Brown v. Northridge Hospital

Filed 9/27/06 Brown v. Northridge Hospital CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Los Angeles County, Howard J. Schwab, Judge. Affirmed.

Petition for writ of mandate. Denied.

Peter T. Brown and Associates and Duane R. Folke for Plaintiffs and Appellants and Petitioners Peter T. Brown and Paula Brown.

Kramer, Deboer, Endelicato & Keane and Barbara M. Reardon for Defendant and Respondent and Real Party in Interest Gregg Robert Sobeck, M.D.

__________________________________________

INTRODUCTION

After plaintiff and appellant Peter T. Brown fell from a ladder and injured his leg, defendant and respondent Gregg Sobeck, M.D., treated him. Dr. Sobeck performed surgery on Brown’s leg, and it thereafter became infected and required a second surgery. Claiming that Dr. Sobeck’s care was negligent, Brown sued him for negligence. Brown and his wife, plaintiff and appellant Paula Brown, also sued Dr. Sobeck for loss of consortium. Dr. Sobeck filed a motion for summary judgment, which the trial court granted. The court found that although Brown raised a triable issue of material fact as to whether Dr. Sobeck’s conduct fell below the standard of care, Brown did not raise a triable issue of material fact as to whether Dr. Sobeck caused Brown’s injury. Brown filed an appeal and a petition for writ of mandate. We consolidated the proceedings. Because we agree that Brown failed to raise a triable issue of material fact as to causation, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Brown injures his leg and is treated by Dr. Sobeck.

On February 10, 2002, Brown fell from a ladder and injured his right leg. He was taken to Northridge Hospital Medical Center, where he was diagnosed with a right tibial plateau fracture to his leg. On February 11, Dr. Sobek performed a fasciotomy and open reduction internal fixation of the right tibial fracture, including fasciotomies of the right leg. Dr. Sobek saw Brown postoperatively, and Brown was discharged on February 22. Dr. Sobeck continued to see Brown after his discharge.

Brown returned to the hospital on April 6 with redness in the anterior tibial proximal area and exudation. Dr. Sobeck recommended an infectious disease consultation. Thereafter, on April 9, Dr. Sobeck removed all of the orthopedic hardware previously placed. During the removal process, he found a small degree of infected appearing tissue on the medial plate of the hardware. Brown was discharged from the hospital on April 13. A CT scan taken on June 11 showed that the tibial fracture had healed, the joint space was good, and Brown had a five degree varus on his left leg and a varus of approximately eight to ten degrees on the right leg.

Claiming that Dr. Sobeck caused his leg to become infected, Brown sued Dr. Sobeck^[1] for negligence and loss of consortium on April 18, 2003. Brown does not argue that Dr. Sobeck provided substandard medical care before or during the first surgery on February 11, 2002. His complaint concerns only Dr. Sobeck’s postoperative care.

II. Dr. Sobeck files a motion for summary judgment.

A. Dr. Sobeck’s motion for summary judgment.

Dr. Sobeck moved for summary judgment on the grounds that he met the standard of care and did not cause Brown’s injury. In support of his motion, Dr. Sobeck submitted Dr. Robert Chandler’s expert declaration. Dr. Chandler, an orthopedic surgeon, expressed his professional opinion that Dr. Sobeck, at all times in connection with his care of Brown, complied with the standard of care. Dr. Chandler stated that “within a reasonable degree of medical probability, there was no act or failure to act on the part of Dr. Sobeck which in any way caused, contributed to, or was a substantial factor in bringing about injury to Mr. Brown.” Dr. Chandler further declared that Dr. Sobeck’s postoperative care of Brown fell within the proper standard of care and that the infection in April 2002 did not result from the doctor’s lack of care, but was the result of complications of the compartment syndrome and required fasciotomy procedures, as well as the comminuted fracture.

B. Brown’s opposition to Dr. Sobeck’s motion for summary judgment.

In opposition to Dr. Sobeck’s motion, Brown submitted his declaration in which he stated that, after falling from a ladder on February 10, he went to the emergency room. After waiting for hours, he was placed in a hospital room, where he was left unbathed and covered with debris. Dr. Sobeck examined him on February 11, and he performed surgery on Brown’s leg that day. Surgical steel and rods were placed into Brown’s leg during the surgery. During Brown’s hospital stay, his room was maintained in an unsanitary condition, with food trays left in his room and debris on the floor. He could not recall his room being cleaned or swept more than a couple of times a week, and the walls were never washed.

Dr. Sobeck followed Brown postoperatively. On one occasion, Dr. Sobeck grabbed Brown’s wounded leg with his bare hands. Dr. Sobeck told Brown that infections “are difficult to get and as a matter of fact I could sling mud at that wound and you wouldn’t develop an infection.” (Italics omitted.) After being released from the hospital, Brown noted that although his leg wound appeared to be “ ‘healing,’ “ there was something “strange” about it. Brown voiced his concern to Dr. Sobeck, who told him it was “ ‘just a running wound’ “ and that there was “ ‘nothing to be concerned with.’ “ Shortly thereafter, Brown’s leg became more inflamed, swollen, painful, and it exuded a yellowish, pus-like liquid. He went to urgent care, and he was diagnosed with severe osteomyelitis. Dr. Sobeck performed a second surgery to remove metal from Brown’s leg. A shunt was placed in Brown’s left elbow. Brown remained in the hospital for two more weeks.

Brown also submitted Dr. Stephen J. Uman’s expert declaration in opposition to Dr. Sobeck’s motion. Dr. Uman is an infectious disease expert. He stated: “The hygiene and post-operative care provided to Mr. Brown by Defendant Dr. Sobeck fell below the standard of care which should have been provided to a patient with a complex fracture and subsequent compartment syndrome as follows: Dr. Sobeck handled Mr. Brown’s wound in an uncaring and unsterile manner postoperatively by failing to wash his hands. Dr. Sobeck failed to recognize, evaluate or treat Mr. Brown’s wound when it presented with gross purulence and non-healing in the out-patient setting. Dr. Sobeck failed to have Mr. Brown cleaned. The hospital failed to have Mr. Brown’s clothing removed. The hospital failed to clean gross debris from Mr. Brown’s legs. Dr. Sobeck failed to have Mr. Brown’s hospital room cleaned.”

C. Dr. Sobeck’s reply.

In reply, Dr. Sobeck argued, among other things, that Brown failed to present any evidence of causation.

D. The trial court’s ruling.

On February 2, 2005, the trial court granted Dr. Sobeck’s motion on the ground that Dr. Uman’s declaration failed to address causation. The court said, “If they had the magic words about causation, I would have denied summary judgment, I will tell you this. There is a lack of evidence of causation in Dr. Uman’s declaration.”

III. Brown moves for reconsideration.

Thereafter, on February 14, 2005, Brown filed a motion for reconsideration of the order granting summary judgment in Dr. Sobeck’s favor. In the motion, Brown also requested relief under Code of Civil Procedure section 473.

In support of the motion, Brown submitted a supplemental declaration from Dr. Uman. Dr. Uman declared, “I can state to a reasonable medical probability that the substandard care which Mr. Brown reports was rendered by Dr. Sobeck in managing Mr. Brown’s wound would have caused Mr. Brown to become more liable to develop the osteomyelitis infection which he did indeed suffer in his leg. In fact, Dr. Sobeck’s failure to culture Mr. Brown’s wound in a timely measure, as Mr. Brown says he requested of Dr. Sobeck when Mr. Brown reports his wound was showing signs suggestive of the onset of infection, at the time of Mr. Brown’s presentation at Dr. Sobeck’s clinic, was substandard medical care which would have contributed significantly to promoting the increased virulence of Mr. Brown’s infection which led to Mr. Brown being admitted to the hospital for a second surgery, and would therefore have contributed significantly to the non-union of Mr. Brown’s right tibial fracture.”

Duane Folke, Brown’s attorney, also submitted a declaration under Code of Civil Procedure section 473 in which he said he inadvertently allowed the “technical flaw wherein Dr. Uman failed to specifically address the inherent and obvious causal relationship between defendant Sobeck’s malfeasance and Mr. Brown’s injuries and exacerbation. I inadvertently forgot to discuss causation with . . . Dr. Uman[] when obtaining his declaration. Had I read Dr. Uman’s original declaration thoroughly I would have inquired of Dr. Uman to be clear as to causation. This is an excusable neglect which I request this Court to accept.”

The trial court denied the motion for reconsideration on March 11, 2005. The trial court therefore issued its judgment in Dr. Sobeck’s favor on March 15.

Brown filed his notice of appeal on May 2, 2005, and he filed his petition for writ of mandate on November 17. We consolidated the proceedings.

DISCUSSION

I. Standard of review.

“The purpose of the law of summary judgment is to 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. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Thus, summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets its burden of showing there is no merit to a cause of action if that party shows that one or more elements of the cause of action cannot be established or there is a complete defense to the cause of action. (§ 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar, supra, at p. 849.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.

On appeal from a summary judgment, we make “an independent assessment of the correctness of the trial court’s ruling, 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. [Citations.]” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.) We construe an opposing plaintiff’s evidence liberally and a moving defendant’s evidence strictly, and we resolve any doubts in plaintiff’s favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767-768 (Saelzler).)

II. Brown did not raise a triable issue of material fact as to causation.

The trial court granted summary judgment in Dr. Sobeck’s favor because it found that Brown failed to raise a triable issue of material fact as to causation. We agree that summary judgment was properly granted.

Medical providers 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.) Thus, 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 [or her] 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.” [Citation.]’ [Citation.]” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606 (Hanson).)

As to causation, proof of that element “ ‘cannot be based on mere speculation, conjecture and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence, or on an expert’s opinion based on inferences, speculation, and conjecture. . . . [W]here there is no factual basis for the expert’s opinion or for [the plaintiff’s] general assertion of causation, the conclusion is unavoidable that summary judgment was properly granted.’ “ (Saelzler, supra, 25 Cal.4th at p. 775.) When an expert’s opinion simply proffers some theoretical possibility that the doctor’s breach of duty could have caused the injury, this is insufficient to establish causation. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118.) “[A]n expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) “Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the [breach] was a cause-in-fact of the plaintiff’s injury.” (Jennings, supra, at p. 1118.)

Nonetheless, an “obtuse” expert declaration can defeat a summary judgment motion. (Hanson, supra, 76 Cal.App.4th at p. 607.) In Hanson, after describing the alleged breaches, the opposing expert declaration generally stated that the preoperative, operative, and postoperative care the defendant doctors provided to plaintiff contributed to and was a substantial factor or cause in bringing about plaintiff’s current injuries. (Id at p. 606.) Describing the opposing expert declaration as a “bit obtuse” on the issue of causation, the Court of Appeal nonetheless noted that the declaration was entitled to all favorable inferences that may be reasonably derived from it. (Id. at p. 607.) “These inferences include a reading of the declaration to state that the nerve damage Hanson suffered during surgery was caused by the conduct of defendants, which conduct fell below the applicable standard of care. Nothing more was needed.” (Id. at pp. 607-608; but see Kelley v. Trunk (1998) 66 Cal.App.4th 519 [defendant-doctor’s expert declaration, which merely set forth facts and a statement that the doctor met the standard of care, did not shift burden of proof to opposing plaintiff].)

Although we certainly agree that even an obtuse declaration must be liberally interpreted, we nonetheless cannot read something -- causation -- into an expert’s declaration that simply is not there. Here, Dr. Uman, after setting forth his background and describing what documents he reviewed in preparing his opinion, stated that the “hygiene and post-operative care provided to Mr. Brown by [Defendant] Dr. Sobeck fell below the standard of care which should have been provided to a patient with a complex fracture and subsequent compartment syndrome as follows: . . .” Dr. Uman then listed six ways in which Dr. Sobeck allegedly breached the standard of care. Dr Uman, however, neither stated nor explained how those breaches caused Brown’s injury and, as we explain, it is not necessarily self-evident that those breaches caused Brown’s injury.

Dr. Sobeck first allegedly breached the standard of care by handling Brown’s “wound in an uncaring and unsterile manner postoperatively by failing to wash his hands.” Initially, it is not clear when Dr. Sobeck allegedly failed to wash his hands. But even if we assume that Dr. Uman is referring to the statement in Brown’s declaration that during a postoperative visit Dr. Sobeck grabbed Brown’s leg with his bare hands, we cannot make the further assumption that Dr. Sobeck’s failure to wash his hands either caused Brown’s infection or necessitated the second surgery.

Dr. Sobeck’s second alleged breach of the standard of care occurred when he “failed to recognize, evaluate or treat Mr. Brown’s wound when it presented with gross purulence and non-healing in the out-patient setting.” Although Dr. Sobeck certainly might have breached the standard of care by failing to evaluate and treat Brown’s wound, the question remains whether that failure caused an infection and/or necessitated the second surgery. Without more, we cannot answer that question, especially when Dr. Chandler (Dr. Sobeck’s expert) details why the answer to that question should be “no.” Dr. Chandler stated that the infection resulted from complications of the compartment syndrome and required fasciotomy procedures, as well as the comminuted fracture. He also said, “There is nothing in the medical records to even suggest that Dr. Sobeck caused the subsequent infection. Infection is a risk and complication of any surgical procedure and is magnified in a patient with compartment syndrome who has to undergo a fasciotomy as well as open reduction internal fixation of a comminuted fracture. . . . Dr. Sobeck did not cause or contribute, by any act or omission, to Mr. Brown’s mild varus of his right leg.” Nothing in Dr. Uman’s declaration responds to Dr. Chandler’s statements.

Next, it is not clear how the third alleged breach (“Dr. Sobeck failed to have Mr. Brown cleaned”) is even relevant. Brown does discuss in his declaration that when he first came to the emergency room he was left unbathed and covered with debris. But this is not at issue because it occurred before the first surgery on February 11, 2002. Brown, however, has limited his claim of negligence to the postoperative care he received after that first surgery on February 11. Therefore, a failure to have Brown cleaned has nothing to do with Dr. Sobeck’s postoperative care.

The fourth and fifth alleged breaches are similarly irrelevant. Whether the hospital failed to have Brown’s clothing removed and whether the hospital failed to clean gross debris from Brown’s legs when he first presented at the emergency room have nothing to do with Dr. Sobeck’s postoperative care.

The sixth alleged breach of the standard of care is based on Dr. Sobeck’s failure to have Mr. Brown’s hospital room cleaned. Again, this has nothing to do with Dr. Sobeck’s postoperative care. Even if it did, we cannot draw a line of causation from an uncleaned hospital room to an infection and the need for a second surgery in the absence of detailed explanation by an expert.

Thus, Dr. Uman’s declaration is not merely “obtuse” when it comes to the issue of causation -- it is absolutely silent on that issue. In addition, Dr. Uman’s declaration does not describe any sort of injury that necessarily results from negligence. For example, in Tortorella v. Castro (2006 ) 140 Cal.App.4th 1, the plaintiff underwent surgery, which her expert, in opposition to the defendant doctor’s motion for summary judgment, said was unnecessary. Tortorella’s opposing expert specifically set forth the ways in which the doctor fell below the standard of care, and then concluded that “ ‘these specific failures [fell] below the standard of care and on this record are an indication that the surgery was unnecessary.’ “ (Italics omitted.) (Id. at p. 6.) We said that although “the trial court read this declaration as being silent with respect to the issue of causation, it seems self-evident that unnecessary surgery is injurious and causes harm to a patient. Even if a surgery is executed flawlessly, if the surgery were unnecessary, the surgery in and of itself constitutes harm.” (Id. at p. 11.) We therefore found that a triable issue on causation had been raised.

In contrast, here there is no similar “self-evident“ statement on causation. Brown suffered an infection, and he had to undergo a second surgery. Dr. Sobeck’s expert offered a reasonable explanation as to why nothing Dr. Sobeck did caused the infection or necessitated the second surgery. But Dr. Uman failed to offer a reasonable explanation how any of the enumerated breaches caused the infection and necessitated the second surgery. Thus, because a breach of the standard of care does not a fortiori establish causation, we conclude that the trial court properly granted summary judgment in Dr. Sobeck’s favor.

III. The motion for reconsideration and request for relief under Code of Civil Procedure section 473 are not properly before us.

After the trial court granted summary judgment in Dr. Sobeck’s favor, Brown moved for reconsideration under Code of Civil Procedure section 1008. In that motion for reconsideration, he also requested relief under section 473. The trial court denied the motion. We need not discuss either the motion for reconsideration or the request for relief under section 473 in substantive depth because it is not clear that Brown is asserting any error with respect to the motion for reconsideration and request for relief.^[2]

The only argument Brown makes in his opening brief on appeal about the motion for reconsideration is that the trial court’s refusal to accept Dr. Uman’s supplemental declaration violated Code of Civil Procedure section 1008 “re new evidence.” There is no discussion of authority supporting the proposition that the supplemental declaration constitutes “new evidence,” nor is it readily apparent how that declaration could be considered new evidence. Moreover, Brown first mentions Code of Civil Procedure section 1008 in his reply in support of his petition for writ of mandate. It also appears that Brown’s argument is not that relief should have been granted under section 1008, but rather the trial court should have exercised its inherent discretion to reconsider its prior ruling.

Similarly, the only time Brown discusses relief under Code of Civil Procedure section 473 is in his reply brief filed in support of his petition for writ of mandate.^[3] Also, the request that he filed in the trial court did not specify whether it was under the mandatory or discretionary provision of that section, although Brown indicates in his writ papers that the request was under the mandatory provision.

Based on the paucity of authority and discussion, any issue Brown sought to raise with respect to the motion for reconsideration and request for relief under Code of Civil Procedure section 1008 has been waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [when an appellant raises a point “but fails to support it with reasoned argument and citations to authority, we treat the point as waived. (Citations.)”]; People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 [conclusory discussions that fail to cite authority in support are deemed abandoned].)

DISPOSITION

The petition for writ of mandate is denied. The judgment is affirmed. Respondent is to recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

^[1] Brown also sued Northridge Hospital, but it is not a party to this appeal.

^[2] We note that even if Dr. Uman’s supplemental declaration was properly before us, it did not raise a triable issue of material fact as to causation. Even a liberal construction of that supplemental declaration does not establish that the alleged breaches were a substantial factor in causing Brown’s infection. Rather, the supplemental declaration uses equivocal language. For example, Dr. Uman says that the substandard care Dr. Sobeck rendered “would have caused Mr. Brown to become more liable to develop” the infection, and that Dr. Sobeck’s failure to culture the wound in a timely measure “would have contributed significantly to promoting the increased virulence of Mr. Brown’s infection which led to Mr. Brown being admitted to the hospital for a second surgery, and would therefore have contributed significantly to the non-union of Mr. Brown’s right tibial fracture.”

^[3] Respondent did, however, address Code of Civil Procedure section 473 in the respondent’s brief filed in connection with the appeal.