MSJs by Defendants Mandel and Le???????
Plaintiffs Jose Guadalupe Gutierrez, Erasto Gutierrez, MD, Iram Gutierrez and Omar Gutierrez allege that Defendants Alyssa K. Le, MD and Ronald S. Mandel, DO were negligent in their treatment of Erendira Gutierrez (wife and mother to Plaintiffs), resulting in her death in April 2014.? Specifically, in March 2011 during a brief stay in Mission Hospital, Mrs. Gutierrez underwent a variety of tests including a CT angiogram of the Thoracic and Abdominal Aorta.? The CT showed a diffuse prominence of the main pancreatic duct.? The radiologist reading the CT recommended a further study.? However, neither Dr. Le (the hospitalist treating Mrs. Gutierrez during her stay at the hospital) nor Dr. Mandel (Mrs. Gutierrez?s regular doctor) followed up or informed Mrs. Gutierrez of the findings or the recommendation for a further study.? No further action was taken until December 2012 when Mrs. Gutierrez presented to Dr. Mandel with abdominal pain.? Further tests were run and in January 2013, Mrs. Gutierrez was diagnosed with pancreatic cancer.? She was treated with chemotherapy and radiation therapy but ultimately died in April 2014 from the cancer.? Plaintiffs allege that Defendants breached the standard of care by failing to notify Mrs. Gutierrez of the March 2011 CT finding or refer her to a physician who could follow-up as recommended.
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As a preliminary matter, the Court notes that Plaintiffs did not file proof with this Court that they served Defendants with any document filed in opposition to Defendants? motions.? The Court further notes that Defendant Le did not file a reply brief or any other document in response to Plaintiffs? opposition.? The parties are to be prepared to address these issues prior to a hearing on the merits of the motions.
A defendant moving for summary judgment may prevail on the motion in one of three ways: (1) by affirmatively negating at least one of plaintiff?s essential elements; (2) by showing that plaintiff does not have, and cannot get, evidence to establish an essential element after fully exploring plaintiff’s case through discovery; or (3) by presenting evidence as to each element of an affirmative defense upon which defendant bears the burden of proof at trial.? Once the defendant’s initial burden is met, the burden shifts to the plaintiff to show by substantial evidence that a triable issue of material fact exists as to the claim or defense.? CCP ?437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, 854.
This is a medical negligence action.? Defendant Mandel was Mrs. Gutierrez?s regular doctor from September 2009 through her death from pancreatic cancer in April 2014.? Defendant Le treated Erendira Gutierrez during a hospitalization in March 2011.? Both Defendants were aware of the findings of a CT angiogram of the thoracic and abdominal aorta conducted on Mrs. Gutierrez in March 2011.? The CT showed a diffuse prominence of the main pancreatic duct.? The radiologist reading the CT recommended a further study because of the anomaly.? Plaintiffs allege that Defendants failed to notify Mrs. Gutierrez of the study or the recommended follow-up and failed to refer Mrs. Gutierrez to any other physician for the recommended follow-up.? Mrs. Gutierrez was ultimately diagnosed with pancreatic cancer in January 2013 and died from the disease in April 2014.? Plaintiffs, her surviving husband and children, sued Mandel and Le for medical negligence based on the failure to follow-up on the March 2011 CT scan.
Defendants, separately, move for summary judgment based on the assertion that Plaintiffs cannot show causation?an essential element of Plaintiffs? medical negligence claim.? Defendant Mandel?s motion is based on the expert declaration of Dr. Van Scoy Mosher.? Defendant Le?s motion is based on the expert declaration of Dr. Okun.? Although provided by different physicians, the declarations arrive at essentially the same conclusion?Defendants? failure to follow-up on the March 2011 scan did not cause Mrs. Gutierrez?s death because the five-year survival rate of pancreatic cancer among the general population is less than 50%.? Plaintiffs counter those declarations with the expert declaration of Vera F. Dolan, an epidemiologist, who opines that given her gender, age, health, stage of cancer and length of survival with cancer, Mrs. Gutierrez had a 93% chance of living beyond the time of her death if the cancer had been diagnosed in March 2011.
In order to show causation, Plaintiffs must show that ?the death was ?more likely than not’ the result of the negligence.? Bromme v. Pavitt ?(1992) 5 Cal.App.4th 1487, 1499.) Generally, causation must be demonstrated by expert testimony. Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.? The parties offer competing expert declarations on the issue of causation.? Defendants? experts say that Mrs. Gutierrez had less than 50% chance of survival based on survival rates for pancreatic cancer among the general population.
The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed.? Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135-1136.? ?[E]ven when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise.?? Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117; Powell v. Kleinman ?(2007) 151 Cal.App.4th 112, 123.? An opinion which is speculative, lacking foundation, or without sufficient certainty can be excluded.? Id.? ?Moreover, an expert?s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]?? Powell, 151 Cal.App.4th at 125.
Here, Dr. Van Scoy Mosher (Defendant Mandel?s expert) opines that nothing Dr. Mandel did or failed to do was a substantial factor in causing Mrs. Gutierrez? death. As set forth in his declaration, his opinion is based on the following statement:? ?Pancreatic cancer has a five-year overall survival rate below 20%. ?If the cancer is discovered at its earliest stage of IA, the three-year survival rate is approximately 40% and the five-year survival rate is approximately 30% with surgical treatment.?
Dr. Okun (Defendant Le?s expert) similarly opines that nothing Dr. Le did or failed to do was a substantial factor in causing Mrs. Gutierrez?s death.? As set forth in his declaration, his opinion is based on the following statement:? ?Pancreatic adenocarcinoma has a typical survival rate of less than 30% one year after diagnosis and less than five years after diagnosis. If the cancer is small and can be surgically resected, the survival rate is less still less [sic] than 50% at one year and less than 30% at five years.?
Both opinions are based on generalized statistical findings of outcomes among individuals diagnosed with pancreatic cancer.? The declarants do not provide any specifics regarding Mrs. Gutierrez?s cancer diagnosis or treatment.? They do not even specify what stage of cancer Mrs. Gutierrez had at the time of her diagnosis.? The declarants? opinions that she had less than 50% chance of survival are not based on any evidence or medical information specific to Mrs. Gutierrez.? Rather, in each case, the expert?s opinion on the issue of a causation consists of a recitation of the typical survival rate of pancreatic cancer among the general population and a determination that, based on that rate, Mrs. Gutierrez had less than a 50% chance of survival.
Both Defendants rely on Bromme v. Pavitt (1992) 5 Cal.App.4th 1487 to support their motions.? Bromme was a wrongful death action filed by a husband against a doctor for negligent failure to detect his wife?s colon cancer.? The case went to trial and evidence was introduced that if the cancer had been detected prior to June 1981 it could have been successfully treated but after June 1981, ?successful treatment became medically improbable.?? The trial court granted a partial nonsuit regarding any negligence after June 1981 when the chance of survival fell below 50%.? The partial nonsuit was upheld on appeal because ?California does not recognize a cause of action for wrongful death based on medical negligence where the decedent does not have a greater than 50 percent chance of survival had the defendant properly diagnosed and treated the condition.?? Bromme, 5 Cal.App.4th at 1504-1505
Bromme differs from this case, however, because the evidence used to determine probability in Bromme was specific to the decedent in the case.? The determination of medical probability was based on the location of the decedent?s tumor, its spread to adjacent lymph nodes, the number of lymph nodes involved and other medical information specific to the decedent?s cancer, not on generalized statistical information.
The Court finds that the opinions of Dr. Van Scoy Mosher and Dr. Okun are speculative, lacking foundation, or without sufficient certainty and, further, that Dr. Van Scoy Mosher and Dr. Okun failed to provide a ?reasoned explanation of why the underlying facts lead to the ultimate conclusion.?? Powell, 151 Cal.App.4th at 125.? Thus, even if the motions had not been opposed, the declarations do not support Defendants? requests for summary judgment and the motions must be denied.? See Powell, 151 Cal.App.4th at 123 (?Simply because the defendant doctor provides an unopposed declaration by an expert does not necessarily mean the court should grant summary judgment.?).
The motions were, however, opposed and Plaintiff offered the declaration of Vera F. Dolan on the issue of causation.? Defendant Mandel objects to Plaintiffs? expert on the ground that she is not a physician and is not, therefore, qualified to offer an opinion on causation.? (Defendant Le did not provide any reply.)
To begin with, in reviewing an expert’s declaration for purposes of summary judgment, a court should apply a liberal construction and resolve any doubts in favor of the party opposing summary judgment. Jennifer C. v. Los Angeles School Dist. (2008) 168 Cal.App.4th 1320, 1332.? Accordingly, the party moving for summary judgment has a greater responsibility to provide an expert declaration with a reasoned explanation than the party opposing the motion.? Powell, 151 Cal.App.4th at 125-126; see also Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 529.? Further, medical evidence does not necessarily have to be provided by a doctor.? Hernandez v. Amcord (2013) 215 Cal.App.4th 659, 675; see also People v. Catlin (2001) 26 Cal.4th 81, 131-132 (?[q]ualifications other than a license to practice medicine may serve to qualify a witness to give a medical opinion?).? In addition, as referenced above, the declarations of all the experts are more a matter of statistics than medicine and Plaintiff?s expert, unlike Defendants? experts, considers Mrs. Gutierrez? gender, ethnicity, general health and the time Mrs. Gutierrez? survived with pancreatic cancer to arrive at her opinion that Mrs. Gutierrez?s statistical life expectancy would have been significantly longer if the cancer had been diagnosed in March 2011.
The Declaration of Vera F. Dolan raises triable issues of fact precluding summary judgment.? See Plaintiffs? Responding Separate Statement of Disputed Material Facts in Opposition to Defendant Alyssa K. Le, M.D.?s Motion for Summary Judgment or, Alternatively, Summary Adjudication, UMFs 5, 6 and 7 and Plaintiffs? Responding Separate Statement of Disputed Material Facts in Opposition to Defendant Ronald Mandel, D.O.?s Motion for Summary Judgment, UMFs 4, 5, 6 & 7.
For the foregoing reasons, Defendants? Motions for Summary Judgment are DENIED.?
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Plaintiffs? Requests for Judicial Notice are GRANTED as to item #1 (the death date of Erendira Gutierrez) and DENIED as to items #2, 3 and 4.
Defendant Mandel?s Evidential Objections are OVERRULED as to objections # 1-5 and SUSTAINED as to objections # 6-7.