Case Number: BC675078 Hearing Date: January 07, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENIED

I. INTRODUCTION

On September 6, 2017, Plaintiff Antonio Esposito (“Plaintiff”) filed this action against Defendants for medical malpractice relating to the care and treatment provided to Plaintiff. On October 12, 2017, Brian O’Connell, M.D. was named as Doe 1. On November 6, 2018, Plaintiff filed a Request for Dismissal as to Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and Brian O’Connell, M.D. Southern California Permanente Medical Group (“SCPMG”) and Wilfred A. Williams, M.D. (“Dr. Williams”) (collectively, “Moving Defendants”) move for summary judgment on grounds they complied with the standard of care in their care and treatment of Plaintiff and no act or omission on their part was a substantial factor in causing or contributing to Plaintiff’s injuries.

II. FACTUAL BACKGROUND

On February 26, 2017, Plaintiff presented to Kaiser Panorama Urgent Care with right side back pain and cough. Dr. Williams was the examining physician. Dr. Williams ordered a chest x-ray, cheratussin, ibuprofen, famotidine, prednisone, and urinalysis. Plaintiff was discharged with specific instructions to return to care or go to the emergency department for any persistent, new or worse symptoms. (Undisputed Material Fact “UMF” No. 1.) On March 1, 2017, Plaintiff called “KP OnCall” and reported cough, blood in the phlegm, and chest pressure. He also reported shortness of breath with exertion. The nurse instructed Plaintiff to go to the Panorama City Medical Center Emergency Department. Plaintiff did not go to the emergency room because the pain subsided after a few hours. (UMF No. 3.) On March 2, 2017, Plaintiff presented to the emergency department at Olive View Medical Center. He was diagnosed with right empyema, was admitted, and required drainage with chest tube insertion and thoracic surgery. Plaintiff was taken to the operating room on March 11, 2017 for right VATS converted to open thoracotomy and lung decortication, which he tolerated well. Post-operatively, his pain was treated and managed by the anesthesia team. He was discharged on March 17, 2017 and on the morning of discharge, was afebrile, hemodynamically stable, and tolerating a regular diet. He was voiding and ambulating without difficulties and was therefore cleared for discharged. (UMF Nos. 4, 5.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, 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.) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “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 elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of the plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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 may not merely rely on 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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. EVIDENTIARY OBJECTIONS

Moving Defendants filed objections to Plaintiff’s supplemental evidence. However, the Court has only the cover page of these objections. The Court does not note any “supplemental evidence” filed by Plaintiff and did not rely on anything titled as such. Defendants are ordered to bring a copy of their objections to the hearing on this Motion for the Court to consider.

V. DISCUSSION

In a medical malpractice action, a plaintiff must establish the following elements: “(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. [citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “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.3d 977, 984-985.)

As framed by the Complaint, Plaintiff alleges Moving Defendants failed to examine, care for, diagnose, treat, and perform surgery on Plaintiff by negligently failing to examine, care for, diagnose, treat and operate on Plaintiff, causing Plaintiff to require an open thoracotomy and lung decortication resulting from an empyema. (Complaint, ¶ 11.)

Defendants present the declaration of David Barcay, M.D. (“Dr. Barcay”), board-certified in emergency medicine, internal medicine and critical care medicine, and current attending physician in the emergency department at Cedars-Sinai Medical Center. (Declaration of David Barcay, M.D., ¶ 1.) Dr. Barcay states that based on his education, training, and experience, he is familiar with the standard of care for emergency and urgent care physicians providing treatment to patients such as Plaintiff. (Barcay Decl., ¶ 2.) Dr. Barcay reviewed Plaintiff’s medical records from Kaiser and Olive View Medical Center, as well as Plaintiff’s deposition transcript. (Barcay Decl., ¶ 3.) Based on his review, Dr. Barcay opines that when Plaintiff presented to Kaiser Urgent Care on February 26, 2017, Dr. Williams appropriately examined Plaintiff. When Plaintiff developed new symptoms on March 1, 2017, Plaintiff did not follow Dr. Williams’s instructions to seek treatment at an emergency department. Dr. Williams performed an appropriate examination of Plaintiff’s signs and symptoms and completed a thorough examination. Dr. Williams ordered a chest x-ray which was unremarkable. Dr. Williams’ diagnoses of cough, GERD, flank pain, and wheezing was appropriate and within the standard of care given the presenting clinical findings and physical examination. Therefore, it was appropriate to discharge Plaintiff with precautionary instructions to return to the emergency department with new or persistent symptoms. (Barcay Decl., ¶ 10a.)

Further, Dr. Barcay opines that the chest x-ray is the most sensitive test to rule out a lung infection and there was no evidence of a lung infection during the urgent care visit. (Barcay Decl., ¶ 10b.) Prescribing steroid medication was not below the standard of care because there was no indication of infection. (Barcay Decl., ¶ 10c.) Nothing about his presentation required admission or further work up. (Barcay Decl., ¶ 10d.) Therefore, Dr. Barcay opines Defendants complied with the standard of care in their care and treatment of Plaintiff and no act or omission caused or contributed to Plaintiff’s injuries. (Barcay Decl., ¶¶ 11-13.)

In opposition, Plaintiff presents the declaration of Elliot D. Felman, M.D. (“Dr. Felman”), board-certified in family medicine. (Declaration of Elliot D. Felman, M.D., ¶ 1.) Dr. Felman reviewed Plaintiff’s medical records and based on this review, his background, education, training, and experience, Dr. Felman opines that Dr. Williams did not comply with the applicable standard of care for family medicine practitioners in the community when he prescribed Prednisone on February 26, 2017, because it is a steroid medication known to reduce the body’s ability to fight infections, and there was no medical indication to prescribe Prednisone. Instead, prescribing an inhaler would have been within the standard of care. Because Plaintiff had decreased breath sounds in his lower lung field, which indicated the possibility of infection, prescribing Prednisone would be below the standard of care. (Felman Decl., ¶ 6.) Dr. Felman also opines that the Prednisone was the cause of Plaintiff’s injuries, as it reduced the ability of Plaintiff’s immune system to fight infection. (Felman Decl., ¶ 8.)

In addition, Plaintiff presents the declaration of Douglas C. Cable, M.D. (“Dr. Cable”), board-certified in internal medicine and infectious diseases. (Declaration of Douglas C. Cable, M.D., ¶ 2.) Dr. Cable reviewed Plaintiff’s medical records and based on his review, background, education, and experience, Dr. Cable opines that Dr. Williams should not have prescribed Prednisone. (Cable Decl., ¶ 6.) Dr. Cable opines that prescribing Prednisone allowed a clinically minor infection to flourish and cause Plaintiff’s need for surgery. (Cable Decl., ¶7.)

Both parties object to the other’s expert’s qualifications. “The qualification of an expert is ordinarily a matter addressed to the sound discretion of the trial court” and the determinative test is “whether the witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury.” (Cline v. Lund (1973) 31 Cal.App.3d 755, 766.) “Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility.” (Seneris v. Haas (1955) 45 Cal.2d 811, 833.) Regarding medical experts, “[t]o require occupational experience in a particular specialty and to reject knowledge gained by close professional contact with and observation of the practice of such specialty . . . unduly limits the possibility of securing evidence from members of the medical profession.” (Cline, supra, 31 Cal.App.3d at p. 767.) If “actual and primary occupational experience in the precise field of any medical specialty were held to be the sole criteria qualifying an expert witness to testify in a case involving that specialty . . . [a] court would then be in a position wherein its power would have to be exercised to prevent a plaintiff from proving a case against a specialist unless he was able to produce another specialist to testify adversely to his fellow specialist’s interests.” (Ibid.)

Plaintiff suggests Defendants’ expert, Dr. Barcay, is not competent to opine on the standard of care of a family physician like Dr. Williams because Dr. Barcay is board-certified in emergency medicine. Dr. Barcay is also board-certified in internal medicine. Plaintiff does not explain why the certification in internal medicine, among Dr. Barcay’s other qualifications, does not provide a sufficient basis for Dr. Barcay to testify about the standard of care for family medicine practitioners.

Defendants in turn contend that a family medicine doctor such as Dr. Felman and an internal medicine-certified physician such as Dr. Cable are not qualified to testify about the standard of care for a family medicine physician in an urgent care facility. In making this argument, Defendants conflate urgent care and emergency care by, for example, referring to “urgent/emergency medical services,” “urgent/emergency care,” and “emergency urgent care facility.” They also refer to Health and Safety Code section 1799.110, which governs actions involving a negligence claim against a physician “arising out of emergency medical services provided in a general acute care hospital emergency department,” suggesting that the statute is also applicable to claims arising from services provided in an urgent care facility. (Health & Safety Code, §1799.110, subd. (a).) Defendants cite no authority equating urgent care facilities and general acute care hospital emergency departments, establishing that the same standard of care applies in both settings, or showing that section 1799.110’s reference to a general acute care hospital emergency department includes urgent care facilities. Apart from some colloquial likeness in the uses of the words “urgent” and “emergency,” the evidence does not support the conclusion that the same standard of care applies in both settings or that an expert in family medicine is unqualified to testify about the standard of care to be exercised by a family medicine physician at an urgent care facility.

Accordingly, the Court finds both parties arguments as to the qualifications of the other’s experts are unpersuasive. Moving Defendants, with their expert’s opinion, met their initial burden of showing they complied with the standard of care. The burden shifted to Plaintiff to show that a triable issue of fact exists. Plaintiff met his burden of showing, by contrary expert opinions, that a triable issue of fact exists as to whether Moving Defendants breached the standard of care.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice.