Bushling v. Fremont Medical Center

• Decision Date: 02 April 2004
• Docket Number: No. C041673,C041673
• Citation: 11 Cal.Rptr.3d 653,117 Cal.App.4th 493
• Parties: Kevin BUSHLING, Plaintiff and Appellant, v. FREMONT MEDICAL CENTER et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

11 Cal.Rptr.3d 653

117 Cal.App.4th 493

Kevin BUSHLING, Plaintiff and Appellant, v. FREMONT MEDICAL CENTER et al., Defendants and Respondents.

No. C041673

Court of Appeal, Third District

April 2, 2004

Michael J. Zinicola, Sacramento, for Plaintiff and Appellant.

Lanius & Associates and Patrick A. Lanius, Rancho Cordova, for Defendant and Respondent Fremont Medical Center.

Holt & Associates and Eric S. Emanuels, San Francisco, for Defendant and Respondent Philip Caruso, M.D.

Schuering Zimmerman & Scully, Donna W. Low, Sacramento, and Steven M. McKinley for Defendant and Respondent Charles Rosson, M.D.

HULL, J.

Plaintiff Kevin Bushling, underwent surgery on February 16, 1999, to remove his gall bladder and to biopsy a mole on his abdomen. The following morning plaintiff began to experience pain in his left shoulder. Thereafter, he filed this action against the surgeon and the anesthesiologist who performed the February 16 surgery and the hospital in which it took place, alleging they had been negligent in his treatment and care, which resulted in the injury to his shoulder.

Defendants filed a summary judgment motion and produced evidence to show that they were not guilty of negligence in plaintiff's treatment or care. Plaintiff opposed the motion, relying primarily on declarations from two medical experts, Dr. Katz and Dr. Mar, to establish a triable issue of material fact. The trial court found that plaintiff's evidence on the motion did not raise a triable issue of material fact and entered judgment for the defendants. Plaintiff appeals.

Because the declarations of Dr. Katz and Dr. Mar failed to provide a factual basis or a reasoned explanation for the doctors' opinion that defendants were guilty of negligence, the declarations were of no evidentiary value. Plaintiff failed to establish a triable issue of material fact and we affirm the judgment.

FACTS AND PROCEEDINGS

On May 15, 2000, plaintiff filed his action for negligence, alleging that defendants Fremont Medical Center (Medical Center), Phillip Caruso, M.D., and Charles Rosson, M.D. negligently caused damage to plaintiff on February 16, 1999, in that they or their agents "assisted, performed, diagnosed and treated [plaintiff] in such a negligent manner during and after surgery so as to cause severe damage to [plaintiff's] shoulder" and that their conduct fell below the applicable standard of care. The complaint further alleged that defendants' negligence was "the substantial, proximate, direct cause" of the injury to plaintiff, which included nerve damage and loss of use of his shoulder. Each defendant denied the allegations and asserted numerous affirmative defenses. Later in the proceedings each defendant filed motions for summary judgment.

Dr. Caruso's Motion

On March 6, 2002, Dr. Caruso filed his motion for summary judgment. He asserted that the medical care he provided to plaintiff fell within the appropriate standard of care and that plaintiff could not establish a causal connection between his injury and the surgery or to his aftercare.

In his separate statement of undisputed facts Dr. Caruso asserted: When Dr. Rosson performed a laparoscopic cholecystectomy on plaintiff at the Medical Center on February 16, 1999, Dr. Caruso served as the anesthesiologist. Dr. Caruso provided general anesthesia services during surgery, including positioning, and assisted in plaintiff's transfer to the post-anesthesia care unit. He had no further contact with plaintiff.

Nothing occurred during the February surgery or during plaintiff's transportation from the operating room to have caused injury to his shoulder. Dr. Caruso's care and treatment was appropriate and within the standard of care.

Plaintiff saw Dr. Stephen Weber for an orthopedic consultation on June 22, 1999, at which time plaintiff complained of left shoulder pain related to his February operation. Dr. Weber subsequently performed surgery on plaintiff's shoulder, which included release of the transverse ligament over the nerve.

In support of his motion and his statement of undisputed facts, Dr. Caruso filed his declaration, stating, in general, that he was the anesthesiologist during plaintiff's surgery, that he had reviewed all of the medical records relating to that surgery, and that his care and treatment of plaintiff consisted of providing general anesthesia services to plaintiff and accompanying him to the post-anesthesia care unit. Dr. Caruso also declared that he was familiar with "the types of injuries which can occur due to positioning or trauma associated with surgical procedures involving general anesthesia, including laparoscopic cholecystectomies" and that "[t]here was nothing which occurred during [plaintiff's] surgery or transportation from the operating room which caused injury to his shoulder."

Dr. Caruso submitted the declaration of Dr. Ritu Jain, a board certified anesthesiologist, who stated that because she had been the anesthesiologist in laparoscopic cholecystectomies more than 100 times, she was familiar with the surgical and anesthesia procedures involved in plaintiff's surgery and with the types of injuries that can occur during them. Based on her experience, together with her review of all the records in the case and the deposition testimony of Dr. Weber, it was her opinion that Dr. Caruso met the standard of care in all his actions.

Dr. Caruso also submitted portions of Dr. Weber's deposition. Dr. Weber testified that during his orthopedic consultation with plaintiff on June 22, 1999, plaintiff reported that he went to sleep during the February operation in a supine position, then experienced disabling pain on waking. Dr. Weber determined that it was unlikely that plaintiff's injury was a traction injury, "given the fact that his entire procedure was probably performed supine." Dr. Weber thereafter operated on plaintiff's shoulder and found there was no tear to plaintiff's rotator cuff. Dr. Weber also said that "as with carpal tunnel at the wrist," he was able to release the transverse ligament, which is a tight ligament that runs over the top of a small notch in the scapula. That procedure allows more space in that area of the shoulder.

During the surgery Dr. Weber found nothing consistent with trauma to, or a traction injury of, plaintiff's shoulder. He testified that in his opinion, based on reasonable medical probability, "this nerve injury had no specific cause, i.e., positioning or other problems, and that's what the bulk of the literature suggests, certainly my personal experience with these injuries." Dr. Weber concluded that plaintiff's injury was "idiopathic", explaining: "[I]diopathic means we don't know. I think we do know what probably didn't cause it. That's what idiopathic is all about. [¶] I'd like to be better by saying idiopathically we don't know what causes it. That's what it is or another way to phrase idiopathic. I mean, there usually is no cause. [¶] "I don't know how to be more clear. It[']s a frustrating concept, but I think maybe I could phrase it idiopathic means there usually is no cause."

Dr. Rosson's Motion

Dr. Rosson's motion similarly asserted that his care and treatment of plaintiff was within the applicable standard of care and that plaintiff could not show a triable issue of fact as to causation.

Dr. Rosson's separate statement of undisputed facts asserted that plaintiff appeared at the emergency room at the Medical Center on February 13, 1999, with upper abdominal discomfort. After an evaluation by Dr. Richard Evans, plaintiff was admitted to the hospital. Dr. William Irvine asked Dr. Rosson to consult on plaintiff's case on February 15, 1999. Dr. Rosson determined that plaintiff suffered from acalculous cholecystitis and Gilbert's disease (benign liver disease). Dr. Rosson recommended plaintiff undergo an endoscopic cholecystectomy and possibly a cholangiogram.

Dr. Rosson explained to plaintiff that an open cholecystectomy might have to be performed if the doctors encountered problems with the endoscopic procedure. Plaintiff understood the risks and benefits of the procedure. On February 16, 1999, he signed a consent and authorization form.

Plaintiff arrived in the operating room at 11:55 a.m. on February 16, 1999. Anesthesia was started and Dr. Rosson made the incision at 12:25 p.m. The incision was closed and plaintiff left the operating room at 1:20 p.m. According to Dr. Rosson's contemporaneous operative report, plaintiff was transferred to the recovery room and he tolerated the procedure well. He remained stable throughout the day.

At 8:00 a.m. on February 17, 1999, plaintiff first complained of bilateral shoulder pain; medications were administered as ordered. He was discharged later that day after it was determined that his recovery from surgery was uneventful.

On February 23, 1999, during a follow-up examination with Dr. Rosson, plaintiff complained again of left shoulder pain. Dr. Rosson relieved the complaint with an injection of Marcaine and ordered a follow-up examination in one week.

On March 3, 1999, plaintiff returned to see Dr. Rosson and said he had "started physical therapy for his left shoulder pain. Dr. Rosson noted the pain had returned."

After plaintiff's discharge, Dr. William Hope, a neurologist, treated him on referral from an orthopedist. Dr. Hope determined as of May 17, 1999, that "plaintiff suffered from a suprascapular nerve palsy of the left shoulder."

Dr. Weber, a board certified orthopedic surgeon, evaluated plaintiff on June 22, 1999. Dr. Weber concluded that plaintiff suffered from a suprascapular neuropathy. He discussed its etiology with plaintiff and explained he found it "hard to believe" that the injury was a traction injury, because plaintiff's surgical procedure on February 16 was probably performed in the supine position. Dr. Weber noted that many such injuries were "idiopathic in nature, occurring for a variety of reasons after a variety of types of surgical...