan’s irritable bowel syndrome.

On March 1, 2019, Defendant filed a motion for summary judgment on the grounds that there is no triable issue of material fact indicating Defendant breached a duty of care to Plaintiff Judith Bahan or caused Plaintiff Judith Bahan’s injuries.

Trial is set for September 26, 2019.

PARTY’S REQUEST

Defendant asks this court to enter summary judgment against Plaintiff pursuant to Code of Civil Procedure section 437c based on Defendant’s expert declaration opining that Defendant did not breach a duty of care to Plaintiff Judith Bahan or cause Plaintiff Judith Bahan’s injuries.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”¿ (Aguilar v. Atl. Richfield Co.¿(2001) 25 Cal.4th 826, 843.)¿ “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.)¿

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie¿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 “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.”¿ (Code Civ. Proc., § 437c(p)(2).)¿ “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.”¿ (Id.)¿ “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi¿v. Centro Medico¿Urgente¿Med. Ctr.¿(2008) 159 Cal.App.4th 463, 467.)¿

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”¿ (Avivi,¿supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)¿

OBJECTIONS

Defendant objects to paragraph 6A of Dr. Donner’s declaration as being conclusory, irrelevant, and a mere statement of an alternative standard of care. This paragraph is not conclusory because as it explains why Neomycin is should not be prescribed to a patient with known hearing complications. This paragraph is relevant because it has a tendency to prove Defendant’s prescribing of Neomycin was a breach of a duty. This paragraph is not merely a statement of an alternative standard of care, but rather evidence tending to show that Defendant chose a risky and maybe negligent course of action – prescribing a medication with known ototoxic consequences to a patient with compromised hearing in one ear — over a non-negligent course of action – prescribing a non-ototoxic alternative antibiotic that posed no hearing loss risks. As such, this objection is OVERRULED.

Defendant objects to paragraph 6B of Dr. Donner’s declaration as lacking foundation, being conclusory, being irrelevant, and an introduction of new theories of negligence. This paragraph does not lack foundation as Dr. Donner provided the foundation for his opinions in the first five paragraphs of his declaration, including his review of Plaintiff Judith Bahan’s medical records. This paragraph is not conclusory as he stated the factual basis for his opinion in paragraph five of his declaration. This paragraph is relevant because it has a tendency to prove that Defendant’s failure to advise, warn, counsel, guide or notify the risks and complications associated with Neomycin has a tendency to prove that Defendant was negligent.

Lastly, this paragraph does not introduce new theories of negligence. The complaint alleged Defendant’s evaluation, consultation, diagnosis, assessment, treatment, and medication management of Plaintiff Judith Bahan was negligent. Defendant offers no authority to support its implicit argument that providing warnings about the known risks and complications associated with Neomycin are not within the scope of providing negligent treatment or negligent medication management. The Court finds that a physician’s obligation to provide warnings, advise, and notifications about medications being prescribed is encompassed within his or her treatment of the patient and management of the patient’s medications. Accordingly, this objection is OVERRULED.

Defendant objects to paragraph 6C of Dr. Donner’s declaration as lacking foundation, being conclusory, being irrelevant, and being a mere statement of an alternative standard of care. This paragraph does not lack foundation as Dr. Donner provided the foundation for his opinions in the first five paragraphs of his declaration. This paragraph is not conclusory as he stated the factual basis for his opinion in paragraph five of his declaration. This paragraph is relevant as it has a tendency to prove Defendant’s prescribing of Neomycin – rather than a non-systemic, non-ototoxic antibiotic — was a breach of a duty. This paragraph is not a mere statement of an alternative standard of care, but rather evidence tending to show that Defendant chose a negligent course of action over a non-negligent one. Thus, this objection is OVERRULED.

Defendant objects to paragraph 7 of Dr. Donner’s declaration as lacking foundation, being conclusory and being irrelevant. This paragraph does not lack foundation as Dr. Donner provided the foundation for his opinions in the first five paragraphs of his declaration. This paragraph is not conclusory as he stated the factual basis for his opinion in paragraph five of his declaration. Further, Dr. Donner’s reliance on the statements of Dr. Moore reflected in the medical records reveals that his causation opinion is grounded, at least in part, on the fact that Plaintiff Judith Bahan’s hearing loss coincided with her taking the prescribed Neomycin and that there was no other reason for the hearing loss reflected in the medical records. Finally, this paragraph is relevant because it has a tendency to prove that Defendant caused Plaintiff Judith Bahan’s injuries.

Defendant objects to paragraph 7 insofar as it relies on statements by another physician. The Court agrees in part. This objection is SUSTAINED with respect to the opinions related by Dr. Moore, but not as to the observations made and recorded by Dr. Moore in Plaintiff Judith Bahan’s medical records. Thus, the temporal connection between the administration of Neomycin and hearing loss and the absence of other symptoms or evidence explaining the hearing loss may be relied on by Dr. Donner, but he may not repeat Dr. Moore’s opinions on the ototoxic character of Neomycin or its impact on Plaintiff Judith Bahan’s hearing loss.

DISCUSSION

The elements of medical malpractice 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.”¿ (Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 701-02 (citations omitted).)¿ “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.”¿ (Avivi, supra, 159 Cal.App.4th at p. 467.)

Thus, in a medical malpractice case, “[w]hen 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.App.3d 977, 984-985 (citations omitted).)¿ An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider.¿ (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)¿

Here, the complaint alleges the following. Defendant’s evaluation, consultation, diagnosis, assessment, treatment, and medication management of Plaintiff Judith Bahan’s irritable bowel syndrome and subsequent follow-up resulted in injuries. (Compl., pp. 3:26-3:3.) These injuries included, but are not limited to, ototoxicity and a complete loss of hearing and associated complications. (Ibid.)

Defendant has submitted the declaration of Rudolph A. Bedford, M.D. in support of Defendant’s motion for summary judgment. (UMF, Nos. 5-9.) Mr. Bedford’s declaration is based on his education, training and experience, Plaintiff’s medical records from Defendant, St. Jude Medical Center, H. Christopher Moore, M.D., Caremore Medical Group, Inc. and House Clinic, and Plaintiffs’ complaint and responses to special interrogatories from Defendant. (Bedford Decl., ¶¶ 4-5.)

Mr. Bedford first recounted the history of treatment that Defendant provided to Plaintiff Judith Bahan. (Bedford Decl., ¶¶ 6A-6M.) Mr. Bedford opined that Defendant’s ordering of Neomycin 500 mg 4 times a day was a medically accepted method for treating Plaintiff Judith Bahan’s irritable bowel syndrome and possible underlying small intestinal bacteria overgrowth. (Bedford Decl., ¶ 9.) Mr. Bedford also opined that Defendant properly discontinued the Neomycin on February 19, 2016. (Ibid.) Mr. Bedford then opined, to a reasonable degree of medical probability, that Defendant did not act or omit anything that caused or contributed to Plaintiff Judith Bahan’s alleged injuries. (Bedford Decl., ¶¶ 10-11.) More specifically, Dr. Bedford explained that Plaintiff Judith Bahan received too low of a dose of Neomycin and had no predisposing factors to increase its absorption in order to cause Plaintiff’s hearing loss, and that vertigo rarely occurs with Neomycin. (Bedford Decl., ¶ 11.)

The Court finds Defendant met his initial burden in demonstrating that there is no disputed of material fact that Defendant either breached his standard of care or caused Plaintiff Judith Bahan’s injuries. The declaration of Rudolph A. Bedford, M.D. sufficiently satisfies Defendant’s burden of proof. The burden shifts to Plaintiffs to submit contradicting evidence.

Plaintiffs have submitted the declaration of Barry S. Donner, M.D. in support of Plaintiffs’ opposition. (OUMF, Nos. 5-9.) Mr. Donner’s declaration is based on his education, knowledge, background, training and experience, a review of medical records relating to Plaintiff Judith Bahan from Defendant, St. Jude Medical Center – Emergency, C. Christopher Moore, M.D. and Caremore Medical Group, House Clinic, and a reading of Mr. Bedford’s declaration. (Donner Decl., ¶¶ 3-5.)

Mr. Donner initially opined that Defendant breached the standard of care owed to Plaintiff Judith Bahan by: (1) prescribing Neomycin, a ototoxic systemic antibiotic known to cause hearing loss to a patient with known hearing complications, (2) failing to advise, warn, counsel, guide or notify Plaintiff Judith Bahan of the risks and complications with taking Neomycin at the time it was prescribed, and (3) failing to select a non-systemic and non-ototoxic alternative, such as Xifaxin. (Donner Decl. ¶¶ 6A-6C.) Mr. Donner then opined that Defendant’s breach caused or was a substantial factor in causing Plaintiff’s hearing loss and related complications, which is substantiated. (Doner Decl., ¶ 7.) Mr. Donner’s opinion on causation is supported by Christopher Moore, M.D.’s findings in the medical records that Plaintiff Judith Bahan’s severe hearing loss coincided her Neomycin use, and that no other facts explained the hearing loss. (Id.)

The Court finds that Plaintiffs have submitted sufficient evidence to contradict the findings in Defendant’s expert’s declaration and create a triable issue of fact. There is a dispute between the two declarations as to whether Defendant breached a duty of care owed to Plaintiff Judith Bahan and whether Plaintiff Judith Bahan incurred harm as a result of such a breach. As such, triable issues of material fact exist and the motion must be denied.

Defendant’s motion for summary judgment is therefore DENIED.

Defendant is ordered to give notice of this ruling.