2017-00207717-CU-MM

Carlene Metzler vs. Antonio B. Balatbat, M.D.

Nature of Proceeding: Motion for Summary Judgment

Filed By: Whatley, Nicole I.

Defendants Antonio Balatbat, M.D. and Medical Clinic of Sacramento, Inc. dba Mercy Medical Group’s (collectively, “Defendants”) motion for summary judgment is DENIED.

This wrongful death action concerns the alleged medical negligence of Dr. Balatbat, who had been decedent Virginia Freed’s primary care physician from 2009 until her death on March 20, 2016. Plaintiff Carlene Metzler, decedent’s daughter, alleges Dr. Balatbat caused a 30-month delay between September 2012 and May 2015, in the diagnosis and treatment of decedent’s lung cancer and this caused the progression of the cancer from a treatable “stage one” to an advanced “stage 4.” Specifically, Plaintiff alleges Dr. Balatbat failed to order follow-up CT scans of decedent’s lobe lung mass at the 6-12 month mark and again at the 18-24 month mark. Plaintiff alleges this negligence resulted in decedent’s premature death.

In a medical malpractice action, Plaintiff must establish: “(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. (Powell v. Kleinman (2007) 151 Cal. App. 4th 112, 122.)

Defendants move for summary judgment on the ground that Plaintiff cannot establish Dr. Balatbat did not cause or contribute to decedent’s alleged premature death. Defendants have established by admissible evidence via their expert that Dr. Balatbat’s care and treatment of decedent did not cause or contribute to decedent’s death. (See UMF 16; Declaration of Daniel Nathanson, M.D.) Dr. Nathanson opines

that it was the decedent’s pre-existing peripheral vascular disease that caused decedent’s death. Dr. Nathanson further opines that Dr. Balatbat’s treatment met the applicable standard of care to a reasonable degree of medical probability and did not cause or contribute to decedent’s alleged injuries. (Dr. Nathanson Decl. at ¶ 7.)

Once the moving party meets the burden of production, the burden shifts to the opposing party to produce admissible evidence demonstrating the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Here, the evidence is sufficient to shift to Plaintiff the burden of demonstrating the existence of a triable issue of material fact. Generally, Plaintiff a triable issue of fact in cases of medical malpractice must be established by testimony from a competent medical expert. (See Alef v. Alta Bates Hospital (1992).5 Cal.App.4th 208, 216.)

To rebut Defendants’ showing by their expert, Plaintiff has submitted the declaration of Judith Luce, M.D. that the 30-month delay in the diagnosis and proper treatment of decedent’s lung cancer resulted in her profound physiological deterioration and debilitations by March of 2016. Dr. Luce also asserts the advanced stage 4 lung cancer significantly contributed to hematologic abnormalities, specifically the formation of micro-blood clots, which aggravated and accelerated the decedent’s peripheral vascular disease. Dr. Luce asserts she has “thoroughly reviewed plaintiff’s Complaint and all allegations made by plaintiff. It is my professional opinion, based upon my medical education, professional experience, and the file materials reviewed, to a reasonable degree of medical probability, that the physiological effects of the alleged and documented negligent actions and omissions by Defendant Dr. Balatbat were substantial factors and significantly contributed to cause the premature death of decedent Virginia Freed on March 20, 2016.” (Dr. Luce Decl. ¶ 7 (emphasis added).) Dr. Luce asserts “to a reasonable degree of medical probability, had decedent not had these profound physical injuries, she would not have passed away on March 20, 2016, but most probably at a later date.” (Dr. Luce Decl. ¶ 9 (emphasis added).) Dr. Luce opines it is her opinion that Dr. Balatbat’s actions causing the delay in the diagnosis and treatment of decedent’s lung cancer were a significant factor and significantly contributed to decedent’s premature death. (Dr. Luce Decl. ¶¶ 7-10.) This declaration is sufficient to raise a triable issue of fact on the element of causation, even though the declarant qualifies her statements with some vague modifiers like “most probably.”

“Like breach of duty, causation is also ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion.” (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.) Based on the foregoing, Plaintiff has demonstrated a triable issue of material fact as to whether Dr. Balatbat proximately caused decedent’s premature death. On reply, Defendants’ contend Dr. Luce’s declaration is deficient because Dr. Luce does not opine that decedent had a greater than 50% chance of surviving the critical limb ischemia and that she failed to provide a reasoned explanation for her opinion. The Court disagrees. Dr. Luce’s declaration provides a sufficient basis for her opinions and conclusions, she concludes to a reasonable degree of medical probability that Dr. Balatbat’s actions were a significant factor in decedent’s premature death. A triable issue of material fact has been established as to causation.

California does not recognize a cause of action for wrongful death based on medical negligence where the decedent did not have a greater than 50 percent chance of

survival had the defendant properly diagnosed and treated the condition. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504-1505.) Bromme makes plain, plaintiff has to establish a “reasonable medical probability” that the negligence was sufficient of itself to bring about the death, i.e., the death was “more likely than not” the result of the negligence of the medical professional. (Bromme, supra, at 1498-1499.) Again, although the plaintiffs’ expert declaration fails to clearly state a more than 50-50 possibility that defendants’ omissions caused the decedent’s death, it nonetheless is sufficient in what it does say to create a triable issue of material fact as to causation. The motion must be denied and the issue left for the finder of fact at trial.

Defendants’ motion for summary judgment is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.