Novak v. >St. Pierre>























Filed 2/14/13 Novak v. St. Pierre CA4/2













NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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






>

MILDRED NOVAK, Plaintiff and Appellant, v. PATRICK ST. PIERRE, Defendant and Respondent.

E054380 (Super.Ct.No. RIC542929) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Gloria Trask,
Judge. Affirmed.

Cohen
Law Group and H. Jason Cohen for Plaintiff and Appellant.

Davis,
Grass, Goldstein, Housouer, Finlay & Brigham and Jeffrey W. Grass for
Defendant and Respondent.

In
this action for medical malpractice, plaintiff appeals from a judgment that
resulted from the trial court’s grant of defendant’s motion for summary
judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Undisputed
Facts

Plaintiff
Mildred Novak fell while walking on April
15, 2009. She sustained
bilateral olecranon fractures of both elbows as a result of the fall. On April
24, 2009, defendant Patrick St. Pierre, an orthopedist,
operated on her left elbow and inserted a plate.

On April
25, 2009, plaintiff went to the emergency department at Eisenhower Medical Center because she
had developed some bleeding at the incision site. She returned to defendant on April 27, 2009. He found that a bone fragment had dislodged
from the plate. Accordingly, he
scheduled surgery to
remove the plate. Before that surgery,
plaintiff was brought back to the doctor by her husband. Her husband reported that she was confused,
had fevers, and had increased swelling around the incision in the preceding two
days. Defendant decided she had an
infection. He hospitalized her and
operated on her the same evening.
Defendant removed the plate, curetted the bone, irrigated the site, and
inserted a Penrose drain.

On May
6, 2009, defendant requested a consultation from an infectious
disease specialist to guide the treatment as to the href="http://www.sandiegohealthdirectory.com/">administration of antibiotics. Other specialists were also consulted.

Plaintiff remained hospitalized until
another surgery on May 8, 2009. At that time, defendant found that the wound
had improved significantly, but he did not feel comfortable doing a final
closure of the wound. A third surgery
was performed on May 11, 2009. Defendant found the wound was much cleaner,
with minimal drainage. He therefore
performed the final closure of the wound.
Plaintiff remained hospitalized until June
9, 2009, when she was transferred to a skilled nursing facility for
further care.

B. >Plaintiff’s Complaint

On December
24, 2009, plaintiff filed a complaint, which alleged that the
defendant’s services fell beneath the standard of care and that he negligently
failed to treat her. Plaintiff further
alleged that, as a proximate result of defendant’s negligence, she was
physically and mentally injured.

C. >Defendant’s Motion for Summary Judgment

On February
4, 2011, defendant filed a motion for summary judgment. He contended that his treatment of plaintiff
was within the requisite standard of care and that plaintiff could not, therefore,
prove an essential element of her claim.

In support of the motion, defendant
offered the declarations of two doctors.
Dr. Steinmann was an href="http://www.sandiegohealthdirectory.com/">orthopedic surgeon at the
Mayo Clinic. After reviewing plaintiff’s
medical records, he opined that “to a reasonable degree of medical
probability[,] the care and treatment rendered to Mildred Novak by Patrick
St. Pierre, M.D. was in compliance with the requisite standard of care at
all times. . . . [¶] The surgical procedure performed on April 24, 2009 was performed
entirely appropriately and in compliance with the requisite standard of
care.” Dr. Steinmann found the
further surgeries appropriate and concluded that “although the patient
developed a loss of fixation and complication of infection, the care and
treatment rendered by Dr. St. Pierre to Ms. Novak, as set forth in this
declaration[,] was entirely appropriate and within the requisite standard of
care.”

Dr. Irving Posalski, an infectious
disease specialist at UCLA School of Medicine, also submitted a
declaration. After reviewing plaintiff’s
medical records in detail, he concluded, “It is my opinion, to a reasonable
degree of medical probability, that the care and treatment rendered to Mildred
Novak by Patrick St. Pierre, M.D. was in compliance with the requisite
standard of care from an infectious disease standpoint.”

D. >Plaintiff’s Response to the Summary Judgment
Motion

Plaintiff filed a response to defendant’s
summary judgment motion in which she argued that Dr. Posalski’s
declaration was inadequate and should be disregarded. She faulted Dr. Posalski for failing to
state the standard of care to be used, or the protocols to be followed, to
prevent infection during the type of surgical procedure performed by defendant.

Plaintiff failed to attack the
declaration of Dr. Steinmann in her response. Instead she argued, as she does here, that
the doctrine of res ipsa loquitur is applicable.

Plaintiff submitted the declaration of
Dr. William Schwartzman as part of her opposition to defendant’s summary
judgment motion. Dr. Schwartzman
was an infectious disease specialist who, like Dr. Posalski, was an
associate clinical professor of medicine
at UCLA School of Medicine. He reviewed
plaintiff’s medical records and concluded, “ . . . I can
state with a reasonable degree of medical probability that the patient’s
infection occurred at the time of her initial surgery at DOC, that it
originated in the operating room environment, that it was probably preventable and
was temporally and probably causally related to her subsequent profound
neurological decline and loss of function.”
He concluded, “This infection and the repeated surgeries and exposures
to general anesthesia were subsequently associated with her neurological
decline and related disabilities and loss of function.”

E. >The Trial Court’s Decision

The summary judgment motion was heard on June 15, 2011. In his argument, plaintiff’s counsel did not
mention Dr. Steinmann’s declaration, conceding that plaintiff was not
arguing that defendant performed the surgeries incorrectly from an orthopedic
viewpoint. On appeal, plaintiff
reiterates this concession.

Plaintiff therefore focused on the
infection issue, arguing that it was sufficient to show that the infection
occurred during the initial surgery and that subsequent treatment of the
infection was negligent. Defendant
replied by arguing that, except in the most egregious cases, res ipsa loquitur
still requires expert testimony to establish that it would not have occurred in
the absence of someone’s negligence.

The trial court rejected plaintiff’s
argument, finding Dr. Schwartzman’s declaration inadequate because it did
not say anything about the standard of care.
It noted that the declaration did not say that the infection would not
have occurred in the absence of someone’s negligence. It therefore rejected the argument that res
ipsa loquitur applies to this case.
Accordingly, it granted the motion for summary judgment.

II

Sufficiency of
Defendant’s Declarations

in Support of
His Motion for Summary Judgment

Code
of Civil Procedure section 437c, subdivision (c) states, “The motion for
summary judgment shall be granted 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.
In determining whether the papers show that there is no triable issue as
to any material fact the court shall consider all of the evidence set forth in
the papers . . . and all inferences reasonably deducible
from the evidence . . . .”

Defendant
cites Johnson v. Superior Court
(2006) 143 Cal.App.4th 297: “A defendant moving for summary judgment has the
burden of presenting facts to negate an essential element of each cause of
action or to show there is a complete defense to each cause of action. [Citation.]
Where, as here, the plaintiff would have the burden of proof at trial by
a preponderance of the evidence, the defendant must present evidence that would
preclude a reasonable trier of fact from finding it was more likely than not
that the material fact was true.
[Citation.] [¶] In this case, plaintiff has the burden of
proving by a preponderance of the evidence that defendants’ treatment fell
below the standard of care. To be entitled
to summary judgment in their favor, defendants were required to present
evidence that would preclude a reasonable trier of fact from finding it was
more likely than not that their treatment fell below the standard of care. Only if defendants were successful in meeting
this burden does the burden shift to plaintiff to demonstrate the existence of
a triable issue of material fact.
[Citation.] Unless the moving
party meets its burden, summary judgment cannot be ordered, even if the
opposing party does not respond sufficiently or at all. [Citation.]”
(Id. at pp. 304-305.)

Since
defendant moved for summary judgment here, the initial question is whether his
expert declarations were sufficient to show that the cause of action has no
merit or that one or more elements of the cause of action cannot be
established. (Code Civ. Proc. Sec. 437c,
subd. (p)(2).)

The question of the sufficiency of
defendant’s expert declarations was at issue in Johnson, and the court began its analysis by discussing the need for
expert testimony to negate an element of the cause of action: “The elements of a cause of action for
medical malpractice are: (1) a duty to use such skill, prudence, and diligence
as other members of the profession commonly possess and exercise; (2) a breach
of the duty; (3) a proximate causal connection between the negligent conduct
and the injury; and (4) resulting loss or damage. [Citation.]
[¶] 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 [>sic] of care’ unless the negligence is
obvious to a layperson. [Citation.] However, the expert testimony must be based
on such matters as may be reasonably relied upon by an expert in forming an
opinion on the subject. [Citation.] With regard to a standard of care derived
from a professional practice ‘the induction of a rule from practice necessarily
requires the production of evidence of an ascertainable practice.’ [Citation.]”
(Johnson v. Superior Court, >supra, 143 Cal.App.4th at pp. 305-306.)

The Johnson
court went on to find that the defendant’s declarations did not meet this test:
they were “conclusory, thus insufficient to establish the nonexistence of any
triable issue of material fact. Not
having met this initial burden, defendants are not entitled to a judgment as a
matter of law.” (Johnson v. Superior Court, supra,
143 Cal.App.4th at p. 308.)

Plaintiff argues that defendant’s expert
declarations were conclusory, but her argument is directed only at the
declaration of Dr. Posalski.

In addition to Johnson, plaintiff cites Shugart
v. Regents of University of California (2011) 199 Cal.App.4th 499: “‘[A]n expert’s conclusory opinion that
something did occur, when unaccompanied by a reasoned explanation illuminating
how the expert employed his or her superior knowledge and training to connect
the facts with the ultimate conclusion, does not assist the [fact
finder].’ [Citations.]” (Id.
at p. 508.) In Shugart, the declaration of plaintiff’s expert, Dr. Ostergard,
was in issue. The court said. “[W]hile
Dr. Ostergard’s declaration is not a model of specificity, it is
sufficient to raise a triable issue of fact as to whether Dr. Warren’s
medical care of Christine met the standard of care in the medical community and
whether that care caused or contributed to Christine’s alleged damages. [Citations.]”
(Id. at p. 506.)

Plaintiff also cites Kelley v. Trunk (1998) 66 Cal.App.4th 519 and Powell v. Kleinman (2007) 151 Cal.App.4th 112. In Kelly,
the court held that a declaration that was not supported by reasons or
explanations did not establish the absence of a material fact issue for
trial. (Kelley, at p. 524.) The
declaration was inadmissible because it did not disclose the matter relied on
in forming the opinion expressed. (>Ibid.)
The court concluded, “Summary judgment is appropriate in every case
where the statutory standard is met, and the absence of material issues for
trial established. However, that
standard is not satisfied by laconic expert declarations which provide only an
ultimate opinion, unsupported by reasoned explanation.” (Id.
at pp. 524-525.)

In Powell,
the court interpreted Kelley as
follows: “The court in >Kelley was considering the sufficiency
of the declaration of the defendant’s expert in support of the defendant’s motion for summary judgment. In such
cases, the defendant ‘bears the burden of persuasion that there is no genuine
issue of material fact and that he is entitled to judgment as a href="http://www.mcmillanlaw.com/">matter of law.’ [Citation.]
Thus, the Kelley court was
considering the burden of production to make a prima facie showing of the
nonexistence of any genuine issue of material fact. To meet such a burden, the >Kelley court concluded the declaration
of the defendant’s expert had to be detailed and with foundation. [Citation.]”
(Powell v. Kleinman, >supra, 151 Cal.App.4th at p. 125.) In other words, the Powell court found that Kelley
required a reasoned explanation for expert declarations in support of a
motion for summary judgment. (>Powell, at p. 128.) After examining a declaration in that case,
the Powell court found >Kelley inapplicable because the
declaration was in opposition to the motion for summary judgment and, in such
cases, the declaration is construed liberally.
(Powell, at p. 128.)

The question thus presented in this case
is whether Dr. Posalski’s declaration contains a sufficient reasoned
explanation for his conclusions.

Dr. Posalski’s declaration is six
pages long. It first states his
qualifications as an expert in infections and infectious diseases. He specifically states that he is “generally
familiar with the standard of care required of physicians in treating
infections in the Southern California community for all times relevant to this
action.” He then reviews the plaintiff’s
medical history. After doing so, he
offers the opinion that the treatment by defendant was, from an infectious
disease standpoint, entirely appropriate and consistent with the standard of
care.

Dr. Posalski goes on to explain that
(1) defendant administered an antibiotic before the first surgery to avoid the
development of an infection; (2) defendant concluded that plaintiff had an
infection on May 5, 2009, immediately hospitalized plaintiff for treatment, and
operated on her on the same day; (3) successive operations to clean out the
infected material were appropriate; (4) defendant obtained a consultation with
an infectious disease specialist, and (5) the subsequent antibiotic therapy was
appropriate. Dr. Posalski concluded
that “ . . . Dr. St. Pierre’s care and treatment of the
patient at all times was appropriate and within the standard of care from an
infectious disease standpoint.”

We agree with defendant that
Dr. Posalski sufficiently explained the basis for his opinion and provided
a sufficient reasoned explanation of the basis for his opinion. Accordingly, defendant met his burden of establishing
the nonexistence of any triable issue of material fact.

The burden therefore shifted to plaintiff
to submit expert declarations demonstrating the existence of a material fact on
the standard of care. In this regard,
plaintiff argues that the declaration of Dr. Schwartzman raised the
requisite factual issues.

III

Sufficiency of
Dr. Schwartzman’s Declaration in Opposition

to Defendant’s
Motion for Summary Judgment

Plaintiff
argues that the issue presented is whether she was infected during the initial
surgery. The trial court commented,
“That seems rather obvious.” It found
that Dr. Schwartzman’s declaration was inadequate because there was no
statement that defendant was negligent or caused the injury and no statement
that his treatment of plaintiff was below the standard of care. Nor was there any statement that such an
infection does not happen but for someone’s negligence.

In
response, plaintiff argues that Dr. Schwartzman found that (1) the
infection occurred during the original surgery, (2) it originated in the
operating room environment, (3) it was probably preventable, and (4) it was
causally related to plaintiff’s neurological decline and loss of function. Plaintiff also notes that
Dr. Schwartzman closes by repeating his conclusion that the infection was
introduced into the elbow joint at the time of surgery.

While
Dr. Schwartzman appears well qualified as a specialist in infectious
diseases, it is significant that he does not conclude that defendant violated
the applicable standard of care. In
fact, the declaration does not even use the term “standard of care.” After reviewing plaintiff’s medical records,
Dr. Schwartzman finds that “the patient’s infection occurred at the time
of her initial surgery at DOC, that it originated in the operating room
environment, that it was probably preventable and was temporally and probably
causally related to plaintiff’s subsequent profound neurological decline and
loss of function.”

Rather than attributing any of these
problems to defendant, Dr. Schwartzman discusses the risk of postoperative
infection and the possibility that the infecting organism may have come from a
number of sources, including “airborne organisms that are not removed by the
operating suite ventilating system, contaminated surgical instruments, failure
of adequate hand hygiene on the part of staff, contaminated surgical gowns or
drapes and others.” He also discusses
the prevention of such infections by an active infection control program at the
facility. Dr. Schwartzman concludes
that the infection should not have happened, given plaintiff’s relatively low
risk of infection at the time of surgery.

Despite the allegedly low risk of
infection, the infection occurred.
However, we agree with the trial court that Dr. Schwartzman does
not state that defendant was negligent in any way, that the infection was
attributable to anything defendant did or didn’t do, that defendant violated
the standard of care in any way, or that defendant did anything to cause
plaintiff’s subsequent medical problems.
We therefore agree that, even liberally construed,
Dr. Schwartzman’s declaration is insufficient to raise a question of
material fact requiring a trial.

IV

Application of
the Doctrine of Res Ipsa Loquitur

Plaintiff
attempts to fill the evidentiary gaps in her argument by relying on the res
ipsa loquitur doctrine. Under Evidence
Code section 646, the doctrine is a presumption affecting the burden of
producing evidence. Under Evidence Code
section 604, “[t]he effect of a presumption affecting the burden of producing
evidence is to require the trier of fact to assume the existence of the
presumed fact unless and until evidence is introduced which would support a
finding of its nonexistence, in which case the trier of fact shall determine
the existence or nonexistence of the presumed fact from the evidence without
regard to the presumption.”

“The
presumption arises when the evidence satisfies three conditions: ‘“(1) the accident must be of a kind which
ordinarily does not occur in the absence of someone’s negligence; (2) it must
be caused by an agency or instrumentality within the exclusive control of the
defendant; (3) it must not have been due to any voluntary action or
contribution on the part of the plaintiff.”’
[Citation.]” (>Brown v. Poway Unified School Dist. (1993)
4 Cal.4th 820, 825-826.)

Although not cited by the parties, we
find our case of Elcome v. Chin
(2003) 110 Cal.App.4th 310 dispositive.
In that case, plaintiff awoke from surgery with severe pain in her right
elbow, right shoulder, and right arm. (>Id. at p. 314.) She sued her doctors, and the doctors filed
motions for summary judgment. (>Id. at p. 313.) Faced with the declarations of the doctors,
plaintiff relied on the res ipsa doctrine to establish a material issue of
fact. (Id. at pp. 314-315.)

We found that the doctors’ declarations
met their initial burden of producing evidence that they did not breach the
standard of care and did not cause the plaintiff’s injuries. The burden then “shifted to plaintiff to
raise a triable issue of material fact on the issues of negligence and
causation. Plaintiff could have met this
burden either by (1) producing direct evidence of each defendant’s negligence
and causation, or (2) producing evidence of the three elements of res ipsa
loquitur.” (Elcome v. Chin, supra,
110 Cal.App.4th at p. 318.)

We further found that the plaintiff had
failed to produce evidence of the first two elements of res ipsa loquitur. (Elcome
v. Chin, supra, 110 Cal.App.4th
at p. 318.) The same is true here. First, plaintiff did not produce evidence
that the infection would not have occurred in the absence of someone’s
negligence. Second, plaintiff did not
show that the injury was caused by an instrumentality in the exclusive control
of defendant.

In his declaration, Dr. Schwartzman
explained the various instrumentalities that could have caused the infection,
including “airborne organisms that are not removed by the operating suite
ventilation system, contaminated surgical instruments, failure of adequate hand
hygiene on the part of staff, contaminated surgical gowns or drapes and
others.” Dr. Schwartzman also
mentioned the surgical center’s failure to have an active infection control
program. These possibilities were not
all under the exclusive control of defendant and, for this reason, the doctrine
of res ipsa loquitur could not be used to impute negligence to defendant.

As we held in Elcome, “[t]his is not a case where a foreign object was left in
plaintiff’s body following an operation, for which there is >no explanation other than that someone
failed to exercise due care. There can
be numerous etiologies for plaintiff’s neck and upper extremity injuries which
are totally unrelated to the surgery and which do not suggest the probability
that one of the defendants or anyone else was negligent. Therefore, the ‘common
knowledge’ exception does not apply.” (>Elcome v. Chin, supra, 110 Cal.App.4th at p. 318.)

Since plaintiff failed to meet her burden
of producing evidence of a factual issue requiring a trial,
the trial court properly granted defendant’s motion for summary judgment.

V

Disposition

The judgment is affirmed. Respondent is awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI

J.



We concur:





McKINSTER

Acting
P. J.





MILLER

J.