KEVIN BALL VS FLEXOGENIX CLINIC ET AL

Tentative Rulings

Case Number: ****5835    Hearing Date: July 01, 2020    Dept: 31

12

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

   Plaintiff, Kevin Ball filed this action against Defendants, Flexogenix Clinic, Tony Tongyu Liu, D.O., M.P.H., and Depuy Synthes Productions, Inc. for medical malpractice arising out of Defendants’ care and treatment of him in connection with an Orthovisc injection for arthritis pain. Plaintiff has settled with Dupuy and has dismissed Liu, leaving only Flexogenix as an active defendant in the action.

2. Motion for Summary Judgment

1. Moving Argument

   At this time, Flexogenix moves for summary judgment, contending it complied with the standard of care at all times, and nothing it did caused or contributed to Plaintiff’s claimed damages. Defendant supports its motion with the expert declarations of Kim S. Erlich, M.D. and Richard A. Johnson, M.D. Dr. Erlich opines concerning the care and treatment rendered by Dr. Liu and all of Flexogenix’s staff. Dr. Johnson opines specifically concerning the care and treatment rendered by Dr. Liu. Both Dr. Erlich and Dr. Johnson conclude that Defendant did not breach the standard of care owed to Plaintiff and also that Defendant did not cause or contribute to any of Plaintiff’s claimed damages.

2. Opposing Argument

   Plaintiff contends Defendant failed to comply with the standard of care, and the breach caused him damages. Plaintiff supports his opposition with the expert declaration of William E. Schobert. Dr. Schobert opines that Defendant breached the standard of care in a number of ways, and that those breaches caused or contributed to Plaintiff’s injuries and damages.

3. Law Governing Standard of Care

   The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id.

   A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

   Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’“ (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

4. Law Governing Causation

   In order to establish that defendant's negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm. “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical 'possibility' needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.

5. Basic Undisputed Facts

   The basic facts relating to this matter are undisputed. Plaintiff’s complaint alleges Defendant was negligent by contaminating his left knee joint as a result of unsanitary practices and subsequent failure to adequately treat for such infection. Fact 3. Plaintiff had bilateral Orthovisc injections on 6/27/16. Fact 11. Defendant’s staff cleaned Plaintiff using isopropyl alcohol pads. Fact 14. Plaintiff maintained the cleaning of the injection site after he went home. Fact 19. Plaintiff began experiencing pain on 6/27 and called Defendant on 6/28 to report increased pain. On 7/01, Plaintiff went to UCLA with complaints of pain. UCLA consulted with Dr. Liu, who believed the symptoms were likely those of a known but rare complication of the injection. Fact 23.

   Plaintiff returned to Defendant on 7/06 for a routine follow-up appointment. Fact 25. During the appointment, Defendant removed fluid from Plaintiff’s knee for lab analysis. Fact 28. Later that day, Plaintiff went to Cedars-Sinai due to problems with his knee; he was diagnosed with an infection in the knee. Facts 31-32. Plaintiff underwent future treatment for sepsis in the knee. Fact 34.

6. Analysis

   The Court finds Defendant met its moving burden to show it is entitled to judgment as a matter of law on the ground that it complied with the standard of care at all times and did not cause Plaintiff’s injuries.

   Plaintiff, through the Declaration of Dr. Schobert, raises triable issues of material fact in both regards. Specifically, Schobert opines that Defendant breached its duties to Plaintiff by (a) failing to perform an aseptic preparation of the injection site with Betadine or Chlorhexidine, as opposed to isopropyl alcohol (¶¶7-10); (b) failing to ensure a physician (Dr. Liu) oversaw the staff (Kay Nguyen, PA and Miriam Mendoza, MA) in connection with the injections (¶11); (c) failing to document and track the specific lot number and expiration date of each syringe of hyaluronic acid used (¶12); and failing to provide appropriate post-injection care (¶14). Dr. Schobert also raises triable issues of material fact concerning causation and damages. Specifically, Schobert opines that (a) Plaintiff’s future knee health is seriously compromised as a result of the infection (¶¶15-16); and (b) the substandard and unsupervised injection caused the knee infection and subsequent care (¶17). Additionally, Dr. Schobert addresses Dr. Erlich’s opinion that Plaintiff may have infected his own joint by failing to clean his injection site properly; Dr. Schobert opines this is not consistent with the facts of the case. ¶20.

   Because Plaintiff raises triable issues of material fact concerning standard of care and causation, the motion for summary judgment is denied.

   Moving Defendant is ordered to give notice.

   Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative they should arrange to appear remotely.

Dated this 1^st day of July, 2020