| Re: | Gutierrez v. Janda |
| ??????????? ??????????? ?
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Court Case No. 14CECG02223 |
| Hearing Date:
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December 21, 2017 (Dept. 501) |
| Motion: | Defendant?s Motion for Summary Judgment, or in the alternative, Summary Adjudication |
Tentative Ruling:
To grant the motion, but to overrule all of defendant?s evidentiary objections. Defendant is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court’s summary judgment order.
Explanation:
??????????????????????? Evidentiary Objections:
All of defendant?s evidentiary objections are overruled because they are not objections to evidence. Objections must be made to the evidence supporting the fact, and not to the facts stated on the separate statement.? The fact stated on the separate statement is never evidence in and of itself. Even a fact that is not disputed is not evidence, and is not considered a judicial admission. (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1224; Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 747?Agreement that a fact on separate statement is ?undisputed? is a concession only for purposes of the summary judgment motion.)
Analysis of Merits:
As the moving party, defendant bears the initial burden to show that plaintiff cannot establish one or more elements of the at-issue cause of action or to show that there is a complete defense.? (Code Civ. Proc. CCP ? 437c, subd. (p)(2).) Only after the moving party has carried this burden of production does the burden shift to the other party to show that a triable issue of one or more material facts exists ? and this must be shown via specific facts and not mere allegations.? (Id.)
Medical providers must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances.? (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1.)? Thus, in a medical malpractice action, the plaintiff must establish: 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. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
Typically, when defendant in a medical malpractice action moves for summary judgment and supports motion with an expert declaration opining that his conduct fell within the community standard of care, he is entitled to summary judgment unless plaintiff comes forward with conflicting expert evidence.? (Munro v. Regents of Univ. of Cal. (1989) 215 Cal.App.3d 977, 983-985.) An expert?s declaration submitted in connection with a summary judgment motion must not be speculative, lacking in foundation, and must be made with sufficient certainty.? ?It is sufficient, if an expert declaration establishes the matters relied upon in expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and the bases for the opinion. [Citation.]?? (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 718.)?? A defendant?s expert declaration must be detailed, explaining the basis for the opinion and the facts relied upon.? (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125; Kelley v. Trunk (1998) 66 Cal.App.4th 519, 521, 524?525.)? Moreover, because expert opinion may not be based on assumptions of fact that are without evidentiary support and experts may not recite hearsay as fact, properly authenticated medical records reviewed by the experts must be included in the motion for summary judgment.? (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743.)
Here, Dr. Marder?s declaration is sufficient to meet defendant?s burden of production on this motion. He adequately set forth his qualifications to give expert testimony, and plaintiff did not challenge these. His declaration is sufficiently detailed in establishing the facts relied on, and gives a reasoned explanation of the bases for his opinion. Plaintiff?s argument that Dr. Marder failed to sufficiently address all salient issues in the June 10, 2013 MRI report is unpersuasive, since plaintiff failed to establish through expert testimony that the facts she contends he failed to address are material to the issues of the breach of the standard of care or causation. Dr. Marder?s declaration reasonably implies he set forth the findings of the MRI he found to be crucial: he stated that the ?new films revealed, among other things, a ?full thickness tear?[etc.]? (Marder Decl., ?11g, p. 5:12, emphasis added.) In other words, he did not fail to read and appreciate the entire report, but only discussed in his declaration what he believed was relevant and material. For plaintiff to establish that other findings were also material she needed to present her own expert testimony; plaintiff?s counsel?s opinion of what the expert should have addressed is not admissible evidence. (Schaefer v. Manufacturers Bank (1980) 104 Cal.App.3d 70, 76?Plaintiff?s counsel was not a competent affiant regarding facts admissible at trial; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984?Expert testimony required to establish defendants (physicians) failed to meet standard of care.)
Plaintiff also failed to establish that the medical record on which Dr. Marder relied was incomplete and/or falsified. Evidence that the record was falsified or unreliable might be sufficient to support disregarding an expert?s opinion made in reliance on that record, as having no evidentiary value. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123?Expert opinion is worth no more than the reasons and facts on which it is based.) Given the character evidence plaintiff presented, and given the drastic nature of a ruling granting summary judgment in favor of defendant, the court has carefully examined the evidence and plaintiff?s arguments assailing the trustworthiness of the medical record. However, on balance the court cannot find that the evidence supports finding that the record is unreliable or has been falsified in any way.
Plaintiff?s characterization of Dr. Janda?s testimony regarding the medications he prescribed post-surgery was misleading. While he did testify he couldn?t remember what he prescribed short of seeing his notes, but he also testified that plaintiff was getting medications from Dr. Singh, that he (defendant) was giving her Soma for her muscle spasms, and that he ?probably? gave her antibiotics after the surgery because ?that?s my standard of care.? This does not tend to show incomplete or falsified records.
The Notes plaintiff singled out, from June 19, 2012, June 29, 2012, and August 2, 2012, likewise do not tend to indicate falsified or incomplete records. The fact that Dr. Janda could not remember during his deposition whether or not he saw plaintiff on these three specific dates is not remarkable assuming he has a busy practice, nor is it remarkable, from a layperson?s perspective, to conceive of a patient sometimes being seen by the Physician?s Assistant (?PA?) and not being seen by the doctor. Many of the notes plaintiff does not single out appear to be written (i.e., dictated) by Dr. Janda, and many of these document plaintiff?s medications. The fact that the PA electronically signed these three notes weeks after the visits does not prove they were made up out of whole cloth (if that is what plaintiff is attempting to suggest); in fact it appears to indicate a computer system which does not allow the doctor or PA to sign a note on a later date without that fact being clearly reflected. If anything, this appears to indicate the notes were written on or near the day of the visit, reinforcing their reliability. And as for plaintiff?s argument that Dr. Janda insisted at his deposition that he discussed home exercises with plaintiff on August 2, 2012, when the note does not reflect this, first of all this does not make the note unreliable as to what it does state. Second, his testimony at p. 24:18-19 of his deposition does not clearly state he advised her that day regarding home exercises; in context it could also be read to simply be his statement that this advice was included in her treatment. Several of the notes on other dates do refer to this advice.
As for the Notes on April 12 and May 10, 2013, regarding plaintiff?s request for an injection in her shoulder, while the April 12 note does not expressly state an injection was given, the record at least implies it was. The failure to document the injection does not tend to prove the Note on May 10th (that the injection relieved plaintiff?s pain) was a completely false record. As for plaintiff?s testimony that she never told Dr. Janda she was getting better, even if this was deemed to raise a disputed fact (i.e., Dr. Janda said she told him on some days that she was better; she denies this), this does not create a disputed issue of material fact on the issues of breach of the standard of care or causation. Further, it must be noted that even while the May 10th note says the injection helped, it also notes that plaintiff had ?multiple complaints of pain in her neck, in her back, in her knees, and in her shoulders,? that she had difficulty gripping with her right hand, and that she was reluctant to do a full range of motion with her right shoulder. In other words, it does, in fact, reflect plaintiff?s report of pain.
In fact a close inspection of the entire record does not support plaintiff?s contention that defendant failed to document her complaints. In fact, the notes are replete with such documentation. The notes in June 2012, right after the first surgery reflect that she was healing well, could shrug her shoulders (on June 19, 2012), but these notes did report she said she had pain. A note on July 31, 2012, did reflect she was doing ?considerably better,? with less pain, but the note for August 28, 2012, reflects she was in pain and could not afford physical therapy (so they sent her home with instructions for home exercises). The note on October 9, 2012, reflects she was in pain and taking morphine and Soma, and that she needed more therapy, and if she was not better they should do ultrasound. The note from November 9, 2012, reflected her shoulder was doing better, but it documented her complaints in other areas (sciatic pain, and pain in her neck and back), and her need to continue her home exercises. The notes from the beginning of 2013 likewise began to document her increasing pain. On January 4, 2013, she was in ?total systems pain? (i.e., pain all over, not just in her shoulder) and she did not want to move her shoulders at all. On April 12, 2013, she was in such pain she insisted on an injection, and on May 10, 2013, the note states the injection helped, but it still reported that she said she had pain in her shoulder.? On June 4, 2013, she reported that everything was hurting, and that she thought she ?ripped something? when lifting her laundry. On June 21, 2013, Dr. Janda went over the MRI results with her, and noted she said she was in more pain and wanted the operation. So, while the record does report some improvement in some of the visits, and on this motion plaintiff denies there was ever any improvement, there is no support for her contention that defendant failed to document her complaints.
As for plaintiff?s contention that Dr. Janda falsified his report when he stated in the June 4, 2013, Note that she told him she reinjured her shoulder when lifting her laundry, plaintiff has misstated her testimony. According to the deposition pages that were shown to the court (pp. 69:1-14 and 70:7-12), plaintiff was not asked whether she reported the ?laundry incident? to Dr. Janda, so she never denied reporting it. She was asked if she remembered reinjuring her shoulder and she said no, she did not. Further, the fact that Dr. Janda?s records report the patient saying different things on different days is not indicative of a false record, but rather that he simply related what the patient told him at various times: on June 4, 2013, he said she mentioned the laundry incident and that she ?ripped something,? but on June 21, 2013, she told him (and he related in his note) that she wondered how she had a tear in her shoulder, and he followed with what was apparently his opinion: that she ?probably did some activities to aggravate her right shoulder and tissues may not have been of the best quality.? This is consistent with his operative note that his patient ?cannot really remember what she has done? to reinjure the shoulder. This evidence fails to show a falsified record.
After a detailed examination of the medical record, the court finds no support for deeming it to be falsified or untrustworthy. Defendant met his burden of production with the declaration of Dr. Marder that Dr. Janda met the standard of care in his care and treatment of plaintiff, and that he did not cause or contribute to her injuries or harm. Plaintiff failed to offer admissible evidence in the form of expert testimony to controvert this testimony. Therefore, there is no triable issue of material fact on essential elements of plaintiffs? claim, so summary judgment is appropriate.
?Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure ?section 1019.5(a), no further written order is necessary.? The minute order adopting this ruling will serve as the order of the court, and service by the clerk of the minute order will constitute notice of the order.
Tentative Ruling ?? ?
Issued By:???????????????????????? MWS???????????????????? on????? 12-20-2017????????????? ?.
(Judge?s initials) ?????? ??????????? (Date)