A A A 

Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Michael Franklin, et al. v. John Park MD, PhD, et al.

Case No: 16CV01531
Hearing Date: Mon Jan 08, 2018 9:30

Nature of Proceedings: Motion Summary Judgment (3)

 

 

 

# 16CV01531  Michael Franklin vs John Park MD, PhD,

 

 Hearing Date: 1/8/18                                                          

MATTERS:  Motion by defendant Sansum Clinic for summary judgment

                        Motion by defendant Jeffrey Yim, M.D. for summary judgment

                        Motion by defendant Sam Ahmad, M.D. for summary judgment

          

ATTORNEYS:          

Matthew B.F. Biren / Andrew G.O. Biren / John A. Roberts of Biren Law Group for plaintiff

James C. Schaeffer / Jennifer K. Bicknell of Boyce Schaeffer Mainieri  LLP for defendants Sansum Clinic, Sam Ahmad, M.D., and Jeffrey Yim, M.D.                   

 

TENTATIVE RULINGS: The  three motions are  granted.

 

 

Background: This is a medical malpractice action, based upon injuries and damages apparently sustained by plaintiff Michael Franklin while undergoing an L5-S1 discectomy, conducted by Dr. John Park. During the surgery, there had been an unintended puncture of the lateral thecal sac, to which a dural patch was applied, thereby apparently stopping the unintended CSF leak. It was later discovered that patch had leaked, causing plaintiff’s injuries and damages.

 

 

The current motions for summary judgment were filed by Sansum Clinic, and its employee physicians Jeffrey Yim, M.D. and Sam Ahmad, M.D., both of whom provided some follow-up care to plaintiff, along with Dr. Park. There is tremendous overlap in the statements of fact for the three motions. The statement submitted by Sansum, however, largely includes all necessary facts for all three motions, and will therefore be recited herein.

 

Motions:

 

(1)        Facts

 

On December 22, 2014, the plaintiff presented to Cecelia O'Dowd, M.D. at Sansum Clinic, with complaints of low back pain. Dr. O'Dowd ordered an MRI of the plaintiffs spine which showed a

large right paracentral extrusion at L5-S1 compressing both S 1 nerve roots. These results were discussed with the plaintiff and he was given the name of neurosurgeon, John Park, M.D. The plaintiff made an appointment with Dr. Park for January 8, 2015.

 

On January 8, 2015, the plaintiff presented for an initial office visit with Dr. Park. His complaints included back pain with associated pain radiating down into the right hamstring and calf. A recent prescription of oral steroids improved his low back pain; however, the plaintiffs leg pain had worsened. At this appointment, the plaintiff denied any numbness or weakness as well as any problems with his bowel or bladder. Dr. Park reviewed the plaintiffs MRI from December 22, 2014, and recommended physical therapy and, if physical therapy did not alleviate the plaintiffs pain, he noted he would discuss performing surgery. On January 14, 2015, the plaintiff again presented to Dr. Park. At this appointment, the plaintiff was experiencing severe, debilitating pain in his right leg that had been refractory to medications. Dr. Park recommended at this time that the plaintiff undergo a right L5-S1 discectomy. Dr. Park noted that he explained in extensive detail the risks of the procedure, which included bleeding, infection, CSF leak, nerve root injury, acceleration of spinal instability, worsening of right leg pain, and new onset of left leg pain . The plaintiff expressed his understanding of these risks and elected to proceed with the surgery as soon as possible. Dr. Park told the plaintiff that if his symptoms worsened, or he began to experience bowel or bladder problems, he should go directly to the Emergency Department at Cottage Hospital.

 

On January 30, 2015, the plaintiffs symptoms had worsened and he was sent by Dr. Park to the Emergency Department due to extreme, debilitating pain. He presented with tenderness in the right lumbar paraspinal area and reported a tingling sensation and pain that radiated to his right buttock and right leg. He exhibited no bowel or bladder incontinence. Dr. Park examined the plaintiff in the ED and, given the progression of symptoms, as well as Dr. Park's concern for impending cauda equina syndrome, recommended an immediate L5-S 1 discectomy, which the

plaintiff underwent that day. Dr. Park's operative report noted one complication. During the surgery, there was an unintended puncture of the lateral thecal sac and a dural patch was applied, which appeared to have stopped the unintended CSF leak.

 

Following the surgery, Dr. Park continued to follow-up with the plaintiffs neurological condition. In his post-op progress note, Dr. Park reported that the plaintiffs right leg pain had resolved and that he had bilateral extremity strength of 5/5. A nursing note from later that evening documented that the plaintiff was complaining of new numbness m his penis, and that Dr. Park had been notified. Following surgery, Dr. Park asked Dr. Ahmad, a hospitalist, if he would "follow along" from a medical standpoint. On January 31, 2015, one day after surgery, Dr. Ahmad and Dr. Park examined the plaintiff together. Dr. Park's progress note stated that the plaintiff was experiencing decreased sensation to light touch in the perianal and scrotal areas, which was a new symptom since his postop check. Dr. Park attributed this decrease in sensation to possible edema of the nerve roots which had already been compromised by the large disc herniation. He recommended a CT to rule out any post-op hematoma compressing the nerve roots. There was no mention in this note about a concern the plaintiff was developing, or had developed, cauda equina syndrome.

 

On January 31, 2015, following his examination of the plaintiff with Dr. Park, Dr. Ahmad noted that the plaintiff was complaining of some shooting pain in the right leg with extension and some incisional pain. The plaintiff again had no complaints of bowel or bladder incontinence; in fact, the plaintiff was experiencing bowel and bladder retention, which is common following surgery due to the administration of anesthesia and pain medications. After his examination of the plaintiff with Dr. Park, Dr. Ahmad noted there was no loss of sphincter tone, no other neurological deficits, and no evidence of cauda equina syndrome. A CT of the Lumbar Spine performed on January 31, 2015, showed no large fluid collection and the report recommended an MRI be performed if the symptoms persisted. Dr. Ahmad discussed these results with Dr. Park.

 

On February 1, 2015, Dr. Ahmad again examined the plaintiff. The plaintiff was weak but his strength was improving. Dr. Ahmad noted significant urinary retention and ordered that the Foley catheter be placed on that date. Again, there was no complaint by the plaintiff of bowel or bladder incontinence, only retention. Dr. Ahmad discussed the plaintiffs condition with Dr. Park and the plan was made to give the plaintiff steroids to address possible edema of the nerve roots, which Dr. Park thought were causing the decreased sensation to the perianal and scrotal regions. Dr. Ahmad noted that Dr. Park was considering a urology consultation to address the urinary retention. February 1, 2015, was the last day Dr. Ahmad examined or saw the plaintiff.

 

On February 2, 2015, the medical care of the plaintiff was transferred to Jeffrey Yim, M.D. On February 2, 2015, Dr. Yim noted that the plaintiff had some numbness in his anus and right leg and was experiencing urinary retention, which he noted could be attributable to medication, for which the plaintiff was given Flomax and Avodart. Dr. Park examined the plaintiff on February 2, 2015, and noted some improvements in the plaintiffs condition, including improvement in the sensation in the plaintiffs penis and sacral area. The plaintiff also had 5/5 strength in his bilateral lower extremities and the low back pain had improved.

 

On February 3, 2015, Dr. Yim noted that the plaintiffs low back and leg pain continued to improve but that there were no significant changes to his sensations from the previous day. The plaintiff again specifically denied any bowel incontinence. Dr. Park saw the plaintiff on February 3, 2015, and also noted that the low back and leg pain continued to improve but, just as Dr. Yim had noted, there was no significant change in sensation from the previous day. Dr. Yim discharged the plaintiff on February 4, 2015, and he was sent to Cottage Rehabilitation Hospital for further physical therapy and occupational therapy. Regarding the plaintiffs urinary retention, Dr. Yim noted that the plaintiff was taking Flomax and Avodart, and that he was to follow-up with Sansum urology in three to five days. Dr. Yim's discharge physical was normal, except that he noted that the plaintiff had a very faint trace of lower extremity edema and that his motor strength was three to four out of five in the lower extremities with some decreased sensation in the legs.

 

Presenting the expert witness declaration of Samuel Fink, M.D., defendants assert that Dr. Ahmad and Dr. Yim met the standard of care in their treatment of the plaintiff, Michael Franklin, and nothing Dr. Ahmad or Dr. Yim did, or did not do, caused the plaintiff any injury, nor did it exacerbate any injury. All care and treatment that Dr. Ahmad and Dr. Yim provided to the

plaintiff in their capacity as hospitalists was appropriate. Following the surgery, Dr. Ahmad and Dr. Yim were asked to follow the plaintiff from a medical standpoint, not a neurosurgical standpoint. Dr. Ahmad and Dr. Yim treated the plaintiff for medical conditions such as urinary retention, a common post-surgical condition due to the administration of anesthesia and pain medications.

 

Dr. Ahmad and Dr. Yim were in daily communication with Dr. Park concerning the plaintiffs post-surgical condition throughout the time they were treating the plaintiffs medical condition following the surgery with Dr. Park. Dr. Ahmad and Dr. Yim deferred to Dr. Park for all neurological/neurosurgical diagnosis and treatment decisions, which is consistent with the standard of care for hospitalists in their position. It would not have been appropriate for Dr. Ahmad or Dr. Yim, as hospitalists, to make any diagnosis or treatment decisions regarding the neurosurgical condition of the plaintiff, who was being actively followed and treated by his own neurosurgeon, Dr. Park.

 

Dr. Fink declared that to a reasonable degree of medical probability, Dr. Ahmad and Dr. Yim met the standard of care as hospitalists in this matter with respect to their care and treatment of the plaintiff, Michael Franklin. Further, to a reasonable degree of medical probability, nothing Dr. Ahmad or Dr. Yim did, or did not do, in their capacity as hospitalists caused the plaintiffs current neurological condition.

 

(2)        Motions

 

Each of the motions relies upon the expert witness testimony of Samuel Fink, M.D., to assert that the conduct of Drs. Ahmad and Kim was, at all times, within the applicable standard of care, and that nothing they did caused or contributed to plaintiff’s injuries.

 

Sansum’s motion adds argument and authority showing that it can have no vicarious liability for the actions of its employee physicians, when they are shown not to have been at fault. Further, plaintiffs have acknowledged that they make no contention that Sansum negligently hired either Dr. Ahmad or Dr. Kim.

 

Plaintiffs have filed notices for each motion, indicating that although they disagree with the recitations of facts and the motions’ general conclusions regarding the surgical error and its consequences, in the interest of judicial economy they are not opposing any of these three motions.

 

Analysis:

 

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c(a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented that 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., § 437c(c).)

 

The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 235 Cal.4th 826, 850.) Consequently, a defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.)

 

Once a moving defendant meets its initial burden, the burden shifts to the plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if plaintiff is unable to do so, defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.) However, the moving party’s burden of making a prima facie showing that there are no triable issues of material fact (Aguilar v. Atlantic Richfield Co., supra), is not affected by the opposing party’s failure to oppose the motion or controvert the facts set forth in the motion, since there is no obligation by the opposing party to establish anything 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 elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. Hanson v. Grode (1999) 76 Cal.App.4th 601, 606. Because the standard of care in a medical malpractice case is a matter “peculiarly within the knowledge of experts” (Sinz v. Owens (1949) 33 Cal.2d 749, 753), expert testimony is required to “prove or disprove that the defendant performed in accordance with the standard prevailing of care” unless the negligence is obvious to a layperson. Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523. Where a defendant’s expert testimony on the standard of care is not contradicted, there is no triable issue of material fact, and the defendant must prevail as a matter of law. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 417.)

 

The motions are supported by individual declarations by Dr. Fink, tailored to each defendant’s conduct related to plaintiff. The declaration provides Dr. Fink’s opinion, based upon a reasoned explanation of why the underlying facts lead to the ultimate conclusion, as required by Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510. After articulating the history of plaintiff’s surgery and aftercare, during which he remained at all times under the care and treatment of his neurosurgeon, John Park, M.D., Dr. Fink opined that Dr. Ahmad and Dr. Yim at all times met the standard of care in their treatment of plaintiff, and that nothing they did or did not do caused plaintiff any injury, nor did it exacerbate any injury. Their care was provided to plaintiff in their capacity as hospitalists, and was appropriate. They were asked to follow plaintiff from a medical standpoint after his surgery, not from a neurosurgical standpoint, and both treated plaintiff for medical conditions such as urinary retention, which is a common post-surgical condition due to the administration of anesthesia and pain medications. They were in daily communication with Dr. Park concerning plaintiff’s post-surgical condition throughout the time they treated plaintiff following his surgery. As hospitalists, it was proper for them to defer to Dr. Park for all neurological/neurosurgical treatment decisions, which they did. It would not have been proper for either of them to make any treatment conditions regarding plaintiff’s neurosurgical condition while he was being actively followed and treated by his neurosurgeon. Dr. Fink concluded that, to a reasonable degree of medical probability, both Dr. Ahmad and Dr. Yim met the standard of car for hospitalists in their treatment and care of plaintiff. Further, to a reasonable degree of medical probability, nothing they did or did not do in their capacity as hospitalists caused plaintiff’s current medical condition.

 

The motions are further supported, as they must be, by plaintiff’s relevant medical records, which have been lodged with the court.

 

The motions all meet their burden of establishing entitlement to judgment as a matter of law, based upon defendants compliance at all times with the applicable standard of care. Such compliance was properly supported by expert testimony. (See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) In choosing not to oppose any of the motions, plaintiff has not submitted any expert testimony, and has not created any triable issues of material fact to preclude entry of summary judgment. As a result, each defendant must prevail as a matter of law. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 417.)

 

The Court will therefore grant the motions for summary judgment filed by defendants Sansum Clinic, Sam Ahmad, M.D., and Jeffrey Yim, M.D.

 

 
© Superior Court of the County of Santa Barbara
Locations & Contact Info | Court Security | Human Resources | Privacy Policy | ADA