Opinion
D057892 Super. Ct. No. 37-2008-00079455-CU-MM-CTL
08-16-2011
ALEXA MARQUEZ, a Minor, etc., Plaintiff and Appellant, v. ALLEN SCHWARTZ et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Reversed.
Alexa Marquez, by and through her mother and guardian ad litem, Jeannette Chavez, appeals from a summary judgment in her medical malpractice action against her pediatrician, Allen Schwartz, and his physician assistant, Linda Schwartz (together the Schwartzes). Plaintiff contends the trial court erroneously granted summary judgment because the evidence created triable issues of fact as to whether the Schwartzes breached their standard of care and this breach caused Marquez's injuries. We agree and reverse the judgment. In light of our ruling, we need not consider plaintiff's other contentions.
FACTUAL AND PROCEDURAL BACKGROUND
Marquez was born in May 2006, with a hemangioma or mark on her back. The results of an ultrasound examination of the hemangioma performed that day were normal. The ultrasound results were sent to Dr. Schwartz's practice, Children's HealthCare Medical Associates (CHMA), and included in Marquez's chart. Marquez was seen by Dr. Schwartz twice that month, once about feeding problems and the other to have her belly button checked. There is no indication that Dr. Schwartz examined the hemangioma during these visits.
In August 2006, Marquez was seen by Magdalene Dohil, a dermatologist, regarding the mark on her back. Dr. Dohil provided a report of her examination and conclusions to Dr. Schwartz. In that report, Dr. Dohil stated that Marquez's mother informed her that the mark changed from "a reddish-purple bruise" to a bump. Dr. Dohil concluded that the mark was a port wine stain and recommended an MRI, but stated that "[w]e will have to wait until just about 6 months of age, so that she can get sedated."
Marquez was taken to CHMA again in September 2006 for a check-up and was seen by Mrs. Schwartz. At that time, Mrs. Schwartz noted the hemangioma on Marquez's back and that it was subjected to an ultrasound in May. Marquez was seen by Mrs. Schwartz again in November 2006. This time Mrs. Schwartz noted two hemangiomas on Marquez's back and referred her for an MRI with sedation. The MRI was performed on December 5, 2006.
A few days later, Marquez was taken to the emergency room because she was vomiting and had a fever. The emergency room doctor thought she was teething and discharged her with instructions to follow up with her primary care physician within three to five days or return if the symptoms worsened. On December 10, 2006, Marquez returned to the emergency room because she had swelling at the top of her head and was vomiting. Doctors determined that she had meningitis and admitted her to the intensive care unit.
Marquez remained hospitalized for approximately two weeks. During that time, another MRI was performed on December 12, 2006, and revealed that the mark on Marquez's back was a sinus tract from the skin to the spinal cord, which could be a source of the meningitis. Additionally, tests performed while Marquez was in the hospital indicated that she had moderate to severe hearing loss in both ears.
The results of the MRI performed on December 5, 2006, are not in the record before us; however, there are conflicting references to the results. Specifically, Dr. Jim Harley's Emergency Room Report on December 10, 2006, states that "[t]he patient underwent an MRI, but it did not show any communication with the spinal cord." Although the specific date is not mentioned, we presume the report refers to the MRI of December 5, 2006 because the report was prepared before the second MRI was done. This report conflicts with Dr. Whitney Edwards's Discharge Summary, prepared on December 25, 2006, which states "[Marquez] had a possible history of a lumbosacral dermal sinus tract (neural tube defect), which had been visualized on MRI of the lumbar spine on 12/5/06." Whether the results of the December 5, 2006 MRI were sent to the Schwartzes is not clear from the record.
Plaintiff filed this action against the Schwartzes and numerous other defendants. In regard to the Schwartzes, plaintiff asserted that they committed medical malpractice because they were negligent in failing to diagnose the sinus tract and make appropriate referrals. Plaintiff alleged that, as a result of the Schwartzes' conduct, Marquez suffered permanent damages, including hearing loss and development and speech delays.
The Schwartzes filed motions for summary judgment arguing that: (1) their conduct was within the community standard of care; and (2) they did not cause Marquez's injuries. Dr. Schwartz supported his motion with an expert declaration from Dr. Martin T. Stein, who opined that the Schwartzes acted within the standard of care for pediatricians and did not cause or contribute to Marquez's injuries. Similarly, Mrs. Schwartz provided a declaration from Rosslyn Byous, a physician assistant, who opined that Mrs. Schwartz's clinical decision to follow Dr. Dohil's recommendation to order an MRI at six months was within the standard of care and did not contribute to Marquez's injuries.
Plaintiff opposed the motions with expert testimony from Dr. Andrea Morrison, a pediatric neurologist, who noted that the mark was "evolving" and opined that it was "below the standard of care to not realize an M.R.I. was medically necessary until November 15, 2006 although Dr. Dohil noticed it two months before." Dr. Morrison also stated that lesions of Marquez's type must be watched carefully because they can lead to bacterial infections in the spine such as meningitis, and the Schwartzes should have examined the mark each time they saw Marquez. In Dr. Morrison's opinion, "[h]ad the standard of care been followed, then a timely MRI would have been done to determine underlying anatomy and resultant risks," and "[i]t is clear that . . . violations in the standard of care, including by the dermatologist, pediatrician, and physician's assistant led to meningitis and secondary severe hearing loss in [Marquez]."
The trial court granted summary judgment in the Schwartzes' favor, finding that although there was a triable issue of fact as to the standard of care, plaintiff did not demonstrate a triable issue of fact as to the legal cause of Marquez's meningitis. The trial court specifically found fault in Dr. Morrison's declaration because she did not "explain how the referral to a pediatric dermatologist and postponement of the MRI contributed to [Marquez] contracting meningitis." Judgment was entered in favor of the Schwartzes, and this appeal followed.
DISCUSSION
A. Standard of Review
Summary judgment is proper only where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision granting summary judgment de novo (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar)), strictly construing the moving party's evidence and liberally construing the opposing party's evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-839 (Binder).)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, supra, 25 Cal.4th at p. 850.)
"A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. [Citations.] . . . [I]f the moving papers make a prima facie showing that justifies a judgment in the defendant's favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact." (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.) "In determining whether the parties have met their respective burdens, the court must 'consider all of the evidence' and 'all of the inferences reasonably drawn therefrom,' and 'must view such evidence [citations] and such inferences [citations] . . . in the light most favorable to the opposing party.'" (Id. at pp. 121-122.) B. Expert Evidence
Plaintiff contends that Dr. Morrison's declaration satisfied her burden of proof as it gave rise to triable issues of fact concerning breach of the standard of care and causation. Applying a liberal construction to the evidence, including Dr. Morrison's declaration, as we must, we agree with plaintiff.
In a medical malpractice case, the plaintiff must establish: (1) that the standard of care required 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. (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.) Expert medical testimony is required to establish the appropriate standard of care (Selden v. Dinner (1993) 17 Cal.App.4th 166, 173) and causation. (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603.)
Here, the Schwartzes moved for summary judgment on the grounds that their conduct was within the standard of care and did not cause Marquez's injuries. Assuming the Schwartzes satisfied their initial burden of production on these issues, we conclude Dr. Morrison's declaration was adequate to satisfy plaintiff's burden on summary judgment to show the existence of a triable issue of material fact. Dr. Morrison sets forth breaches of the standard of care for a physician and physician's assistant, including failing to observe or ask Marquez's mother about changes in the mark, failing to refer Marquez to a pediatric neurologist, delaying the MRI, and failing to recognize that an MRI was necessary despite Dr. Dohil's recommendation. Accordingly, plaintiff raised triable issues of fact concerning whether the Schwartzes acted within the standard of care.
Similarly, we conclude Dr. Morrison's declaration created a triable issue of fact concerning causation for both defendants. Relying on Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108 (Jennings), the Schwartzes fault Dr. Morrison's declaration on the basis that it is "unaccompanied by any reasoned explanation as to why an earlier MRI should have been ordered, and how an earlier MRI or neurological referral would have prevented meningitis and the resulting hearing loss." The Schwartzes' reliance on Jennings is misplaced. In Jennings, we considered whether the trial court properly struck the testimony of plaintiff's expert regarding the cause of plaintiff's bacterial infection. (Id. at p. 1112.) In that case, plaintiff's expert testified at trial that a cause of the infection was a retractor left inside the plaintiff's peritoneal cavity following surgery. (Id. at p. 1114.) However, the expert failed to explain how the bacteria migrated from the peritoneal cavity into subcutaneous tissue without leaving a trail of infected tissue evidencing the migration; instead, the expert simply concluded that "'[i]t just sort of makes sense.'" (Id. at p. 1120.) We found "[t]hat opinion is too conclusory to support a jury verdict on causation." (Ibid.)
In this case, unlike in Jennings, we are evaluating the evidence on summary judgment, which requires us to construe all of the evidence and inferences drawn therefrom in the light most favorable to Marquez. The evidence is conflicting as to whether an MRI prior to December 5, 2006, would have revealed Marquez's dermal sinus tract. Based on the record before us, Dr. Harley indicated that the December 5, 2006 MRI did not reveal the dermal sinus tract, while Dr. Edwards indicated that it had been visualized on the MRI. Evaluating this evidence in the light most favorable to Marquez, we must assume that the MRI on December 5, 2006 showed the dermal sinus tract. In regard to causation, Dr. Morrison stated that "[h]ad Marquez received earl[ier care] and care within the standard of care, which she did not, for her midline defect from a general pediatrician or physician assistant, she probably would not have suffered meningitis and its sequelae." Dr. Morrison additionally states that "[h]ad the standard of care been followed, then a timely MRI would have been done to determine underlying anatomy and resultant risks." The Schwartzes argue that Dr. Morrison did not explain how an earlier MRI would have prevented Marquez's meningitis and hearing loss. However, when Dr. Morrison's declaration is given all favorable inferences, it includes a reading of the declaration to state that had Marquez's dermal sinus tract been properly diagnosed through an earlier MRI, it would have been treated, thereby preventing the meningitis and related hearing loss. Although Dr. Morrison's declaration is not a model of completeness, it is sufficient on summary judgment to create a triable issue of fact concerning causation. Accordingly, we disagree with the trial court's conclusion that there was no triable issue of fact as to the cause of Marquez's meningitis.
Liberally construing the evidence offered in opposition to summary judgment, as we must (Binder v. Aetna Life Ins. Co., supra, 75 Cal.App.4th at pp. 838-839), we conclude Dr. Morrison's declaration created triable issues of fact as to both breach of the standard of care and causation. Although we express no opinion on the ultimate merits of plaintiff's claims, on the record before us we conclude she met her burden to defeat summary judgment.
Plaintiff additionally contends: (1) the Schwartzes failed to shift the burden of proof to her because their expert declarations were based on false assumptions of fact, inconsistent, lacked foundation, and conclusory; and (2) the trial court erred in refusing her request for a continuance. Having found that plaintiff raised triable issues of fact concerning standard of care and causation, we need not discuss her other arguments.
DISPOSITION
The judgment is reversed. Plaintiff is entitled to her costs on appeal.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
IRION, J.