Engle, Al vs. Cantrell, Steven

Authority and Analysis

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. Sec. 437c(a).)

"The purpose of the law of summary judgment 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.)

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. Sec. 437c(c).)

The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.)

In determining whether the facts give rise to a triable issue of material fact, "[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment..." (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.)

"In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true." (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.)

However, if adjudication is otherwise proper the motion "may not be denied on grounds of credibility," except when a material fact is the witness's state of mind and "that fact is sought to be established solely by the [witness's] affirmation thereof." (Code Civ. Proc. Sec. 437c(e).)

Once the moving party has met their burden, the burden shifts to the opposing party "to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Code Civ. Proc. Sec. 437c(p)(1).)

"[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor." (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

"The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding." (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.)

"Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings." (Id.)

Medical Malpractice

In a medical malpractice action, a plaintiff must establish the following elements: "(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. [citations.]" (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

Applicable Standard of Care

A defendant moving for summary judgment in a medical malpractice action must "present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care." (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 317.)

Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert's testimony. (Id.)

Defendant's Expert - Standard of Care

In support of the motion, Defendant submits the declaration of Larry A. Pasquali, M.D.

The Court's review of Dr. Pasquali's declaration and CV indicate sufficient experience and education in the filed of ophthalmology. (Declaration of Dr. Pasquali P.P.1, 2.)

Dr. Pasquali indicates retention by Defendant Dr. Cantrell's counsel to provide expert opinion as to the standard of care applicable to the treatment and care provided by Dr. Cantrell to Plaintiff. (Declaration of Dr. Pasquali P.3.)

Dr. Pasquali indicates familiarity with the degree of skill ordinarily possessed by physicians in the care and treatment of patients such as Defendant, and an awareness that the standard of care requires that medical health providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar or like circumstances, and awareness that the failure to both have the requisite skill and knowledge or the failure to exercise that skill or knowledge is a violation of the standard of care. (Declaration of Dr. Pasquali P.2.)

The Court finds Dr. Pasquali qualified to offer opinions on the standard of care in this matter.

Dr. Pasquali indicates review of the medical records from Defendant and the operative reports from Sierra Ambulatory Surgery Center. (Declaration of Dr. Pasquali P.4.)

Dr. Pasquali thereafter provides a factual chronology of this matter and, thereafter, opines that Dr. Pasquali opines that Plaintiff met the criteria for cataract surgery, that Plaintiff consented to the surgery via written documents which advised that it is possible that a patient, following surgery, would require glasses and that this is especially true with patients with residual astigmatism and that, in this case, Plaintiff's vision improved to 20/20 after surgery. (Declaration of Dr. Pasquali P.6.)

The Court finds Defendant has carried the initial burden as to the standard of care and breach thereof.

Plaintiffs' Expert - Standard of Care

"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." (Munro v. Regents of University of California (1989) 215 Cal.3d 977, 984-985.)

Here, Plaintiff has failed to file an opposition and therefore has not come forward with sufficient conflicting expert evidence.

Causation

In order to establish that defendant's negligence was a "substantial factor" in causing injury, the plaintiff must prove the negligence was of itself sufficient to bring about that harm. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498.)

"The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical 'probability' and a medical 'possibility' needs little discussion. There can be many possible 'causes,' indeed, an infinite number of circumstances which can produce an injury or disease. 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 a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury." (Id.; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.)

Defendant's Expert

As with the duty issue, "causation must be proven within a reasonable medical probability based upon competent expert testimony." (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603.)

Dr. Pasquali declares further "that the legal standard for medical causation testimony is that causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case of causation. Put differently, I am aware that competent medical expert testimony is needed to establish that the action or inaction of a health care provider was a substantial factor in causing harm to the patient, and that said competent medical causation testimony can only be offered by expert medical testimony. It is my understanding that conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct." (Declaration of Dr. Pasquali P.2.)

As to causation, Dr. Pasquali opines that that no act or omission on the part of Dr. Cantrell violated the standard of care and therefore did not cause of contribute to, or was a substantial factor in causing, injury to Defendant. (Declaration of Dr. Pasquali P.7.)

The Court finds Defendant has met the burden on the issue of causation.

Plaintiff's Expert

As noted above, Plaintiff has failed to oppose this motion and therefore has not come forward with conflicting expert evidence to defeat summary judgment. (Munro, supra, at 984-985.)

Therefore, the Court grants summary judgment in favor of Defendant.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: LaRumbe-Torres, Josiah vs. Kaweah Health Medical Center et al