Filed 2/26/18 Moore v. Iqbal CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


DELORIS MOORE et al.,

Plaintiffs and Appellants,

v.

ATIF IQBAL, M.D.,

Defendant and Respondent.


G053702

(Super. Ct. No. 30-2014-00748309)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Peter J. Wilson, Judge. Affirmed.
Deloris Moore and Milyan Moore, in pro. per., for Plaintiffs and Appellants.
Law Offices of Michael D. Gonzalez, Michael D. Gonzalez, and David Brian Washburn for Defendant and Respondent.


This case arises out of surgeon Atif Iqbal’s exercise of professional discretion in a manner he believed was in the best interest of his patient, Deloris Moore. Believing otherwise, Deloris sued Dr. Iqbal claiming his medical negligence caused her to sustain serious injury, as well as severe pain and suffering. The doctor moved for summary judgment and presented expert evidence demonstrating his actions in treating and caring for Deloris complied with the requisite standard of care. Because Deloris failed to counter with any expert evidence of her own, the trial court granted Dr. Iqbal’s motion and entered judgment in his favor. Given that this is not a case where negligence is obvious to a layperson, we agree expert evidence was required. Accordingly, we affirm the judgment.
FACTS
In an effort to address ongoing weight issues, Deloris considered undergoing laparoscopic surgery to have an adjustable gastric band placed around her stomach. She consulted Dr. Philip Chin, who explained to her the procedure, the risks, and postsurgery care. Understanding the information, Deloris decided to move forward with the procedure.
Dr. Chin performed the surgery. The product used consisted of three parts: a band, a tail, and a kink prevention sleeve. The sleeve, which is made of a colorless water plastic, prevents the band from bending and, thereby, allows the band to be adjusted at a later time. According to the doctor’s postsurgery report, “[e]verything looked good” and Deloris “tolerated the procedure well.”
Deloris returned within less than one year, complaining of abdominal pain and occasional nausea. Dr. Chin had since left the medical group, so she saw a different doctor, Dr. Iqbal. He removed some fluid from Deloris’s band and performed a procedure to check for erosion—there was none.
The mild pain and occasional nausea persisted. After multiple checkups and consultations with Dr. Iqbal, Deloris chose to have the band removed. Fearing the removal would lead to weight gain, she also chose to have Dr. Iqbal perform a laparoscopic sleeve gastrectomy to remove a portion of her stomach.
With Deloris under a general anesthesia, the surgery largely proceeded as expected. Dr. Iqbal took steps to remove the existing device and a portion of Deloris’s stomach. When removing the device, however, he was only able to locate two of the three parts—the band and the tail. The third part, the sleeve, was known to separate from the other components, and was often difficult to locate due to its size and transparency. After spending approximately 15 to 20 minutes trying to locate the sleeve, Dr. Iqbal decided to stop searching and finished the remainder of the procedure. He knew the product was intended to remain in a patient’s body indefinitely, and he did not think it was in Deloris’s best interest to have her remain under a general anesthesia any longer.
In the ensuing year, Deloris lost about 80 pounds. She nevertheless continued to have intermittent pain in the same location as before Dr. Iqbal’s procedure, so she went to see him again. The doctor wanted to rule out certain potential causes of the pain, such as gallbladder problems or a hernia, so he recommended doing another laparoscopic procedure to diagnose the issue. Deloris agreed.
This time around, Dr. Iqbal noticed a buildup of scar tissue in the general vicinity of her pain. He took routine steps to remove some of the tissue, believing it might ease the pain. While doing so, he found the one and one-half centimeter long sleeve which he previously was unable to locate. It was not initially visible because it had become deeply imbedded in the scar tissue; so imbedded that Dr. Iqbal had to remove the sleeve in pieces.
Deloris and her husband, Milyan, sued Dr. Iqbal and the medical center at which the band removal surgery took place, claiming “medical negligence” and loss of consortium. While the complaint alleged Dr. Iqbal negligently treated and cared for Deloris, the only act specifically referenced in the complaint was the “leaving [of] a plastic object of unknown origin in [Deloris’s] abdomen following surgery.”
After both Deloris and Milyan filed an answer to the complaint, the medical center moved for summary judgment. No opposition was filed and the trial court granted the motion.
Dr. Iqbal also moved for summary judgment. Included with the moving papers were medical records relating to Deloris’s treatment, a transcript of the deposition of Dr. Iqbal, and an expert declaration from Dr. Carson David Liu. Dr. Liu identified himself as a “Board Certified” general surgeon with over 20 years of experience as a practicing surgeon. In his declaration, Dr. Liu stated he had reviewed Deloris’s medical records, deposition transcripts of Dr. Iqbal, Deloris and Milyan, and interrogatory responses given by Deloris and Milyan. Based on those documents, his education, training and experience, and his familiarity with the standard of care required of surgeons and physicians in California, Dr. Liu opined that Dr. Iqbal “complied with the standard of care required in his care and treatment of [Deloris.]” He also stated his belief that, “to a reasonable degree of medical probability, the care and treatment rendered by [Dr. Iqbal] did not cause or contribute to [Deloris’s] injuries.”
Deloris and Milyan opposed the motion. Their evidence consisted of a few photographs and diagrams, some of Deloris’s medical records related to Dr. Iqbal’s first surgery, a transcript from Dr. Iqbal’s deposition, and declarations from Deloris and Milyan. They did not submit any expert evidence.
Following a hearing, the trial court granted Dr. Iqbal’s motion for summary judgment. It found that Dr. Iqbal’s evidence, including Dr. Liu’s declaration, was sufficient to shift the burden to Deloris and Milyan “to present admissible evidence creating a triable issue of material fact with regard to the issue of the breach of the standard of care and/or causation.” Because the court found those issues to be “beyond mere common knowledge,” and because Deloris and Milyan failed to produce any expert testimony to counter Dr. Iqbal’s evidence, the court concluded Deloris and Milyan did not meet their burden.
Judgment was entered in accordance with the court’s summary judgment order, and Deloris and Milyan timely appealed.
DISCUSSION
“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 (Aguilar).) “[A]ny party to an action, whether plaintiff or defendant, ‘may move’ the court ‘for summary judgment’ in his favor on a cause of action (i.e., claim) or defense . . . .” (Ibid.) “The court must ‘grant[ ]’ the ‘motion’ ‘if all the papers submitted show’ that ‘there is no triable issue as to any material fact’ . . . and that the ‘moving party is entitled to a judgment as a matter of law.’” (Ibid., citations omitted.) All evidence, and all inferences reasonably drawn therefrom, is viewed in the light most favorable to the opposing party. (Ibid.) We review the trial court’s decision de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68.)
Where, as here, Deloris and Milyan are the moving party, they meet their initial “‘burden of showing that a cause of action has no merit if’ . . . ‘[shown] that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials’ of his ‘pleadings to show that a triable issue of material fact exists but, instead,’ must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’” (Aguilar, supra, 25 Cal.4th at p. 849.)
There is an added layer in cases alleging medical malpractice. Because “‘“[t]he standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts[,]”’” expert evidence is required. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001 (Flowers).) Thus, if the defendant moving for summary judgment provides expert evidence that his or her actions fell within the applicable standard of care, the plaintiff must provide expert evidence that gives rise to a triable issue of material fact. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985 (Munro).) In the absence of such evidence, summary judgment must be granted in the defendant’s favor. (Ibid.)
The one exception is when the standard of care required is within the common knowledge of a layperson. (Flowers, supra, 8 Cal.4th at p. 1001.) As our Supreme Court has articulated, “[t]he ‘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.’ [Citations.] The classic example, of course, is the X-ray revealing a scalpel left in the patient’s body following surgery. [Citation.]” (Ibid., fn. omitted; see Ybarra v. Spangard (1944) 25 Cal.2d 486 [res ipsa doctrine applies when patient sustains shoulder injury during appendectomy].) In those types of situations, expert evidence is not an absolute prerequisite, but there nevertheless must be evidence supporting each element of a res ipsa theory. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 318-322.)
Here, Dr. Liu was a qualified expert with relevant education, training and experience, and knowledge of the applicable standard of care. (Evid. Code, § 720, subd. (a).) After reviewing Deloris’s medical records and statements from all parties involved, he opined Dr. Iqbal “complied with the standard of care required” in treating and caring for Deloris. He also rendered an opinion that, to a reasonable degree of medical probability, Deloris’s alleged pain and injury were not caused or contributed to by Dr. Iqbal. This evidence was sufficient to shift the evidentiary burden to Deloris and Milyan concerning breach of the standard of care and causation.
Where Deloris and Milyan fell short is they did not provide any expert evidence. Dr. Iqbal exercised his professional judgment when he decided not to keep Deloris under general anesthesia any longer to look for the missing sleeve. He made the decision knowing the sleeve was intended to remain in a person’s body indefinitely. Unlike a situation where a doctor leaves a medical tool, such as a scalpel or clamp, in a patient’s abdomen, whether Dr. Iqbal’s exercise of discretion violated the standard of care of a surgeon under the circumstances is not something in the realm of knowledge of a layperson. (See Bardessono v. Michels (1970) 3 Cal.3d 780, 789-790 [listing cases in which courts have found sufficient layperson knowledge to show negligence without expert testimony]; Leonard v. Watsonville Community Hosp. (1956) 47 Cal.2d 509, 514 [metal clamp].) The same is true for whether those decisions caused or aggravated the injuries complained of by Deloris. (See Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 801 [“The more complex or unusual the medical process, the more likely it is that expert testimony will be required to establish whether or not the injury was the result of negligence”].)
Accordingly, expert testimony was required to create a triable issue of fact, and Deloris’s and Milyan’s failure to present any was fatal to their case. (Flowers, supra, 8 Cal.4th at p. 1001; Munro, supra, 215 Cal.App.3d at pp. 984-985.)
DISPOSITION
The judgment is affirmed. Dr. Iqbal is entitled to costs on appeal.



THOMPSON, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.