Case Number: BC648884 Hearing Date: November 28, 2018 Dept: 3

CARLA D. BROOKS,

Plaintiff(s),

vs.

CEDARS-SINAI MEDICAL CENTER, ET AL.,

Defendant(s).

CASE NO: BC648884

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S APPLICATION TO FILE RECORDS UNDER SEAL

Dept. 3

1:30 p.m.

November 28, 2018

1. Background Facts

Plaintiff, Carla D. Brooks filed this action against Defendants, Nirmala Thejomurthy, M.D. and Cedars-Sinai Medical Center for medical malpractice. Plaintiff alleges Defendants were negligent in connection with an intubation procedure.

2. Matters on Calendar

Defendant, Cedars moves for summary judgment. Defendant argues it is entitled to judgment as a matter of law because none of its nursing or non-physician staff breached the standard of care, nothing its nursing or non-physician staff did caused or contributed to Plaintiff’s injuries, and it is not liable for Dr. Thejomurthy’s care and treatment of Plaintiff under a respondeat superior theory. Defendant also seeks an order permitting it to file records under seal.

3. Application to File Documents Under Seal

The application to file records under seal is denied. Defendant filed a “Notice of Application to File Records Under Seal” with its moving papers. The application is confusing, as it refers to records of “Decedent.” Plaintiff is suing for injuries to herself, and she does not appear to be deceased.

It appears Defendant seeks to have discovery and discovery responses, deposition testimony, and medical records all filed under seal, but this is not entirely clear. The application is not accompanied by any points and authorities, declaration, or other evidence. The application failed entirely to make the required showing, per CRC 2.550 and 2.551, that the records should be sealed. The application is denied.

The Court notes that medical records are routinely filed in connection with motions for summary judgment, and those records are not typically sealed. The Court also notes that the discovery propounded, the responses thereto, and the deposition testimony attached to the application do not meet the standard for sealing under the Rules of Court.

4. Motion for Summary Judgment

a. Standard of Care

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.)

b. Causation

In order to establish that defendant’s negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm. “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. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.

c. Analysis

Cedars supports its motion for summary judgment with the expert declaration of Richard L. Buffalo, M.D.. Buffalo sets forth his expert credentials, states what records he reviewed, details Defendant’s staff’s care and treatment of Plaintiff, and ultimately concludes that Defendant’s staff’s care and treatment of Plaintiff complied with the standard of care and did not cause or contribute to Plaintiff’s claimed injuries.

The Expert Declaration Ruffalo is sufficient to meet Defendant’s moving burden to establish it 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 11/14/18. The Court has not received any opposition to the motion. Plaintiff therefore necessarily failed to meet her burden to raise a triable issue of material fact concerning standard of care and/or causation.

d. Respondeat Superior

Defendant also provides evidence that, to the extent Plaintiff is suing it based on the acts of Dr. Thejomurthy, Dr. Thejomurthy was an independent contractor and Defendant is not liable for her care of Plaintiff. Defendant provides the Declaration of Tara O’Shea in this regard; O’Shea declares Dr. Thejomurthy is not and never has been a clinical staff member of Cedars, and is not Cedars’s agent or employee. Per Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1454, if a doctor is acting as an independent contractor and is not the actual or ostensible agent of the hospital, then the hospital is not liable for the care and treatment rendered by the doctor. Defendant met its burden on this issue also, and Plaintiff, by failing to file opposition, necessarily failed to raise a triable issue of material fact.

e. Conclusion

Because Defendant met its burden of proof on standard of care, causation, and lack of agency, and because Plaintiff failed to raise a triable issue of material fact, the motion for summary judgment is granted. The application to file records under seal is denied.

Defendant is ordered to give notice.