Tentative Rulings

Case Number: BC618288    Hearing Date: November 04, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 5

Background

Plaintiff Otto Cardoza Moreno (“Plaintiff”) filed this action against Defendants White Memorial Medical Center (“White Memorial”), Martin Benito (“Benito”), Isaiah Lim (“Lim”) (collectively, “Defendants”) for medical malpractice. Plaintiff underwent a colonoscopy and endoscopy at White Memorial. During the procedure, Plaintiff awoke and tried to get out of the hospital bed. Lim, a hospital employee, grabbed Plaintiff to stop him from falling, and in the process, some formalin from a container Lim was holding splashed on Plaintiff’s face. Plaintiff claims injuries to his eye as a result. Plaintiff had also named the doctor who performed the procedures, Donald J. Portocarrero, D.O. (“Portocarrero”) as a Defendant, but the Court dismissed Portocarrero on March 1, 2019. Defendants move for summary judgment on Plaintiff’s complaint for medical malpractice. The unopposed motion is granted.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . .  There is a triable issue of material fact if, and only 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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.”  (Id. at 856.)  However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.”  (Ibid., emphasis original.)  

DISCUSSION

Plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.) Expert testimony is the only admissible evidence on breach of the standard of care. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

Defendants rely on the declaration of Benjamin Bert, M.D. (“Bert”), who is an ophthalmologist who reviewed Plaintiff’s medical records. Bert states that if the formalin had gotten into Plaintiff’s eye, Plaintiff would have felt irritation at the time of his discharge from the hospital, but Plaintiff reported at the time that he did not. Further, Bert states that Plaintiff’s subsequent reported eye symptoms are not consistent with a chemical injury. (Declaration of Benjamin Bert, M.D., ¶¶ 16-19.) Defendants’ evidence is sufficient to show that Defendants did not cause any injuries to Plaintiff. Defendants have shifted the burden to Plaintiff to raise triable issues of material facts as to whether Defendants caused Plaintiff’s injuries. Plaintiff has not opposed the motion and therefore cannot meet his burden to raise triable issues of material fact.

CONCLUSION AND ORDER

Defendants’ motion for summary judgment is granted. Defendants are to give notice, and file proof of service of such.

DATED: November 4, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court