LEAH BURNEY VS BORIS COSMETICS ET AL

Tentative Rulings

Case Number: ****5679    Hearing Date: May 3, 2021    Dept: 29

BURNEY  vs.  BORIS COSMETICS, ET AL

TENTATIVE

ANALYSIS

On December 4, 2017, Plaintiff Leah Burney (“Plaintiff”) filed the instant action for medical negligence and premises liability against Defendants GEORGE BORIS, M.D. AND GEORGE BORIS, M.D (“Defendants”). On November 20, 2020, Defendant filed the instant Motion for Summary Judgment against Plaintiff. Plaintiff filed an Opposition April 14, 2021. Defendants did not file a Reply.

Discussion

The Complaint alleges that on May 13, 2016, Defendant negligently performed breast augmentation and a breast lift on Plaintiff at Boris Cosmetics, owned by Defendant Dr. Boris (Motion 3:6-12). The surgery was performed by Dr. Driscoll, an independent contractor of Boris Cosmetics. (Id.)

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.)

Defendant’s Initial Burden of Proof

The Defendant argues he can meet his burden in two ways. First, he argues that the evidence shows the statute of limitations bars the Plaintiff’s claims. Second, he argues that the elements of breach and causation cannot be established.

The statute of limitations for claims against a health care provider based upon such person's alleged professional negligence is set by CCP section 340.5. Under CCP section 340.5, a plaintiff is required to bring the claim within the first of the following: 1) three years after the date of injury; or 2) one year after the Plaintiffs discover, or through the use of reasonable diligence, should have discovered the injury.

Statute of Limitations

Plaintiff underwent surgery on May 13, 2016. After her surgery, Plaintiff went to urgent care on May 30, 2016 because she had opens wounds. (Motion, Separate Statement of Facts No. 16. SVDE as Ex. L.) On June 6, 2016, Plaintiff returned to Boris Cosmetics for a follow-up; she had wound dehiscence on the right breast. (Motion, Separate Statement of Facts No. 18. Handel Decl., ¶ 14.) On June 14, 2016, Dr. Driscoll performed wound closure surgery on the patient’s right breast. (Motion, Separate Statement of Facts No.25. Handel Decl., ¶ 14.) Defendant argues that by the time of Plaintiff’s follow-up visit on June 6, 2016, she was well aware that she had open wounds on her breasts, her nipples were “kind of hanging sideways,” and she was not happy with the results of the surgery. (Motion, Separate Statement of Facts No. 37.) She spoke with Dr. Boris about the problems, and he conducted wound closure surgery on June 14, 2016. (Separate Statement of Facts No.25.) On June 22, 2016, she returned to Dr. Boris for follow-up care. (Id. at No. 26.) Plaintiff returned for follow-up visits three more times until August 17, 2016. (Id. at Nos. 27-29.) She was advised to return within three months. She returned on March 17, 2017. (Id. at Nos. 31-32.)

In Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99 the Supreme Court “indicated that by common law tradition, the term ‘injury,’ as used in section 340.5, means both ‘a person’s physical condition and its “negligent cause.”  Moreover, “Hills v. Aronsohn (1984) 152 Cal. App. 3d 753 illustrates the principle that for the one-year limitations period to be triggered, in addition to being aware of her harm, the patient must be aware of its negligent cause.” (Artal v. Allen (2003) 111 Cal.App.4th 273, 279.) In addition, the statute of limitations with respect to a cause of action for malpractice does not ordinarily commence to run while the physician-patient relationship continues between the defendant physician and the plaintiff. (Myers v. Stevenson, supra, 125 Cal.App.2d 399, 401), unless the plaintiff has in fact discovered the injury or through the use of reasonable diligence should have discovered it. (Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64.)

Plaintiff had one year to commence this claim from the time that she knew of the harm, and the negligent cause. She continued to treat with Defendants until March 17, 2017.

Based on the evidence presented, there are questions of material fact regarding the affirmative defense asserted – that the claim is barred by the statute of limitations -- because the defendant continued to treat the plaintiff and the plaintiff has demonstrated she did not know that her injuries were caused by negligence, only that further treatment was needed to ensure that she was happy with the result. Defendant has not carried its initial burden of proof to demonstrate Plaintiff’s claim is barred by the statute of limitations.

Breach of Duty and Causation

Defendant presents evidence that they acted within the standard of care by presenting the expert testimony of Neil Handel M.D. In a medical malpractice case, “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, 263 Cal.Rptr. 878.)

Dr. Handel based his expert opinion on his education, training, and substantial experience. (Handel Decl., 21). According to Dr. Handel Defendants’ medical care and treatment was appropriate and fell within the reasonable standard of care. (Id.) Additionally, “Dr. Driscoll's decision perform bilateral breast augmentation and bilateral breast augmentation was appropriate given the patients mammary hypoplasia and bilateral breast ptosis (drooping breasts) to satisfy the patient’s desire to improve her breast size and shape.” (Id. At 21 (a).)

Pursuant to Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779, an expert declaration is admissible to support or defeat summary judgment if the expert’s testimony would be admissible at trial. “‘Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.’ [Citation.]” (Ibid.) The expert declaration must also contain a “reasoned explanation” and not just conclusions. (Id. at p. 782.) Dr. Handel’s declaration indicates he is competent to testify to the facts and practices employed by Defendants for Plaintiff’s treatment at issue.

Dr. Handel alleges that because the Plaintiff suffered from drooping breasts, Dr. Driscoll had to perform a trans-umbilical approach to reduce scarring and infection for the Plaintiff. (Handel Decl., 21.) Dr. Handel provides a step-by-step explanation explaining why the trans-umbilical approach had to be used, established the Plaintiff’s complications were heightened because of her obesity and her history of poor wound care. He asserts based on his experience that Defendants did not cause Plaintiff’s injuries through any negligence or omissions. (Handel Decl., 21 subsection a-g.)

The declaration of Dr. Handel regarding breach and causation satisfies Defendant’s initial burden demonstrating that Defendant did not breach his professional duty nor cause Plaintiff’s injuries. The burden now shifts to Plaintiff to create a triable issue of material fact regarding whether Defendants breached their duty of care causing her injury. Plaintiff addresses this issue through the declaration of Dr. Malcom Levasoy.

Dr Levasoy declares that after examining the Plaintiff, he found one implant below the pectoralis muscle, while one is superficial and displaced above the muscle in the upper lateral quadrant. Her scars are spread too wide. (Levasoy ¶ 4.) Furthermore, Dr. Levasoy stated that the Plaintiff needs both of her breasts reconstructed and a total revision of her mastopexy. (Id.) Dr. Levasoy concludes that in his opinion, the procedures perfomed at Boris Cosmetics by Dr. Peter Driscoll were below the standard of care and require the above revisions as set forth. He also declares that he had reviewed the Declaration of Neil Handle, M.D., and based on his education and training in his expert opinion to a reasonably degree of medical certainty he opines that the care and treatment rendered by Dr. Peter Driscoll, George Boris, M.D. and Boris Cosmetics to Plaintiff Leah Burney were below the standard of care for Plastic Surgeons in the Southern California area. Dr. Levasoy disagrees with the opinions and conclusions by Dr. Neil Handle.

Thus, Plaintiff has satisfied her burden by demonstrating there was a dispute of material fact. Both Dr. Hendel and Dr. Levasoy disagree to the standard of care employed by Defendants and the causation of her injuries.

Conclusion

Based on the foregoing, Defendants GEORGE BORIS, M.D. AND GEORGE BORIS, M.D. Motion for Summary Judgment is DENIED.

Moving Party(ies) to give notice.