Case Number: BC631342 Hearing Date: March 20, 2018 Dept: 92

SHLOMO ROV,

Plaintiff(s),

vs.

EDWARD KAZUHISA NOMOTO, M.D., ET AL.,

Defendant(s).

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CASE NO: BC631342

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 92

1:30 p.m.

March 20, 2018

Plaintiff, Shlomo Rov filed this action against Defendants, Edward Kazuhisa Nomoto, M.D. and Cedars-Sinai Medical Center for medical malpractice. Plaintiff alleges Defendant, Nomoto was negligent in two regards: first, Plaintiff alleges Nomoto was negligent in allowing a physician’s assistant to remove a medical drain from his back; second, Plaintiff alleges Nomoto was negligent in connection with a subsequent surgery, which surgery he alleges caused him to sustain a “frozen shoulder.”

At this time, Nomoto moves for summary judgment, contending he complied with the standard of care at all times, and nothing he did caused or contributed to Plaintiff’s claimed damages. Defendant supports his motion with the expert declaration of Mark Spoonamore, M.D. Dr. Spoonamore sets forth his expert credentials, states what records he reviewed, details Defendant’s care and treatment of Plaintiff, and ultimately concludes that Defendant’s care and treatment of Plaintiff complied with the standard of care and did not cause or contribute to Plaintiff’s claimed damages.

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 medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. 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. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘When 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.)

The Expert Declaration of Dr. Spoonamore is sufficient to meet Defendant’s moving burden to establish he is entitled to judgment as a matter of law. The burden therefore shifts to Plaintiff to raise a triable issue of material fact in this regard. Any opposition to the motion was due on or before 3/06/18 The Court has not received any opposition to the motion. Plaintiff therefore necessarily failed to meet the shifted burden, and the motion is granted.