Case Number: BC510861 Hearing Date: February 09, 2015 Dept: 93
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES, STANLEY MOSK COURTHOUSE
DEPARTMENT 93

ANDREW HENDRICKSON,

Plaintiff(s),

v.

FRANCES MCKINDSEY, M.D., et al.,

Defendant(s).

Case No.: BC510861

Hearing Date: February 9, 2015

[TENTATIVE] ORDER RE:
MOTION OF DEFENDANTS, MAGELLA MEDICAL GROUP, INC. AND OBSTETRIX MEDICAL GROUP, FOR SUMMARY JUDGMENT

The Motion of defendants, MAGELLA MEDICAL GROUP, INC. and OBSTETRIX MEDICAL GROUP, for SUMMARY JUDGMENT is GRANTED.

BACKGROUND

This is a wrongful life case brought by Andrew Hendrickson (“Plaintiff”) against several health care providers including Obstetrix Medical Group (“Obstetrix “) and an affiliate, Magella Medical Group, Inc. (“Magella”) (collectively “Defendants”). Plaintiff filed a complaint on June 3, 2013, essentially alleging that if his parents had been tested to determine whether they are carriers of cystic fibrosis gene mutations, they would have terminated the pregnancy so as to not to have a genetically impaired child who requires medical care.

This motion for summary judgment was filed on August 8, 2014. No opposition has been filed.

According to Defendants’ Separate Statement of Undisputed Material Facts (“UMF”), on August 24, 2006, Plaintiff’s mother, Yvonne Hendrickson (“Hendrickson”), received a referral for genetic counseling and testing based on her advanced maternal age. The referral stated that services requested of the perinatologists at Magella included chorionic villus sampling (“CVS”) by Dr. Chan.

Hendrickson presented to Magella on September 6, 2006. Hendrickson indicated that she would be interested in discussing the cystic fibrosis and fragile X carrier testing with a genetic counselor. The genetic consultation on that date by a Genzyme (LABCORP) genetic counselor indicates that they discussed the fact that the risk of cystic fibrosis was less than 1/2500.

That same day, Hendrickson met with a Genzyme (LABCORP) genetic counselor. Motion; UMF 4; Declaration of Manuel Porto, M.D. (“Porto Decl.”), ¶5(c). The genetic consultation report notes that the Hendricksons indicated they would discuss with referring physician Frances McKindsey, M.D. (“Dr. McKindsey”) the carrier testing for cystic fibrosis. Id. Dr. Chan performed the CVS. Motion; UMF 5.; Porto Decl., ¶5(d). The CVS had no results, however, as there was no chorionic villi in sample. Id.

On September 11, 2006, Hendrickson was informed by Dr. Chan that CVS was unsuccessful. Id. Hendrickson was instructed to return for amniocentesis. Id. The report by Dr. Chan to Dr. McKindsey states that following genetic counseling, Hendrickson elected CVS which was uneventfully performed. Id. Dr. Chan further noted that since CVS does not test for neural tube defects, MS-ASP screening was recommended at about 16 weeks and a re-scan for anatomic survey was also recommended at about 20 to 22 weeks. Id. Dr. McKindsey’s referral dated September 11, 2006 stated that services requested at Magella included Fragile X test, amniocentesis, and ultrasound. Motion; UMF 6; Porto Decl., ¶5(e).

On September 27, 2006, Dr. Sinow performed an amniocentesis. Motion; UMF 7; Porto Decl., ¶5(f). Dr. Sinow indicated that Hendrickson underwent genetic counseling and a non-diagnostic CVS on September 6, 2006. Id. The amniocentesis indicated the nuchal fold measurement was normal. Id. However, the heart and the extremities were not optimally seen due to early gestational age. Id. An anterior placenta with a complete but non central previa was present. Id. The placenta was likely to move cephalad as the pregnancy progressed according to Dr. Sinow. Id. He noted that an authorization would be submitted to complete the anatomic exam in one month. Id. An ultrasound for placental localization was suggested at 30 to 32 weeks. Id.

On September 28, 2006, Dr. McKindsey’s referral form indicated the request for follow up obstetrical ultrasound for advanced maternal age and for placental localization. Motion; UMF 8; Porto Decl., ¶5(g). On October 17, 2006, Dr. Chan performed a follow up anatomical survey. Motion; UMF 9; Porto Decl., ¶5(h). He indicated that the fetal anatomical survey was normal, including cardiac four chamber and outflow tract views. Id. The nuchal fold measurement was normal. Id. Transabdominally the cervix appeared normal with no evidence of beaking. Id. Average gestational age was 18 weeks and 2 days, plus or minus 10 days. Id.

LEGAL STANDARD

A defendant moving for summary judgment has the burden of demonstrating that the plaintiff will be unable to establish one or more element of his cause of action or that a complete defense exists. CCP §437c(p)(2). Only after the defendant has carried this burden of proof does the burden of proof shift to the plaintiff to show that a triable issue of one or more material facts exists – and this must be shown via specific facts and not mere allegations. Id.

The elements of medical malpractice are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. See Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02 (citations omitted). Thus, in a medical malpractice case, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community 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, 984-985 (citation omitted).

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id. “A difference of medical opinion concerning the desirability of one particular medical procedure over another does not, however, establish that the determination to use one of the procedures was negligent.” Clemens v. Regents of Univ. of California (1970) 8 Cal.App.3d 1, 13. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. Sanchez v. Rodriguez (1964) 226 Cal.App.2d 439, 449 (“A doctor is not a warrantor of cures nor is he required to guarantee results and in the absence of a want of reasonable care and skill will not be held responsible for untoward results.”).

DISCUSSION

Defendants move for summary judgment on the complaint, contending the care and treatment of Plaintiff’s mother, Hendrickson, complied with the standard of care at all times and did not cause or contribute to Plaintiff’s injuries. The declaration of Manuel Porto, M.D. is sufficient to meet the moving burden on summary judgment. Thus, the burden shifts to Plaintiff to show that triable issues of material fact exist.

In this case, Plaintiff failed to file an opposition to this motion. Where a plaintiff fails to comply with the requirement of presenting a separate statement of disputed facts, “[f]ailure to comply with this requirement of a separate statement may constitute a separate ground, in the court’s discretion, for granting the motion.” CCP §437(b)(3). Accordingly, the motion for summary judgment is GRANTED.

MAGELLA MEDICAL GROUP, INC. and OBSTETRIX MEDICAL GROUP are ordered to give notice of this ruling.

Dated: February 9, 2015

_______________________
Howard L. Halm
Judge, Los Angeles Superior Court