Case Name: Lisa Campanella v. Stanford Hospital & Clinics, et al.
Case No.: 2014-1-CV-272872

This is an action for medical malpractice and fraud. Currently before the Court are two motions: 1) A motion for summary judgment by Defendant Dr. Ernest Kaplan (“Kaplan”) as to the one remaining claim alleged against him—medical malpractice, and; 2) A motion for summary adjudication by Defendants Stanford Health Care and Ali Sina Bari (“Stanford/Bari”) of the second cause of action for fraud only.

The pleadings limit the issues presented for summary judgment. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 (“the pleadings determine the scope of relevant issues on a summary judgment motion.”). The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. See also McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 (“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal 4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at 850.)

Motion for Summary Judgment by Defendant Kaplan
“Medical providers must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances. Thus, in any medical malpractice action, the plaintiff must establish: (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.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 [citations and internal quotations omitted].)

In medical malpractice cases, when the defendant moves for summary judgment and supports his motion with expert evidence 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. (See Munro v. The Regents of the University of California (1989) 215 Cal.App.3d 977, 985.) “As a general rule, the testimony of an expert witness is required in every professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether any negligence by the defendant caused the plaintiff’s damages.” (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542.)

Defendant Kaplan’s motion for summary judgment is GRANTED as follows. Defendant has met his initial burden by submitting the declaration of James P. Anthony, MD, F.A.C.S as evidence that his conduct fell within the standard of care. Dr. Anthony states in pertinent part that, based on his review of Plaintiff’s medical records and his education and experience as a plastic surgeon, “[i]n my opinion . . . [Plaintiff] was an appropriate candidate for the surgery performed . . . The procedures performed at the initial surgery were appropriate and within the standard of care. The patient did well post-operatively. It is not uncommon for patients to have high expectations and a specific vision following plastic surgery regarding what they believe will be a transformation of their physical appearance. [Plaintiff] was dissatisfied with the appearance of her nose following the first procedure and after an appropriate period of recovery time and with the expressed goals of the patient in mind, Dr. Kaplan appropriately performed revision surgery which by all objective measures resulted in an excellent outcome. As evidenced in the consent forms executed by [Plaintiff], possible complications were discussed which included but were not limited to asymmetry and need for further procedures. . . . In my review of all of the medical records, I could not find a deviation or breach in the standard of care in the medical care provided to [Plaintiff] by Ernest Kaplan, MD. The post-procedure(s) dissatisfaction by [Plaintiff] can and does more commonly than occur in the absence of negligence. In my opinion, the medical and surgical care and treatment rendered to [Plaintiff] by Ernest Kaplan, MD was not the cause of any injury or damage to her. It is my professional opinion [that] there were no negligent acts or omissions on the part of Ernest Kaplan, MD which would cause any injury or damages to [Plaintiff].” Anthony Dec. at 8-9, brackets added.

When the burden shifts to Plaintiff she is unable to raise any triable issue of material fact as she has not submitted any expert evidence that would conflict with the opinions stated in the Anthony Declaration. Plaintiff’s declaration, while it relates her dissatisfaction with her surgeries and her pre- and post-operative discussions with Dr. Kaplan, cannot raise triable issues given Dr. Anthony’s declaration stating that Dr. Kaplan’s treatment of Plaintiff met the standard of care.

Motion for Summary Adjudication by Defendants Stanford/Bari
Stanford/Bari have moved for summary adjudication of the second cause of action for fraud only. Arguments made and evidence submitted (including large portions of the declaration of Corey Maas, M.D. and several of the exhibits to the declaration of Robert Willoughby) on the issue of whether Stanford/Bari breached the standard of care are therefore irrelevant. In this motion Stanford/Bari have not sought, and are not entitled to, any adjudication of the first cause of action for medical malpractice as alleged against them. The suggestion in the Reply that Plaintiff was required to submit an expert declaration in order to oppose their motion is incorrect as medical malpractice is not at issue in this motion and defense counsel could not reasonably believe otherwise.

“The elements of fraud are (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792 [emphasis added, citation omitted].) “The law is well established that actionable misrepresentations must pertain to past or existing material facts. Statements or predictions regarding future events are deemed to be mere opinions which are not actionable.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469 [internal citations omitted].) The elements of promissory fraud are (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promisee. (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498.)

Stanford/Bari’s motion for summary adjudication of the second cause of action for fraud is GRANTED as follows.

Fraud is an intentional tort. The declaration of Defendant Bari (exhibit H to the declaration of Defense Counsel Robert Willoughby) states in pertinent part at 4-6 that “[a]t [Plaintiff’s] clinical visit on April 23, 2012, I recommended that her aesthetic and breathing problems be surgically addressed through raising of her dorsum, widening of her dorsum at its apex and definition of dorsal aesthetic lines along with an adjustment of her nose tip. Based on my experience and training, I felt I was qualified to perform these procedures and [it] was my clear intention to provide these results at [Plaintiff’s] surgery. I did not discuss widening of the dorsum at its base and this was never part of the surgical plan. . . . I discussed the potential risks of surgery in detail with [Plaintiff]. . . . As [Plaintiff] acknowledged on the consent to surgery form, no guarantee or assurance of any particular outcome was given by anyone as to the results of surgery. On May 22, 2012, I performed [Plaintiff’s] surgery with Dr. Kaplan as the supervising surgeon. . . . During this procedure, we specifically addressed [Plaintiff’s] complaints by raising the dorsum, widening the dorsum at its apex, by creating dorsal aesthetic lines and by performing tip contouring.”

This is sufficient to meet Defendants’ initial burden to show that there was no intent to deceive Plaintiff as it is admissible evidence that Defendant Bari believed he was qualified to perform the procedure, was at the time licensed to perform the procedure, intended to provide the results sought by Plaintiff and that the procedure agreed to (with widening of the dorsum at the apex, not the base) was in fact performed.

When the burden shifts to Plaintiff she does not raise any triable issues of material fact through admissible evidence. In her separate statement Plaintiff responded to Defendants’ undisputed material fact #7 (“It was Ali Sina Bari’s intention to provide the surgical recommendations he discussed with [Plaintiff] at her preoperative visits, including raising of her dorsum at its apex and definition of dorsal aesthetic lines along with an adjustment of her nose tip.”) by stating “Agree except the surgery was not in conformance with agreed outcome in correcting breathing (spreader graft not secured) and appearance.” This concedes the lack of any intent to deceive on the part of Defendant Bari, which is an essential element of fraud. Plaintiff responded to Defendants’ undisputed material fact #9 (“On May 22, 2012, Ali Sina Bari did perform the surgery he had described to [Plaintiff], including surgical raising of her dorsum, widening of her dorsum at its apex, and definition of dorsal aesthetic lines.”) by stating “On May 22, 2012 Dr. Bari failed to adequately raise and widen the dorsum for breathing or to achieve the agreed aesthetic appearance.” (Court’s emphasis.) This acknowledgement that the agreed upon procedure was in fact performed further establishes that there was no fraud. A plaintiff’s dissatisfaction with the results of a medical procedure or belief that a procedure was not competently performed is not by itself evidence of fraud.