DEFENDANTS GAREY LEE WEBER AND CALIFORNIA FOOT AND ANKLE INSTITUTE?S MOTION FOR SUMMARY JUDGMENT
Defendants? Motion for Summary Judgment is DENIED.
Defendant Garey Lee Weber moves for summary judgment of Plaintiff?s sole claim for medical negligence on the ground that Weber?s care of Plaintiff was within the standard of care and did not cause or contribute to Plaintiff?s claimed injuries.? Defendant California Foot and Ankle Institute (?CFAI?) moves for summary judgment on the ground that Weber is the only physician employed by CFAI and because his treatment was within the standard of care, CFAI has no liability.
A defendant moving for summary judgment or adjudication must show that that there is no triable issue of material fact. CCP ?437c. The defendant can do so by showing that the causes of action in the complaint have not merit, because one or more elements of the plaintiff?s cause of action cannot be established.? CCP ?437c (o)(1), (p)(2). Once the moving defendant has met this burden, the burden shifts to the plaintiff to establish the existence of triable issue of material fact. CCP ?437c (p)(2).
The Court must view the evidence ?in light most favorable to the opposing party.?? Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 843.? Because of the drastic nature of summary judgment, all doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment.? Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355.
Plaintiff?s claim is for professional negligence.? The elements of professional negligence 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) 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 negligence.? Galvez v. Fields (2001) 88 Cal. App. 4th 1410, 1420.
?The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment a reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.?? Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 983-984.
?The standard of care against which the acts of a medical practitioner 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, unless the conduct required by the particular circumstances is within the common knowledge of laymen.? Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.
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.? Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of Univ. of California (1989) 215 Cal.App.3d 977, 984-985.
As to causation, it must be proven ?within a reasonable medical probability based on competent expert testimony.? Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1486.? Plaintiff must show that his alleged injuries or damages were caused by something Defendant did or failed to do which was a substantial factor in bringing about the harm alleged.? CACI 500.
Defendants met their initial burden of establishing that the treatment of Plaintiff met the standard of care, by way of the expert declaration of John Schuberth, D.P.M. (?Schuberth Dec.?) who declares that he reviewed Plaintiff?s medical records and opines:
- ?Dr. Weber?s surgical recommendation and plan were appropriate and within the standard of care.?
- ?Dr. Weber?s surgical techniques during the December 14, 2012 and December 28, 2012 surgeries were appropriate and within the standard of care.?
- ?Dr. Weber properly documented the patient?s complaints and provided appropriate recommendations with regard to follow up care and treatment which was within the standard of care.?
- ?Dr. Weber?s post-operative care and treatment of Joswick-Terry was appropriate and within the standard of care.?
- ?Dr. Weber?s care and treatment of Joswick-Terry complied at all times with the standard of care.?
- ?Dr. Weber did not cause any of the Joswick-Terry?s injuries through the two surgical procedures or his post-operative care.?
- ?I do not believe that Dr. Weber or CAFAI caused any injury to Joswick-Terry.?
Schuberth Declaration, ?? 8A, 8C, 8C, 8E, 8G and 8H.
In response, Plaintiff provided substantial evidence showing disputed issues of fact concerning whether Dr. Weber?s treatment and care fell below the standard of care and contributed to Plaintiff?s injuries.? See Plaintiff?s response to UMF 24-30 and Declaration of Tye J. Ouzounian, M.D. (?Ouzounian Dec.?) at ?? 2-14.?? Dr. Ouzounian also reviewed Plaintiff?s medical records and in ? 10 of his declaration, he identifies the specific ways he believes Dr. Weber violated the standard of care.? Further, in paragraphs 11-14, he opines:
- ?Plaintiff, Jonni Joswick-Terry suffered additional pain and suffering, and her injuries were made worse as a result of the violations of standard of care on the part of Defendants, Garey L. Weber, D.P.M. and California Foot and Ankle Institute.?
- ?Plaintiff, Jonni Joswick-Terry?s injuries were caused by the conduct and treatment provided by Defendants, Garey L. Weber, D.P.M. and California Foot and Ankle Institute.?
- ?Plaintiff currently complains of symptoms, including stiffness in her toes and limitation range of movement in her big toes that are attributable to the procedures performed by Dr. Weber on forefoot of Plaintiff?s feet on December 12, 2012 and December 28, 2012.?
- ?[W]ithin a reasonable degree of medical probability, the substandard care provided to Plaintiff by moving Defendant was a substantial factor in causing a worsening of Plaintiff?s medical condition and related injuries and damages to Plaintiff.?
- ?As a result of said negligence, and to a reasonable medical probability, Plaintiff suffered significant additional pain and suffering, worsening and increased severity of her symptoms, worsening of her medical conditions, further complications, among other things.?
In reply, Defendants argue that Dr. Ouzounian?s declaration is not supported by reason and is based on mere speculation, conjecture, imagination or guesswork.? In support of this contention, Defendants cite to Kelley v. Trunk (1998) 66 Cal.App.4th 519.? Ironically, in Kelley, the court found that a declaration very similar to that submitted by Defendants in support of their motion was insufficient to justify summary judgment.? The expert declarations in this case are based on the same materials and support their conclusions with the same level of detail.? If anything, Dr. Ouzounian?s declaration is slightly more specific as to the conduct and causation.
Given the competing opinions of the experts, and conflicting evidence, summary judgment is not warranted.? Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th 170, 176 (?These dueling expert opinions created a factual dispute not appropriately resolved by way of summary judgment?); CACI No. 221.
Plaintiff?s evidentiary objections are overruled.
PLAINTIFF?S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
Plaintiff?s motion for leave to file an amended complaint is GRANTED.
A party seeking leave to amend a pleading already at issue must seek leave of court by way of noticed motion (CCP ?473(a)(1)) and must comply with the requirements of CRC 3.1324.? Although Plaintiff has not fully complied with the requirements of CRC 3.1324(a), Defendants do not object to the non-compliance and the motion will be considered on its merits.
Motions for leave to amend a pleading are directed to the sound discretion of the Court.? CCP ?? 473(a)(1) and 576.? Courts may permit amendments at any stage in the proceedings, up to an including trial, so long there is no prejudice to the adverse party.? Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.? Mere proximity to trial is not sufficient grounds upon which to deny leave to amend, particularly where the moving party is the plaintiff.? Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 967.
Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit amendment of the pleadings. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [?the policy favoring amendments is so strong that it is a rare case in which denial of leave to amend can be justified?]; Central Concrete Supply Co v. Bursak (2010) 182 Cal.App.4th 1092, 1101-1102 [?Courts must apply a policy of great liberality in permitting amendments to the complaint when no prejudice is shown to the adverse party?].
Plaintiff seeks leave to file a First Amended Complaint adding three new causes of action:? medical battery, intentional misrepresentation and unfair business practices in violation of Business and Professions Code ? 17200.? According to Plaintiff, the amendments arise out of information which came to light in February 2017 when an expert witness ?expressed concerns about the sufficiency of the consent provided by [Plaintiff] for the various surgeries performed on her by Defendants.?? Defendant opposes, claiming that Plaintiff was aware that Dr. Weber had lost his license as early as April 2014.? The two events are separate and, according to Plaintiff, the loss of the license is only part of the underlying reason for the new claim.? Dinicola Dec., ? 4.
Defendants also oppose the motion on grounds that trial is only two months away and they will be prejudiced by the amended complaint because it will require a continuation of trial date and create additional expense.??Defendants claim they will need substantial additional discovery but it is unclear from the pleadings why, for example, the deposition of Plaintiff?s husband would need to be reopened in connection with these claims.
The strong policy in favor of allowing amendments compels the Court to grant the motion.? This is not the ?rare case? in which denial can be justified.? However, the timing of the motion may impact Defendants in some respects.? Accordingly, the trial date is continued to _____________________(counsel to advise re available dates) so that Defendants may conduct additional discovery and, if appropriate, file summary judgment/adjudication motions addressing the new causes of action.? Further, to the extent that additional discovery is needed, Defendants may bring a motion before this Court seeking an order requiring Plaintiff to pay for such discovery.? That motion will be decided on its own terms and this order does not reflect how the Court will rule on such motion, if any.
Plaintiff has ten days in which to file and serve the First Amended Complaint attached to her motion.
Plaintiff to give notice.