Stephanie Allard v. Physicians Skin and Weight Centers

Case Name: Stephanie Allard v. Physicians Skin and Weight Centers, et al.

Case No.: 2014-1-CV-268943

Motion for Summary Judgment by Defendants Physicians Skin and Weight Centers and Anamika Sharma, M.D.

This action arises of out of the alleged negligent medical care and treatment provided to plaintiff Stephanie Allard (“Plaintiff”). According to the allegations, on or about December 19, 2012 and continuing to on or about September 25, 2013, defendants Physicians Skin and Weight Centers (“PSWC”) and Anamika Sharma, M.D. (“Dr. Sharma”) negligently performed liposuction procedures, consultations, and evaluations with regard to Plaintiff’s legs. (See Complaint, ¶GN-1.)

On August 5, 2014, Plaintiff filed a complaint against defendants PSWC and Dr. Sharma asserting a single cause of action for medical negligence. On February 3, 2015, defendants PSWC and Dr. Sharma filed an answer to the complaint.

On March 21, 2016, defendants PSWC and Dr. Sharma filed this motion for summary judgment.

IV. Defendants PSWC and Dr. Sharma’s motion for summary judgment is DENIED.

A. Professional negligence/ medical malpractice.

The first and only cause of action asserted against defendants PSWC and Dr. Sharma is for professional negligence (medical malpractice). Civil Code section 1714, subdivision (a) is the statutory foundation for negligence law in California. That section states, in relevant part:

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

(Civ. Code §1714, subd. (a).)

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 (Ladd).) Medical negligence is still negligence.

With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional “circumstances” relevant to an overall assessment of what constitutes “ordinary prudence” in a particular situation. Thus, the standard for professionals is articulated in terms of exercising “the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing ….” [Citation.]

(CACI, No. 500; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 – 998.)

B. Statute of Limitations.

In moving for summary judgment, defendants argue first that Plaintiff’s claim is barred by the statute of limitations set forth in Code of Civil Procedure section 340.5, which states that “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, the injury, whichever comes first.”

“Under section 340.5, the three-year period is tolled “ ‘(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.’ The statute makes clear, however, that the one-year period is not similarly extended. Thus, regardless of extenuating circumstances, the patient must bring … suit within one year after he discovers, or should have discovered, [the] ‘injury.’ [Citations.]” (Artal v. Allen (2003) 111 Cal.App.4th 273, 278.)

Defendants proffer evidence that defendants performed a liposuction procedure on Plaintiff on February 8, 2012. On December 19, 2012, Plaintiff underwent a revision procedure, substantially similar to the first, although with less fat taken from the inner thighs and knee area. In the Spring of 2013, Plaintiff told her friend that she underwent a liposuction procedure and that she experienced nerve damage pain and neuropathy. On July 16, 2013, Plaintiff saw Tony Pham, M.D., for a second opinion on her thighs and to obtain a quote for a revision procedure. Plaintiff testified that, at that time, she already suspected Dr. Sharma had done something wrong.

The one-year period of section 340.5 begins when plaintiff is aware of both the physical manifestation of the injury and its negligent cause. (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 822.) “It is well established that, ‘ “[t]he term ‘injury,’ as used in section 340.5, means both a person’s physical condition and its negligent cause.” ’ [Citation.] However, a person need not know of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period.” (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.)

In opposition, Plaintiff declares she did not suspect any negligence on the defendants’ part until September 25, 2013. Plaintiff further declares that during her evaluation and treatment with defendants, she made inquiries about her condition but was given assurances that her issues would resolve after she finished healing. Prior to the revision procedure, Dr. Sharma told Plaintiff that her condition was being caused by diet and lack of exercise.

Plaintiff cites to Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102 where the court wrote, “the patient is fully entitled to rely upon the physician’s professional skill and judgment while under his care, and has little choice but to do so. It follows, accordingly, that during the continuance of this professional relationship, which is fiduciary in nature, the degree of diligence required of a patient in ferreting out and learning of the negligent causes of his condition is diminished. [Citation.]”

Plaintiff likens her situation to the decision in Unjian v. Berman (1989) 208 Cal.App.3d 881 (Unjian) where the appellate court reversed a trial court ruling granting summary judgment of a medical malpractice claim on statute of limitations grounds. The Unjian court explained:

Where … the injury is obvious but there is nothing to connect that injury to defendant’s negligence it cannot be said as a matter of law the plaintiff’s failure to make an earlier discovery of fault was unreasonable. [Citation.] This is especially true in cases such as the one before us where the plaintiff continues under the doctor’s care, does inquire about the cause of his apparent injury and is given an explanation calculated to allay any suspicion of negligence on the doctor’s part.

(Unjian, supra, 208 Cal.App.3d at p. 885.)

Here, the evidence submitted by defendants regarding Plaintiffs’ suspicion of negligence is somewhat ambiguous. At deposition, defendants’ counsel asks, [when you spoke to Dr. Pham on July 16, 2013,] “Did you already think that Dr. Sharma might have done something wrong in the way she handled your case?” Plaintiff responded, “I felt like something wrong was going on. Because after two procedures, my phone calls weren’t getting returned. I started to think there was something wrong.” It is not absolutely clear whether Plaintiff’s response is an acknowledgment of her suspicion of defendants’ negligence. In any case, the evidence proffered by Plaintiff in opposition presents a triable issue of material fact as to whether Plaintiff’s suspicion of negligence arose on July 16, 2013 or thereafter in view of the evidence regarding assurances from defendants.

C. Breach.

As a second basis for summary judgment, defendants attempt to establish that they did not breach their legal duty.

The standard of care in malpractice cases is also well known. With unimportant variations in phrasing, we have consistently held that a physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.

(Landeros v. Flood (1976) 17 Cal.3d 399, 408; see also CACI, No. 501; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.)

Ordinarily, the standard of care required of a doctor, and whether he exercised such care, can be established only by the testimony of experts in the field. [Citation.] But to that rule there is an exception that is as well settled as the rule itself, and that is where ‘negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge, expert testimony is not required since scientific enlightenment is not essential for the determination of an obvious fact.’ [Citation.]

(Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6; see also CACI, No. 501; see also Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215—“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.”)

Ordinarily, if a plaintiff seeks to hold a hospital or a physician liable for a breach of a duty as to the medical care and treatment of a patient, the courts refuse to give a res ipsa loquitur instruction unless the plaintiff has produced some expert testimony [footnote] which supports an inference of negligence from the fact of the accident itself. [Citations and footnote omitted.] The reason for this requirement appears from the following statement: “The law demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient. … Ordinarily, a doctor’s failure to possess or exercise the requisite learning or skill can be established only by the testimony of experts.” [Citation omitted.]

(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 428 – 429; see also Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305 (Johnson)—“Because the standard of care in a medical malpractice case is a matter ‘peculiarly within the knowledge of experts’ [Citation], expert testimony is required to ‘prove or disprove that the defendant performed in accordance with the standard prevailing of care’ unless the negligence is obvious to a layperson.’ [Citation.])

In moving for summary judgment, defendants offer the opinion/declaration of James P. Anthony, M.D. (“Dr. Anthony”), an expert in the field of plastic surgery. (See Declaration of James P. Anthony, M.D. in Support, etc. (“Declaration Anthony”), ¶¶1 – 2.) It is Dr. Anthony’s expert opinion, based upon a review of the medical records in this case, that Dr. Sharma did not breach and, in fact, met the applicable standard of care at all times. (See Defendants’ UMF, Fact Nos. 3 – 4.)

In opposition, Plaintiff proffers the opinion of her own expert, Edward P. Miranda, M.D. (“Dr. Miranda”), who is an expert in the field of plastic surgery. (See Declaration of Edward P. Miranda, M.D. in Support of Opposition, etc. (“Declaration Dr. Miranda”), ¶¶1 – 2.) Dr. Miranda’s opinion, based on a review of Plaintiff’s medical records, is that Dr. Sharma did not act within the appropriate standard of care in treating Plaintiff. (See Plaintiff Stephanie Allard’s Separate Statement of Disputed Facts, etc., Fact Nos. 3 – 4.) The expert opinions submitted by the parties are in conflict. This amounts to a triable issue of material fact as to whether Dr. Sharma breached the standard of care.

Accordingly, defendants PSWC and Dr. Sharma’s motion for summary judgment is DENIED.

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