CASE NAME: McCUAN? vs.? EPIC CARE
HEARING ON MOTION FOR SUMMARY JUDGMENT
FILED BY BENJAMIN BUSFIELD M.D, et al.
* TENTATIVE RULING: *
Defendant Benjamin Busfield, M.D.?s Motion for Summary Judgment is granted.? Dr.?Busfield?s role in Mr. McCuan?s care was that of an orthopedic surgeon. After examination of Mr. McMcuan, Dr. Busfield concluded surgery was not indicated and that the patient?s hematoma should resolve with conservative symptomatic treatment.? Dr. Busfield moved for summary judgment on the ground the medical care provided was within the standard of care and was not a substantial factor in causing injury to the patient, Randy?McCuan.
?The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.? Cal. Code Civ. Proc. ? 437c(c).? The party moving for summary judgment carries both the burden of persuasion and the burden of production of evidence.? Evid. Code ?500; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.? A?defendant moving for summary judgment bears the burden of proving one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action.? Cal. Code of Civil Procedure ?437c(p)(2).
Defendant met his burden of making a prima facie showing there are no triable issues of material fact and he is entitled to summary judgment as a matter of law. Defendant has submitted evidence showing that Plaintiffs cannot establish the breach of duty element in their medical negligence cause of action.
The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. Munro v. Regents of Univ. of Cal. (1989) 215 Cal.App.3d 977, 983-984.
Defendant, through expert medical testimony of Dr. Stephen J. Pinney, a board?certified orthopedic surgeon establishes that the care and treatment rendered to Mr.?McCuan by Defendant Busfield fell within the standard of care.? The standard of care did?not obligate Dr. Busfield to consider a potential diagnosis of cancer. Or to investigate for that?diagnosis.
Plaintiffs failed to raise a triable issue of material by coming forward with conflicting medical expert evidence.? Munro v. Regents of Univ. of Cal.?(1989) 215 Cal.App.3d 977, 984-985. In fact, Plaintiff filed a Statement of Non-Opposition on April 10, 2015.
Plaintiff Amy McCuan?s cause of action for loss of consortium falls as the spouse?s underlying claim has no merit against this defendant.? Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 928.
Defendant has met both the burden of production and burden of persuasion.? Defendant established he is entitled to judgment as a matter of law.