2014-00748309
Moore vs. Iqbal
Defendant Atif Iqbal, M.D.?s motion for summary judgment as to the complaint of plaintiffs Deloris and Milyan Moore is GRANTED.
As to the first cause of action for medical negligence, Defendant presented the declaration of expert witness Dr. Carson David Liu to establish that all care by defendant Iqbal complied with the standard of care at all times, and that the care and treatment rendered by defendant Iqbal did not cause or contribute to Plaintiff Deloris Moore?s injuries. Moving Party Iqbal thereby met his initial burden of negating both (1) the element of breach of the standard of care and (2) causation. That shifted the burden to Plaintiffs to present admissible evidence creating a triable issue of material fact with regard to the issue of the breach of the standard of care and/or causation.
Plaintiffs failed to do so.
The medical care and causation issues in this case are beyond mere common knowledge, and are properly the subject of expert testimony. ?? ?The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations]….? [Citations.]? [Citations.]? (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, 35 Cal.Rptr.2d 685.) ??California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. 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.? [Citations.]? (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984?985, 263 Cal.Rptr. 878.) The res ipsa loquitur exception cited in Flowers (citing as an example a scalpel being left inside the patient after surgery) does not apply here where expert testimony is required to establish whether there was a breach of the duty of care as to all or any of the following issues (1) removal of only two of the three parts making up the previously inserted lap band, (2) a decision not to find and remove the plastic sleeve during the May 22, 2013 surgery (including the decision the plastic sleeve could be safely left in the body as a benign object), and (3) a decision not to take more than 15 to 20 minutes to look for the plastic sleeve. Expert evidence is also needed to establish causation between the plastic sleeve and any or all of the symptoms complained of by plaintiff Deloris Moore, and to tie any such causation to action or inaction on the part of Dr. Iqbal.
Plaintiffs have not provided any expert testimony with regard to the standard of care or causation, and they have thus not met their now shifted burden of raising a triable issue of fact.
The second cause of action, by plaintiff Milyan Moore for loss of consortium, is entirely dependent on the first cause of action, and thus fails with the first cause of action, entitling defendant Aqbal to summary judgment on the entire action against him.
Defendant?s ?Evidentiary Objections and Responses? are overruled.
In opposition to this motion Plaintiffs raise issues about when they learned about the plastic sleeve being initially left behind. On their own statements, they were aware of this fact by March 2014. This action was commenced October 1, 2014, and there are no facts in the complaint that raise the issue of the alleged non-disclosure. ?[A] summary judgment motion is directed to the issues framed by the pleadings. [Citations.] Those are the only issues a motion for summary judgment must address. [Citations.]? (Hilton K. v. Greenbaum (2006) 144 Cal.App.4th 1406, 1412, 51 Cal.Rptr.3d 295.)
Moving party to give notice.