Case Number: BC612746 Hearing Date: January 16, 2018 Dept: 97

41

yolanda morales, et al.,

Plaintiffs,

v.

dominque luckey, m.d., et al.,

Defendants.

Case No.: BC612746

Hearing Date: January 16, 2018

[TENTATIVE] order RE:

(1) defendant dominique luckey, m.d.’s motion for summary judgment

(2) defendant white memorial medical center’s motion for summary judgment, or in the alternative, summary adjudication

BACKGROUND

Plaintiffs Yolanda Morales (“Morales”) and Ricardo Rosales-Valadez (“Rosales-Valadez”) commenced this medical malpractice action against Defendants Dominique Luckey, M.D. (“Dr. Luckey”) and White Memorial Medical Center (“White Memorial”) for the allegedly negligent treatement rendered to Morales on or about March 18, 2015. The complaint, filed on March 4, 2016, alleges causes of action for: (1) medical malpractice; (2) general negligence; and (3) loss of consortium (by Rosales-Valadez).

There are two pending motions for summary judgment.

Dr. Luckey moves for summary judgment on the grounds that: (1) there are no triable issues of material fact and she is entitled to summary judgment as a matter of law; (2) the medical care rendered to Morales by Dr. Luckey complied at all times with the applicable standard of care; and (3) there is no basis for Rosales-Lopez’s loss of consortium claim because Dr. Luckey did not breach the standard of care with respect to Morales.

White Memorial moves for summary judgment or, alternatively, summary adjudication, against Plaintiffs on the grounds that there are no triable issues of material fact regarding causation and that no actual or ostensible agency relationship existed between White Memorial and the physicians on staff (i.e., Dr. Luckey).

The motions are unopposed. The Court notes that on November 8, 2017, it granted Plaintiffs’ then-counsel’s motion to be relieved as counsel. On November 14, 2017, Morales filed a document entitled “UNAVAILABILITY OF COUNSELOR TO REPRESENT, PLAINTIFFS REQUEST AN EXTENSION TO FIND A PROFESSIONAL COUNSELOR.” However, since then, 2 months have elapsed and Plaintiffs do not appear to have secured a new counsel.

LEGAL STANDARD

A defendant moving for summary judgment has the burden of proving that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. In a medical malpractice action, the elements 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) 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 negligence (citations omitted).” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612, emphasis in original.) Additionally, the standard of care against which doctors are measured is a matter within the knowledge of experts. Breach of the standard of care may only be proven by expert testimony. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

Discussion

Dr. Luckey’s Motion for Summary Judgment

The underlying facts of this case are as follows. Prior to being referred to Dr. Lucky, Morales was seen by other doctors (including Dr. Carlos Bulaon, Dr. Dustin Taylor, and Dr. Francisco Melero) regarding complaints of back pain, starting in October 2014. (Fact 1-5.) Morales had her first appointment with Dr. Luckey on January 16, 2015, where an ultrasound revealed a uterus with multiple fibroids. (Fact 6.) Based on this finding and Morales’ complaints of pelvic pain, Dr. Luckey placed a request for authorization for a total abdominal hysterectomy (“TAH”). (Fact 6.) Following this appointment, Morales presented to various health institutions, including White Memorial, and emergency room visits for complaints of pain. (Fact 7-10.)

On March 18, 2015, Morales presented to White Memorial and Dr. Christina Pyo in anticipation of her TAH. (Fact 11.) Dr. Pyo went over the procedure, plan, risks/benefits of the procedure, and alternatives with Morales, and Morales signed an informed consent of the procedure. (Fact 12-13.) Morales then underwent the TAH, but the procedure was complicated by an enlarged uterus, such that when removing the uterus, an incidental cystotomy was made and repaired. (Fact 14-16.) Morales was then discharged on March 21, 2015, and in lieu of returning to see Dr. Luckey at AltaMed, she received her postoperative care at White Memorial. (Fact 17-18.) Morales saw Dr. Luckey on June 18, 2015, where she complained of pain and leaking urine, and thus was referred to a urologist where she eventually underwent a cystocopy. (Fact 20-22.) Morales then underwent a surgical repair of the fistula with Dr. David Ginsberg. (Fact 23-24.)

Dr. Luckey provides the declaration of Christopher Tarnay, M.D. in support of her motion. Dr. Tarnay opines as to the applicable standard of care for OB/GYNs in Southern California. (Fact 31.) He opines that Dr. Luckey’s decision to recommend TAH to Morales based on her history was appropriate and complied with the appropriate standard of care. (Fact 32.) He states that a vesicovaginal fistula develops from an injury to the bladder or vagina, which is a known and accepted complication of a TAH. (Fact 35.) He notes that Morales was made aware of the possible risks and complications associated with TAH and accepted these risks when consenting to surgery. (Fact 33-34, 36-37.) As such, Dr. Tarnay opines that Dr. Luckey properly informed Morales prior to the surgery, and that her performance of the March 18, 2015 TAH, met the standard of care. (Fact 38.) He states that Dr. Luckey properly identified the incidental cystotomy and properly undertook to repair it (which is a common occurrence). (Fact 39.) Thus, based on a reasonable degree of medical probability, Dr. Tarnay opines that the intraoperative repair was appropriate and completely resolved the cystotomy. (Fact 40.) Dr. Tarnay also opines that Dr. Luckey’s post-operative care of Morales met the standard of care. (Fact 42.)

The Court finds that based on this declaration, Dr. Luckey has upheld her initial burden in summary judgment, showing that her care of Morales complied with the applicable standard of care and did not cause or contribute to Morales’ injuries. The motion is unopposed, and thus Plaintiffs fail to raise a triable issue of material fact.

As the medical negligence claim fails, so too does the claim for loss of consortium, which is dependent on the existence of a cause of action for tortious injury to a spouse. (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

Accordingly, Dr. Luckey’s motion for summary judgment is granted.

White Memorial’s Motion for Summary Judgment or, Alternatively, Summary Adjudication

The facts presented by White Memorial in its motion are similar to those summarized above. In short, Morales began complaining of and being seen by medical professionals for complaints of back pain starting in October 2014. (Issue 1, Fact 1-5.) On March 18, 2015, Morales underwent surgery at Memorial White for a hysterectomy. (Issue 1, Fact 6.) There are no indications from Morales’ records that she was dropped while being transferred from a gurney to bed or that she complained of back pain after her surgery. (Issue 1, Fact 7-9.) An MRI taken in May 2015 did not reflect any recent or acute injury to Morales’ spine, but only chronic, longstanding degenerative changes. (Issue 1, Fact 10-14.)

White Memorial provides the declaration of Dr. Matthew Lotysch, M.D. in support of the motion. Dr. Lotysch opines that to a reasonable degree of medical probability, no act or omission by White Memorial and its employees/personnel caused Morales’ alleged back injury or pain. (Issue 1, Fact 15.) He states that, to a reasonable degree of medical probability, the May 11, 2015 MRI is not consistent with the type of injury alleged by Morales regarding injuries based on an acute traumatic event. (Issue 1, Fact 16.) Rather, he states the MRI is indicative of longstanding degenerative disc disease and that Morales’ prior history of back pain occurred prior to her March 18, 2015 surgery. (Issue 1, Fact 16-17.) As such, Dr. Lotysch declares that Morales’ allegations of injuries of back pain are not supported by her medical records, plus there are no documentations that Morales was dropped by any of White Memorial’s staff. (Issue 1, Fact 17-18.)

White Memorial also provides the declaration of Christopher Tarnay, M.D., who states that Morales signed a Conditions of Registration form, acknowledging that physicians and surgeons of the hospital are not employees or agents of White Memorial. (Issue 3, Fact 1-2.) As such, White Memorial has established in its initial burden that it is not liable for Dr. Luckey’s actions and that Morales cannot establish ostensible agency. (See Mejia v. Community Hosp. of San Bernardino (2002) 99 Cal.App.4th 1456-57.) Furthermore, even if Dr. Luckey were considered an agent of White Memorial, as discussed above, Plaintiffs have failed to raise a triable issue of material fact regarding whether Dr. Luckey was professionally negligent. (See Issue 2, Fact 1-2.)

Based on the declarations and evidence submitted by White Memorial, the Court finds that White Memorial has upheld its initial burden in summary judgment. As the motion is unopposed, Plaintiffs have failed to raise a triable issue of material fact.

As the medical negligence claim fails, so too does the claim for loss of consortium, which is dependent on the existence of a cause of action for tortious injury to a spouse. (Vanhooser, supra, 206 Cal.App.4th at 927.)

CONCLUSION AND ORDER

Dr. Luckey’s motion for summary judgment is granted. Dr. Luckey is ordered to lodge with the Court and serve on Plaintiffs a proposed judgment within twenty days.

White Memorial’s motion for summary judgment or, in the alternative, summary adjudication is granted. White Memorial is ordered to lodge with the Court and serve on Plaintiffs a proposed judgment within twenty days.

Each moving party is ordered to give notice of their respective order.