2016-00189355-CU-MM

Natalie Owen vs. Sutter Health

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Gallert, Michael G.

Defendant Michael Fahey, M.D.’s Motion for Summary Judgment, or in the Alternative for Summary Adjudication of Issues is unopposed and is GRANTED.

Plaintiff’s complaint alleges a single cause of action for medical malpractice against Dr.

Fahey.

The alleged medical cause of plaintiffs injuries in this case, i.e., the medical care or lack thereof administered to plaintiff during the times in question is not the type of conduct that is within the common knowledge of the layperson. When the facts necessary to establish medical negligence are beyond the comprehension of laymen, expert testimony is required. (Cobbs v. Grant (1972) 8 Cal.3d 299, 336; see also O’Connor v. Bloomer (1981) 116 Cal.App.3d 385,391 and BAJI No. 6.30.)

The expert opinion expressed in the accompanying Declaration of Stanley Rogers, M.D. in this action establishes that Dr. Fahey at all times practiced and managed plaintiff’s medical care within acceptable medical standards as applied to physicians in a same or similar community under same or similar circumstances, in all aspects of his care and treatment of plaintiff.

Specifically, Dr. Fahey’s initial laparoscopic Nissen fundoplication performed on the plaintiff on January 28, 2002 complied with the standard of care. Plaintiff returned to Dr. Fahey’s care on November 18, 2014, by way of referral, due to a suspected slipped Nissen wrap. Dr. Fahey appropriately ordered a barium swallow esophagram that was performed on December 2, 2014, which revealed mild narrowing of the distal esophagus. Plaintiff returned on December 11, 2014 with complaints of dysphasia and reflux esophagitis. Dr. Fahey met the standard of care when he discussed with the plaintiff operative versus conservative intervention. The plaintiff opted for a redo of the Nissen wrap, which was appropriate given her symptoms. Dr. Fahey also met the standard of care when he discussed the pros and cons of surgical intervention with the plaintiff on January 20, 2015. Dr. Fahey’s redo of the slipped Nissen performed on the plaintiff on January 23, 2015 also complied with the standard of care. Dr. Fahey appropriately documented recognition and protection of the anterior vagus nerve. (Rodgers Dec. ¶ 27.)

In an action for medical malpractice, plaintiff must establish not only that the defendant was negligent, but also that the negligence of the defendant was a legal cause of injury, damage, loss or harm to the plaintiff. (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 702; see also Mitchell v. Gonzales (1991) 54 Cal.App.3d 1041, 1052 and CACI No. 400.) Medical causation, like the standard of care in a case such as this, can only be determined by expert testimony. (Salasquervara v.Wyeth Labs, Inc. (1990) 222 Cal.App.3d 379, 385.)

Again, the Declaration of Rogers, at ¶ 28 establishes that no negligent act or omission by Dr. Fahey caused or contributed to any alleged injury to the plaintiff. Defendant’s evidence is sufficient to shift to Plaintiff the burden of demonstrating the existence of a triable issue of material fact. To rebut defendant’s showing by its expert, Plaintiff was required to submit evidence of a prima facie case of medical malpractice in the form of expert witness testimony to prove a breach of the standard of care by the health care professional and that the defendant’s breach of the standard of care was the cause of the patient’s injury, and this must be established by testimony from a competent medical expert. (See Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.)

Accordingly, when a defendant supports a motion for summary judgment with an expert declaration that a breach of the prevailing standard of care did not occur, a plaintiff must provide an expert declaration to the contrary in order to defeat the motion. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.) The only exception is where the particular circumstances of the case present a matter within the common knowledge of laypeople. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) This is not such a case.

As no expert declaration in opposition has been provided, no material facts are in dispute and the motion for summary judgment is granted.