1 2 IN THE MATTER OF ARBITRATION BETWEEN vs., Claimant,, M.D.,, M.D. Respondents.. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 14478

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21 1 2 IN THE MATTER OF ARBITRATION BETWEEN vs., Claimant,, M.D.,, M.D. Respondents.. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: RE: RESPONDENT S MOTION FOR SUMMARY JUDGMENT AND OR ADJUDICATION ORDER OF DISMISSAL Motion Granted Hearing for Motion: September 7, :00 AM The Arbitrator has received and read all written submissions by the parties regarding Respondents Motion for Summary Judgment and or Adjudication. The oral arguments regarding this matter was heard on September 7, 2017., in Pro Per, and, Esq. appeared on behalf of. The hearing was conducted by telephone Upon consideration of Respondent s Motion, the Claimant s response, and the evidence, briefing, and arguments of Counsel and Claimant, the Arbitrator finds that there are no triable issues as to any material fact and hereby GRANTS Respondents Motion in its entirety Summary of Case: This is an action for medical malpractice against Respondents for failing to timely diagnose and treat his retinal detachment. There is no claim concerning the surgery that took place to treat the Claimant s condition. The facts as alleged by Claimant are that in 2015, Claimant was diagnosed with a cataract which was treated with surgery in October Claimant has a prior medical history of experiencing floaters and flashes of light in his eyes. In 2006 and 2007, Claimant underwent vitrectomy in both eyes. 28 DECISION RE RESPONDENTS MOTION FOR SUMMARY JUDGEMENT OR ADJUCATION - 1

22 1 2 On or about November 15, 2015, Claimant contacted that he had a serious issue with his eye. At that time Claimant believed he felt extra fluid in his eye which seemed 3 4 abnormal. Eight days later, on November 23, 2015, Claimant was examined by, M.D., an Ophthalmologist who dilated Claimant s eye and found a few floaters and a 1-2+ posterior capsular opacification in the left eye. She did not note any retinal breaks. Dr. opined that Claimant would benefit from a YAG procedure to correct opacification in the claimant s left eye. Claimant elected to procced with the YAG procedure on a future day. Claimant alleges that Dr. did not perform scleral depression of the left eye to fully evaluate the peripheral retina and rule out retinal breaks, holes, tears or detachments in the periphery. Claimant alleges that failing to perform the scleral depression was below the standard of care based upon the symptoms presented to the provider and the Claimant s prior medical history with regards to his eyes On December 3, 2015, Claimant presented to, O.D. with a chief complaint of flashes of light up to the right in the left eye and liquid moving in front of his vision along with cloudy vision. Claimant also reported seeing a dark outer ring-like depression. Dr. advised 17 Claimant to see his Ophthalmologist due to Claimant s symptoms. Dr. did not dilate the Claimant s eye and did not perform scleral depression. Claimant s claim is that by not dilating Claimant s eyes and performing scleral depression on Claimant s eyes, Dr. failed to meet the standard of care as the Claimant had new symptoms of flashes of light On December 14, 2015, Claimant presented to Dr. procedure. Claimant was examined by Dr. for the previously scheduled YAG prior to the scheduled YAG Laser procedure. It was at that time that the physician found that the Claimant had a bullous retinal detachment. Dr. consulted with Dr., M.D. regarding the new finding. Dr. and Dr. agreed that Claimant should return to see Dr., which he did, the following day, December 15, On that date, Dr. examined Claimant and performed a vitrectomy. According to Claimant there were no issues or complications due to the procedure. At the Hearing on this motion, DECISION RE RESPONDENTS MOTION FOR SUMMARY JUDGEMENT OR ADJUCATION - 2

23 Claimant described that he received excellent care and that the vitrectomy was successful. Claimant stated that he has no claim with regards to this procedure. Claimant did not experience any complications from the procedure and was observed to have 20/20 vision on exam with some increased pressure, that was treated. On February 12, 2016, Claimant presented with visual disturbances that were likely due to widening of the capusule opening. The Claimant underwent a YAG Laser procedure on February 26, Claimant was to have a second YAG Laser procedure on May 9, Claimant s claim is that the providers failed to properly examine Claimant causing a delay in diagnosis and treatment for his retina conditions. Respondents position is that in all aspects of this matter, Claimant s care met the standard of care in the community. 2. Law regarding Summary Judgments: 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. Cal. Code Civ. Proc. 437c(c). the 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. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Id., 437c, subd. (o)(2).) (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Respondents have met their burden, establishing they are entitled to summary judgment as a matter of law. There are four elements that must be established by the Claimant to prevail in his action based on negligence. If Respondent is able to establish that Claimant is unable to prove any of the elements, the law requires that the Respondents shall prevail in their motion. The four elements are that there is a duty owed to the patient; that the provider breached the duty owed to the patient, that the provider s breach of duty caused injuries to the patient, and the patient has damages // // DECISION RE RESPONDENTS MOTION FOR SUMMARY JUDGEMENT OR ADJUCATION - 3

24 // 3. Summary Judgment Motion or Alternatively Adjudication. Respondent s Motion is based upon three issues: 1) That Claimant s claim against does not provide medical care and therefore cannot be liable as a matter of law; 2) That the medical care provided by the providers met the standard of care and 3) That the providers of the medical care did not cause or contribute to Claimant s alleged injuries so no damages can be established. Additionally, Respondents addressed a new issue, that Claimant had failed to include a Statement of Undisputed Material Facts and therefore ceded all facts as alleged in Respondents Statement Claimant s opposition is based upon the following: 1) That Claimant filed his claim against all the parties based upon the instructions provided to him by the ( ) and the. 2) With regards to Respondents issues 2 and 3, Claimant asserts providers allegedly failed to promptly diagnosis and treat his eye condition and that he sustained certain damages. Claimant alleges that the providers breached their duty and caused damages Discussion. Standard of Care. Respondents provided multiple dates of medical services as well as surgical procedures provided to Claimant. Claimant alleges that the providers failed to timely treat and provide appropriate medical care with regards to Claimant s eye condition. As a result, Claimant alleges that he suffered damages. [I]n any medical malpractice action, the plaintiff must establish: '(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.' (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) Respondents argues they are entitled to summary adjudication on this cause of action because expert testimony shows they did not breach the standard of care and Claimant 28 DECISION RE RESPONDENTS MOTION FOR SUMMARY JUDGEMENT OR ADJUCATION - 4

25 cannot establish any of the elements of the medical malpractice. Respondents arguments are well taken and are directly applicable to this motion. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen. Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215. Claimant asserted in oral arguments that it was a matter of common sense and general knowledge that the alleged delay to diagnosis his medical condition would possibly cause serious injury to him. However, medical knowledge and technical skills in the field of medicine cannot be delegated to the ordinary layperson because medical judgment and knowledge of care is not within the common knowledge of the general public. To argue otherwise would mean that anyone would be able to diagnose and treat all medical conditions. Respondents presented evidence that the medical providers provided Claimant with treatment that fell within the standard of care., M.D., a licensed physician certified by the American Board of Ophthalmology, among many others, filed a declaration in support of Respondent s motion. In the Declaration of Dr., Dr. explained that Respondents treatment met the standard 17 of care at all times in the care they provided to Claimant. Dr. provided his expert testimony that at each level of encounter, Claimant was properly evaluated and treated according to the standard of care in the community. Respondents argue that no evidence of substandard care exists. Dr., O.D. reviewed the medical records of Claimants with regards to Claimant s encounter with Dr. and opined that Dr. s examination and referral was within the Standard of Care in the community. If the moving party meets its initial burden of production making its prima facie showing that there are no triable issues of material fact, the burden then shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at 850. The opposing party has to produce admissible evidence showing a triable issue of fact exists. Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72. When a Respondent moves for summary judgment and supports the motion with expert declarations that their conduct fell within the community standard DECISION RE RESPONDENTS MOTION FOR SUMMARY JUDGEMENT OR ADJUCATION - 5

26 of care, the Respondents are entitled to summary judgment unless the Claimant comes forward with conflicting expert evidence. Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, To meet his burden of producing admissible evidence showing a triable issue of material fact exists, 5 Claimant submitted the declaration of Dr., OD., M.S. a California licensed Optometrist, 6 7 with six years of experience. Dr. concluded that Respondents examination and conduct consisting of the method and means of diagnosis of the Claimant s condition, was below the standard of 8 9 care. Specifically, Dr. scleral depression. Dr. concluded that the standard of care required the providers to perform a failed to explain on what basis she based her conclusion and why not performing the scleral depression would be below the standard of care. Dr. was careful not to render any opinions outside her expertise. Dr. is not licensed to perform surgical procedures on the eyes and could not render an opinion on the standard of care for ophthalmology treatments and surgeries. At the most, Dr. was qualified to render an opinion as to Dr. s services but essentially concluded that Dr. was not, in her opinion, required to perform the scleral depression. Therefore, Dr. s testimony is of little or no value in meeting Claimant s burden of producing admissible evidence showing that a triable issue of material fact exists in this matter Claimant has not submitted sufficient documentary evidence to raise a triable issue of fact as to whether Respondents treatment fell below the standard of care. Additionally, during Oral Arguments, Claimant stated that he is not alleging that the physicians failed to treat his medical condition. His theory of recovery is that his diagnosis was delayed. Claimant s expert is unable to and is not willing to render any opinion on any of the Claimant s medical care past the diagnosis stage. This is insufficient to establish the elements of proving a malpractice action in this case. Thus, the Claimant has failed to make his case showing a triable issue of material fact in this case Other issues: Respondents raised the issue that Claimant has incorrectly filed a claim against and that therefore should prevail on this motion. Respondents contend that Claimant cannot establish a triable issue of fact to a claim that Respondents improperly enrolled decedent as a member of DECISION RE RESPONDENTS MOTION FOR SUMMARY JUDGEMENT OR ADJUCATION - 6

27 1 2 summary adjudication that ( ). Respondents also seek in the alternative an order granting only arranged for Claimant s care and did not actually provide medical care to Claimant; but, if provided care, it satisfied the applicable standard of care; and that if could provide medical care that it did not cause or contribute to his death [I assume that this is an error] or Claimant s alleged injuries. Since Claimant has failed to establish a triable issue of material fact, it is not necessary to address this issue. This is also the case with regards to Respondents contention that Claimant failed to submit his Separate Statement of Undisputed Material Facts ( Statement ) and thus failed to dispute the facts as alleged by Respondents. Both these issues are moot because the Claimant was unable to meet his burden of producing admissible evidence showing a triable issue of material fact and all the elements of his cause of action for Negligence The Arbitrator now finds that the Motion for Summary Judgment is GRANTED ACCORDINGLY, the Arbitrator finds that the above captioned case should be dismissed, with prejudice. IT IS, THEREFORE, ORDERED that the Respondents Motion to Dismiss is granted and the above captioned case is hereby dismissed with prejudice Nothing in this arbitration decision prohibits or restricts the enrollee from discussing or reporting the underlying facts, results, terms and conditions of this decision to the Department of Managed Health Care September 10, 2017 Adriana M. Burger Adriana M. Burger Arbitrator DECISION RE RESPONDENTS MOTION FOR SUMMARY JUDGEMENT OR ADJUCATION - 7

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