Tentative Ruling

Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Norma Vences v. Melissa G. Drake, MD, et al.
Case No: 18CV03844
Hearing Date: Mon Nov 04, 2019 9:30

Nature of Proceedings: Motion Summary Judgment

CASE: Norma Vences v. Melissa G. Drake, M.D., et al., Case No. 18CV03844 (Judge Sterne)

HEARING DATE: November 4, 2019

MATTER: Motion for Summary Judgment

ATTORNEYS:

Brian K. O’Connor for Plaintiff Norma Vences

Julia E. Murray for Defendant Melissa G. Drake, M.D.

TENTATIVE RULING: Defendant’s motion for summary judgment is denied. The court finds that there are triable issues of fact as to whether defendant complied with the standard of care and/or whether defendant’s conduct caused or contributed to any damages alleged by plaintiff.

BACKGROUND:

This is an action for alleged medical negligence. On August 17, 2017, plaintiff Norma Vences underwent a surgical procedure known as a bilateral tubal ligation at the Surgical Arts Center in Santa Barbara, California. The procedure was performed by defendant Melissa G. Drake, M.D. After plaintiff was prepped for surgery by the administration of a general anesthesia, an incision was attempted in her abdomen by defendant, but could not be completed because of the thickness of the abdominal wall. The procedure was thereafter abandoned due to the lack of available surgical instruments and safety concerns. On August 6, 2018, plaintiff filed her complaint alleging a single cause of action for medical negligence against defendant and others. Defendant answered the complaint with a general denial on September 10, 2018.

Defendant now moves for summary judgment on the grounds that (1) she complied with the standard of care in treating plaintiff, negating any breach of duty, and (2) there is no causal connection between her alleged negligent act or omission and plaintiff’s injuries. Plaintiff opposes the motion.

ANALYSIS:

A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c, subd. (c). “The purpose of the law of summary judgment is to provide the courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite the allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 843. A moving defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s causes of action, or shows that one or more elements of each cause of action cannot be established. Code Civ. Proc. §437c, subd. (p)(2). If the defendant fails to meet this burden, the motion for summary judgment must be denied. Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.

Plaintiff’s complaint alleges a single cause of action for medical negligence. To prevail on a professional negligence claim, a plaintiff must allege and prove (1) the defendant owed a duty to use such skill, knowledge, and care as other members of his/her profession commonly possess and exercise, (2) the defendant breached that duty, (3) the plaintiff was harmed, and (4) the defendant’s breach of duty, i.e., negligence, was a substantial factor in causing the plaintiff’s harm. Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997-998. In medical malpractice cases, because the practice of medicine is not within the common knowledge of lay persons, expert opinion testimony is necessary to prove the standard of care. Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844. As explained in Willard v. Hagenmeister (1981) 121 Cal.App.3d 406, 412:

“Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.”

When a defendant in a medical malpractice action moves for summary judgment and supports the motion with expert declarations that his conduct fell within the 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.App.3d 977, 985. Here, defendant has submitted the declaration of Scott Serden, M.D., a board-certified OB-GYN and surgeon in support of her summary judgment motion. Dr. Serden reviewed plaintiff’s medical records, including the surgical consent form, dated August 17, 2017, which cautioned plaintiff that “unforeseen conditions may necessitate additional or different procedures than set forth above.” (Serden Dec., ¶4(c), Ex. D.) The operative report, also dated August 17, 2017, states that plaintiff was administered a general anesthesia and that a bilateral tubal ligation was attempted using a “Veress needle.” (Serden Dec., ¶4(d), Ex. D.) However, after four attempts to insert the needle into plaintiff’s abdomen were unsuccessful, the procedure was abandoned due to “thick abdominal wall” and the “lack of available instruments.” (Ibid.) The abdominal incisions were closed and plaintiff was transferred to the recovery room, where she later awakened from the anesthesia. (Ibid.)

It is Dr. Serden’s professional opinion, based on his education, training, and experience, that there is nothing defendant did or failed to do in violation of the standard of care. (Serden Dec., ¶6.) There are essentially three ways to perform tubal sterilization: tubal ligation, as defendant attempted, tubal salpingectomy, which involves removal of the fallopian tubes, and open surgery using a Hassan retractor. (Serden Dec., ¶5(a).) Dr. Serden believes that the choice of tubal ligation was the best option for plaintiff given the information that defendant had at the time because the other procedures involve higher risk. (Ibid.) Defendant’s inability to enter the abdomen was not anticipated and could not reasonably have been anticipated based on plaintiff’s preoperative condition. (Serden Dec., ¶5(c).) Sometimes after childbirth (plaintiff had given birth to her son, Axel, just two months earlier), the abdomen cavity can develop increased elasticity, making entry more difficult. (Ibid.) Because there was nothing preoperatively to alert defendant to perform the procedure in any other manner than she had planned, there was no need to request additional instruments for a possible tubal salpingectomy or open surgery using a Hassan retractor. (Serden Dec., ¶5(d).) Once it became apparent to defendant that she could not get through the abdominal wall, it was prudent and good medical practice to stop the procedure. (Serden Dec., ¶5(f).)

Plaintiff disputes that defendant’s treatment plan was appropriate and within the standard of care and has presented the declaration of Malcolm G. Munro, M.D., in opposition to defendant’s summary judgment motion. Dr. Munro is a board-certified OB-GYN and the Director of Gynecology Services at Kaiser Permanente Medical Center, Los Angeles, California. He is also a clinical professor in the Department of Obstetrics and Gynecology at the David Geffen School of Medicine at UCLA. It is Dr. Munro’s professional opinion that defendant’s conduct fell below the standard of care in two important ways. First, defendant failed to inform plaintiff preoperatively of alternative procedures that could be pursued if the chosen procedure was unsuccessful. (Munro Dec., ¶4.) Second, after defendant failed to achieve entry into the abdominal cavity, there were other methods by which the fallopian tubes could have been occluded (blocked) or removed that would not have involved abandoning the procedure, including a tubal laparotomy, which involves making a small incision above the pubic bone. (Ibid.) Dr. Munro found no evidence that a laparotomy could not have been performed in plaintiff’s case in lieu of abandoning the surgery. (Ibid.)

Defendant next argues that there is a complete lack of causation between her alleged negligent act or omission and the injuries and damages claimed by plaintiff. In Jones v. Ortho Pharmaceutical Corporation (1985) 163 Cal.App.3d 396, 402-403, the court stated:

“[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. 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.”

Dr. Serden opines that there is nothing defendant did or failed to do that caused or contributed to any damages alleged by plaintiff. (Serden Dec., ¶6.) However, plaintiff claims that she suffered damages by being placed under general anesthesia and having incisions made in her abdomen when an alternative method of tubal sterilization should have been performed. According plaintiff’s medical expert, Dr. Munro, a tubal laparotomy was the preferred medical procedure as it involves only a local anesthesia and one small incision. (Munro Dec., ¶4.)

Given the above dispute, defendant’s motion for summary judgment will be denied. Dr. Munro’s declaration is more than adequate to raise triable issues of fact as to whether defendant’s treatment plan was appropriate and/or whether defendant’s conduct caused or contributed to any damages alleged by plaintiff.