Kent v. Wu

• Decision Date: 02 December 2020
• Docket Number: B297303
• Parties: JOSHUA KENT, Plaintiff and Appellant, v. DAVID D. WU et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

JOSHUA KENT, Plaintiff and Appellant, v. DAVID D. WU et al., Defendants and Respondents.

B297303

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

December 2, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC682905)

APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher Lui, Judge. Affirmed.

Ferguson Case Orr Paterson and John A. Hribar for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson; Carroll, Kelly, Trotter, Franzen & McBride, Michael J. Trotter and Jessica Muñoz for Defendants and Respondents.

____________________ Plaintiff Joshua Kent filed a civil action for medical malpractice against defendant David D. Wu. M.D. Kent appeals the summary judgment entered in favor of Wu. He also appeals the denial of his motion for a new trial. He contends summary judgment was improper because 1) Wu failed to offer evidence that the epidural he performed on Kent was medically necessary; 2) Wu did not obtain informed consent for the epidural; 3) Wu offered only a conclusory expert declaration which was not sufficient to shift the burden to Kent to create a triable issue of fact; 4) the declaration of his expert was sufficient to create a triable issue of fact on causation. He also contends the trial court erred in denying the new trial motion for the same reasons the court erred in granting Wu's summary judgment motion. We affirm the judgment.

BACKGROUND

On July 25, 2016, Kent was in a motor vehicle accident. He was struck from behind and believes that, as a result, his right hand struck the steering wheel. Kent was thrown forward by the impact. On July 31, 2016, Kent visited a hospital emergency room and reported that since the accident he had been experiencing lower back and right wrist/thumb pain.

On September 1, 2016, Kent visited Dr. Wu, a pain management specialist. Dr. Wu injected steroids into several locations in Kent's right thumb area. On September 15, 2016, Kent returned to Dr. Wu who again injected steroids into several locations in Kent's right thumb area. On September 24, 2106, Dr. Wu performed a cervical epidural procedure or injection on Kent.

Kent's symptoms did not improve, and on October 31, 2016, he visited Dr. Eleonora Spokoyny, a neurologist. He complainedof ringing in his ears, constant headaches, dizziness, bilateral neck pain, mid back pain, lower back pain, right hand and wrist pain, and numbness in his right thumb. Dr. Spokoyny determined to a reasonable degree of medical probability that Kent's condition and symptoms were the direct result of his July 25, 2016 car accident.

Kent continued to visit doctors seeking relief for various symptoms he was suffering. In this course of this action, Kent has most frequently referred to his visits to Dr. Helm and Dr. Kluber, but in his interrogatory responses he also identified Dr. Omar Mora, Dr. Nick Halikis, Dr. Sang Le, Dr. Ali Elahi, Dr. Hannah Chung, and Dr. Moheimani.

Eventually, Kent filed this action against Wu, alleging Wu negligently performed the injections to Kent's right thumb area, resulting in "discoloration and injury" to the thumb. Kent also alleged the cervical epidural performed by Wu was not medically necessary. Kent did not allege any specific injury from the epidural, and did not allege that the epidural itself was the injury. Kent later stated that his neck pain increased after the epidural. Kent continued to visit doctors while this action was pending.

Wu moved for summary judgment on the ground that he did not cause Kent's injuries. After the trial court granted summary judgment in favor of Wu, Kent moved for a new trial on essentially the same grounds as he had opposed summary judgment. The motion was denied.

DISCUSSION

We review an order granting or denying summary judgment or summary adjudication independently. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) In making this review: " ' "First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party's showing has established facts which negate the opponent's claims and justify a judgment in movant's favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." ' " (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 229 (Claudio).) "' 'Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact.' " (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 409 (Assilzadeh).)

" '[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.' " (Claudio, supra, 134 Cal.App.4th at p. 230.)

In motions for summary judgment or adjudication, " 'all material facts must be set forth in the separate statement. "This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist." ' " [Citation.] Thus, when the 'fact' is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the court, because the statutory purposes are not furthered by unhighlighted facts." (North Coast Business Park v. Nielsen Construction Co (1993) 17 Cal.App.4th 22, 30-31.) "The corollary for an opposing party, unless it wishes to advance additional disputed or undisputed material facts, is that it clearly indicate which of the facts contained in the moving party's separate statement it disputes. (§ 437c, subd. (b)(3).) Each party also must supply a 'reference to the supporting evidence' in its separate statement (§ 437c, subd. (b)(1), (3))." (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1214 (Parkview Villas).)

" 'If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal theory applicable to this case, whether or not that theory was adopted by the trial court, and whether it was raised by the [defendant] in the trial court or first addressed on appeal.' " (Assilzadeh, supra, 82 Cal.App.4th at p. 409.)

There is no reporter's transcript for the hearing on the summary judgment motion. Kent contends none is needed and Wu does not disagree. The trial court provided a detailed statement of its ruling. We agree with the parties that the claims on appeal may be resolved by reference to the clerk's transcript alone.

I. In Opposing the Motion for Summary Judgment Kent Failed to Clearly Raise a Theory of Self-Evident Causation As to the Epidural and So That Theory Did Not Preclude Summary Judgment in Wu's Favor.

Kent contends the cervical epidural was medically unnecessary and the trial court erred in granting summary judgment because causation is "self-evident" when a doctor performs a medically unnecessary procedure. Causation may be self-evident from a medically unnecessary procedure, but a plaintiff's reliance on that theory is not self-evident. Kent has elected to proceed without a reporter's transcript, so we cannot ascertain whether he raised this theory at the hearing on the motion for summary judgment. The clerk's transcript, however, shows that Kent did not clearly raise or develop the claim that his injury from the epidural was based solely on the procedure being unnecessary. Thus, this undeveloped theory may not be raised now to challenge the summary judgment. (Insurance Co. of State of Pennsylvania v. American Safety Indemnity Co. (2019) 32 Cal.App.5th 898, 922.)

" 'The elements of a cause of action for professional negligence are failure to use the skill and care that a reasonably careful professional operating in the field would have used in similar circumstances, which failure proximately causes damage to plaintiff.' " (Cyr v. McGovran (2012) 206 Cal.App.4th 645, 651.) With respect to the element of proximate cause, "[i]n a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendant's negligence, there was a reasonable medical probability the plaintiff would have obtained a better result." (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.) Self-evident causation isnot in fact self-evident. It does not arise, as Kent seems to believe, out of thin air. It is "self evident that unnecessary surgery is injurious and causes harm to a patient. Even if a surgery is executed flawlessly, if the surgery were unnecessary, the surgery in and of itself constitutes harm." (Tortorella v. Castro (2006) 140 Cal.App.4th 1, 11.) If, in opposing summary judgement, the opposing papers raise a triable issue as to whether a physician deviated from the standard of care by unnecessarily performing surgery, that is sufficient also to raise triable issues with respect to the two remaining elements of a cause of action for...