Charlene A Holway vs Steven W Pearson, MD
Case No: 18CV02112
Hearing Date: Fri Aug 30, 2019 9:30

Nature of Proceedings: Motion for Summary Judgment

TENTATIVE RULING: Defendant’s motion for summary judgment is denied. The court finds that there are triable issues of fact regarding defendant’s negligence.

BACKGROUND:

This is a medical malpractice lawsuit. In August 2016, plaintiff Charlene A. Holway consulted defendant Dr. Steven W. Pearson regarding longstanding pain and instability in her right ankle. Examination and MRI studies showed end-stage degeneration of the ankle. On October 11, 2016, defendant replaced plaintiff’s right ankle with an artificial ankle through a procedure known as STAR (“Scandinavian Total Ankle Replacement”) arthroplasty. The procedure initially appeared to be successful, but within a few months plaintiff began to experience pain, swelling, and decreased range of motion in her ankle. After approximately eight months, the artificial ankle failed and plaintiff had to have it surgically removed by another physician. Plaintiff claims that her right ankle will now have to be fused.

On April 25, 2019, plaintiff filed her complaint alleging a single cause of action for medical malpractice. Plaintiff alleges that the failure of the ankle replacement was due to defendant’s failure to repair the ligament damage in her right ankle prior to the STAR arthroplasty. Plaintiff claims that because the ankle ligaments had not been surgically repaired, the artificial ankle was unstable, causing the tissues within the joint area to break down and cysts to develop. Defendant argues that artificial ankles sometimes fail, that it is a known risk, and that the care and treatment he provided plaintiff was appropriate and within the standard of care.

Defendant now moves for summary judgment on the ground that the undisputed evidence establishes that he was not negligent in his care and treatment of plaintiff. Plaintiff opposes the motion.

ANALYSIS:

Evidentiary Objections

Defendant objects to the deposition testimony of Dr. Julie M. Chatigny, specifically, page 34:24-35:3, where Dr. Chatigny opines that Dr. Pearson’s care and treatment of plaintiff fell below the standard of care. Defendant contends that the testimony lacks foundation and calls for speculation. Overruled. Dr. Chatigny testified that the STAR arthroplasty procedure is generally the same for podiatrists as for orthopedists. The degree of knowledge and experience of Dr. Chatigny goes to the weight.

Motion for Summary Judgment

A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c, subd. (c). “The purpose of the law of summary judgment is to provide the courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite the allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 843. A moving defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s causes of action, or shows that one or more elements of each cause of action cannot be established. Code Civ. Proc. §437c, subd. (p)(2). If the defendant fails to meet this burden, the motion for summary judgment must be denied. Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.

Plaintiff’s complaint alleges a single cause of action for medical malpractice. To prevail on a professional negligence claim, a plaintiff must allege and prove (1) the defendant owed a duty to use such skill, knowledge, and care as other members of his profession commonly possess and exercise, (2) the defendant breached that duty, (3) the plaintiff was harmed, and (4) the defendant’s breach of duty, i.e., negligence, was a substantial factor in causing the plaintiff’s harm. Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997-998. In medical malpractice cases, because the practice of medicine is not within the common knowledge of lay persons, expert opinion testimony is necessary to prove both the standard of care and causation. Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844. As the court explained in Willard v. Hagenmeister (1981) 121 Cal.App.3d 406, 412:

“Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.”

When a defendant in a medical malpractice action moves for summary judgment and supports his motion with expert declarations that his conduct fell within the 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, 985. Here, defendant has submitted the declaration of Loretta Chou, M.D., the Head of Foot and Ankle Surgery in the Department of Orthopedic Surgery at Stanford University School of Medicine. Dr. Chou states that the controlling standard of care required Dr. Pearson to obtain plaintiff’s pertinent medical history, conduct a comprehensive examination of plaintiff, and use his findings to recommend a reasonable treatment plan in light of the information obtained. (Chou Dec., ¶19.) Thereafter, the standard of care required Dr. Pearson to obtain informed consent from plaintiff and perform the subject procedure with competence. (Ibid.) Finally, Dr. Pearson was required to follow plaintiff post-operatively, monitor her healing, and recommend additional treatment, as indicated. (Ibid.)

In the instant case, plaintiff presented to Dr. Pearson in August 2016 with longstanding, progressive posttraumatic arthritis of her right ankle, with instability of the lateral ligaments of the ankle and limited range of motion. (Chou Dec., ¶20.) Plaintiff had been referred to Dr. Pearson in regards to undergoing a total ankle replacement. Dr. Pearson obtained plaintiff’s medical history (which showed that conservative treatment had failed to address her complaints and limitations) and he conducted a comprehensive assessment of her condition, including a review of recent medical imaging. (Ibid.) Dr. Pearson’s recommended treatment plan involved a STAR total ankle replacement. (Ibid.) He discussed the potential risks and benefits of the procedure with plaintiff, including failure of the prosthesis and the return of ankle pain and deformity, and plaintiff provided her written consent. (Chou Dec., ¶21.)

On October 11, 2016, Dr. Pearson performed the STAR arthroplasty on plaintiff’s right ankle using different component parts. (Chou Dec., ¶9.) The components provided good alignment and stability of the ankle such that Dr. Pearson did not believe ligament reconstruction was necessary. (Ibid.) The surgical procedure was completed without complications and subsequent medical imaging demonstrated good positioning of the prosthesis. (Chou Dec., ¶22.) Plaintiff presented to Dr. Pearson for post-operative examinations on October 21, 2016, November 4, 2016, and December 2, 2016, and she appeared to be healing well with continued good alignment of the prosthesis. (Chou Dec., ¶¶ 10, 11, 12.) As plaintiff’s strength and range of motion improved, she was told that she could begin weight bearing and then standing and walking on a limited basis. (Ibid.) Plaintiff was also given specific instructions regarding the tasks she should and should not perform. (Ibid.)

On April 28, 2017, plaintiff returned to Dr. Pearson’s office with complaints of pain and swelling in her right ankle. (Chou Dec. ¶14.) Upon examination, Dr. Pearson noted that plaintiff had some moderate swelling around her ankle, but both her range of motion and strength were improving. (Ibid.) Further x-ray imaging demonstrated continued good alignment of the prostheses. Plaintiff told Dr. Pearson that she had returned to work fulltime. (Ibid.) Dr. Pearson reviewed with plaintiff the recommended do’s and don’t’s concerning the use of her ankle while at work. (Ibid.) He also discussed with plaintiff suggested home exercises and told her that she might benefit from a short course of physical therapy. (Ibid.) Dr. Pearson scheduled plaintiff to return in six weeks, or sooner if indicated. (Ibid.)

Plaintiff did not return to Dr. Pearson’s office until October 6, 2017, more than five months later. (Chou Dec., ¶15.) At that time, plaintiff complained of continued pain and swelling around her ankle, which she attributed to returning to work and being on her feet all day. (Ibid.) Dr. Pearson found that plaintiff had significant inward angulation and instability of the right foot and ankle on standing, as well as bone cysts under the implant, and concluded that plaintiff would need collateral ligament reconstruction and a possible internal brace if the ankle was to be salvaged. (Chou Dec., ¶16.) Dr. Pearson gave plaintiff the name of a colleague, Dr. David Thordarson with Cedars-Sinai Medical Center in Los Angeles, in case she wanted to obtain a second opinion. (Ibid.) Dr. Pearson had no further interaction with plaintiff as she never returned to his office. (Ibid.) Ultimately, the STAR prosthesis in plaintiff failed, but Dr. Chou states that such failure is a known risk of the procedure and occurs in approximately 10% of patients, even in the absence of negligence. (Chou Dec., ¶24.)

It is Dr. Chou’s medical opinion, based upon her education, training, and experience as an orthopedic surgeon specializing in foot and ankle surgery, that Dr. Pearson’s care and treatment of plaintiff was appropriate, complete, and proper, and at all times within the standard of care. (Chou Dec., ¶26.)

Plaintiff disputes that Dr. Pearson’s treatment plan was appropriate and within the standard of care and has presented the deposition testimony of her medical expert, Dr. Julie M. Chatigny, in opposition to defendant’s summary judgment motion. (Javaherian Dec., ¶3, Ex. A, Deposition of Dr. Julie M. Chatigny.) Dr. Chatigny is a podiatrist and has been performing foot and ankle surgeries for over seven years. (Chatigny Depo., p. 22:11-15.) Dr. Chatigny studied podiatric medicine at Midwestern University in Arizona and obtained her degree in 2012. (Chatigny Depo., p. 22:16-24.) She has performed thousands of foot and ankle surgeries and has received training in and performed the STAR arthroplasty procedure, the same procedure at issue in this litigation. (Chatigny Depo., p. 23:21-25.) Dr. Chatigny examined plaintiff and reviewed her medical records prior to testifying at deposition. (Chatigny Depo., pp. 6:4-10, 10:24.) It is Dr. Chatigny’s medical opinion that plaintiff’s pain and swelling were due to malalignment of the prosthesis, which caused the ankle not to function properly and ultimately to fail. (Chatigny Depo., pp. 7:12-87, 12:21-13.5.)

Dr. Chatigny opines that it was below the standard of care for Dr. Pearson to have performed the STAR arthroplasty without first repairing the ligament damage in plaintiff’s ankle. (Chatigny Depo., p. 9:17-20.) As Dr. Chatigny explained, all ligament injuries should be addressed before doing any kind of arthroplasty because they are needed for stability. (Chatigny Depo., p. 9:7-14.) In plaintiff’s case, because the damaged ligaments in her ankle were not surgically repaired before her ankle replacement, she developed misalignment of the ankle joint, pain, and ultimately failure of the prosthesis. (Chatigny Depo., p. 12:21-13:5.)

Defendant argues that Dr. Chatigny is not qualified to render an opinion on whether Dr. Pearson violated the standard of care because she is a podiatrist and Dr. Pearson is an orthopedist. Further, Dr. Chatigny testified that, while the STAR arthroplasty procedure is generally performed in the same way by podiatrists and orthopedists and the standard of care is probably the same, she “didn’t know the definitive answer [to this].” (Chatigny Depo., p. 33:10-23.) Case law, however, provides that a podiatrist can testify as to the standard of care of medical doctors. See, Chadock v. Cohn (1979) 96 Cal.App.3d 205, 215. What is important in a medical malpractice case is for the expert to have enough knowledge, training, and experience regarding the subject matter of the action to speak with authority, and be familiar with the standards required of health care professionals under similar circumstances. Id., at 208-209. Here, Dr. Chatigny has demonstrated that she has sufficient professional knowledge, training, and skill regarding the STAR arthroplasty procedure, as well as sufficient knowledge of the standard of care, to render an opinion in the case. The degree of her knowledge and experience goes to the weight of the evidence rather than its admissibility. Cloud v. Market Street Railway Company (1946) 74 Cal.App.2d 92, 100.

The only fact in dispute in the case is whether Dr. Pearson’s treatment plan was appropriate. Defendant alleges that the plan was appropriate, while plaintiff alleges that it was not. Given this dispute, the court finds that the testimony of Dr. Chatigny is more than adequate to satisfy plaintiff’s burden in opposing defendant’s summary judgment motion. The motion will therefore be denied.