Case Number: BC607873??? Hearing Date: February 21, 2017??? Dept: 93
The hearing on defendant’s motion to compel responses to form interrogatories is CONTINUED to February 22, 2017, at 1:30 p.m. to meet other discovery motion for that same date.
Case Number: BC610181??? Hearing Date: February 21, 2017??? Dept: 93
ALBERT WEST,
Plaintiff,
vs.
LA CARE GROUP LLC, et al.,
Defendants.
Case No.: BC610181
[TENTATIVE] ORDER RE:MOTION FOR SUMMARY JUDGMENT
Defendant Venice Family Clinic?s Motion for Summary Judgment is GRANTED.
The court considered the moving papers. No opposition was filed.
BACKGROUND
On February 11, 2016, Albert West filed a complaint against Dr. Walter R. O?Brien, L.A. Care Group LLC, and Venice Family Clinic for negligence. Plaintiff alleges that, on August 18, 2015, at the Brotman Center, in Culver City, ?[a]t the advice of Dr. O?Brien, and the tacit approval of the staff at Venice Family Clinic and the insurance company, L.A. Care Group LLC, surgery was performed on [plaintiff?s] right knee without any pre-op imaging (x-ray, MRI, etc.). This operation was performed with merely [plaintiff?s] description of an accident the knee incurred years earlier. [Plaintiff] subsequently had no relief from pain in [his] knee, and two months after the date of surgery (and complaining to Venice Family Clinic physicians regarding the lack of the use of imaging), [he] paid cash obtained from [his] meager Social Security benefits for knee x-rays and consultation from another orthopedic surgeon, Dr. Soppe of Santa Monica. [Plaintiff] learned from him that [his] knee was arthritic, and that [his] pain would continue, despite the surgery Dr. O?Brien performed. . . . [Defendants] were reinforcing each other organizations [sic] negligence with negligence of its own, so as not to interfere with the making of profits and wages in an incompetent system of medical care for the indigent and helpless population of Los Angeles.? (Complaint, filed February 11, 2016, Cause of Action ? General Negligence.)
On February 16, 2016, the court granted defendant Walter O?Brien?s motion for terminating sanctions.
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 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
Defendant Venice Family Clinic requests that the court enter summary judgment in its favor and against plaintiff pursuant to CCP ? 437c on the grounds that there is no triable issue of material fact and defendant is 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.
Here, defendant Venice Family Clinic has filed the declaration of Elliot Felman, M.D. in support of its motion for summary judgment. Dr. Felman opines that, based upon his review of plaintiff Albert West?s medical records and Dr. Felman?s education, training and experience, the staff of Venice Family Clinic met the standard of care. Plaintiff was appropriately referred to an orthopedic surgeon due to his complaints of pain to his knee. The staff at Venice Family Clinic performed an appropriate pre-operative physical examination. The results of the pre-operative physical examination, laboratory studies, and EKG results were forwarded to Dr. O?Brien. There was no contraindication for the surgery performed by Dr. O?Brien. Pre-operative diagnostic studies are not ordered by the staff of a primary care provider such as Venice Family Clinic. Dr. Felman Decl., ? 6. He further opines that, based on a reasonable medical probability, no act or omission by the health care providers of Venice Family Clinic was the cause of any injury to Albert West. Id., ? 7. See also Defendant?s Separate Statement of Undisputed Material Facts 1-14.
The court finds that defendant has met its burden of showing that plaintiff?s cause of action for medical malpractice has no merit by showing that two elements of that claim (breach of duty and causation) cannot be established. 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). Plaintiff has not filed an opposition to defendant?s motion for summary judgment. Therefore, plaintiff has not met his burden to show a triable issue of material fact exists as to the cause of action for medical malpractice.
The court therefore finds that there is no triable issue as to any material fact and that defendant Venice Family Clinic is entitled to a judgment as a matter of law. CCP ?437c(c).
Accordingly, the motion for summary judgment is GRANTED.
Defendant is ordered to give notice of this ruling.
IT IS SO ORDERED.
DATED: February 21, 2017
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court