Hearing Date: Wednesday, August 28, 2019

Case Name: Steven Petitt v. Metropolitan Water District of Southern CA, et al.

Case No.: BC704919

Motion: Motion for Summary Judgment

Moving Party: Defendant Brian Kutsunai, M.D.

Responding Party: *UNOPPOSED*

Notice: OK

Ruling: Defendant Brian Kutsunai, M.D.’s Motion for Summary Judgment is GRANTED.

Defendant Brian Kutsunai, M.D. is ordered to submit a proposed judgment within five court days of this ruling. No proposed order or judgment was submitted.

Moving Party to give notice.

BACKGROUND

On May 04, 2018, Plaintiff Steven Pettit (“Plaintiff”), as personal representative of Brian Pettit (“Decedent”), filed the Complaint against Defendants Metropolitan Water District of Southern California (“MET”), OC Medical Center (“OC Medical”), Thomas Parsa, M.D. (“Dr. Parsa”), Amanda Paranda (“Paranda”), Brian Kutsunai (“Dr. Kutsunai”), John T. Yong, M.D. (“Dr. Yong”), and Does 1 through 100 for (1) employment discrimination; (2) failure to accommodate; (3) failure to engage in the interactive process; and (4) medical malpractice.

Decedent began working for MET in approximately 1985 and continued his employment until his death on February 05, 2017 from an acute cardiac event precipitated by severe chronic ischemic illness.

Plaintiff alleges Decedent worked as a maintenance type worker in various water delivery systems and plants operated by MET. Plaintiff alleges Decedent’s job duties exposed him to many potential hazardous substances and required long-hours under stressful conditions, including work that often required the use of a respirator. Plaintiff alleges Decedent was in a category of employees that were placed into mandatory occupational and preventative screening by MET. Plaintiff alleges Dr. Kutsunai and Dr. Young saw Decedent through this program and Decedent’s laboratory results showed signs and symptoms of cardiovascular disease and Decedent reported risk factors such as chronic obesity, being a smoker, and having a family history of heart disease. Plaintiff alleges the information from Decedent’s medical examinations was communicated to MET.

Plaintiff alleges Dr. Kutsunai and Dr. Yong recommended on occasion that Decedent address his abnormal results with his primary care physician or quit smoking, but otherwise no other recommendation was made regarding his risk for cardiovascular disease or heart attack. Plaintiff alleges MET’s own requirements required them to advise Decedent to seek an evaluation from a cardiologist and make arrangements for cardiology clearance prior to declaring him fit and cleared for work and to take him off work until those clearances were obtained.

Plaintiff further alleges OC Medial, Dr. Parsa, and Paranda were Decedent’s primary care physicians and providers. Plaintiff alleges Decedent sought them out for evaluation, diagnosis, treatment, and consultation regarding his condition and that they were aware of Decedent’s risk for cardiovascular disease and heart attack. Plaintiff alleges Decedent was not appropriately referred to a cardiologist and Decedent did not receive appropriate cardiac treatment.

Plaintiff filed a First Amended Complaint (“FAC”) on December 21, 2018, alleging the same causes of action against the same defendants as were alleged in the Complaint.

On March 27, 2019, the Court sustained without leave to amend the demurrer by Defendant MET.

MOVING PARTY POSITION

Dr. Kutsunai argues the expert medical testimony accompanying his motion shows Dr. Kutsunai complied with the applicable standard of care in his role as a medical surveillance physician and did not owe Decedent a duty to refer Decedent for cardiovascular consultation.

OPPOSITION

On August 12, 2019, Plaintiff filed a statement of non-opposition to Dr. Kutsunai’s motion for summary judgment.

ANALYSIS

I. Legal Standard on Summary Judgment

The function of a motion for summary judgment or adjudication is to determine whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment or summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. CCP § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate or establish an essential element. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389. A motion for summary judgment or summary adjudication must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition or where the opposition is weak. See Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475; Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.

Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. CCP § 437c(o)(2). When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication. CCP § 437c(o)(1)-(2).

II. Medical Malpractice

Plaintiff’s only cause of action against Dr. Kutsunai is for medical malpractice. Kutsunai’s Evidence, Exh. A at 16:1-17:14. Plaintiff alleges Dr. Kutsunai was negligent in failing to refer Decedent to a cardiologist which caused Decedent’s heart disease to go undiagnosed and untreated, and the Decedent died as a result. Kutsunai’s Evidence, Exh. A at 16:25-27.

The elements of a claim for medical malpractice are the usual negligence elements of duty, breach, causation, and damages. Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 344-345.

A. Duty

“Whether a defendant owes a duty of care is a question of law.” Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588. The duty a physician owes to each patient varies with the relationship of the parties, the foreseeability of the injury or harm that may be expected to flow from his conduct and the reliance which the person may reasonably be expected to place on the opinion received. Keene v. Wiggins (1977) 69 Cal.App.3d 308, 313. A healthcare provider owes no duty of care to an employee when the healthcare provider is hired by an employer solely to provide the employer with a report of an employee’s physical condition and no doctor-patient relationship existed between the employee and the healthcare provider. Felton v. Schaeffer (1991) 229 Cal.App.3d 229, 231.

Here, Dr. Kutsunai did not owe Decedent a duty of care because Dr. Kutsunai was only hired to examine Decedent by Decedent’s employer, MET, and provide a report to MET. Dr. Kutsunai’s employer, Glendale Adventist, hired by MET to examine MET’s employees. UMF 1. MET paid for Dr. Kutsunai’s medical services. UMF 2. The original paperwork from the examinations was provided to MET. UMFs 3, 28. Decedent was examined by Dr. Kutsunai through MET’s medical surveillance program only. UMF 18. Dr. Kutsunai had no duty to treat Decedent for any condition nor refer Decedent to a cardiologist. UMF 32.

Thus, Dr. Kutsunai has shown he did not owe a duty of care to Decedent. The burden shifts. Plaintiff has failed to oppose Dr. Kutsunai’s motion for summary judgment and cannot establish a triable issue of material fact.

Accordingly, Dr. Kutsunai’s motion for summary judgment is GRANTED.

B. Breach

Even assuming Dr. Kutsunai formed a doctor-patient relationship with Decedent and owed Decedent a duty of care, it is undisputed Dr. Kutsunai did not breach that duty of care.

“The law has never held a physician or surgeon liable for every untoward result which may occur in medical practice but it 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.” Huffman v. Lindquist (1951) 37 Cal.2d 465, 473. “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.” Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 976.

Here, Dr. Kutsunai supplies the expert declaration of Dr. Max Lebow, M.D., (“Dr. Lebow”) to establish the applicable standard of care and the fact that Dr. Kutsunai did not breach that standard. Dr. Lebow is qualified to opine on the standard of care applicable to Dr. Kutsunai’s treatment of Decedent, based on Dr. Lebow’s training, education, and experience in the relevant medical field and geographical area. UMF 23. Dr. Kutsunai examined Decedent on three occasions. UMF 18. On each occasion, Dr. Kutsunai noted that Decedent’s blood test results indicated elevated risk for heart disease and suggested Decedent follow-up with his primary care physician. UMFs 19-20, 22, 27. Dr. Kutsunai conducted the medical examination in a manner that caused no harm to Decedent. UMF 25. Dr. Kutsunai noted abnormalities during his examination of Decedent in the medical advisories sent to MET. UMFs 26, 28. Dr. Lebow opines that Dr. Kutsunai did not breach the applicable standard of care in performing the medical screening of Decedent at the request of MET. UMF 24.

Thus, Dr. Kutsunai has shown he did not breach a duty of care to Decedent. The burden shifts. Plaintiff has failed to oppose Dr. Kutsunai’s motion for summary judgment and cannot establish a triable issue of material fact.

Defendant’s motion for summary judgment is supported by undisputed evidence showing Dr. Kutsunai is entitled to summary judgment since there are no triable issues of material fact as to Plaintiffs’ cause of action for medical negligence. Plaintiff’s cause of action against Dr. Kutsunai for medical negligence based on Dr. Kutsunai’s role in the medical surveillance program provided by MET to the Decedent. The undisputed evidence, established a declaration of Dr. Lebow, establishes that the care by Dr. Kutsunai to the decedent complied with the standard of care in his role as a medical surveillance physician. Also, the undisputed evidence establishes that, within a reasonable degree of medical probability, no act or omission by Dr. Kutsunai caused or contributed to Decedent’s death.

Accordingly, Dr. Kutsunai’s motion for summary judgment is GRANTED.