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Cullen v. Ramberg

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Feb 14, 2012
2d Civil No. B230098 (Cal. Ct. App. Feb. 14, 2012)

Opinion

2d Civil No. B230098

02-14-2012

THOMAS CULLEN, Plaintiff and Appellant, v. DONALD A. RAMBERG et al., Defendants and Respondents.

Law Office of Eric A. Woosley, Eric A. Woosley, Jordan T. Porter, for Plaintiff and Appellant. Clinkenbeard, Ramsey, Spackman & Clark, LLP, William Clinkenbeard, Cathy Anderson, Maureen Clark, for Defendant and Respondent, Donald A. Ramberg, M.D. Hall, Hieatt, & Connely, LLP, Mark B. Connely, Stephanie A. Bowen, for Defendant and Respondent, Harold D. Segal, M.D.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. CV090223)

(San Luis Obispo County)

Thomas Cullen appeals the grant of summary judgment in favor of respondents, Donald A. Ramberg, M.D., and Harold D. Segal, M.D., on his complaint seeking damages for injuries he allegedly suffered during posterior cervical fusion surgery. Appellant contends the motion should have been denied because he offered substantial evidence that respondents were liable under the doctrine of res ipsa loquitur. He further contends that he presented direct evidence as to both negligence and causation that was sufficient to overcome summary judgment, and that the court erred in overruling his objections to respondents' expert declaration. We affirm.

Defendants Sierra Vista Regional Medical Center (SVRMC) and Sundarampillai Jeyanandarajan, M.D., are not parties to this appeal. Appellant dismissed his complaint as to SVRMC after the trial court granted summary judgment in its favor. The court denied Dr. Jeyanandarajan's motion for summary judgment, and appellant's action against him is stayed pending this appeal.

FACTS AND PROCEDURAL HISTORY

In accordance with the applicable standard of review discussed below, we state the facts in the light most favorable to appellant as the party against whom summary judgment was entered. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) On January 18, 2008, respondents performed a posterior cervical fusion surgery on appellant at SVRMC. Prior to commencement of the surgery, appellant was intubated with a tracheal tube by defendant Dr. Jeyanandarajan, a board certified anesthesiologist.

When appellant awoke from surgery, his throat was sore and his voice was hoarse and raspy. He also encountered difficulty swallowing and began experiencing shortness of breath. In May 2008, Dr. Segal evaluated appellant and concluded he was possibly suffering from right vocal cord paralysis. Tests conducted the following month at UCLA Medical Center revealed mild restriction of the right vocal cord. The otolaryngologist who conducted the tests concluded that appellant's dysphonia (hoarseness) was "much worse than his anatomic findings" and diagnosed him as possibly suffering from "a hyperfunctional disorder of the larynx." With regard to appellant's reported difficulty with swallowing (dysphagia), the doctor concluded that "the findings are quite minimal and no treatment is required at this time." In December 2008, Dr. Segal reported that appellant was "still having problems with vocal cord paralysis on the right side" and noted "[h]is voice is still hoarse, although at times it seems to have some return. Swallowing is a problem and 'breathing' is a problem at times, depending on his hoarseness."

On April 16, 2009, appellant filed his complaint for professional negligence and lack of informed consent against respondents, Dr. Jeyanandarajan, and SVRMC. Respondents answered the complaint, and thereafter moved for summary judgment. The evidence offered in support of the motion included a declaration from Dr. Lawrence M. Shuer, M.D., a board certified neurosurgeon and professor of neurosurgery at Stanford University. Dr. Shuer opined among other things that respondents had acted within the standard of care and could not possibly have caused appellant's alleged injuries. Dr. Shuer concluded "it cannot be proven within a reasonable medical probability that [appellant's] laryngeal nerve damage and vocal cord paralysis was caused by any act or omission on the part of [respondents]. It is anatomically impossible for the patient to have sustained an injury to his laryngeal nerve during the posterior cervical fusion that was performed by [respondents] on January 18, 2008." The doctor reasoned: "There is a known risk of injury to this nerve in an anterior cervical fusion, since the nerves that go to the throat for swallowing and phonation are located in the front of the spine. However, a posterior approach to the spine will not put these nerves in jeopardy. It is anatomically impossible to injure the recurrent laryngeal nerve as a result of a posterior approach to the cervical spine. Under no circumstances could [respondents] have caused injury to the patient's laryngeal nerve during the surgery." (Italics added.)

In opposing respondents' motion, appellant offered the declaration of Gerald Alexander, M.D., a board certified orthopedic surgeon. Dr. Alexander opined among other things that "[d]amage to a patient's laryngeal nerve and vocal cords is a known risk associated with both cervical fusions and intubation," and that "[t]he injury caused to [appellant's] laryngeal nerve and vocal cords is not the kind of injury that ordinarily occurs in the absence of someone's negligence." The doctor further concluded that appellant's injuries "were the result of the surgical procedure he underwent on January 18, 2008," and added, "[i]t is below the standard of care for an orthopedic surgeon to damage a patient's laryngeal nerve and vocal cord during surgical procedure." Appellant also filed numerous objections to respondents' proffered evidence, including virtually all of the pertinent statements of fact and opinion included in Dr. Shuer's declaration. In his memorandum of points and authorities, appellant contended among other things that he had met his burden of identifying a triable issue of material fact by presenting substantial evidence of the three elements of res ipsa loquitur, as well as direct evidence of respondents' negligence and causation.

In opposing the motion as to Dr. Jeyanandarajan, appellant offered the declaration of Dr. Douglas V. Etsell, a board certified anesthesiologist. Dr. Etsell concluded that the records Dr. Jeyanandarajan generated in connection with the procedure were inadequate and "fall below the standard of care for anesthesiologists." For example, the doctor noted: "Dr. Jeyanandarajan did not record an examination of [appellant's] neck mobility. This is important since [appellant] had a previous cervical fusion and an ongoing neck problem, which would influence positioning during induction of anesthesia, intubation and positioning during surgery." The doctor also faulted Dr. Jeyanandarajan for failing to both "describe his method of endotracheal intubation" and "record whether or not there was any difficulty placing the endotracheal tube." Dr. Etsell further took issue with Dr. Jeyanandarajan's failure to "record whether the cuff pressure was monitored upon placement and during maintenance of anesthesia[,] which is important in cases in which nitrous oxide is used[.]" The doctor reasoned: "Nitrous [o]xide is know[n] to cause a change in cuff pressure during the course of an anaesthetic and should be monitored at intervals. Hyperinflation of the cuff has the potential to cause damage to the larynx and trachea." Based on the medical records, Dr. Etsell concluded that the alleged injury to appellant's laryngeal nerve and right vocal cord "appears temporally to be associated with his surgery and anesthesia of January 18, 2008." The doctor ultimately opined that "[d]amage to a patient's larynx, vocal cords, and recurrent laryngeal nerve is a known risk associated with both cervical fusions and intubation" and that "[i]t is below the standard of care for an anesthesiologist to damage a patient's larynx, recurrent laryngeal nerve and vocal cords during anesthesia."

In response to the court's request, respondents filed additional briefing relating to the issue of res ipsa loquitur. The court thereafter granted respondents' motion and overruled appellant's evidentiary objections. Judgment was subsequently entered in respondents' favor, and appellant filed a timely notice of appeal.

DISCUSSION

Appellant contends the court erred in granting summary judgment in favor of respondents because he presented substantial evidence from which the trier of fact could have found in his favor under the theory of res ipsa loquitur, as well as direct evidence of respondents' negligence and causation. He also argues the court erred in overruling his evidentiary objections to respondents' proffered evidence, and that sustaining of the objections would have precluded respondents from meeting their initial burden of proof. We conclude the motion was properly granted.

Standard of Review

Summary judgment is appropriate when all of the papers submitted show there is no triable issue of any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant may move for summary judgment if it is contended that the action has no merit. (Id. at subd. (a).) A defendant meets its initial burden of showing a cause of action is without merit if that party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense thereto. (Id. at subd. (p)(2).) Once the defendant makes such a showing, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)

"When reviewing a trial court's decision granting summary judgment to a defendant, we, '[l]ike the trial court, . . . view the evidence in the light most favorable to the opposing party [i.e., the plaintiff] and accept all inferences reasonably drawn therefrom. [Citation.]' [Citation.] We use the same three-step analysis as the trial court: (1) identifying the issues framed by the pleadings; (2) determining whether the defendant negated the plaintiff's claims; and (3) deciding whether the plaintiff demonstrated the existence of a triable, material factual issue. [Citation.]" (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 436.)

Direct Evidence of Negligence and Causation; Res Ipsa Loquitur

The plaintiff in a medical malpractice case "must establish the following basic elements: '(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.' [Citations.]" (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702.) "'Where a medical process or procedure is not a matter of common knowledge, expert testimony is necessary to determine whether a probability of negligence appears from the happening of an accident or untoward result. [Citation.]' [Citation.]" (Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 802.)

Appellant does not dispute that expert testimony was necessary to determine whether the injuries he allegedly sustained during his posterior spinal fusion surgery were the result of negligence. (Curtis v. Santa Clara Valley Medical Center, supra, 110 Cal.App.4th at p. 803.)

In support of their motion for summary judgment, respondents offered evidence, in the form of Dr. Shuer's expert declaration, that it was "anatomically impossible" for appellant's alleged injuries to have been caused by the posterior cervical fusion surgery that respondents performed. This evidence was sufficient to meet respondents' initial burden of proving they did not breach the standard of care and did not cause appellant's injuries. When a medical malpractice defendant meets his burden of proof in moving for summary judgment, the plaintiff can defeat the motion by "producing direct evidence of [the] defendant's negligence and causation, or [by] producing evidence of the three elements of res ipsa loquitur." (Elcome v. Chin (2003) 110 Cal.App.4th 310, 318 (Elcome).) The court found that appellant failed to meet his burden of proof in either respect. We concur in that finding.

"The doctrine of res ipsa loquitur creates a presumption affecting the burden of producing evidence. (Evid. Code, § 646, subd. (b).) 'A presumption affecting the burden of producing evidence "require[s] the trier of fact to assume the existence of the presumed fact" unless the defendant introduces evidence to the contrary. [Citations.]' [Citation.] Where the doctrine of res ipsa loquitur applies, '[t]he presumed fact . . . is that "a proximate cause of the [plaintiff's injury] was some negligent conduct on the part of the defendant. . . ."' [Citation.]" (Elcome, supra, 110 Cal.App.4th at p. 316.) "At trial, before the burden-shifting presumption arises, the plaintiff must present some substantial evidence of three conditions: (1) the injury must be the kind which ordinarily does not occur in the absence of someone's negligence; (2) the injury was caused by an instrumentality in the exclusive control of the defendant; and (3) the injury was not due to any voluntary action or contribution on the part of the plaintiff. [Citations.]" (Id. at pp. 316-317, italics omitted.)

With regard to the first element of res ipsa loquitur, appellant primarily relies as he did below on Drs. Alexander and Etsell's identical statements that "[d]amage to a patient's laryngeal nerve and vocal cords is a known risk associated with both cervical fusions and intubation," and that "[t]he injury caused to [appellant's] laryngeal nerve and vocal cords is not the kind of injury that ordinarily occurs in the absence of someone's negligence." Aside from the fact that these conclusory statements are unaccompanied by any reasonable explanation that would make them useful to the trier of fact (Shugart v. Regents of University of Cal. (2011) 199 Cal.App.4th 499, 508), they also fail to distinguish between anterior and posterior cervical fusions. As Dr. Shuer's declaration demonstrates, this distinction is crucial because the injury at issue is an "anatomical impossibility" where, as here, the surgery involves the latter procedure. Because appellant's expert opinions fail to make this determinative distinction, they offer no support for appellant's claim that damage to a patient's laryngeal nerve and vocal cords is a known risk associated with posterior cervical fusion surgery, much less that the injury is one that ordinarily does not occur in the absence of negligence in performing said surgery. Dr. Shuer's undisputed opinion to the contrary is thus fatal to appellant's claim. (See Folk v. Kilk (1975) 53 Cal.App.3d 176, 184 [jury instruction on res ipsa loquitur not required "if a defendant establishes that he was free from negligence by evidence that cannot be rationally disbelieved"].) Appellant's failure to controvert the doctor's opinion also disposes of his claim that he produced evidence sufficient to create a disputed issue of material fact on the elements of negligence and causation.

We also agree with the trial court's conclusion that appellant failed to present substantial evidence of the existence of the second element of res ipsa loquitur, i.e., that his alleged injuries were caused by an agency or instrumentality within respondents' exclusive control. As we have noted, respondents offered undisputed evidence conclusively establishing that they could not have caused appellant's alleged injuries. Moreover, other evidence in the record identifies alternative potential causes for the injuries that were beyond respondents' control. Most notably, appellant offered Dr. Etsell's expert declaration concluding that Dr. Jeyanandarajan had caused the injuries in connection with the intubation process. Because Dr Shuer's declaration uncontrovertibly demonstrates that respondents had no control over that process, appellant failed as a matter of law to produce sufficient evidence of the first and second elements of res ipsa loquitur.

McKinney v. Nash (1981) 120 Cal.App.3d 428 (McKinney), is particularly instructive. The plaintiff in that case brought an action for medical malpractice and lack of informed consent against a surgeon and an anesthesiologist for injuries he suffered as the result of a bilateral inguinal hernia repair. After the surgery, the plaintiff suffered from swelling in his right testicle followed by permanent testicular atrophy and impotence. At trial, two expert witnesses testified that the cause of the testicular atrophy was the surgical repair procedure and defendant surgeon admitted that the postoperative swelling of plaintiff's testicle was consistent with vascular damage and subsequent atrophy. There was also expert testimony that plaintiff's numbness was caused by a spinal anesthetic administered by the defendant anesthesiologist, but did not indicate negligence on the anesthesiologist's part. The plaintiff testified that the surgeon had failed to inform him of the risks of testicular atrophy, and that he would have declined surgery had he been so informed. (Id. at pp. 433-435.)

At the conclusion of the trial, a directed verdict was entered in favor of both defendants. In affirming the judgment in favor of the anesthesiologist on the negligence claim, the Court of Appeal noted that the evidence compelled a finding that the plaintiff's testicular atrophy was not caused by an agency or instrumentality within the anesthesiologist's control. The court further concluded that the plaintiff could not prevail on the first element of res ipsa loquitur as to the anesthesiologist because there was no evidence that he had acted negligently in administering the anesthesia. (McKinney, supra, 120 Cal.App.3d at p. 440.) The court also affirmed the judgment in favor of the anesthesiologist on the failure to warn claim, reasoning that the known risks associated with the anesthetic solution administered to the plaintiff were not material to the case. (Id. at p. 442.) As to the surgeon, however, the court found that the plaintiff had presented sufficient evidence to invoke the evidentiary presumption of Evidence Code section 646. The judgment in favor of the surgeon was accordingly reversed. (Id. at pp. 436-440.)

This case is essentially a mirror image of McKinney. Here, the evidence is sufficient to invoke Evidence Code section 646's presumption as to the anesthesiologist, but not the surgeons. It is undisputed that it is anatomically impossible for respondents to have caused any injury to appellant's laryngeal nerve and vocal cords during the posterior cervical fusion surgery they performed on him. It is also undisputed that respondents played no part in the intubation process, which the evidence indicated was the likely cause of the alleged injuries. The fact that respondents had no control over appellant's intubation also compels the conclusion, as stated in Dr. Shuer's declaration, that respondents had no duty to warn appellant of the risks attendant to that procedure.

Appellant cites Ybarra v. Spangard (1944) 25 Cal.2d 486 (Ybarra), in support of his claim that he made the requisite showing that his alleged injuries were caused by an agency or instrumentality in respondents' exclusive control. He quotes the following rule: "[W]here a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused his injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct." (Id. at p. 494.) He also notes that this rule has been applied in the plaintiff's favor in a number of cases. (E.g., Cavero v. Franklin etc. Benevolent Soc. (1950) 36 Cal.2d 301, 308; Bowers v. Olch (1953) 120 Cal.App.2d 108, 115.)

Ybarra does not aid appellant. The primary reason he is not entitled to the res ipsa loquitur presumption as applied in that case can be found in another case he quotes, which states: "The basis of the application of the [res ipsa loquitur] doctrine to all defendants in the cases is that the medical personnel acted as a group and that collectively, without regard to what any one may individually know, or did, they are in a position to explain the cause and produce the chief evidence bearing on the question whereas the plaintiff is not. To avoid the inference as a matter of law an individual doctor must go beyond showing that it was unlikely or not probable he was negligent and must establish that he is free from negligence by evidence which cannot be rationally disbelieved." (Clark v. Gibbons (1967) 66 Cal.2d 399, 411.) As we have explained, respondents' uncontroverted evidence that it would be "anatomically impossible" for them to have caused appellant's alleged injuries is sufficient to make such a showing. Accordingly, summary judgment was properly entered in their favor.

Evidentiary Objections

Appellant asserts the court erred in overruling his objections to Dr. Shuer's expert declaration because the medical records upon which the doctor's opinions were based were not properly admitted into evidence. Garibay v. Hemmat (2008) 161 Cal.App.4th 735 (Garibay), upon which appellant relies, is inapposite. The expert declaration at issue in that case was based on facts contained in medical and hospital records that were not before the court. (Id. at pp. 741-743.) Here, copies of the records were submitted along with counsel's sworn declaration. The records from SVRMC are also accompanied by a declaration from the director of risk management, and the records from UCLA Medical Center include a declaration from the custodian of records. The court further concluded that appellant effectively admitted the records were authentic by allowing his own experts to rely on them. (Evid. Code, § 1414.) Under the circumstances, it cannot be said the court abused its discretion in overruling appellant's objections to the evidence. (See Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 [although an appellate court reviews a summary judgment de novo, it reviews the trial court's rulings on evidentiary objections by applying the abuse of discretion standard].) As respondents note, Dr. Shuer's declaration would in any event have been sufficient to shift the burden for purpose of summary judgment because the doctor's opinion that it is anatomically impossible to injure the laryngeal nerve during a posterior cervical fusion is based upon his education and experience, and not the medical records to which appellant objected.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J. We concur:

GILBERT, P.J.

COFFEE, J.

Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Charles Crandall, Judge


Superior Court County of San Luis Obispo

Law Office of Eric A. Woosley, Eric A. Woosley, Jordan T. Porter, for Plaintiff and Appellant.

Clinkenbeard, Ramsey, Spackman & Clark, LLP, William Clinkenbeard, Cathy Anderson, Maureen Clark, for Defendant and Respondent, Donald A. Ramberg, M.D.

Hall, Hieatt, & Connely, LLP, Mark B. Connely, Stephanie A. Bowen, for Defendant and Respondent, Harold D. Segal, M.D.


Summaries of

Cullen v. Ramberg

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Feb 14, 2012
2d Civil No. B230098 (Cal. Ct. App. Feb. 14, 2012)
Case details for

Cullen v. Ramberg

Case Details

Full title:THOMAS CULLEN, Plaintiff and Appellant, v. DONALD A. RAMBERG et al.…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

Date published: Feb 14, 2012

Citations

2d Civil No. B230098 (Cal. Ct. App. Feb. 14, 2012)