Case Number: BC574259??? Hearing Date: January 20, 2017??? Dept: 37
CASE NAME: Guzman v. Pacific Alliance Medical Center, Inc., et al.
CASE NUMBER: BC574259
HEARING DATE: 1/20/17
CALENDAR NUMBER: 6
DATE FILED: 3/4/15
TRIAL DATE: 9/4/18
NOTICE: OK
PROCEEDING: Motion for Order to Require an Undertaking for Costs of $20,000
MOVING PARTY: Defendant Dana M. Scott, M.D. (joined by Defendant Pacific Alliance Medical Center)
OPPOSING PARTY: Plaintiff Rolando Guzman
COURT?S TENTATIVE RULING
The motion is granted with respect to Defendant Dana M. Scott, M.D. in the requested amount of $2,000, without prejudice to a further application. Plaintiff is directed to file an undertaking in that amount within 30 days. The motion is denied as to Defendant Pacific Alliance Medical Center, which joins in the motion but makes no evidentiary showing that it also has a reasonable possibility of obtaining judgment in this action. Counsel for moving Defendant to give notice.
STATEMENT OF THE CASE
This is an action for professional negligence against a medical physician and the medical center with which the physician was affiliated arising out of a procedure to remove a kidney stone. Plaintiff Rolando Guzman alleges that on December 16, 2013 he underwent a surgical procedure performed by Defendant Dana M. Scott, M.D., who failed to perform the procedure within the standard of care. Plaintiff alleges that the surgery was performed in an unclean environment and without sufficient functional equipment, and that Defendant Scott did not obtain informed consent, did not provide appropriate discharge medications, and did not appropriately respond to Plaintiff?s post-procedure complaints. Defendant Scott now moves the court for an order requiring Plaintiff to provide an undertaking for costs in the amount of $20,000. Defendant Pacific Alliance Medical Center joins in the motion.
DISCUSSION
I. Applicable Law: Code of Civil Procedure section 1030
Defendant brings the motion pursuant to Code of Civil Procedure section 1030, which governs motions for an order requiring nonresident plaintiffs to post an undertaking to ensure payment of costs to a prevailing defendant. The purpose of the statute is ? ?to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court?s jurisdiction.? ? (Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 913; accord, Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428 [deter frivolous lawsuits against California residents].) To that end, when the plaintiff in an action resides out of state, the statute authorizes the defendant to, at any time, ?apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney?s fees which may be awarded in the action.? (Code Civ. Proc., ? 1030, subd. (a).)
Section 1030 sets the standard for the court?s consideration of a motion for an undertaking. Such a motion shall be made on two grounds: ?that the plaintiff resides out of state . . . and that there is a reasonable possibility that the moving defendant will obtain judgment in the action.? (Id. ? 1030, subd. (b).) If after a hearing the court determines the two grounds for the motion have been established, an undertaking is mandatory: ?the court shall order that the plaintiff file the undertaking in an amount specified in the court?s order as security for costs and attorney?s fees.? (Id. ? 1030, subd. (c).) The consequence of the plaintiff?s failure to file the undertaking within the time allowed is that the action ?shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.? (Id. ? 1030, subd. (d).)
II. Analysis
A. Plaintiff Does Not Reside in California
It is undisputed that Plaintiff resides in Nevada. (Duggan Decl., Exh. A [response to form interrogatory 2.5], Exhs. E-F.) Accordingly, the first criterion for Defendant?s motion is satisfied, as Plaintiff is not a resident of California.
B. Defendant Shows a Reasonable Possibility of Obtaining Judgment
1. The ?Reasonable Possibility? Standard
To establish the second criterion, the moving defendant must show there is a ?reasonable possibility? he or she will obtain judgment in the action. (Code Civ. Proc., ? 1030, subd. (b).) Although the defendant must make an evidentiary showing, the ?reasonable possibility? standard requires only that the defendant present sufficient evidence to support a judgment in his or her favor, a lesser standard than that on summary judgment, for example. (See Shannon, supra, 164 Cal.App.3d at p. 914 [?Recognizing that it is impossible to predict in advance the outcome of a trial by jury, respondent, however, presented the best evidence available to divine the possible outcome of the trial de novo, which is all that section 1030, subdivision (a) of the Code of Civil Procedure requires?]; see also Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432 [?Respondents were not required to show that there was no possibility that appellant could win at trial, but only that it was reasonably possible that respondents would win?].)
2. Legal Principles Applicable to Medical Malpractice
The legal principles applicable to claims of medical malpractice are settled. The law requires that ?physicians and surgeons 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.? (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Generally, whether a physician has complied with the applicable standard of care is an issue of fact requiring 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], unless the conduct required by the particular circumstances is within the common knowledge of the layman.? ? (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)
The physician?s negligence also must be a ?substantial factor? in bringing about the patient?s injury. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-1315.) To establish causation, the patient must produce evidence, based on competent expert testimony, giving rise to at least the inference that ? ?in the absence of the defendant?s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result.? ? (Ibid.) ? ?A possible cause only becomes ?probable? when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was the result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.? ? (Id. at pp. 1315-1316.)
3. Defendant?s Evidentiary Showing Is Sufficient
i. Standard of Care
The parties present conflicting expert testimony on the issue of the standard of care applicable to the procedure undertaken by Defendant. The parties agree that the procedure was cystoscopy and left retrograde pyelogram, and that Defendant was to perform a ureteroscopy and laser lithotripsy to remove a kidney stone. The parties also agree that the procedure was terminated when Defendant determined there was no working and sterile flexible ureteroscope with which to perform the laser lithotripsy. Plaintiff?s claimed injuries allegedly resulted from Defendant?s decision to abandon the procedure in the absence of a functioning ureteroscope, and the parties dispute whether the applicable standard of care required Defendant herself to ensure that the ureteroscope was ready and fully functional before beginning the procedure.
Defendant presents the declaration of David Leff, M.D., a board-certified urologist who is competent to opine on the issues of the applicable standard of care and causation in this case. He sets forth his background in this area of medicine, which is extensive, and states, inter alia, that he is fully familiar with the performance of laser lithotripsy procedures. In Dr. Leff?s opinion, Defendant met the standard of care with respect to her care and treatment of Plaintiff. He asserts that ?[t]he standard of care did not require Dr. Scott to check the working condition or functionality of the flexible ureteroscope prior to its attempted use on 12/16/13. She was entitled to rely on the facility to provide her with functional equipment for the procedure.? (Leff Decl. ? 10.) Dr. Leff also opines that Defendant met the standard of care with respect to the issues of informed consent and post-procedure care. (Id. ?? 9, 11.)
Plaintiff relies on the declaration of Feliciano Serrano, M.D., a physician specializing in interventional nephrology (i.e., kidney transplants). Unlike Dr. Leff, Dr. Serrano does not provide background information about his experience and training, or whether he has experience in urology in general or with laser lithotripsy in particular. Instead, Dr. Serrano states only that he has reviewed the declaration of Dr. Leff. According to Dr. Serrano, even if it was the facility?s obligation to provide sterile and functional equipment, Defendant breached the standard of care by beginning the procedure without first inquiring of the facility whether the equipment was sterile, functional, ready, and available to her. Dr. Serrano states that Plaintiff was fortunate the procedure was not ?lifesaving? in nature, since Defendant began the procedure before she determined whether the necessary equipment was present and functioning in the operating suite. (Serrano Decl. ? 3.)
Unlike Dr. Leff, Dr. Serrano does not establish that he has the background or experience to provide an opinion on the standard of care applicable to a urologist performing a laser lithotripsy. The lack of information about Dr. Serrano?s background and experience is relevant to the weight and credibility of his opinion, particularly when compared with the opinion of Dr. Leff. For purposes of this motion, Dr. Serrano?s declaration fails to rebut Dr. Leff?s opinion about the standard of care, which is based on Dr. Leff?s experience as a urologist and familiarity with the procedure at issue. As discussed, according to Dr. Leff, a urologist performing a laser lithotripsy in a hospital setting may rely on the facility to provide sterile and functioning flexible ureteroscopes. It was not Defendant?s obligation to do so.
The court notes that according to Dr. Leff, Defendant had a discussion with a facility supervisor stating that it was necessary for the staff to check the equipment before the scheduling of a case, and that she wanted a representative from the company present at any subsequent procedure to ensure there would be a sufficient supply of functional equipment. (Leff Decl. ? 6(II).) Relying on these statements, Plaintiff contends that Defendant essentially acknowledges she breached the applicable standard of care because she failed to inquire of the staff whether the necessary equipment was available and functioning. However, Defendant shows that the standard of care applicable to her did not require her to ensure that the necessary equipment was available when she began the procedure, as this was the obligation of the facility. According to the standard of care articulated by Dr. Leff, Defendant?s statements do not show that she herself breached the standard of care, though they may suggest that the facility did not comply with its own obligations.
For these reasons, Defendant shows a reasonable possibility of prevailing on the issue of whether she breached the applicable standard of care, which would entitle her to judgment in this action.
ii. Causation
Dr. Leff also opines that Defendant, to a reasonable degree of probability, did not cause any of Plaintiff?s claimed injuries. (Leff Decl. ? 12.) Dr. Leff states that ?[n]o actions attributable to [Defendant] caused the equipment to malfunction and she had no option but to abort the procedure in such circumstances.? (Id. ? 13.) In contrast, Dr. Serrano does not offer an opinion on the issue of causation. Accordingly, for purposes of this motion, Dr. Leff?s opinion on causation is not rebutted, and Defendant shows a reasonable possibility of prevailing on the issue of causation, which also would entitle her to judgment in the action.
C. The Amount of the Undertaking
Because Defendant has established both criteria set forth in Code of Civil Procedure section 1030, an undertaking is mandatory. (Code Civ. Proc., ? 1030, subd. (c).) All that is left to determine is the appropriate amount of the undertaking. In this respect, the affidavit supporting the motion must set forth ?the nature and amount of the costs and attorney?s fees the defendant has incurred and expects to incur by the conclusion of the action.? (Code Civ. Proc., ? 1030, subd. (b).) Defendant seeks $20,000 for costs through trial, exclusive of non-recoverable attorney fees. (Duggan Decl. ? 5.) Some of the costs and anticipated costs are itemized as follows:
? $545 for Spanish language translator to depose Plaintiff
? $550 for court reporter to depose Plaintiff
? $12,000 (anticipated) to retain experts to prepare for trial and through trial
? $1,000 (anticipated) to depose Plaintiff?s expert
? $550 (anticipated) for court reporter to depose Plaintiff?s expert
? $6,200 (anticipated) for miscellaneous expenses, including the costs of trial
This is a total of $20,845, and the court notes that although Plaintiff opposes this motion, he does not contend that the amount of the undertaking is unreasonable. However, the trial in this matter is scheduled for September 4, 2018, and the court notes that Defendant has reserved a summary judgment hearing date for July 2018. All but the first two items of costs will be incurred no earlier than approximately 60 days before trial. While an application for costs may include ?anticipated? costs, the application is nonspecific concerning the details of these costs and is problematic in that regard. In addition, the court is mindful of not imposing an unnecessary burden on Plaintiff, in a situation in which the costs are likely not to be incurred for another 18 months. Accordingly, the court orders an undertaking in the amount of $2,000, subject to a further application by the Defendant closer to the time when the costs will actually be incurred and supported by further detail concerning such costs.
D. Joinder of Pacific Alliance Medical Center
Although Pacific Alliance Medical Center joins in this motion, it offers no evidence of the standard of care applicable to it, as opposed to the standard applicable to Dr. Scott. Because there is no evidence that the medical center has a reasonable possibility of prevailing on the merits, the motion is denied as to the medical center.
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1. However, the court?s determinations that the grounds for the undertaking have been met ?have no effect on the determination of any issues on the merits of the action . . . and may not be given in evidence nor referred to in the trial of the action.? (Code Civ. Proc., ? 1030, subd. (f).)