Case Name: Victor Cabrera v. El Camino Hospital, et al.
Case No.: 16CV301411

I. Background

This is a medical malpractice action brought by plaintiff Victor Cabrera (“Plaintiff”) against defendants El Camino Hospital (the “Hospital”), Maury Harwood, M.D. (“Dr. Harwood”), and “El Camino Staff and Nursing Personnel” (collectively, “Defendants”). The factual allegations in the complaint are sparse. Plaintiff alleges he had an operation on or about August 27, 2015, and Defendants were negligent and failed to obtain his informed consent for the procedure. Plaintiff asserts a single cause of action against Defendants for negligence. Currently before the Court are separate motions for summary judgment by the Hospital and Dr. Harwood.

II. Standard of Review

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit [ ].” (Code Civ. Proc., § 437c, subd. (a)(1).) “A defendant [ ] has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more element of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the defendant must present evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff “must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment.” (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11; Code Civ. Proc., § 437c, subd. (b)(2); see also Code Civ. Proc., § 437c, subd. (p)(2) [“The plaintiff [ ] shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”].)

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

III. Merits of Dr. Harwood’s Motion

Dr. Harwood moves for summary judgment on the ground the action lacks merit because Plaintiff cannot establish the elements of his negligence claim. Although not separately denominated in the pleading, Plaintiff actually asserts two different negligence theories; he alleges both that the medical care he received fell below the standard of care and that Dr. Harwood did not obtain informed consent to perform the procedure. (See generally Townsend v. Turk (1990) 218 Cal.App.3d 278, 284.) Each theory is addressed in turn.

A. Medical Care

A claim for medical negligence is simply a negligence claim for which the skill and training of the defendant “serves to establish the basis by which ‘ordinary prudence’ will be calculated and the defendant’s conduct evaluated.” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998.) Denominating a claim as “medical negligence” does not “distinguish a claim separate and independent from some other form of negligence.” (Ibid.) The elements of a negligence claim are duty, breach, causation, and damages. (Turpin v. Sortini (1982) 31 Cal.3d 220, 229-30.) Dr. Harwood argues Plaintiff cannot establish the elements of breach and causation.

Dr. Harwood first argues Plaintiff cannot establish he breached the standard of care. A surgeon has a duty to use such skill, prudence, and diligence as is commonly possessed and used by others in that medical profession. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-07.) That standard of care and a breach thereof “must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467, citing Hanson, supra, 76 Cal.App.4th at pp. 606-07.)

Here, the issue is whether Dr. Harwood breached the standard of care in connection with his operation on Plaintiff’s right knee on August 25, 2015 at the Hospital. (Hinshaw Decl., Ex. A at p. 30.) Dr. Harwood asserts he did not breach the standard of care either during the surgery or while providing follow-up care.

Dr. Harwood relies on the declaration of Gordon L. Levin, M.D. (“Dr. Levin”) who has been an orthopedic surgeon since 1977. (Levin Decl., ¶ 1.) Dr. Levin opines that he is familiar with the standard of care and the facts of this case and, on that basis, concludes Dr. Harwood’s conduct “was consistent with the care and skill ordinarily exercised by reputable and reasonably [sic] orthopedic surgeons practicing in like cases and under similar circumstances” in the same geographic area. (Levin Decl., ¶¶ 3, 6-7.)

In reaching this conclusion, Dr. Levin considered Plaintiff’s medical history. The surgery Dr. Harwood performed in August 2015 was not Plaintiff’s first knee surgery. (Levin Decl., ¶ 8.) A different surgeon performed a unicompartmental knee arthroplasty on Plaintiff’s left and right knees in 2011 that resulted in “constant, throbbing, sharp shooting pain in both knees, right worse than left.” (Levin Decl., ¶ 8; Hinshaw Decl., Ex. A at pp. 1-3.) That surgeon determined he could not provide any additional treatment and referred Plaintiff to Dr. Harwood. (Levin Decl., ¶ 9; Hinshaw Decl., Ex. A at pp. 1-3.)

In 2013, Dr. Harwood asked Plaintiff for an oral history, performed a full physical examination, took x-rays and determined he had a “‘pothole’ of missing bone” that would require “total knee arthroplasty.” (Levin Decl., ¶ 9; Hinshaw Decl., Ex. A at pp. 1-3.) Dr. Harwood performed this total knee arthroplasty in October 2013. (Levin Decl., ¶ 10; Hinshaw Decl., Ex. A at pp. 4-5.) Although Plaintiff “recovered well” and was discharged from the hospital the same day, he had to undergo “manipulation under anesthesia” in January 2014 to help with ongoing, but improving, bilateral knee pain and difficulties with knee extension. (Levin Decl., ¶¶ 10-11; Hinshaw Decl., Ex. A at pp. 4-14.)

Plaintiff had several follow-up visits with Dr. Harwood. (Levin Decl., ¶ 12.) In January 2015, Dr. Harwood took x-rays, which revealed Plaintiff had a “spur on the right side in reaction to the prosthesis.” (Levin Decl., ¶ 12; Hinshaw Decl., Ex. A at pp. 23-24.) Dr. Harwood performed an arthroscopy on Plaintiff’s right knee in February 2015 to address this spur. (Levin Decl., ¶ 13; Hinshaw Decl., Ex. A at pp. 23-26.) Subsequently, Plaintiff reported continued pain in his right knee, which Dr. Harwood determined was the result of a loose prosthesis. (Levin Decl., ¶ 14; Hinshaw Decl., Ex. A at pp. 28-29.)

To fix the loose prosthesis, Dr. Harwood performed a “revision total knee arthroplasty of the tibial tray” on August 25, 2015, which is the primary surgery at issue in this case. (Levin Decl., ¶ 15; Hinshaw Decl., Ex. A at pp. 32, 83-84.) Two members of the nursing staff advised Plaintiff after his surgery that the surgical equipment used may not have been sterile because there was a puncture in the packaging. (Levin Decl., ¶ 16; Hinshaw Decl., Ex. D at p. 4.) Plaintiff was given intravenous antibiotics as a precaution. (Levin Decl., ¶ 16; Hinshaw Decl., Ex. A at pp. 32-33.)

At a follow-up visit on September 1, 2015, Plaintiff reported having some chills. (Levin Decl., ¶ 17; Hinshaw Decl., Ex. A at p. 32.) Dr. Harwood saw there was “no distal wound drainage and continued [Plaintiff] on antibiotics.” (Levin Decl., ¶ 17; Hinshaw Decl., Ex. A at p. 32.) At his second follow-up visit, Plaintiff’s surgical wound appeared to be healing properly and was not producing any drainage; he did not report any chills. (Levin Decl., ¶ 17; Hinshaw Decl., Ex. A at p. 33.) A blood test showed Plaintiff had a sufficient, therapeutic level of Vancomycin in his system and did not have an infection. (Levin Decl., ¶ 18; Hinshaw Decl., Ex. A at pp. 118-29.)

From November 2015 until February 2016, Plaintiff experienced increasing right knee pain and occasional swelling. (Levin Decl., ¶ 18.) Initially, Dr. Harwood documented mild swelling and minimal warmth for which he recommended continued use of anti-inflammatory medicine and Norco. (Levin Decl., ¶ 18; Hinshaw Decl., Ex. A at pp. 35-40.) But by February, Plaintiff’s knee appeared to be swollen and possibly infected, and so Dr. Harwood prescribed additional oral antibiotics. (Levin Decl., ¶ 19; Hinshaw Decl., Ex. A at pp. 41-44.)

In February and March 2016, Plaintiff had several arthroscopic procedures to evaluate and “wash out” his knee. (Levin Decl., ¶¶ 19-22.) During the first procedure, Dr. Harwood took a fluid sample from Plaintiff’s knee; the sample was cultured and showed no signs of bacterial growth or infection. (Levin Decl., ¶ 19; Hinshaw Decl., Ex. A at pp. 43-44.) At a follow-up visit the next week, Plaintiff seemed to be doing better and did not show any signs of infection. (Levin Decl., ¶ 20; Hinshaw Decl., Ex. A at p. 45.) In March 2016, fluid taken from Plaintiff’s knee did test positive for an infection. (Levin Decl., ¶ 20; Hinshaw Decl., Ex. A at pp. 46-48.) Consequently, Dr. Harwood recommended another surgery to drain the knee, change the prosthesis liner, and remove hardware from the knee. (Levin Decl., ¶ 20; Hinshaw Decl., Ex. A at pp. 49-50.) The fluid sample taken during that procedure “came back negative for growth.” (Levin Decl., ¶ 21; Hinshaw Decl., Ex. A at pp. 49-50, 90-91.) Dr. Harwood ultimately performed another surgery to add a cement spacer on June 16, 2016. (Levin Decl., ¶ 22; Hinshaw Decl., Ex. A at p. 57.) Plaintiff subsequently had an additional knee surgery, but it was not performed by Dr. Harwood. (Levin Decl., ¶ 22.)

Based on this medical history, Dr. Levin concludes that Dr. Harwood comported with the standard of care because he: adequately evaluated Plaintiff by taking his oral history, performing physicals, conducting laboratory tests, and taking x-rays; correctly diagnosed his “failed right knee arthroplasty”; and performed “the appropriate intervention, arthroplasty revision.” (Levin Decl., ¶ 23.) Dr. Levin also states that while hospital staff, and not Dr. Harwood, were responsible for ensuring the sterility of surgical equipment in the first place, Dr. Harwood addressed the compromised equipment packaging and treated Plaintiff in conformity with the standard of care once he learned of those circumstances. (Levin Decl., ¶¶ 24-25.) Dr. Harwood “appropriately ordered IV antibiotics to guard against any heightened risk of infection.” (Levin Decl., ¶ 25.) Accordingly, Dr. Harwood presents evidence showing he did not breach the standard of care. The burden thus shifts to Plaintiff to present conflicting expert testimony sufficient to raise a triable issue of material fact. (See Hanson, supra, 76 Cal.App.4th at p. 607.)

Plaintiff’s expert Michael B. Krinsky, M.D. (“Dr. Krinsky”) does not dispute that hospital staff, and not Dr. Harwood, breached the sterility protocol by allowing the use of surgical instruments with defective packaging. (Krinsky Decl., ¶ 17.) But Dr. Krinsky concludes Dr. Harwood, nevertheless, breached the standard of care when treating Plaintiff. He opines that Dr. Harwood should have referred Plaintiff “to an infectious disease expert” much sooner because he showed signs of infection both before and after the surgery in August 2015 as reflected by his subjective complaints and the observations of Dr. Harwood. (Krinsky Decl., ¶¶ 11-15, 18-19.) Dr. Krinsky asserts Dr. Harwood misdiagnosed the persistent infection as an orthopedic condition requiring additional, unnecessary surgeries. (Krinsky Decl., ¶ 22.) Thus, Plaintiff raises a triable issue of material fact with respect to whether Dr. Harwood breached the standard of care when treating him in connection with his August 2015 surgery.

Turning to the issue of causation, Dr. Harwood also challenges whether Plaintiff can establish that element of his claim. “‘The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.’” (Lattimore v. Dickey (2015) 239 Cal.App.4th 955, 970, quoting Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) “‘Mere possibility alone is insufficient to establish a prima facie case.’” (Lattimore, supra, 239 Cal.App.4th at p. 970, quoting Jones, supra, 163 Cal.App.3d at p. 402.) In other words, a plaintiff must show that of the “infinite number of circumstances which can produce an injury or disease” the defendant’s conduct was “more likely than not” the cause of his or her injury. (Jones, supra, 163 Cal.App.3d at p. 403.)

Here, Dr. Levin concludes that Dr. Harwood’s conduct was not, as a matter of medical probability, the cause of Plaintiff’s infection because the infection did not develop until nearly five months later and “[m]any post-operation infections arise separately from anything that happened during surgery.” (Levin Decl., ¶ 26.) Dr. Levin also states in support of his conclusion that Plaintiff had many other knee surgeries each of which had a risk of infection. (Levin Decl., ¶ 28.)

In opposition, Dr. Krinsky focuses on whether the breach of sterility protocol by hospital staff caused Plaintiff’s injuries. (Krinsky Decl., ¶¶ 24-25.) But it is undisputed, and both Dr. Levin and Dr. Krinsky agree, that the breach of sterility protocol is attributable to the staff and not Dr. Harwood. And so Dr. Krinsky’s statements about whether the breach by the hospital staff contributed to Plaintiff’s injuries does not raise a triable issue of material fact with respect to Dr. Harwood in particular. With that said, Dr. Krinsky also opines that Dr. Harwood’s misdiagnosis of Plaintiff’s infection was a probable cause of Plaintiff’s injuries. Accordingly, there is a triable issue of material fact with respect to the element of causation.

Based on the foregoing, there are triable issues of material fact with respect to whether Dr. Harwood breached the standard of care in connection with Plaintiff’s surgery in August 2015 and whether his conduct was the cause of Plaintiff’s injuries.

B. Informed Consent

“‘[A]s an integral part of the physician’s overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.’” (Truman v. Thomas (1980) 27 Cal.3d 285, 291, quoting Cobbs v. Grant (1972) 8 Cal.3d 229, 243.) “The scope of a physician’s duty to disclose is measured by the amount of knowledge a patient needs in order to make an informed choice.” (Truman, supra, 27 Cal.3d at p. 291.) “All information material to the patient’s decision should be given.” (Ibid.) “Material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure.” (Ibid.) “To be material, a fact must also be one which is not commonly appreciated.” (Ibid.)

Here, Plaintiff alleges Dr. Harwood did not “adequately advise, inform, and warn [him] of the risks and circumstances related to his medical condition and the treatment performed [ ], and [ ] failed to obtain [ ] informed consent. . . .” (Compl., ¶ 9.) Although not clearly articulated by Dr. Harwood, it appears his position is that he did not, in fact, breach this duty to disclose material information because he provided such information to Plaintiff, including the fact there was a risk of infection. (See Mem. of Pts. & Auth. at p. 14:7-13.) In support, Dr. Harwood presents a written consent form signed by him and Plaintiff reflecting he provided such information to Plaintiff; the form explicitly identifies infection as one of the risks of the surgery. (Hinshaw Decl., Ex. C at pp. 362-63.)

In opposition, Plaintiff does not dispute Dr. Harwood provided him with material information about the surgery or that he signed the consent form. Instead, he simply states that a patient cannot consent to negligent medical care. It is unclear how this statement is material to this particular negligence theory or the argument advanced by Dr. Harwood. Furthermore, to avoid summary judgment, a plaintiff must present admissible evidence showing there is a triable issue of material fact. (Wiz Technology, supra, 106 Cal.App.4th at p. 11.) An opposition to a motion for summary judgment is “insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Ibid.) Consequently, Plaintiff’s bald assertion does not raise a triable issue of material fact. The undisputed facts show Plaintiff cannot establish Dr. Harwood breached his duty to provide Plaintiff with sufficient information to consent to the surgery.

C. Conclusion

In conclusion, Dr. Harwood demonstrates Plaintiff’s informed consent theory lacks merit, but there are triable issues of material fact with respect to Plaintiff’s theory that he received inadequate medical care. A defendant moving for summary judgment must negate each theory of liability alleged in the complaint. (Lopez v. Super. Ct. (1996) 45 Cal.App.4th 705, 713-14.) Thus, Dr. Harwood is not entitled to summary judgment, and his motion is DENIED.

IV. Merits of the Hospital’s Motion

The Hospital moves for summary judgment on the ground Plaintiff’s negligence claim lacks merit because he cannot establish the element of causation. The Hospital’s presentation is insufficient to carry its initial burden.

Significantly, the Hospital does not clearly address the scope of its liability as distinct from Dr. Harwood’s. The Hospital purports to rely on the opinion of Dr. Levin, filing very little evidence in support of its motion, and simply proceeds as though evidence that Dr. Harwood did not cause Plaintiff’s injuries is also sufficient to show it did not cause Plaintiff’s injuries.

A hospital is vicariously liable for the malpractice of the physicians, nurses, and other medical professionals that are actually employed by or ostensibly agents of that hospital. (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 337.) A hospital may also be liable for “corporate negligence,” which is a term “commonly used to describe hospital liability predicated not upon vicarious liability [citations], but upon its violation of a duty — as a corporation — owed directly to the patient which resulted in injury.” (Id. at p. 338, fn. 5.) Such direct liability or “corporate negligence” arises when a hospital breaches its general “duty to insure the competency of its medical staff and to evaluate the quality of medical treatment rendered on its premises.” (Id. at pp. 346-48.)

The Hospital wholly fails to address whether Plaintiff can establish causation for purposes of corporate liability. Furthermore, the Hospital fails to address the issue of causation relative to its other staff, such as the nursing staff. And, in any event, even assuming the Hospital could only be liable for negligence based on the conduct of Dr. Harwood, there are triable issue of material fact with respect to whether he caused Plaintiff’s injuries. The Hospital, thus, does not affirmatively demonstrate Plaintiff cannot establish the causation element of his claim.

The Hospital also argues Plaintiff’s discovery responses show he lacks and cannot reasonably obtain needed evidence to establish causation.

When moving for summary judgment, a defendant may also carry its initial burden by presenting “evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence — as through admissions by the plaintiff following extensive discovery to the effect that he [or she] has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-55.) A defendant must present “factually devoid discovery responses from which an absence of evidence can be inferred.” (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439-40.) A response is devoid of facts if it is incomplete or evasive. (Id. at p. 1440.) For example, if a plaintiff responds to a comprehensive interrogatory seeking all known facts with a boilerplate answer restating his or her allegations or a nonresponsive list of witnesses and documents, his or her response constitutes a factually devoid discovery response for purposes of a motion for summary judgment. (Ibid.) In contrast, if a plaintiff objects to a discovery request, it is not reasonable to infer he or she lacks and cannot obtain evidence. (Ibid.) An objection, even if improper, is “not the equivalent of a factually devoid response, and therefore cannot be used to shift the burden from the moving defendant to the plaintiff under Code of Civil Procedure section 437c, subdivision (p)(2).” (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 892-93.)

Although the Hospital does not identify the discovery responses upon which it is relying in its separate statement, in its memorandum of points and authorities it refers to Plaintiff’s responses to two special interrogatories, namely Nos. 12 and 25. Plaintiff objected to these contention interrogatories, and so the Court cannot infer he lacks and cannot reasonably obtain evidence establishing causation.

Based on the foregoing, the Hospital does not carry its initial burden of demonstrating Plaintiff’s negligence claim lacks merit. The Hospital’s motion for summary judgment is therefore DENIED.