McCarty v. Kaiser Foundation Hospitals CA2/4

Filed 4/26/23 McCarty v. Kaiser Foundation Hospitals CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

KODY McCARTY, B313796 Petitioner and Appellant, (Los Angeles County v. Super. Ct. No. 21STCP00455) KAISER FOUNDATION HOSPITALS et al.,

Respondents.

APPEAL from an order of the Superior Court of Los Angeles County, treated as an original petition for writ of mandate, Gregory Keosian, Judge. Petition denied. Franklin L. Ferguson, Jr. for Petitioner and Appellant Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson; La Follette, Johnson, DeHaas, Fesler & Ames, Brian M. Meadows and Myra Firth for Respondents.

INTRODUCTION

Kody McCarty appeals from an order denying his petition to vacate an arbitrator’s grant of summary judgment in favor of Kaiser Foundation Hospitals and Southern California Permanente Medical Group’s (collectively, Kaiser). Although an order denying a petition to vacate an arbitrator’s award is not appealable, we exercise our discretion to treat the appeal as a petition for writ of mandate. For the reasons discussed below, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

McCarty was a member of Kaiser’s health plan and executed an arbitration agreement under which he agreed to arbitrate claims of medical malpractice. In March 2019, McCarty served Kaiser with a demand for arbitration, alleging medical malpractice. McCarty alleged he had been “experiencing severe, painful symptoms emanating from an initial misdiagnosis, as well as a litany of prescribed medications, all originating from the actions of Dr. Jeffrey Siegel.” Kaiser moved for summary judgment, contending no triable issues of material fact existed regrading Kaiser’s compliance with the applicable standard of care in its treatment of McCarty. McCarty opposed the motion, and submitted declarations from two experts in support of his opposition. On October 28, 2020, after hearing oral argument, the arbitrator granted Kaiser’s motion. The arbitrator found McCarty’s experts presented no reliable foundation for their opinions, and concluded McCarty had not met his burden of showing a triable issue of fact exists. On November 12, 2020, McCarty moved for a new trial. The arbitrator denied the motion on January 11, 2021.