2015-00182876-CU-MM

Eliane Poilvez vs. Michael W. Cohen

Nature of Proceeding: Motion for Summary Judgment and Joinder filed by Scott A. Foster,

Filed By: Sager, John D.

Defendant Michael W. Cohen, M.D.’s (“Cohen”) motion for summary judgment is ruled upon as follows.

Co-defendant Scott A. Foster, M.D.’s (“Foster”) joinder is DENIED. Local Rule 2.09 requires that the party joining the motion must comply with all procedural requirements for the filing of motions, including proper notice. Here, Foster served and filed his joinder by mail on October 5, 2018. CCP §473c(a) requires 80 calendar days’ notice for a motion for summary judgment served via mail. Thus, only 46 calendar days’ notice was provided for Foster’s joinder.

This is a medical malpractice action. On 5/16/2014, Plaintiff fell at work. She presented to Cohen with complaints of severe left shoulder pain, complaints of left hand/upper arm/elbow pain, complaints of facial numbness and headache. Cohen

diagnosed Plaintiff with left shoulder strain and ordered left shoulder x-rays. Plaintiff underwent the x-rays.

On 5/19/2014, Cohen examined Plaintiff and assessed her with “left shoulder sprain, facial numbness improving and prior history of left elbow fracture.” He provided her with an arm sling, prescription for Motrin and Ultracet, and physical therapy. Multiple times after 5/19/2014, Plaintiff presented to Cohen for follow-up. She requested an MRI, but her requests were refused for more than three months.

On 8/21/2014, Plaintiff underwent a left shoulder MRI, multiple serious injuries were identified. On 10/3/2014, Plaintiff underwent left shoulder surgery. Plaintiff continues to suffer multiple injuries to her body that were untreated by Cohen.

Trial is scheduled for 2/4/2019.

Cohen moves for summary judgment on the grounds that: (1) he met he applicable standard of care at all relevant times, and (2) his alleged negligent acts and omissions did not cause or contribute to Plaintiff’s alleged injuries.

The Court notes that Cohen has withdrawn his motion as to the breach of standard of care. Thus, his only remaining argument is causation.

In support of the motion, Cohen proffers a declaration from David Suchard, M.D. Dr. Suchard is Board Certified in Occupational and Environmental Science. Dr. Suchard opines that any negligent act or omission by Cohen did not cause or contribute to Plaintiff’s alleged injuries. (UMF 14.)

In opposition to the motion, Plaintiff proffers the declaration of Jerald Cook, M.D. Dr. Cook is Board Certified in Occupational Medicine and Public Health and Preventative Medicine. Dr. Cook explains that:

An MRI at initial evaluation was indicated due to the mechanism of injury, the severity of pain, weakness in rotator cuff muscles including positive sulcus sign indicating likely rotator cuff injury, and the patient’s age increasing her risk of rotator cuff injury. Dr. Cohen initially planned to have Ms. Poilvez return for evaluation in one week after the initial visit, which is a reasonable alternative to immediate MRI because reexamination after a few days of rest can provide a better assessment if there is uncertainty. When Ms. Poilvez returned three days later, however, stating that she is worse and unable to move her upper arm, and the physical exam was the same, the standard of care would have been to further evaluate her shoulder by MRI. The current CA MTUS Guidelines, although being worded differently and not the standard for California workers’ compensation in 2014, would also recommend an MRI on initial evaluation, or shortly after, with Ms. Poilvez presentation,

mechanism of injury, and age of patient. Given the foregoing, Dr. Cohen breached the applicable standard of care in his medical care and treatment of Ms. Poilvez by failing to order a left shoulder MRI by May 19, 2014. Dr. Cohen’s failure in this regard was the proximate cause of Ms. Poilvez suffering a further and more complicated injury to her left shoulder which then required surgical intervention with its related complications.

(Declaration of Jerald Cook, M.D. para. 7 [emphasis added].)

Cohen, relying on Kelly v. Trunk (“Kelly”) (1998) 66 Cal.App.4th 519 objects to Dr. Cook’s opinion on the ground that it is conclusory because it is “unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion.” The objection is OVERRULED because Kelly does not assist Cohen.

In Kelly, the court held that a “defendant doctor is not entitled to obtain summary judgment based on a conclusory expert declaration which states the opinion that no malpractice has occurred, but does not explain the basis for the opinion.” (Id. at 521 [emphasis added].) The court found that an “an opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.” (Id. at 524 [emphasis added].) Thus, the expert’s declaration was insufficient to carry the defendants burden in moving for summary judgment.

Here, Dr. Cook’s declaration is not offered to satisfy the moving party’s burden to establish the absence of a material facts. Kelly does not address the requirements for an opposing expert’s declaration. Nor is it lacking in reasoning or explanation.

Cohen’s remaining objections are OVERRULED.

The Court concludes that Plaintiff has satisfied her burden to demonstrate a triable issue of material fact.

The motion for summary judgment is DENIED.

This minute order is effective immediately. Plaintiff shall prepare a formal order pursuant to CRC Rule 3.1312 and CCP 437c(g).

The Court notes that the Cohen’s Compendium of Exhibits (ROAs 35-37) included Plaintiff’s unredacted medical records, all of which has been viewable by the public via the Court’s CCMS system since Exhibits were filed on 8/30/218. All counsel are reminded that all pleadings and documents may be electronically accessed by the public once they are filed unless the Court orders otherwise. Thus, it is

imperative for counsel to appropriately redact all pleadings and documents before filing.

Cohen’s counsel shall promptly file and serve an appropriate application/motion to seal pursuant to CRC Rule 2.550 et seq. and lodge (not file) with the Court appropriately redacted but otherwise identical version of the Compendium of Exhibits (ROAs 35-37) which contains the unredacted medical records.

The clerk is directed to promptly change the security clearance on the unredacted version of the Compendium of Exhibits (ROAs 35-37) so that they are no longer viewable by the public via the Court’s CCMS System.