Case Number: BC682905 Hearing Date: November 27, 2018 Dept: 4

Motion for Summary Judgment

The court considered the moving and opposing papers.

Background

On November 8, 2017, plaintiff Joshua Kent filed a complaint for medical negligence against defendants David D. Wu., M.D., A Medical Corporation and David D. Wu, M.D.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the 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.” CCP § 437c(p)(2). “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.” CCP § 437c(p)(2). “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.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

Discussion

Defendants David D. Wu., M.D., A Medical Corporation and David D. Wu, M.D request that the court enter summary judgment in their favor and against plaintiff pursuant to CCP § 437c on the ground that there is no triable issue of material fact and defendants are therefore entitled to judgment as a matter of law.

The elements of medical malpractice are: “(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.” Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 701-02 (citations omitted). “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” Avivi, 159 Cal.App.4th at 467.

Thus, in a medical malpractice case, “[w]hen 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 (citations omitted). An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. Starr v. Mooslin (1971) 14 Cal. App. 3d 988, 999.

Plaintiff alleges that defendants “negligently performed right thumb insertion and sheath injections” on plaintiff on September 1, 2016 and “right median nerve/carpal tunnel injections” on plaintiff on September 15, 2016, causing “discoloration and injury to his right thumb.” Plaintiff also alleges that defendants “negligently provided cervical epidural steroid injection treatment” on plaintiff on September 24, 2016, which was not medically necessary. Complaint, ¶ 10.

The court finds that defendants have met their burden of showing that plaintiff’s cause of action for medical negligence has no merit by showing that plaintiff cannot establish causation. CCP § 437c(p)(2). Defendants filed the declaration of Steven Richeimer, M.D., a pain management specialist, who opines that, based on his education, training, and experience and his review of Plaintiff’s medical records and other documents, the care and treatment given by defendants was at all times within the standard of care in the medical community and did not cause plaintiff’s injuries. Dr. Richeimer Decl., ¶ 21.

On July 31, 2016, plaintiff went to the emergency room complaining of pain in his back, right thumb and wrist, and right foot following a motor vehicle accident on July 25, 2016. Id., ¶ 8 Dr. Richeimer states that on September 1, 2016, plaintiff presented to Dr. Wu with “loss of normal lordosis and tenderness in the lumbar, lumbosacral, cervical, and cervicothoracic regions.” Id., ¶ 10. In addition, “plaintiff had cervical facet arthropathy and the right thumb pain was indicative of tenosynovitis.” Id., ¶ 10. Dr. Wu “administered steroid injections in plaintiff’s right thumb insertion and sheath. Id., ¶ 11. Plaintiff signed a consent form. Id., ¶ 11.

Dr. Richeimer declares that on September 15, 2016, plaintiff saw Dr. Wu again. Id., ¶ 12. Dr. Wu reviewed plaintiff’s lumbar and cervical spine MRIs and found “an abnormality in the L5 vertebral body and mild degenerative disc disease at C2-3, C3-4, and C6-7.” Id., ¶ 12. At the September 15, 2016 appointment, Dr. Wu administered steroid injections in plaintiff’s right thumb tendon and insertion,” and plaintiff signed a consent form. Id., ¶ 13. On September 24, 2016, Dr. Wu “administered a steroid injection at the C4-5 level,” and plaintiff “provided informed consent for the injection. Id., ¶ 14.

On October 31, 2016, plaintiff saw Dr. Elenora Spokoyny for a neurological examination. Id., ¶ 15. Dr. Richeimer declares that plaintiff complaint of, inter alia, headaches, neck pain, back pain, pain in the right hand and wrist, and numbness in the right thumb. Id., ¶ 15. Dr. Spokoyny noted in her evaluation that “to a reasonable degree of medical probability, plaintiff’s condition and symptoms are the direct result of the injuries he sustained during the July 25, 2016 motor vehicle accident.” Id., ¶ 15.

Dr. Richeimer declares that Dr. Wu’s treatment did not cause plaintiff injury and that plaintiff’s alleged thumb and cervical spine injuries were caused by plaintiff’s motor vehicle accident. Id., ¶¶ 16-21. Based on Dr. Richeimer’s expert opinion, the Court finds that defendants have met their burden to establish that no triable issue of fact exists, and defendants are entitled to summary judgment. CCP § 437c(p)(2). Thus, the burden shifts to plaintiff to show that a triable issue of one or more material facts exists as to the cause of action. CCP § 437c(p)(2). The court finds that plaintiff has failed to meet his burden.

Plaintiff has filed an opposition, but has failed to effect proper service on defendants. The proof of service, which is attached to plaintiff’s separate statement, does not list the documents that were served, and provides that it was served on “Don Kent” at an address in Anaheim, CA. It is unclear if the documents were served by Don Kent or served on Don Kent. Regardless, the proof of service does not provide that plaintiff’s opposition was served on defendants or defendants’ counsel. However, even if plaintiff properly served the opposition, plaintiff has failed to meet his burden.

Plaintiff provides the declaration of John Walker, M.D. Dr. Walker declares that Dr. Wu’s administration of steroid injections fell below the applicable standard of care and caused plaintiff’s injuries. Dr. Walker Decl., ¶¶ 5-6. However, plaintiff has failed to establish that Dr. Walker is, in fact, an expert. Dr. Walker’s declaration provides that he is a medical doctor licensed in California, but does not provide information that qualifies Dr. Walker to opine on Dr. Wu’s conduct. (See Evid. Code § 801; see also Naples Restaurant, Inc. v. Coberly Ford (1968) 259 Cal.App.2d 881.) Dr. Walker does not state what kind of medicine he practices and plaintiff has not presented his resume. As such, Dr. Walker’s declaration is insufficient to create a triable issue of fact.

Defendants’ motion for summary judgment is therefore GRANTED on the grounds that there are no triable issues of material fact as to whether defendants caused plaintiff’s injuries based on the evidence proffered by defendants in support of the motion and plaintiffs’ evidence proffered in opposition.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: November 27, 2018

_____________________________

Christopher K. Lui
Judge of the Superior Court