Case Number: BC681192 Hearing Date: October 30, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEEFENDANT DAVID LARSON, M.D.’S MOTION FOR SUMMARY JUDGMENT; MOTION GRANTED

I. INTRODUCTION

On October 25, 2017, Plaintiff Layla Francis Batarseh (“Plaintiff”) filed this action against Defendants Long Beach Memorial Medical Center (“Long Beach Memorial”) and David Larson, M.D. (“Dr. Larson”) for medical malpractice and premises liability relating to the care and treatment rendered on May 16, 2017. Dr. Larson moves for summary judgment on grounds he complied with the standard of care and did not cause or contribute to Plaintiff’s injuries.

II. FACTUAL BACKGROUND

Plaintiff alleges Dr. Larson provided negligent anesthesia, resulting in the loss of a right lower incisor during surgery at Long Beach Memorial on May 16, 2017. (Undisputed Material Fact “UMF” No. 1.) Plaintiff was admitted for pain management relating to an ovarian cyst and intermittent low abdominal pain. Plaintiff decided to undergo a laparoscopic bilateral salpingo-oophorectomy and on May 16, her right and left ovaries and tubes were removed and an endometrial curettage was performed. Prior to the surgery, Dr. Larson examined Plaintiff and noted her airway was a Mallampati 1 score, and there were no apparent dental abnormalities. Her breath sounds were clear to auscultation and a plan for general anesthesia with routine monitoring was discussed with Plaintiff.

Anesthesia was started and Plaintiff was intubated with a bite block inserted. The bite block, a hard piece of plastic inserted preoperatively, was meant to prevent injury to the mouth, teeth, or tongue during emerging excitation postoperatively. When Plaintiff was extubated, Dr. Larson noted some bleeding near the lower right incisor and a tooth appeared to be missing. Dr. Larson searched and found the tooth on the anterior tongue. Dr. Larson discussed the missing tooth with Plaintiff’s husband and it was repaired by Plaintiff’s dentist.

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[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 of 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 of 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

Plaintiff alleges that Dr. Larson broke her tooth while removing the tubes from her mouth and as a result, she is still suffering tremendous amounts of pain, emotional distress, and impairment of enjoyment of life. (Complaint, ¶ GN-1, 5.)

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.)

Prior to surgery, Plaintiff signed a verification of consent and authorization for general anesthesia which listed potential risks and complications, including: “There may be damage to teeth or dental work, such as veneers, crowns, bridges, and/or filings. If you have loose dental work, please advise your anesthesiologist immediately.”

Dr. Larson submits the declaration of Leighton Smith, M.D. (“Dr. Smith”), board certified in anesthesiology and current Medical Director of Anesthesiology at Hoag Orthopedic Institute. (Declaration of Leighton Smith, M.D., ¶ 2.) Based on Dr. Smith’s background, training, and experience, he is familiar with the applicable standard of care for anesthesiologists treating patients such as Plaintiff. (Smith Decl., ¶ 4.) Dr. Smith reviewed Plaintiff’s medical records and based on this review, background, training, and experience, Dr. Smith opines that Dr. Larson acted within the standard of care in the community. (Smith Decl., ¶ 8.) Dr. Smith states Dr. Larson appropriately discussed the risks of general anesthesia with Plaintiff, including obtaining her consent and signature on the consent and authorization form. (Smith Decl., ¶ 8.) Further, Dr. Smith states dental injury is a known and accepted risk of general anesthesia and that Plaintiff’s broken tooth was not due to any negligence on the part of Dr. Larson. (Smith Decl., ¶ 9.) Specifically, Dr. Smith states Plaintiff bit down on the bite block during emergence, resulting in a broken tooth. (Smith Decl., ¶ 9.) Dr. Larson immediately recognized the injury and it was appropriately handled. (Smith Decl., ¶ 10.) Therefore, Dr. Smith opines Dr. Larson’s actions were not a substantial factor in causing Plaintiff’s injuries. (Smith Decl., ¶ 11.)

Dr. Larson has met his burden of showing he complied with the standard of care and did not cause Plaintiff’s injuries. The burden shifts to Plaintiff to show a triable issue of material fact exists.

Plaintiff argues Dr. Larson and Dr. Smith mischaracterize the events. Specifically, Plaintiff states her tooth did not break during surgery. Rather, her healthy non-damaged tooth that was anchored to her jawbones was completely pulled out during a surgery that had nothing to do with her mouth or teeth. Plaintiff states this does not ordinarily occur in the absence of negligence and that a layman can understand that biting down on a bite block could not cause a tooth to be dislodged, especially where the patient is under general anesthesia.

Plaintiff presents no expert declaration showing a triable issue of material fact exists. However, in a medical malpractice action, a defendant is entitled to summary judgment where he or she presents competent expert declaration that his or her actions fell within the community standard of care and Plaintiff fails to present contrary expert opinion. (Munro, supra, 215 Cal.3d at pp. 984-985.)

Further, for the doctrine of res ipsa loquitur to apply, “there must be a basis either in common experience or expert testimony that when such an accident occurs, it is more probably than not the result of negligence.” (Tomei v. Henning (1967) 67 Cal.2d 319, 322.) Here, like in Siverson v. Weber (1962) 57 Cal.2d 834, the injury is shown to be an inherent risk of the operation. (Id. at p. 839.) Even where an uncommon complication develops, this cannot, alone, permit an inference of negligence under the doctrine of res ipsa loquitur. (Ibid.)

Here, Dr. Smith opined that the injury here is an accepted and inherent risk of using bit blocks for general anesthesia. Plaintiff presented no expert testimony showing this injury ordinarily does not occur in the absence of negligence. Further, the Court is not convinced this is matter that laymen may understand or determine without the aid of expert testimony.

Therefore, Plaintiff failed to meet her burden of showing a triable issue of material fact exists.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.