Marquez v. Advantage Physical Therapy

Filed 3/5/07 Marquez v. Advantage Physical Therapy CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Sandra Marquez appeals from a summary judgment granted to respondents Advantage Physical Therapy (APT) and David Musgrove on her complaint seeking damages for medical malpractice. She contends summary judgment was erroneously granted because there are triable issues of material fact as to whether defendants' negligence caused her injury. Marquez did not provide an expert's opinion to rebut the opinions of respondents' experts that respondents had met the standard of care. The absence of such an opinion is fatal to Marquez's case and we affirm.

FACTS AND PROCEDURAL HISTORY

In March 2002, Marquez began experiencing low back pain on her left side. X-rays taken on August 21, 2002, revealed degenerative joint disease and disc disease. Marquez was referred by her family physician to Dr. Moustapha Abou-Samra, a neurosurgeon. He examined Marquez on November 7, 2002. At that time, Marquez reported that she had pain radiating down both the left and right side of her legs and through both hips and had tingling in both feet. He performed a left hemilaminectomy on November 15, 2002. After surgery, Marquez reported to the surgeon that "[s]he is thrilled with the surgical results though still quite sore."

Upon Dr. Abou-Samra's recommendation, Marquez began physical therapy with Musgrove at APT on December 2, 2002. The next day, she reported to the doctor that she was "doing well, though quite sore after starting physical therapy this week."

The injury that is the subject of this lawsuit occurred at a physical therapy session on January 8, 2003, during a knee-to-chest stretch.[1] Marquez reported that she experienced an "excruciating, lightening bolt like pain" while performing the exercise and screamed at Musgrove to stop. The record of the therapy session is undated and states: "LB LHip & RHip," meaning low back, left hip and right hip pain. The record does not mention a knee-to-chest stretch, although prior records contained such a reference. The record also does not reflect that Marquez screamed in pain and accused Musgrove of hurting her. The report notes only an increase in tenderness on the right side, lumbar spine.

On February 10, 2003, Dr. Abou-Samra examined Marquez. At that time, she complained of pain in her lower back. In a letter to Musgrove, following the February 10 examination, Dr. Abou-Samra stated: "[S]he had an episode where following a specific stretching exercise, she suffered severe pain in the right lower back. [] The patient was under the impression that you would communicate this with me. I am afraid that has not transpired." The medical notes from that examination indicated Marquez was not in acute distress at that time and that she exhibited no objective findings of new injury.

On February 27, 2003, Marquez underwent an additional MRI as recommended by Dr. Abou-Samra. Upon reviewing the films, Dr. Abou-Samra told Marqez that the MRI showed no new damage or injury. It revealed only the same degenerative changes visible on the prior MRI. On September 23, 2003, Marquez again saw Dr. Abou-Samra. At that time, he reported all objective findings were within normal limits.

On January 26, 2004, Marquez saw Dr. John Chiu on the advice of her attorney. Dr. Chiu advised Marquez that she required additional surgery. Dr. Chiu subsequently performed a microdecompressive endoscopic lumbar discectomy of L1, L3, L4 and L5.

Marquez filed a complaint against APT and Musgrove alleging one cause of action for medical malpractice. In the complaint, Marquez alleged she suffered injury to her low back when Musgrove pushed past what her body could tolerate during the knee-to-chest stretch on January 8.

On May 25, 2005, APT and Musgrove filed a motion for summary judgment on the grounds that Marquez had not offered evidence of either a breach of the standard of care or causation. The motion contained the declarations of Thomas Watson, a physical therapist, and Dr. Russell Nelson, an orthopedic specialist. ATP also submitted the deposition testimony of Dr. Abou-Samra. Marquez filed opposition to the motion containing the declarations of Eugene Lee, a physical therapist, and Dr. Chiu. In addition, she submitted her own deposition testimony.

Marquez also presented evidence that the records ATP produced in response to discovery were not consistent with the records in Dr. Abou-Samra's file. APT's records did not contain the February 10 letter from Dr. Abou-Samra nor a patient progress report Musgrove prepared for the period December 2 through December 30, 2002. Instead, APT's files contained a report dated February 4, 2003, covering the December therapy sessions as well as sessions occurring up to January 10, 2003, that was not in Dr. Abou-Samra's files.

After hearing, the trial court granted the summary judgment motion. The order granting summary judgment states in part: "Drs. Nelson and Watson conclude that defendant, David Musgrove acted in conformity with the applicable standard of care, and that there is insufficient causal connection between Mr. Musgrove's conduct and the injuries being claimed by the plaintiff. The plaintiff's opposition focuses on the matter of record keeping and the onset of Ms. Marquez's right sided complaints. The opposition never addresses the questions of negligence in the performance of the physical therapy given to Ms. Marquez, or the question of causation. . . . [T]he declaration of Thomas Watson . . . establishes that the conduct of Mr. Musgrove was within the applicable standard of care. The declaration of Russell Nelson . . . adequately establishes the absence of medical causation between Mr. Musgrove's conduct and plaintiff's claimed injury."

In this appeal, Marquez asserts, as she did in her opposition to summary judgment, that a material issue of fact exists as to whether APT and Musgrove falsified records to cover up the alleged injury.

DISCUSSION

To obtain summary judgment, a defendant must negate a necessary element of Marquez's case or establish a complete defense to the claim that eliminates the existence of all material issues of fact that require a trial. We review an order granting summary judgment de novo, "'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.'" (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69.)

Medical providers, including physical therapists (Civ. Code,  1714.8, subd. (b)), must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances. (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1; Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) The requisite standard of care in a medical malpractice lawsuit is determined by the applicable standard of care then existing in the same or similar locality under the circumstances. (Rainer v. Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 259.) In any medical malpractice action, the plaintiff must establish: "'(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'" (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.)

A plaintiff alleging negligence in the medical context must present evidence from an expert that the defendant breached his duty to her and that the breach caused her injury. "'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.'" (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

In support of its motion for summary judgment, APT submitted the declaration of Thomas Watson, an expert in physical therapy, with training and experience in the standard of care prevailing among physical therapists in the Southern California area. Dr. Watson reviewed Marquez's medical records, as well as the deposition testimony of Marquez and Dr. Abou-Samra. Dr. Watson opined that Musgrove's decision to perform the knee-to-chest exercise was indicated given the circumstances, Musgrove used the proper technique in performing the exercise, and nothing in Marquez's description of the exercise indicated that Musgrove used excessive force. Dr. Watson noted that Marquez appeared to be unsure of how the alleged injury occurred, because she stated in her deposition that "I pushed too hard" during the stretch; at another time, she said Musgrove "pull[ed] to [sic] hard" during the exercise, and as soon as Marquez expressed discomfort, Musgrove stopped the exercise. Dr. Watson concluded that Musgrove exercised the requisite standard of skill and care in treating Marquez, in a manner consistent with the standard of care applicable to other physical therapists located in the community.

APT also submitted the declaration of orthopedic expert, Dr. Russell Nelson. His declaration states in part: "Marquez presented with a subjective complaint of pain following the [knee-to-chest exercise], but the objective findings were normal. Accordingly, there was no indication of the source of the pain nor the cause. Nothing can pinpoint that it was the [knee-to-chest] exercise versus one of her pre-existing degenerative conditions or some other condition such as sacroiliac dysfunction or piriformis syndrome. Therefore, it is impossible to say with any degree of reasonable medical probability that the [knee-to-chest exercise] was a substantial factor in causing Marquez's alleged injury."

Marquez submitted the declaration of Eugene Lee, a physical therapist. Lee's declaration focused on APT's recordkeeping and notification of Dr. Abou-Samra about the outcome of Marquez's physical therapy. Lee did not express an opinion that Musgrove violated the standard of care when providing physical therapy to Marquez.

Marquez also submitted the declaration of John Chiu. Dr. Chiu's declaration does not contain an opinion that APT violated the standard of care in providing physical therapy to Marquez.

APT's evidence shows that the physical therapy performed by Musgrove was within the standard of care. Marquez's medical records, including the two MRI's, are consistent with the declarations filed in support of defendants' motion. According to Dr. Abou-Samra and Dr. Nelson, they show nothing more than degenerative joint and disc disease before and after January 8.

In addition, the deposition testimony of Marquez's surgeon, Dr. Abou-Samra, contained no opinion concerning either a violation of the standard of care or causation. He stated that there was no medical evidence to support Marquez's assertion that the exercise was a substantial factor in causing any injury to her. He admitted that he does not know what caused the alleged injury. He also stated that there was no objective evidence of injury and opined that it was unlikely that the knee-to-chest exercise caused any injury to Marquez.

Marquez submitted no expert evidence concerning the standard of care or causation and she does not challenge the declarations of defendants' experts as being conclusory. Instead, she argues that the opinions of APT's medical experts and Dr. Abou-Samra are based on allegedly fraudulent, misleading or incomplete medical records. However, a plaintiff cannot defeat defendant's summary judgment motion merely by attacking the credibility of defendant's evidence. She must present evidence of her own to show the existence of a material fact. (See Code Civ. Proc.,  437c, subd. (e) ["If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment"]; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 852.) Moreover, Marquez does not dispute the authenticity of the MRI or present expert testimony refuting the opinion of her own doctor and defendant's expert that these records provide no objective evidence that Marquez suffered a new injury to her lower back on January 8.

The single case Marquez cites in support of her position, Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, is inapposite. In that case the court held that the plaintiff, a dog bite victim, established a triable issue of material fact as to whether defendant landlord had knowledge of the vicious propensity of a tenant's two rottweilers. Donchin does not support Marquez's position because, unlike a medical malpractice action, a dog bite case does not require a plaintiff to submit expert medical evidence to controvert defendant's evidence and defeat summary judgment.

Because Marquez provided no expert evidence to sustain her burden of proof that respondents breached the standard of care, she has not established an essential element of her claim. It is unnecessary to discuss the parties' additional arguments.

The judgment is affirmed. Respondents are to recover costs.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Henry J. Walsh, Judge

Superior Court County of Ventura

______________________________

John E. Sweeney & Associates, John E. Sweeney for Plaintiff and Appellant.

Klinedinst PC, G. Dale Britton, John D. Klinedinst, Julie M. Capell for Defendants and Respondents.

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[1]In a knee-to-chest stretch, a patient lays on her back while the therapist places one hand on the patient's ankle and the other on the patient's knee. The therapist then bends the patient's knee towards her chest. Alternatively, the patient can grasp her posterior thighs and pull one or both knees toward her chest.