Case Name: Nancy Kessler v. David Dinh Yeh, M.D., et al.
Case No.: 2015-1-CV-283571

Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the First Amended Complaint by Defendant David Dinh Yeh, M.D.

Factual and Procedural Background

This is a medical negligence case. After years of dealing with neck and arm pain, plaintiff Nancy Kessler (“Kessler”) was referred to defendant David Dinh Yeh, M.D. (“Dr. Yeh”), who had recommended a right carpal tunnel release procedure, done endoscopically. (First Amended Complaint [“FAC”] at ¶ 14.) After being cleared for surgery, Kessler underwent a right carpal tunnel release procedure with the use of a Manos Device at defendant Spine and Sports Surgery Center (“Surgery Center”). (Id. at ¶ 15.) Prior to surgery, Dr. Yeh allegedly failed to disclose to Kessler that: (1) he was going to use the Manos Device; and (2) he was an investor in the Manos Device and thus had a financial interest in the instrument. (Id. at ¶¶ 16-17.) The Surgery Center purchased the Manos Device directly from defendant Thayer Intellectual Property, Inc. (“Thayer”) and charged plaintiff Kessler for its use. (Id. at ¶ 22.) In addition, Dr. Yeh never informed Kessler about alternative surgical options, other than endoscopic. (Id. at ¶ 18.)

In the course of performing the surgery, defendants left a foreign object in Kessler’s body which served no therapeutic purpose. (FAC at ¶ 20.) Kessler was discharged with the object in her body, and was not informed of its presence. (Ibid.) Defendants were also unaware of its presence. (Ibid.) The foreign body directly and proximately caused Kessler substantial injury, pain, suffering and damages. (Id. at ¶ 21.)

On October 10, 2017, Kessler filed the operative FAC setting forth the following causes of action: (1) medical negligence [against Dr. Yeh and Surgery Center]; (2) products liability [against Thayer and Surgery Center]; (3) intentional misrepresentation [against Dr. Yeh]; and (4) fraud/concealment [against Dr. Yeh].

On November 3, 2017, defendant Dr. Yeh filed an Answer to the FAC alleging various affirmative defenses.

On November 13, 2017, Kessler dismissed the second cause of action against defendant Surgery Center.

On February 16, 2018, the Surgery Center filed a motion for summary judgment to the FAC. The motion came on for hearing on May 8, 2018. The Court granted the motion for summary judgment as defendant had met its initial burden and Kessler did not oppose the motion thus failing to raise any triable issue of fact.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Currently before the Court is the motion for summary judgment to the FAC by defendant Dr. Yeh. (Code Civ. Proc., § 437c.) In the alternative, Dr. Yeh seeks an order for summary adjudication with respect to the first, third, and fourth causes of action. Plaintiff Kessler and defendant Thayer filed separate oppositions and objections to evidence to the motion. Dr. Yeh filed reply papers and objections to evidence. Trial is set for November 5, 2018.

Kessler’s Evidentiary Objections

In opposition, Kessler filed objections to the expert declaration of Thomas J. Raley, Jr., M.D. (“Dr. Raley”). (See Kessler’s Evidentiary Objections.) As a procedural matter, the evidentiary objections are deficient as Kessler fails to submit a proposed order in compliance with the rules of court. (See Cal. Rules of Court, rule 3.1354(c) [“A party submitting written objections to evidence must submit with the objections a proposed order.”].) In addition, objections must quote or set forth the objectionable statement or material. (See Cal. Rules of Court, rule 3.1354(b)(3).) Plaintiff Kessler fails to quote or set forth the objectionable statements from Dr. Raley’s expert declaration to support her objections. The Court therefore declines to rule on the evidentiary objections.

Thayer’s Evidentiary Objections

In opposition, Thayer filed objections to evidence submitted in the moving papers. The Court OVERRULES Objection Nos. 2, 3, 5, and 7. The Court declines to rule on the remaining objections which are not material in resolving issues raised by the motion for summary judgment and summary adjudication. (See Code Civ. Proc., § 437c, subd. (q) [in granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion].)

Dr. Yeh’s Evidentiary Objections

In reply, Dr. Yeh filed objections to the expert declaration of Dr. Jeffrey Yao, M.D. (“Dr. Yao”) submitted by plaintiff Kessler in her opposition. As a procedural matter, the evidentiary objections are deficient as Dr. Yeh fails to submit a proposed order in compliance with the rules of court. (See Cal. Rules of Court, rule 3.1354(c) [“A party submitting written objections to evidence must submit with the objections a proposed order.”].) On the merits, the Court does not find the arguments to be well-taken and thus OVERRULES the objections.

Legal Standard

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. 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 that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630 [internal citations and quotation marks omitted].)

First Cause of Action: Medical Negligence

The first cause of action is a claim for medical negligence. To prevail on this claim, 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 connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310 (Borrayo).)
Kessler alleges that Dr. Yeh owed her the obligation to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful practitioners would use in the same or similar circumstances. (FAC at ¶ 25.) This includes performing surgery in a professional and safe manner, keeping track of all objects going into and out of the patient’s body, not leaving foreign objects in the patient’s body, and timely detecting and correcting complications arising from failures in the foregoing. (Ibid.) Dr. Yeh and other defendants allegedly breached the standard of care by leaving a foreign object in Kessler’s body in connection with the subject surgery, and by causing injury to her in the surgery by performing below the standard of care. (Id. at ¶ 26.) As a result, Kessler suffered injury and damages. (Id. at ¶ 28.)

Dr. Yeh argues Kessler cannot prevail on her claim for medical negligence as he complied with the proper standard of care in performing her surgery and treatment.
“The standard of care in a medical malpractice case requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner 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 laymen.” (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.)

Dr. Yeh concedes that the standard of care with respect to a carpal tunnel release procedure is a matter peculiarly within the knowledge of experts. Thus, in order to defeat a claim for medical negligence, Dr. Yeh must support his motion with expert testimony. “When a defendant health care practitioner moves for summary judgment and supports his motion with an expert declaration that his conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting evidence.” (Borrayo, supra, 2 Cal.App.5th at p. 310.)

In support of the motion, Dr. Yeh submits the expert declaration from Dr. Raley. Dr. Raley is familiar with the community standard of care applicable to the medical treatment, procedures, and medications involved in this case. (Dr. Raley Declaration at ¶ 3.) He also has significant experience using the Manos Device in carpal tunnel surgeries and has provided such training to other surgeons in its use. (Id. at ¶ 1.) Dr. Raley testifies that Dr. Yeh’s care and treatment of plaintiff Kessler complied with the appropriate standard of care. (Dr. Yeh’s Separate Statement of Undisputed Facts at Nos. 12-13, 17 [Dr. Raley Declaration at ¶¶ 17, 18, 21].) In doing so, Dr. Raley claims Kessler appropriately consented during her initial evaluation and a written consent was signed prior to surgery, acknowledging that all risks of the procedure had been discussed with her, all in compliance with the standard of care. (Dr. Raley Declaration at ¶ 17.) In addition, Dr. Raley testifies (1) there is no evidence that Dr. Yeh used an inappropriate surgical technique and (2) the standard of care did not require Dr. Yeh to suspect a retained fragment when there was no indication that a fragment had been retained. (Id. at ¶¶ 18-19.)

To counter Dr. Yeh’s evidence, plaintiff Kessler submits an expert declaration from Dr. Yao. Dr. Yao is a medical doctor and associate professor of orthopedic surgery at the Stanford University Medical Center with a clinical focus on hand, wrist, elbow, and shoulder surgery as well as orthopedic surgery. (Dr. Yao Declaration at ¶ 1.) Dr. Yao is familiar with the applicable standard of care in this case and has extensive experience in the proper use and handling of the Manos Device. (Id. at ¶¶ 5-6.) Dr. Yao testifies that, if Dr. Yeh was notified by surgical technician Bo Haney (“Haney”) that the Manos Device was broken and did not take further action to ensure that a foreign body was not left inside plaintiff Kessler’s hand, then his actions/inactions during the surgery fell below the standard of care. (Id. at ¶¶ 7, 9.) In support of this opinion, plaintiff Kessler submits Haney’s deposition testimony where he states that he did notify Dr. Yeh about the broken blade on the device. (See Declaration of Jeremy Jessup at Exhibit D [Haney Depo at pp. 47:8-12, 77:24-78:20, 82:22-83:5, 86:20-87:7].) Dr. Yeh’s conduct also fell below the standard of care as he employed an improper surgical technique by bending the Manos Device intraoperatively thus causing a piece of the device to break off inside plaintiff Kessler’s hand. (Id. at ¶¶ 7-9; Kessler’s Additional Fact at Nos. 9-11, 17.)

When considering the declarations of the parties’ experts, the court will liberally construe the declarations for the plaintiff’s experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff. (See Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126.) Based on Dr. Yao’s expert declaration, factual issues remain as to whether Dr. Yeh applied the proper standard of care in treating Kessler for her injuries. Since there is conflicting evidence as to the proper standard of care, the Court cannot resolve the breach of duty issue as a matter of law on summary judgment or summary adjudication. (See Onciano v. Golden Palace Rest. (1990) 219 Cal.App.3d 385, 394 [breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant’s conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court].) Dr. Yeh has also conceded in his reply papers that factual issues remain for the trier of fact with respect to the medical negligence claim. (See Reply at p. 1.)

Accordingly, the motion for summary judgment is DENIED. The motion for summary adjudication to the first cause of action is DENIED.

Third Cause of Action: Intentional Misrepresentation

The third cause of action is a claim for intentional misrepresentation. The elements of a cause of action for an intentional misrepresentation theory of fraud include a misrepresentation (or false representation), knowledge of falsity, intent to defraud (or induce reliance), justifiable reliance, and resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, citing Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638.) Therefore, a misrepresentation or false representation by defendant Dr. Yeh is a necessary element of Kessler’s third cause of action.
Dr. Yeh persuasively argues there is no misrepresentation or false representation alleged to support the third cause of action. (See Memo of P’s & A’s at pp. 24-25; see also American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1117 [“A defendant’s motion for summary judgment necessarily includes a test of the sufficiency of the complaint.”].) Instead, the claim seeks relief for Dr. Yeh’s failure to disclose: (1) that he would perform the surgery with the Manos Device; (2) that there were other surgical options; and (3) that he was an investor in the Manos Device and had a financial interest in the use of the device. (FAC at ¶¶ 38-39.) Such allegations however are repetitive of facts alleged in support of the fourth cause of action for fraud/concealment which is addressed below. (Id. at ¶ 49.) The Court thus finds no legal basis for a cause of action for intentional misrepresentation. Nor does plaintiff Kessler raise any triable issue of fact with respect to this claim.

Therefore, the motion for summary adjudication to the third cause of action is GRANTED.

Fourth Cause of Action: Fraud/Concealment

The fourth cause of action is a claim for fraud based on concealment. “[T]he elements of a cause of action for fraud based on concealment are (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850 [internal citations and quotation marks omitted].)

Here, plaintiff Kessler alleges that she and Dr. Yeh entered into a doctor-patient relationship and thus he owed her a duty of care to disclose all known facts. (FAC at ¶ 48.) Kessler alleges Dr. Yeh intentionally failed to disclose the following facts: (1) that she had alternative surgical options, other than endoscopically with the use of the Manos Device; (2) that he would perform the surgery with the Manos Device; and (3) that he was an investor in the Manos Device and had a financial interest in the device. (Id. at ¶¶ 49.) Kessler reasonably relied on the alleged deception by agreeing to the surgery which ultimately caused her to suffer harm and damages. (Id. at ¶¶ 53-56.)

Defendant Dr. Yeh concedes that a duty to disclose may arise in the context of a doctor-patient relationship. (See LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 337 [duty of disclosure may arise from relationship between doctor and patient].) Thus, “a physician must disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect the physician’s professional judgment.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129.) On this point, the California Court of Appeal has said, “[c]ertainly a sick patient deserves to be free of any reasonable suspicion that his doctor’s judgment is influenced by a profit motive.” (Magan Medical Clinic v. Cal. State Bd. of Medical Examiners (1967) 249 Cal.App.2d 124, 132.)
Dr. Yeh argues plaintiff Kessler cannot establish any duty to disclose his stock holdings. In particular, Dr. Yeh asserts Kessler will be unable to show he has any “significant beneficial interest” in the Manos Device. In support, Dr. Yeh relies on various excerpts taken from his deposition. (See Dr. Yeh’s Separate Statement of Undisputed Facts at Nos. 25-31.) This deposition testimony however does not affirmatively demonstrate that plaintiff Kessler will be unable to establish a duty to disclose. A defendant who seeks summary judgment on the ground that plaintiff lacks evidence to support a necessary element may not simply argue the plaintiff lacks evidence; rather, the defendant must present evidence affirmatively showing the plaintiff lacks evidence to establish that element. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 (Aguilar); Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.) Typically, a defendant meets this burden by presenting either admissions the plaintiff made during discovery or the plaintiff’s factually devoid response to discovery requests seeking the plaintiff’s evidence to support his or her claims. (Aguilar, at p. 855; Union Banks v. Super. Ct. (1995) 31 Cal.App.4th 573, 590.) The evidence presented in support of this argument fails to meet this burden and thus does not provide a basis for summary adjudication.

Alternatively, Dr. Yeh argues plaintiff Kessler will be unable to establish that she would have refused consent to surgery if she had been advised of his financial interest in the device. (See Memo of P’s & A’s at p. 26.) Dr. Yeh thus argues Kessler cannot demonstrate reliance to support her fraud claim. This contention fails however as it is not addressed by the material facts and supporting evidence in Dr. Yeh’s separate statement. (See Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 529 [a motion for summary judgment must be decided upon admissible evidence].) Moreover, the issue of reliance is generally a question of fact resolved at trial. (See Elkind v. Woodward (1957) 152 Cal.App.2d 170, 179 [“Reliance is a question of fact.”].)
Accordingly, the motion for summary adjudication to the fourth cause of action is DENIED.

The Court will prepare the Order.