RIKA WAKAHARA VS STEVEN C DRESNER ET AL

Tentative Rulings

Case Number: BC651814    Hearing Date: July 08, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Wednesday – July 8, 2020

Department M Calendar No. 2

PROCEEDINGS

Riki Wakahara v. Steven C. Dresner, et al.

BC651814

1. Eyesthetica, a General Partnership’s Motion for Summary Adjudication

2. Steven Dresner, M.D.’s Motion for Summary Adjudication

3. Michael Burnstine, M.D.’s Motion for Summary Adjudication

4. David Samimi, M.D.’s Motion for Summary Adjudication

TENTATIVE RULING

Defendants Eyesthetica, a General Partnership’s (“Eyesthetica”), Steven Dresner, M.D. (“Dresner”), Michael Burnstine, M.D. (“Burnstine”), and David Samimi, M.D.’s (“Samimi”) Motions for Summary Adjudication are denied.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP ; 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP ; 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; CCP ; 437c(c).)

On February 27, 2017, Plaintiff filed her initial Complaint. This is a medical (ophthalmology) malpractice action stemming from the alleged negligence in the care and treatment of ptosis surgeries on Plaintiff. Plaintiff’s alleged injuries arise from an alleged unauthorized medical procedure conducted on August 18, 2015, wherein Defendant Dresner allegedly placed stiches in plaintiff’s right eyelid without plaintiff’s consent. Plaintiff also alleges that Defendants fraudulently concealed material facts related to the medical procedure as well as concealed and modified the medical records related to the procedure. Plaintiff’s operative Second Amended Complaint was filed on December 28, 2018 alleging causes of action for: 1. Medical Negligence; 2. Medical Battery; 3. Fraudulent Concealment; 4. Negligence Per Se.

Defendants each move for orders granting summary adjudication as to the second through fourth causes of action of the Second Amended Complaint as follows:

Issue 1: Plaintiff’s claim for Medical Battery lacks merit.

Issue 2: Plaintiff’s claim for Fraudulent Concealment lacks merit.

Issue 3: Plaintiff’s claim for Negligence Per Se lacks merit.

“[T]he partners of a partnership are jointly and severally liable for the conduct and torts injuring a third party committed by one of the partners.” Black v. Sullivan (1975) 48 Cal.App.3d 557, 569. Therefore, Eyesthetica, as well as alleged partners Burnstine and Samimi, may be held liable for the conduct of general partner Steven C. Dresner.

Issue 1: Second Cause of Action for Medical Battery

A medical battery occurs when “a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained.” Cobbs v. Grant (1972) 8 Cal.3d 229, 239. A medical battery also occurs “when a doctor performs an operation to which the patient has not consented.” Id. at 240. Defendants argue Plaintiff’s cause of action for medical battery fails because the theory of recovery here lies in medical malpractice only. However, Plaintiff has provided evidence that Dresner placed stitches in her eyelid without her consent during a follow up visit to an earlier procedure. (Plaintiff’s Response to Separate Statement of Facts and Supporting Evidence (hereafter “Plaintiff’s Facts”, 8, 10, 27-29.) Plaintiff states that she was not given any notice of the procedure and did not consent to the procedure. Then, after the procedure, Plaintiff’s eyelid began to retract, preventing Plaintiff from fully closing her right eye. (Id.)

Cobbs can be distinguished from the instant action. In Cobbs, the issue was whether a doctor who failed to communicate the inherent risks of a surgery vitiated the plaintiff’s consent to operate. Here, however, Plaintiff alleges that she went to Dresner’s office for a mere follow up visit. Instead, Dresner proceeded to conduct an entirely different procedure by placing stitches into her eyelid without her consent. Thus, the second cause of action for medical battery is not subsumed by medical negligence.

Issue 2: Third Cause of Action for Fraudulent Concealment

The elements of fraudulent concealment are: “(1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.

Plaintiff has presented evidence that Dresner concealed a material fact when he allegedly failed to inform Plaintiff that he would be placing stitches in her eyelid, and also failed to advise Plaintiff of the side effects and consequences of such a procedure. (Plaintiff’s Facts, 8, 27-29.) “A physician is under a fiduciary duty to disclose information to the patient, and that information must be relevant to a meaningful decisional process and necessary to form the basis of an intelligent consent by the patient to the proposed treatment.” Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 635 (internal citations omitted). “[T]he patient can maintain an action for fraud as well as malpractice. Under these circumstances, a physician, like any other fiduciary, is liable for his fraudulent conduct.” Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 636. Plaintiff also presented evidence that Dresner concealed, altered and/or modified Plaintiff’s medical record for her visit on August 17, 2015. (Plaintiff’s Facts 30, 34, 35.) Plaintiff provided evidence that due to this concealment she did not timely obtain the necessary diagnosis and treatment for her condition. (Id.)

Issue 3: Fourth Cause of Action for Negligence Per Se

The elements of a cause of action for negligence per se are: “(1) the defendant violated a statute, ordinance, or regulation; (2) the violation proximately caused death or injury to the plaintiff; (3) the death or injury resulted from an occurrence of the kind that the statute, ordinance, or regulation was designed to prevent; and (4) the plaintiff belonged to the class of persons for whose protection the statute, ordinance, or regulation was adopted.” Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1088.

Defendants argue this cause of action is duplicative of Plaintiff’s first cause of action for medical negligence. This argument is incorrect. The elements of a cause of action for medical negligence differ from the elements of negligence per se. While the two concepts are related, in that both involve unintentional harms, medical negligence depends on a standard of care in a particular field while negligence per se requires the violation of a particular statute or regulation. Here, Plaintiff has provided evidence that Defendants violated a statute – Penal Code ; 471.5. (Plaintiff’s Facts, 36-39.) Pen. Code, ; 471.5 states: “Any person who alters or modifies the medical record of any person, with fraudulent intent, or who, with fraudulent intent, creates any false medical record, is guilty of a misdemeanor.” Plaintiff has provided evidence that the violation caused injury, that the injury resulted from an occurrence of the kind Penal Code ; 471.5 was designed to prevent, and that Plaintiff belonged to the class of persons for whose protection Penal Code ; 471.5 was adopted. (Plaintiff’s Facts, 36-39.) Plaintiff has provided evidence that Dresner's concealment of the procedure prevented her from seeking alternative opinions and treatment for her right eyelid. (Id.)

Based on the foregoing, the Court finds that Plaintiff has met her burden to provide specific facts showing the existence of a triable issue of material fact as to her second through fourth causes of action. CCP ; 437c(p)(2).

Accordingly, Defendants’ Motions for Summary Adjudication are denied.

Plaintiff is ordered to give notice of this ruling.