2012-00118964-CU-MM

Leila Doumit vs. Med 7 Urgent Care Center Medical Group

Nature of Proceeding: Motion for Summary Adjudication

Filed By: Zimmerman, Robert H.

Defendants Med 7 Urgent Care Center Medical Group, Jack Kraft, M.D. and Dean
Kim, M.D.’s Motion for Summary Judgment, or in the Alternative for Summary
Adjudication of Issues is DENIED.

Plaintiff’s form Complaint sets forth a single cause of action for Negligence (Medical
Malpractice) against all defendants for failing to recognize the nature and severity of
the medical condition that affected the Claimant between the period of December 13,
2010 until approximately Jan. 16, 2011 and for failing to adequately diagnose, detect,
inspect and treat Claimant’s injuries. Claimant had suffered from one or more of the
following conditions: obstructions, fistulas, cysts, abscesses, anemia, sepsis, ruptured
stomach, ruptured spleen, ruptured colon, and others. As a result, plaintiff suffered
personal injuries.

The elements of a cause of action for medical malpractice are: (1) a duty to use such
skill, prudence, and diligence as other members of the profession commonly possess
and exercise; (2) a breach of the duty; (3) a proximate causal connection between the
negligent conduct and the injury; and (4) resulting loss or damage. (Johnson v.
Superior Court (2006) 143 CaI.App.4th 297, 305; Chakalis v. Elevator Solutions, Inc.
(2012) 205 CaI.App.4th 1557, 1571.)

Moving party defendants move for summary judgment on two alternative grounds, the
first and third elements: that their care and treatment was within the applicable
standard of care and/or that any alleged negligence by the defendants was not the
legal or proximate cause of any harm to plaintiff.

Summary adjudication on the grounds of the applicable standard of care is DENIED.

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, unless the conduct
required by the particular circumstances is within the common knowledge of the
layman. Keen v. Prisinzano (1972) 23 Cal. App. 3d 275, 279.

Although moving parties present expert evidence that their care of plaintiff met the
applicable standard of care, in opposition plaintiff provides the expert declaration of Dr.
Paul Cirangle to dispute that material fact and opine that the care provided by
defendants did not meet the applicable standard of care. (Disputed MF 11)

In reply defendants concede that this element may not be determined in their favor on
summary adjudication.

Summary adjudication on the grounds that any alleged negligence by the defendants
was not the legal or proximate cause of any harm to plaintiff is DENIED.

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; see, also Marvin v. Talbot (1962) 216
Cal.App.2d 383, 385; Keen v. Prisinzano (1972) 23 Cal.App.3d 275.

A possible cause only becomes “probable” when, in the absence of other reasonable
causal explanations, it becomes more likely than not that the injury was a result of its
action. This is the outer limit of inference upon which an issue may be submitted to the
jury. Jones, supra, at p. 403.

Moving parties present admissible evidence that plaintiff’s splenetic abscess was not
secondary to her perirectal abscess. (MF 25.)

In opposition, plaintiff disputes that material fact, among others, with the declaration of
her expert.

Although on reply, moving parties assert that the conclusion of plaintiff’s expert is
cursory and does not adequately address the bacteriology of abscesses, the Court
finds that disputed issues of material fact remain for determination by the finder of fact
at trial. (Disputed MF nos.13, 15, 17, 19, and 25.) Counter affidavits and declarations
need not prove the opposition’s case. They suffice if they disclose the existence of a
triable issue. McManis v. San Diego Postal Credit Union (1998) 61 Cal. App. 4th 547,
555.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.