Filed 5/18/18 Azhdari v. Ferreyra CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



ABBAS AZHDARI,

Plaintiff and Appellant,

v.

HENRY FERREYRA et al.,

Defendants and Respondents.
D071596



(Super. Ct. No. 37-2015-00034847-
CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed.
Abbas Azhdari, in pro. per., for Plaintiff and Appellant.
Neil, Dymott, Frank, McFall, Trexler, McCabe & Hudson, Matthew R. Souther and Joanna Ryan Shippee for Defendants and Respondents.
I.
INTRODUCTION
Plaintiff Abbas Azhdari appeals from a judgment entered after the trial court granted summary judgment in favor of defendants, Dr. Henry Ferreyra, M.D. (Ferreyra) and Dr. Christopher W. Heichel, M.D. (Heichel). Azhdari had filed an action against the defendants for medical malpractice related to surgical procedures performed on Azhdari's eyes.
The trial court granted summary judgment on the ground that the defendants established that no triable issue of fact remains with respect to the standard of care, given that Azhdari failed to submit an expert declaration in response to the expert declarations the defendants submitted stating that they had met the standard of care throughout their treatment of Azhdari. We agree that the defendants were entitled to summary judgment on this ground, and we therefore affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Defendants Ferreyra and Heichel are ophthalmologists at the Shiley Eye Center. Azhdari first came to the Shiley Eye Center in 1998, complaining of itchy, burning eyes and difficulty reading. He was informed of the presence of cataracts in his eyes at this visit. Azhdari's medical records from 1998 to 2010 document his cataracts and symptoms from cataracts.
In April 2010, Azhdari's vision, with correction, was measured at 20/50. At that time, Dr. Weldon Haw, M.D., recommended that Azhdari undergo lens replacement and cataract surgery on both eyes, one eye at a time. Dr. Haw discussed the proposed procedure with Azhdari, including the risk of retinal detachment. At some point, Azhdari's care was transferred to Heichel.
Azhdari elected to undergo the lens replacement and cataract surgeries. At a pre-operative appointment in October 2010, Azhdari executed consent forms, which include language establishing that he understood the procedure that he would be undergoing and that his questions about the procedure had been answered. Later that month, Azhdari met with Heichel to discuss whether Azhdari wanted a standard or progressive lens implanted, and what the benefits and risks or potential complications would be. Azhdari chose to proceed with a standard lens implant, and Heichel performed the procedure on Azhdari's right eye without complications. Azhdari returned for several postoperative visits, which revealed that he was healing normally and that the vision in his right eye was 20/20 without correction.
Azhdari was again given options for the implant for his left eye and was informed about the benefits and risks of the various options and the procedure. Azhdari again elected to proceed with a standard lens implant. Heichel performed a cataract extraction and intraocular lens implant on Azhdari's left eye in November 2010. There were no complications with this procedure, and after the procedure, Azhdari's vision in his left eye was 20/20 without correction.
Azhdari continued to heal well, according to the medical records from his postoperative visits through February 2011. His vision remained 20/20. Azhdari reported satisfaction with respect to his vision at a distance, but was displeased with the fact that he needed reading glasses. Providers reminded Azhdari that he had selected standard lenses, which resulted in the need for reading glasses. They also informed Azhdari that he could consider other options, such as an intraocular lens exchange, bifocal contact lenses, or LASIK, which would eliminate the need to use reading glasses.
In April 2011, still displeased with his need for reading glasses, Azhdari informed Heichel that he was unhappy with the surgeries. Heichel discussed Azhdari's treatment options, and Azhdari expressed interest in changing his lenses to multifocal intraocular lenses. Heichel recommended that Azhdari try multifocal contact lenses first, so in late April 2011, Azhdari tried on five different sets of contact lenses with Heichel. Azhdari rejected all five multifocal contact lenses, and opted instead to try a monovision contact lens in his left eye to improve his near vision in one eye.
In June 2011, Azhdari went to see Dr. Bruce Haight at Grossmont Eye Center to obtain a second opinion, due to "complaints of decreased visual acuity."
Azhdari did not return to the Shiley Eye Center until March 2012. At that time, he expressed dissatisfaction with having to use reading glasses, and expressed interest in having an intraocular lens exchange done in order to have a multifocal lens implanted. Heichel explained the risks and benefits, and indicated the potential complications from such a procedure. That day, Azhdari executed a consent form to undergo the intraoculoar lens exchange.
The procedure was not performed, however, and Azhdari did not contact the Shiley Eye Center until February 2013. He complained that his vision had "decreased" and stated that " 'Shiley made him blind.' " However, vision testing that was done on February 25, 2013 indicated that Azhdari's vision was 20/25 without correction, and 20/20 with his glasses. Azhdari returned again the following month and complained of a cloudy area in field of vision in his right eye. He again expressed interest in an intraocular lens exchange.
In July 2013, Azhdari again visited the Shiley Eye Center and told Heichel that he was still experiencing a cloudy area in the field of vision in his right eye. He again stated that he was considering a lens exchange. Testing revealed that Azhdari's uncorrected vision was 20/25. Testing that was performed in August 2013 demonstrated that Azhdari's uncorrected vision was 20/20 in his right eye and 20/25 in his left eye. At that time, Heichel had another conversation with Azhdari regarding his treatment options. Heichel recommended that Azhdari try using a contact lens again. A week after this meeting, Azhdari called the Shiley Eye Center and said that he did not want to use contact lenses.
Azhdari again returned to the Shiley Eye Center in February 2014. He complained that he was unable to read fine print, despite the results of his vision testing. He again indicated an interest in undergoing an intraocular lens exchange. Heichel spent additional time explaining the risks and benefits of that procedure, including the risk of retinal detachment. Azhdari executed a consent form for an intraocular lens exchange in his left eye.
Azhdari had a pre-operative appointment in February 2014. Less than a week later, Heichel performed the intraocular lens exchange procedure on Azhdari's left eye. Azhdari saw Heichel for a number of postoperative visits between March and May 2014. Testing of Azhdari's vision demonstrated that his vision was 20/25 bilaterally, without correction.
Azhdari expressed interest in having a multifocal lens exchanged for the standard lens in his right eye. He executed an informed consent form for the right eye procedure. In June 2014, Heichel performed the right eye lens exchange, without complication. Azhdari returned for several follow-up visits. On July 12, 2014, he complained of
dark spots in the field of vision in his right eye, and it was determined that he had a "macula[-]on retinal detachment." A different doctor, "Dr. Nezgoda," performed a procedure to repair the retinal detachment. Azhdari's eye was adjudged to be healing well at a number of follow-up visits.
On August 7, 2014, Azhdari showed up at the Shiley Eye Center without an appointment, complaining about a "black bar in his right visual field." However, Azhdari's medical records as of August 18 noted that he was doing well and that the vision in his right eye was 20/30 without correction.
In late September 2014, Azhdari again returned to the Shiley Eye Center, complaining of vision changes in his right eye that had begun the night before. A doctor examined Azhdari and noted retinal detachment in his right eye. Ferreyra, assisted by Dr. Nezgoda, performed a retinal repair "using silicone oil" the day after Azhdari presented with complaints of symptoms of retinal detachment. The procedure was completed without complications.
Azhdari had eight follow-up visits in September and October 2014, during which he complained about the sutures and the swelling. Azhdari requested ocular pressure checks and expressed unhappiness with the outcome of the procedure. He was " 'very concerned about going blind.' " On October 28, he underwent a carotid ultrasound. No evidence of stenosis was found. Azhdari returned to the Shiley Eye Center multiple times without appointments after that date to request ocular pressure checks. His medical records from visits he made to the center in November and December noted that he was healing well.
At the end of December 2014 and the beginning of January 2015, Azhdari complained of visual defects that were transient in nature. Ferreyra recommended a procedure that would remove the silicone oil. Azhdari signed a consent form to undergo that procedure in early February. Ferreyra completed the procedure on Azhdari's right eye in early March 2015. The following day, Azhdari was doing well, but the day after that he returned with complaints that his eye was " 'leaking blood.' " Staff examined Azhdari but found no blood and no wound. Heichel and Ferreyra examined Azhdari again a couple of days later, and found no bleeding. Heichel noted in the record that the lens on Azhdari's right eye was well-centered. The following day, Azhdari complained of anxiety, confusion, and depression. Ferreyra noted in Azhdari's record that he had spoken with Azhdari's primary care physician, who indicated that Azhdari had a long-standing history of somatoform disorder.
Azhdari returned to the center on March 12, 2015 demanding an ocular pressure check. His uncorrected vision was noted to be 20/20 in his left eye, and 20/80 in his right eye. He was again seen on March 26 when he complained of pain and blurry vision in his right eye. On April 1, Azhdari called the Shiley Eye Center and indicated that he had been losing his balance and bumping into walls. He was seen by Ferreyra on April 7. The examination demonstrated that Azhdari was doing well "from a post-surgical standpoint." On April 14, Azhdari again complained that he was having difficulty driving as a result of visual issues. His vision was tested again and the result was 20/20 bilateral vision, without correction. Heichel recommended that Azhdari return in another three months for further follow-up care. The April 14, 2015 visit was the last time that Heichel examined Azhdari.
Azhdari returned on May 7, 2015 and requested an ocular pressure check. An examination of his vision demonstrated, again, that he had 20/20 bilateral vision, without correction. Ferreyra examined Azhdari multiple times in May 2015, and noted that his vision and healing were stable and that the results of the surgeries were excellent. The final visit before Azhdari filed his action took place on June 24, 2015. The medical notes establish that his vision and healing were stable.
B. Procedural background
Azhdari, proceeding in propria persona, filed a complaint against Ferreyra and Heichel, asserting causes of action for negligence, alleging that they had "breached the standards of professional care for eye surgeons and/or eye doctors by negligently performing cataract surgery and related follow-up treatments on both of plaintiff's eyes . . . ."
The defendants moved for summary judgment, and submitted in support of the motion their own declarations as expert declarations.
In response to the motion for summary judgment, Azhdari filed multiple untimely sets of documents in opposition. The court apparently considered all of Azhdari's opposition papers, despite the fact that they were not timely filed, with the exception of the final document that Azhdari filed the day before the hearing and for which no proof of service had been submitted.
After oral argument, the trial court confirmed its tentative ruling and granted the defendants' motion for summary judgment. The trial court concluded that the defendants had provided evidence, in the form of expert medical opinions, that they had complied with the standard of care at all times, and that they had not caused or contributed to Azhdari's alleged eye injuries. Because Azhdari presented no expert evidence to contradict the evidence presented by the defendants, the defendants were entitled to judgment as a matter of law.
The court entered judgment on October 12, 2016. Azhdari filed a timely notice of appeal.
III.
DISCUSSION
A. Summary judgment standards
"Summary judgment and summary adjudication provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citations.] A defendant moving for summary judgment or summary adjudication may demonstrate that the plaintiff's cause of action has no merit by showing that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action." (Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 587 (Collin).)
Generally, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if [that party] carries [t]his burden of production, [the moving party] causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) In moving for summary judgment, "all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X." (Id. at p. 853.) "A defendant moving for summary judgment or summary adjudication need not conclusively negate an element of the plaintiff's cause of action. [Citations.] Instead, the defendant may show through factually devoid discovery responses that the plaintiff does not possess and cannot reasonably obtain needed evidence." (Collin, supra, 228 Cal.App.4th at p. 587.)
"After the defendant meets its threshold burden [to demonstrate that a cause of action has no merit], the burden shifts to the plaintiff to present evidence showing that a triable issue of one or more material facts exists as to that cause of action or affirmative defense. [Citations.] The plaintiff may not simply rely on the allegations of its pleadings but, instead, must set forth the specific facts showing the existence of a triable issue of material fact. [Citation.] A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof." (Collin, supra, 228 Cal.App.4th at p. 588.)
"On appeal, the reviewing court makes ' "an independent assessment of the correctness of the trial court's ruling [regarding summary judgment], applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." ' " (Hesperia Citizens for Responsible Development v. City of Hesperia (2007) 151 Cal.App.4th 653, 658.) Our task is to determine whether a triable issue of material fact exists. (Collin, supra, 228 Cal.App.4th at p. 588.) In independently examining the record on appeal "to determine whether triable issues of material fact exist," we " 'consider[ ] all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained.' " (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1530.)
B. Relevant law related to medical malpractice actions
To prevail on a claim for medical malpractice, a plaintiff must prove that: (1) the physician-defendant did not " ' " 'use such skill, prudence, and diligence as other members of his profession commonly possess and exercise' " ' "; (2) this negligent conduct " ' " 'proximate[ly] caus [ed]' " ' " the plaintiff's injury; and (3) " ' " 'actual loss or damage.' " ' " (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310 (Borrayo).) Because "the conduct required of a medical professional is not within the common knowledge of laymen," expert testimony is typically required regarding the first element of a medical malpractice claim. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001 (Flowers) [" ' "The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman" ' "].) Further, the " 'common knowledge' exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson 'is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.' " (Flowers, at p. 1001.) "Otherwise, ' "expert evidence is conclusive and cannot be disregarded." ' " (Ibid.)
Whenever the plaintiff claims negligence in the medical context, the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977 (Munro).) " 'California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.' " (Id. at pp. 984–985; Borrayo, supra, 2 Cal.App.5th at p. 310.)
C. Analysis
In this case, the defendants supported their motion for summary judgment with their own expert declarations stating that the care and treatment they provided Azhdari was, at all times, in keeping with the standard of care. The trial court determined that the expert declarations sufficiently explained the basis for the opinions expressed in them. Azhdari does not raise any issue on appeal regarding the trial court's acceptance of the expert declarations submitted by the defendants in support of their motion for summary judgment. He has therefore forfeited any challenge to the trial court's consideration of the defendants' expert declarations. (See Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 ["On appeal we need address only the points adequately raised by plaintiff in his [or her] opening brief on appeal"].)
In response to the defendants' expert declarations, Azhdari offered no expert declaration, and admitted that he does not have any expert testimony to support his allegations. He contends, instead, that "the damages are self-explanatory," and that "they may not need an expert witness." We disagree that the issues in this case raise questions of conduct that is within the common knowledge of a layman. Rather, the standard of care against which the acts of these defendants in caring for and surgically treating Azhdari's eyes for cataracts are to be measured is a matter that is peculiarly within the knowledge of experts. Because Azhdari failed to offer any evidence from an expert, in response to the defendants' expert declarations, to support his contention that the defendants breached the standard of care, Azhdari failed to meet his burden to present evidence showing that a triable issue of fact exists with respect to the standard of care. (See Collin, supra, 228 Cal.App.4th at p. 588; Munro, supra, 215 Cal.App.3d at pp. 984–985.) The defendants thus established that no triable issue of fact remains with respect to the standard of care and that they were entitled to summary judgment.
IV.
DISPOSITION
The judgment is affirmed.


AARON, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.