Powell v. Kleinman

• Decision Date: 23 May 2007
• Docket Number: No. F049033.,F049033.
• Court: California Court of Appeals Court of Appeals
• Parties: Dennis POWELL, Plaintiff and Appellant, v. Alan KLEINMAN, M.D., Defendant and Respondent.

59 Cal.Rptr.3d 618

151 Cal.App.4th 112

Dennis POWELL, Plaintiff and Appellant, v. Alan KLEINMAN, M.D., Defendant and Respondent.

No. F049033.

Court of Appeal, Fifth District.

May 23, 2007.

Law Offices of David J. St. Louis and Lynette D. Hecker for Plaintiff and Appellant.

Peterson & Bradford, Thomas R. Bradford, Burbank, and Lisa Kralik Hansen, for Defendant and Respondent.

OPINION

GOMES, J.

Plaintiff Dennis J. Powell (Powell) sued defendants Alan Kleinman, M.D., Roy J. Levin, M.D. and Clovis Urgent Care Medical Center for medical malpractice arising from injuries he sustained when defendants failed to promptly diagnose and treat an injury to his spinal cord. Dr. Kleinman brought a motion for summary judgment supported by his and another expert's declarations that he met the applicable standard of care and did not cause Powell's injuries. The trial court granted the motion after sustaining Dr. Kleinman's evidentiary objections to the expert declaration Powell submitted in opposition to the motion.

On appeal, Powell asserts his expert witness's declaration opposing summary judgment was improperly excluded from evidence, and the declaration establishes triable issues of material fact on whether Dr. Kleinman breached the standard of care and causation. As we shall explain, we agree and will reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 17, 2001, Dr. Kleinman, a general practice physician who independently contracted with the Clovis Urgent Care Medical Center (Center) as a general practitioner, was the physician on duty when Powell came to the Center. Powell's patient registration form lists his reason for the visit as "pain in back, chest and stomach." Dr. Kleinman performed a physical examination and found no evidence of radiation, referred pain, spinal cord compression or radiculopathy. He noted that Powell's sensation and strength were intact and straight leg raising testing was normal. X-rays of Powell's chest and left ribs were taken, which showed no evidence of fracture or abnormality other than an incidental anomaly on one rib. Dr. Kleinman diagnosed Powell with posterior rib pain due to a probable old back strain, and prescribed pain medication and a muscle relaxant. Dr. Kleinman advised Powell to return in one week to be rechecked, and Powell was given a follow-up appointment for September 23, 2001.

On September 19, 2001, Powell returned to the Center and was seen by Dr. Roy Levin, with no change in diagnosis. Dr. Levin ordered an intramuscular injection, home rest, physical therapy and a MRI scan of the T-spine, and advised Powell to return to the Center on September 23 for his scheduled appointment with Dr. Kleinman.

On Sunday, September 23, 2001, Powell returned to the Center and was seen by Dr. Kleinman. Based on Powell's new and different complaints, Dr. Kleinman suspected he had a possible spinal cord compression. In order to rule out spinal cord compression, Dr. Kleinman arranged for Powell to be transferred to a hospital emergency room that had a neurosurgeon on duty on a Sunday for purposes of evaluation, management and follow-up. Dr. Kleinman telephoned Clovis Community Hospital and was told there was no neurosurgeon available or on duty that day, but a neurosurgeon was on call at Fresno Community Hospital (FCH). Dr. Kleinman telephoned FCH and spoke with a triage nurse, to whom he described Powell's condition and said he was transferring Powell to FCH specifically to rule out spinal cord compression. Dr. Kleinman also filled out a written transfer form to the FCH emergency department, to the triage nurse's attention, which stated the transfer was to "rule out spinal cord compression" and Powell was being referred for "evaluation, .management and follow-up." After making the referral, Dr. Kleinman did not receive a report or information from anyone at FCH indicating Powell was experiencing either spinal cord compression or anything other than a back sprain. Accordingly, Dr. Kleinman assumed staff at FCH had ruled out spinal cord compression on September 23, 2001, in accordance with his written transfer form.

Dr. Kleinman next saw Powell at the Center on October 1, 2001, at 6:35 p.m. The MRI Dr. Levin had ordered had been performed on September 27, 2001. According to Dr. Kleinman, while he was aware the MRI had been performed, the MRI report was "not available" to him and he did not have any information regarding the results that day. Powell still was experiencing back pain and other symptoms. Dr. Kleinman advised Powell to take his prescribed medications and return to the Center in one week for a recheck. While the radiologist had interpreted the MRI on September 27, the report was not transcribed until September 28 and signed by the radiologist on October 1 at 7:23 a.m. The report did not arrive at the Center until about 10:16 p.m. on October 1, as shown by the fax date stamp, which was after the Center closed at 7 p.m.

Dr. Kleinman did not work at the Center again until October 8, as he was not scheduled to work until then. Other physicians, however, were on duty or on call at the Center between October 1 and October 8, 2001. On October 8, 2001, Powell came to the Center at 7:30 p.m. for follow-up of the MRI results, at which time Dr. Kleinman first became aware of the MRI report, which reflected a mass or herniated nucleas pulposis at T8-9. Dr. Kleinman immediately referred Powell to an orthopedist, Dr. Timothy Watson. Powell sought no care or treatment from Dr. Kleinman after the October 8 visit.

This Lawsuit

Powell thereafter sued Drs. Kleinman and Levin, as well as the Center, alleging they undertook employment to diagnose and provide Powell treatment and proper medical care, but they lacked the necessary knowledge and skill to properly care for his condition and were negligent and unskillful in the diagnosis, treatment and prescription procedures used in treating his condition. The complaint specifically alleges that defendants negligently diagnosed, failed to diagnose and failed to treat an injury to his spine so as to cause him permanent injury and damage.

The Summary Judgment Motion

Dr. Kleinman moved for summary judgment based on Powell's inability to establish he breached the standard of care and caused or contributed to his injuries. In support of the motion, he presented his own declaration, as well as the declaration of Dr. Lawrence Dardick, a board certified family practice physician. Dr. Kleinman related in his declaration the facts regarding Powell's care and treatment at the Center from his first visit on September 17, 2001 through his final visit on October 8, 2001, some of which are set forth above. Dr. Kleinman opined that based on the facts and his professional education, training and experience, the care and treatment he provided to Powell at all times met the applicable standard of care, the diagnoses he made were correct and reasonable given the history provided, and he undertook and implemented timely and appropriate steps for consultation request or referral to FCH on September 23, 2001 and to a back specialist on October 8, 2001. He further opined that the care and treatment he rendered Powell did not cause or contribute to Powell's alleged injuries or damages.

Dr. Dardick, who reviewed the medical records, declarations, and depositions in the case, summarized the facts disclosed by the medical records. Dr. Dardick opined that Dr. Kleinman's chart and progress notes appeared to reflect adequate documentation of Powell's September 17, 2001 visit, and based on Powell's chief complaint, history and physical examination, his diagnosis and treatment plan were reasonable. Dr. Dardick further opined that it was a reasonable treatment plan to refer Powell to FCH to rule out spinal cord compression on September 23, 2001. With respect to Dr. Kleinman's October 1, 2001 examination of Powell, Dr. Dardick opined Dr. Kleinman's management of Powell was appropriate. Finally, Dr. Dardick opined it was reasonable for Dr. Kleinman to immediately refer Powell to Dr. Watson on October 8, 2001. Dr. Dardick concluded that based on the facts, his review of the medical records and deposition transcripts, and his professional education, training and experience, in his opinion Dr. Kleinman's care and treatment of Powell at all times met the applicable standard of care, and there were no facts in the documents he reviewed that indicated Dr. Kleinman violated the standard of care or caused Powell's alleged injuries.

Powell's Opposition to the Motion

In opposition to the motion, Powell presented the declaration of Dr. Daniel W. Meub, a board certified neurosurgeon who stated he was familiar with the applicable standard of care. Dr. Meub explained the applicable standard of care in paragraph 10: "The standard of care dictates that, when a patient presents with symptoms of weakness, the physician should have a high suspicion of the spinal cord being compromised. The standard of care further dictates that when spinal cord compression is suspected an MRI must be ordered on an emergent basis, i.e. STAT. Being ordered STAT, the MRI must be performed, read and the results thereof must be acted upon immediately. A physician with knowledge of an MRI having been ordered with Powell's symptoms must follow-up for timely results of the MRI and must act on its findings—i.e. with immediate referral to a neurosurgeon for surgical intervention. When a spinal cord is compromised, such as Powell's was, surgical intervention is mandated by the standard of care."

Based on his review of the medical records, declarations, and depositions in this case, Dr. Meub opined that Dr. Kleinman breached the standard of care in three different ways. First, he opined in paragraph 9: "It is my opinion that Dr. Kleinman fell below the standard of care in his care and treatment of Powell. The record clearly indicates that by September 19, 2001, Powell needed help walking which is...