Volk v. Bianchi
Filed 7/29/13 Volk v. Bianchi CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
CAROLYN VOLK,
Plaintiff and Appellant,
v.
ANTHONY BIANCHI,
Defendant and Respondent.
D061342
(Super. Ct. No. 37-2010-00062522-
CU-PN-NC)
APPEAL from
a judgment of the Superior Court
of
County, Jacqueline M. Stern, Judge. Affirmed.
Iverson,
Yoakum, Papiano & Hatch, Neil Papiano and Justin A. Palmer for Plaintiff
and Appellant.
Schmid & Voiles, Denise H. Greer, Robert B. Fessinger
and Kyle A. Cruse for Defendant and Respondent.
Carolyn
Volk appeals from a summary judgment
in her medical malpractice action against Dr. Anthony Bianchi. Volk contends the judgment should be reversed
because (1) Dr. Bianchi's breach of the standard of care and that he caused her
injuries were matters of
common knowledge and thus required no expert testimony, (2) the declaration of
Dr. Bianchi's expert was deficient, and (3) the trial court abused its
discretion in denying her request for a continuance. We reject Volk's contentions and affirm the
judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
Dr. Bianchi began treating Volk in September
2007 for routine gynecological
care and to assist her in conceiving a child. During her initial visit, Volk provided
Dr. Bianchi with medical records from her previous gynecologist, which
included a record that she had a uterine fibroid. In December of that year, Volk saw Dr.
Bianchi again regarding fertility medication and concerns about her inability
to get pregnant. Dr. Bianchi recommended
a laparoscopy and
hysteroscopy. He performed those
procedures on Volk in early 2008.
In June
2008, Volk saw Dr. Bianchi to address excessively painful and heavy menstrual
bleeding. When the problem persisted,
Volk attempted to schedule another appointment with Dr. Bianchi in January
2009. Volk saw a nurse practitioner in
Dr. Bianchi's office who examined Volk's uterus and recommended an
ultrasound. After the ultrasound
confirmed the uterine fibroid, Dr. Bianchi recommended a hysterectomy. Volk did not consider the hysterectomy to be
a good option because she wanted to get pregnant and instead elected to proceed
with a myomectomy to remove the fibroid.
Dr. Bianchi performed the myomectomy in March 2009.
In May
2009, Volk saw a fertility specialist.
The specialist diagnosed Volk with cervical stenosis and explained to
her that it was potentially caused by a misplaced suture during the March 2009
myomectomy procedure. Based on the
specialist's recommendation, Volk returned to Dr. Bianchi to address the
cervical stenosis. Dr. Bianchi discussed
another hysteroscopy, laparoscopy and tubal dye study with Volk. He explained the risks of the procedures,
including a risk of damaging organs and the need to repair those organs.
In
September 2009, Dr. Bianchi performed an operative hysteroscopy, operative
laparoscopy and tubal dye study with lysis of adhesions on Volk. During the procedures, Dr. Bianchi found
moderate adhesive disease from prior procedures, including near the small
intestine. Dr. Bianchi used
electrocautery with a cutting device to release the adhesions from the
uterus. He was concerned about potential
damage to the intestine and told Volk after the procedures that he may have
" 'knicked' " the small
intestine. Dr. Bianchi discharged Volk
because she appeared to be doing well after surgery and instructed her to
" 'keep an eye out' " for unusual symptoms.
The next
day, Volk experienced stomach cramping, nausea and vomiting. After talking to Dr. Bianchi, Volk went to
the emergency department at Fallbrook
Hospital. Dr. Bianchi suspected a viscous perforation
and communicated his concerns to the doctor on call. Dr. Robert Keenan performed surgery on Volk
and repaired a defect in the small intestine.
Dr. Bianchi
followed Volk daily during her hospitalization.
During that time, Volk reported feeling better and had significantly
less abdominal and pelvic pain. She was
discharged after 11 days in the hospital.
Volk continues to experience gastrointestinal issues and is unable to
support a pregnancy.
In December
2010, Volk filed a complaint for medical malpractice against Dr. Bianchi,
Dr. Keenan and Fallbrook Hospital. As to
Dr. Bianchi, the complaint alleged that he perforated Volk's small intestine
and left a suture in her cervix. Volk
alleged that as a result of Dr. Bianchi's negligence, she suffered injuries,
including cervical stenosis, abnormal uterine bleeding, pelvic pain,
infertility, and gastrointestinal pain, and was forced to undergo a corrective
procedure.
Dr. Bianchi
moved for summary judgment. The motion was supported by an expert
declaration from Dr. Martin W. Muth, a board certified obstetrician and
gynecologist. Dr. Muth reviewed Volk's
medical records and set forth a detailed summary of her treatment with Dr.
Bianchi. Based on his education,
training, experience, practice, and review of Volk's medical records, Dr. Muth
opined that Dr. Bianchi complied with the standard of care for all care
and treatment rendered to Volk. Dr. Muth
explained that "Dr. Bianchi was careful during the [September 2009]
procedure in an effort to avoid damage to the bowel" and "recognized
there was a concern for possible perforation under the[]
circumstances." Additionally, Dr.
Muth stated, "a bowel perforation such as that suffered by [Volk] is a
known risk of the procedures performed by Dr. Bianchi on September 8,
2009. Such perforations can occur in the
absence of negligence. The perforation
suffered by [Volk] did in fact occur in the absence of any negligence on the
part of Dr. Bianchi." Lastly, Dr.
Muth opined that "to a reasonable degree of medical probability, no
negligent act or omission on the part of Dr. Bianchi caused or contributed to
the injuries alleged by [Volk] in the instant action."
In August
2011, the trial court issued a tentative ruling granting the motion because it
was unopposed. The same day, Volk's
counsel requested a continuance based on a calendaring error in his
office. He requested a continuance of six
to seven weeks because Volk's experts would need sufficient time to review voluminous
medical records and prepare declarations refuting Dr. Muth's findings. Volk's counsel also set forth the matters on
which Volk's expert would opine. The
trial court continued the hearing to October 2011.
Volk
opposed the summary judgment motion without a supporting expert declaration,
arguing "the injuries caused by Dr. Bianchi's malpractice is reserved for
ordinary lay persons." Three days
before the summary judgment hearing, Volk requested another continuance. Volk argued that although "this case
squarely fits within the common knowledge exception under medical
malpractice," she was requesting a continuance to submit an expert
declaration "should the court require expert testimony." The court denied Volk's request, noting the
matter was previously continued to allow Volk to file an opposition and no
request for a further continuance was in that opposition.
The trial
court granted summary judgment, finding "there [was] no triable issue of
fact whether [Dr. Bianchi] met the standard of care in the community and
whether any alleged negligence on his part caused [Volk's] injuries pursuant to
the declaration of [Dr.] Muth."
This appeal followed.
DISCUSSION
I. Appellate
Principles and Standard of Review
"Any
statement in a brief concerning matters in the appellate record—whether factual
or procedural and no matter where in the brief the reference to the record
occurs—must be supported by a citation to
the record." (Eisenberg et al.,
Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) ¶ 9:36, p.
9–12; Cal. Rules of Court, rule 8.204(a)(1)(C).) " 'It is neither practical nor appropriate for us to
comb the record on [the appellant's] behalf.' " (
157 Cal.App.4th 728, 738.) The lack of
record citations allows us to deem points raised as forfeited. (Eisenberg, supra, ¶ 9:36, p. 9–12; Dietz
v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 798.)
Volk's
opening brief does not contain any record citations. Further, although she recognizes her error in
her reply brief, she fails to correct the problem and urges us instead to
consider the merits of her appeal.
Although we are hesitant to do so, we exercise our discretion to
consider the points raised in Volk's appeal.
We review the trial court's
decision granting summary judgment de novo (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar)), applying the same three-step analysis required of the
trial court. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1431–1432.) After identifying the issues framed by the
pleadings, we determine whether the moving party has established facts
justifying judgment in its favor. If the
moving party has carried its initial burden, we then decide whether the opposing
party has demonstrated the existence of a triable issue of material fact. (Id.
at p. 1432.) We must strictly construe
the moving party's evidence and liberally construe the opposing party's
evidence (Binder v. Aetna Life Ins. Co.
(1999) 75 Cal.App.4th 832, 838–839) and we may not weigh the evidence or
conflicting inferences. (
437c, subd. (c).) A triable issue of
material fact exists if the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof. (Aguilar,
at p. 850.)
II. Necessity
of Expert Testimony
To prove a
plaintiff must establish the applicable standard of care and a breach of that
standard. "Because the standard of
care in a medical malpractice case is a matter 'peculiarly within the knowledge
of experts' [citation], 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." (Johnson
v. Superior Court (2006) 143 Cal.App.4th 297, 305.) Similarly, "[c]ausation must be proven
within a reasonable medical probability based upon competent expert
testimony." (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603; see also
(1985) 163 Cal.App.3d 396, 402–404.)
"[T]he
common knowledge exception applies if the medical facts are commonly
susceptible of comprehension by a lay juror—that is, if the jury is capable of
appreciating and evaluating the significance of a particular medical
event." (Gannon v. Elliot (1993) 19 Cal.App.4th 1, 7.) The exception applies principally 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.' [Citation.]" (Flowers
v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992,
1001.) Common sense is sufficient to
conclude medical negligence is present in some situations, including situations
in which a simple injection results in complications, a surgical clamp is left
in a patient's body, or a patient suffers a shoulder injury during an
appendectomy. (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124,
141.)
The requirement of expert testimony
applies in a summary judgment proceeding.
(Munro v. Regents of University of
California (1989) 215 Cal.App.3d 977, 984–985.) A medical malpractice defendant who supports
a summary judgment motion with applicable expert declarations " 'is entitled to summary
judgment unless the plaintiff comes forward with conflicting expert evidence.' " (Id.
at p. 985.)
Here, Volk alleged Dr. Bianchi
perforated her small intestine and left a suture in her cervix. She claimed that as a result of Dr. Bianchi's
negligence, she suffered injuries, including cervical stenosis, abnormal
uterine bleeding, pelvic pain, infertility, and gastrointestinal pain, and was
forced to undergo a corrective procedure.
These issues are beyond the common knowledge of a layperson and require
expert testimony. Dr. Bianchi complied
with his summary judgment burden by submitting the declaration of Dr. Muth, a
board certified obstetrician and gynecologist, who opined that "all of the
care and treatment rendered to . . . Volk by Dr. Bianchi was appropriate and
within the standard of care" and to a reasonable degree of medical
probability, no negligent act or omission on the part of Dr. Bianchi caused or
contributed to Volk's injuries. Dr. Muth
further explained the basis for his opinions.
Volk did not come forward with any
expert testimony showing that treatment by Dr. Bianchi was negligent. Thus, Volk did not meet her summary judgment
burden and the court properly granted the motion in favor of Dr. Bianchi.
III. Sufficiency
of Expert Declaration
Volk argues the trial court
erred in granting summary judgment because Dr. Muth's declaration was
deficient on numerous grounds.
Specifically, Volk claims (1) Dr. Muth failed to set forth the
bases for his opinions, (2) Dr. Muth was not qualified to provide expert
testimony in this case because he did not practice in the same locality as Dr.
Bianchi, (3) Dr. Muth did not establish whether he performed laparoscopic
procedures and his familiarity with fibroid diagnoses, and (4) Dr. Muth did not
address Dr. Bianchi's negligence in failing to treat Volk's previously
diagnosed fibroid.
Other than
her argument concerning locality, Volk waived her arguments by failing to
object below. (Code Civ. Proc., § 437c,
subd. (b)(5) ["Evidentiary objections not made at the hearing shall be
deemed waived."].) Although Volk
submitted evidentiary objections to the trial court, those objections were
largely boilerplate objections and were limited to objections concerning
relevancy, hearsay, lack of personal knowledge, and failure to practice in the
same locality. Accordingly, on appeal,
we consider only the locality objection.
Volk contends Dr. Muth's
declaration is deficient because he "currently practices in Long Beach,
California" and "d[id] not demonstrate his knowledge of the practice
of gynecology within the Fallbrook locality." We find this argument unavailing.
"[T]he
standard of care for physicians is the reasonable degree of skill, knowledge
and care ordinarily possessed and exercised by members of the medical
profession under similar circumstances. [Citation.]
The test for determining familiarity with the standard of care is
knowledge of similar conditions.
[Citation.] Geographical location
may be a factor considered in making that determination, but, by itself, does
not provide a practical basis for measuring similar circumstances. [Citations.]" (Avivi
v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 470.)
The
curriculum vitae attached to Dr. Muth's declaration reveals that he had
practiced obstetrics and gynecology in Southern California for more than 30
years, was board certified in that field in 1979, and served as an obstetrics
and gynecology professor at two major universities in Southern California. Further, Dr. Muth stated that through his
training, experience and practice, he was familiar with the type of care
rendered by Dr. Bianchi to Volk. Dr.
Muth's declaration established that he was generally familiar with the standard
of care for obstetrics and gynecology and with treating cases similar to Volk's
in Southern California. Volk fails to
explain how the conditions or circumstances of her treatment in Fallbrook
differ from those in Long Beach.
Accordingly, we conclude the trial court acted well within its
discretion in overruling Volk's locality objection.
IV. Denial
of Continuance
Volk argues
the trial court erred by denying her request to continue the summary judgment
hearing to allow her to submit an expert declaration.
The summary
judgment statute provides the following:
"If it appears from the affidavits submitted in opposition to a
motion for summary judgment . . . that facts essential to justify opposition
may exist but cannot, for reasons stated, then be presented, the court shall
deny the motion, or order a continuance to permit affidavits to be obtained or
discovery to be had or may make any other order as may be just. The application to continue the motion to
obtain necessary discovery may also be made by ex parte motion at any time on
or before the date the opposition response to the motion is due." (Code Civ. Proc., § 437c, subd. (h).) The party seeking a continuance must submit
an affidavit or declaration showing that " '(1) the facts to be obtained are essential to
opposing the motion; (2) there is reason to believe such facts may exist; and
(3) the reasons why additional time is needed to obtain these facts.' " (Cooksey
v. Alexakis (2004) 123 Cal.App.4th 246, 254.)
As a
preliminary matter, we note that Volk repeatedly references her counsel's
declaration in support of her ex parte
request for a continuance in the trial court.
She asserts her counsel's declaration provided the bases for why a
continuance was necessary. However, Volk
failed to include the declaration or any other ex parte papers in the record on appeal. Thus, she has not provided us with a basis
for review of her counsel's declaration.
Based on the record before us, we review the court's denial of Volk's
continuance request for an abuse of discretion.
(Johnson v. Alameda County Medical
Center (2012) 205 Cal.App.4th 521, 532.)
Dr. Bianchi
filed his summary judgment motion in April 2011. After failing to file an opposition, Volk
requested a continuance from the court, stating her experts needed sufficient
time to review voluminous medical records and prepare declarations refuting Dr.
Muth's findings. Accordingly, the trial
court continued the hearing to October 2011.
Volk eventually opposed the summary judgment motion without a supporting
expert declaration. The opposition did
not request a further continuance.
Rather, three days before the summary judgment hearing, Volk made an
continuance. The court denied Volk's
request, noting the matter was previously continued to allow Volk to file an
opposition and no request for a further continuance was in that
opposition. On this record, we cannot
conclude the trial court abused its discretion in denying Volk's request for a
continuance.
DISPOSITION
The judgment is affirmed.
Respondent is entitled to recover costs on appeal.
McINTYRE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
