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Gortarez v. Queiroz

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F061633 (Cal. Ct. App. Jan. 31, 2012)

Opinion

F061633 Super. Ct. No. S-1500-CV-268246

01-31-2012

CHARMAIN GORTAREZ, Plaintiff and Appellant, v. LUCIANE QUEIROZ et al., Defendants and Respondents.

Law Office of Donald C. Duchow and Donald C. Duchow for Plaintiff and Appellant. Ford, Walker, Haggerty & Behar, Jason B. Friedman, Aparajito Sen, and Maxine Lebowitz for Defendants and Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge.

Law Office of Donald C. Duchow and Donald C. Duchow for Plaintiff and Appellant.

Ford, Walker, Haggerty & Behar, Jason B. Friedman, Aparajito Sen, and Maxine Lebowitz for Defendants and Respondents.

Appellant Charmain Gortarez sued her dentist, Luciane Queiroz, for malpractice. While performing a root canal, a taper file separated inside the mesial-lingual canal and Queiroz sealed the canal with cavit, leaving a portion of the file inside. Queiroz filed for summary judgment, which the trial court granted. Gortarez appeals, contending the trial court erred in granting summary judgment. We will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Gortarez first went to Queiroz's office for treatment on January 22, 2008. At that first appointment, Gortarez complained of pain in the lower left and right quadrants of her mouth. Queiroz took a series of full mouth X-rays and performed a new patient exam. At that first appointment, Queiroz provided fillings to teeth Nos. 2, 3, 14, 18, 29, and 31. Another procedure was performed on teeth Nos. 19 and 28. Gortarez was scheduled for future scaling, root planing, and root canal work.

Gortarez returned to Queiroz's office on January 26, 2008, complaining of pain in her "whole jaw and left side of her face," a tingling left arm, and nausea. Queiroz prescribed Vicodin and referred Gortarez to urgent care to check for a possible cardiac condition. Queiroz followed up with a call to Gortarez on January 29; Gortarez stated she had not gone to urgent care, but was feeling better.

On March 11, 2008, Queiroz's office called Gortarez and informed her that Denti-Cal had authorized root canal therapy, scaling, and root planing. Gortarez indicated she would call back to make an appointment.

Gortarez came to Queiroz's office on March 13, 2008, for the root planing, scaling, and root canal. After the scaling and root planing was completed, a root canal was started on tooth No. 19. During the procedure, a No. 20 0-10 taper file separated inside the mesial-lingual canal. Queiroz medicated the canal and closed the access point with cavit. Queiroz informed Gortarez the file had separated and referred Gortarez to an endodontist.

On March 17 Gortarez called Queiroz's office complaining of pain. Queiroz called in a prescription for Vicodin to a pharmacy. On March 27, 2008, Gortarez called Queiroz's office "in extreme pain." Gortarez indicated she had scheduled an appointment at Apollonia Dental for a second opinion and that she could not go to Los Angeles to the endodontist.

On August 31, 2009, Gortarez filed her complaint for dental negligence against Queiroz. The complaint alleged negligence in treatment and also sought damages for emotional distress.

The case was ordered to nonbinding arbitration. The matter was arbitrated, and the arbitrator issued his decision in favor of Queiroz, which Gortarez rejected.

Queiroz filed a motion for summary judgment. The motion was accompanied by points and authorities, a copy of the transcript of Gortarez's deposition, a declaration from Shane White, a professor of endodontics at UCLA School of Dentistry, and a separate statement of undisputed facts.

White's declaration established his credentials as an endodontist and an expert in the field. White opined that the "separation of an endodontic file during a root canal procedure is a well known risk of such procedures. The fact that a file separates during an endodontic procedure is not indicative of treatment that falls below the dental standard of care." White further stated that the "dental standard of care requires that the practitioner, following the separation of an endodontic file, inform the patient of the separated file and offer to refer the patient to an endodontist."

White had reviewed Gortarez's patient file and the transcript of her deposition. Based upon that review, he concluded that Gortarez had been notified of the separated file and referred for further treatment by an endodontist. White further opined that Queiroz's treatment of Gortarez complied with the standard of care and that no acts or omissions by Queiroz contributed or caused any damage to Gortarez.

Gortarez opposed the motion for summary judgment. In responding to the statement of undisputed facts, Gortarez admitted all of the facts except for factual statements Nos. 7, 12, 13, 14, and 15. The substance of the disputed facts was that Gortarez maintained (1) she was not informed a foreign object was left in her tooth; (2) she was not told that Queiroz had referred her to an endodontist and she thought the referral was to another dentist; (3) separation of a file may be a consequence of a root canal but also may be the result of negligence; and (4) the separation of the file in her case was the result of negligence and Queiroz did not comply with the applicable standard of care.

Gortarez did not have a declaration from an endodontist or any other expert accompanying her opposition. Instead, she referred to a published work and attached three pages from that document to her opposition. Queiroz filed an evidentiary objection to the published work relied upon by Gortarez, claiming that it was inadmissible as it lacked foundation.

The trial court heard the summary judgment motion on October 1, 2010. The order granting the summary judgment was filed October 14, 2010. The judgment was entered November 4, 2010.

DISCUSSION

Gortarez contends the trial court erred in granting summary judgment for Queiroz. The crux of Gortarez's argument is that White's expert opinion failed to address the leaving of a portion of the file in the root cavity and that leaving a foreign object in a patient is negligence.

I. Standard of Review

On appeal from a summary judgment, our task is to determine independently whether an issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) "We independently review the parties' papers supporting and opposing the motion, using the same method of analysis as the trial court. Essentially, we assume the role of the trial court and apply the same rules and standards. [Citations.]" (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) In so doing, we view the evidence in the light most favorable to the party opposing the motion; we liberally construe the opposing party's evidence, strictly construe the moving party's evidence, and resolve all doubts in favor of the opposing party. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

"We review de novo the trial court's decision to grant summary judgment. [Citation.] 'In reviewing a motion for summary judgment, we accept as undisputed fact only those portions of the moving party's evidence that are uncontradicted by the opposing party. In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn therefrom are accepted as true.' [Citation.] Summary judgment is a drastic remedy that is to be used sparingly, and any doubts about the propriety of summary judgment are to be resolved in favor of the opposing party. [Citations.]" (Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1240, disapproved on other grounds in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-1174.)

II. Summary Judgment

Evidence

The pages of Gortarez's deposition that were submitted with the motion for summary judgment contain the following statements from Gortarez: (1) Queiroz stopped and told Gortarez "something separated in [your] tooth"; (2) Queiroz asked an assistant to take an X-ray of the tooth. "[W]hen we went to take an x-ray, [Queiroz] said that it had moved" and that "the pins had separated or something, separated in there"; (3) Queiroz referred Gortarez to a specialist that had "further education or experience" than Queiroz; and (4) Queiroz told Gortarez, "One of the pins ... separated in your tooth and I can't do anything else."

Gortarez's patient records reflect that a "#20 0-10 taper broke inside ML canal" and "PT informed - she was [referred] to endodontist."

In her response to the statement of undisputed facts, Gortarez denied being told a foreign object was in her tooth. In her deposition Gortarez acknowledged being told one of the pins had separated in her tooth. The X-ray showed something in the tooth. Queiroz told Gortarez there was nothing more she, Queiroz, could do to remedy the situation.

Gortarez also disputed being referred to an endodontist when responding to the statement of undisputed facts. Yet, in her deposition she admitted that she was referred to a dental specialist to correct the problem but wasn't "[s]ure" if the word Queiroz used was "endodontist."

Although we view the evidence in the light most favorable to the party opposing the summary judgment motion, the evidence discloses that Gortarez admitted knowing that a pin or something had broken off in her tooth during the root canal, an X-ray showed something in her tooth, and Queiroz stopped work at that point and referred Gortarez to a specialist.

Expert opinion

White's declaration sets forth the documents he reviewed before rendering an opinion. Those documents included a transcript of Gortarez's deposition and dental treatment record from Queiroz's office and other dental providers' records. After reviewing those documents, White then rendered his opinion that the file breakage was not due to any act or omission of Queiroz's and was not caused by negligence, file breakage is a "well known risk of such procedures," and Queiroz's treatment complied with the standard of care.

In response to this expert opinion, Gortarez submitted three pages from a published work. Queiroz raised evidentiary objections to these pages from the publication. The pages from the publication are not competent evidence pursuant to Evidence Code section 1200, and Gortarez did not submit any declaration from an expert in the field establishing admissibility of the publication pursuant to section 1340 or any other section.

All further statutory references are to the Evidence Code.

Analysis

In the trial court, Gortarez maintained that the mere fact a pin or portion of a taper file was left in her tooth was evidence of medical malpractice as a matter of law. Here, Gortarez contends that this is a factual issue for a jury to determine or, alternatively, that it constitutes negligence as a matter of law. Gortarez is incorrect.

We are aware of no California case, and none has been cited, that has imposed strict liability in retained object cases. Rather, each case, including the California Supreme Court's decision in Ales v. Ryan (1936) 8 Cal.2d 82 (Ales) and this court's decision in Truhitte v. French Hospital (1982) 128 Cal.App.3d 332, admitted expert testimony and allowed the jury to make a finding on liability.
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Medical malpractice is a species of negligence. A medical professional necessarily owes a duty of care to his or her patients. (Keene v. Wiggins (1977) 69 Cal.App.3d 308.) Thus, medical negligence is shown by demonstrating (1) the standard of care in the professional community with respect to the type of treatment that the plaintiff claims caused his or her injury, (2) the doctor's failure to meet that standard, and (3) the patient's harm was caused by doctor's deficient care. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077; Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

Generally, expert testimony is required to establish the standard of care in a medical field. (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542-1543.) "'The standard of care in a medical malpractice case requires that medical service providers exercise that ... degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. 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 (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1, quoting Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.)

Queiroz submitted expert testimony establishing the standard of care for the dental profession and that Queiroz did not breach the standard of care. Gortarez had the burden of producing competent expert testimony to contradict White's testimony on the standard of care. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487.) Gortarez failed to meet that burden. Without a competent expert opinion to contradict that of White, Gortarez failed to establish any triable issue.

Gortarez, however, contends this is a "retained object" case that does not require expert opinion. Ordinarily, the applicable standard of care, and whether in the relevant circumstances the defendant violated it, "can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. [Citation.]" (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844; see also Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) If the injury or treatment is within the general knowledge of laypersons, no expert testimony is required. (Sinz v. Owens (1949) 33 Cal.2d 749, 753.)

The common-knowledge exception not only obviates the need for expert testimony, but under certain circumstances it may support a presumption of negligence. The doctrine of res ipsa loquitur, when found to be applicable, creates a presumption of negligence and shifts the burden of explaining the incident to the defendant. The defendant then must produce evidence to support a contrary finding. (§ 646, subd. (b).) The presumption arises when three conditions exist: (1) the accident is of a kind that ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it was not due to any voluntary action or contribution on the part of the plaintiff. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.) The doctrine of res ipsa loquitur is available in medical negligence actions. (Bardessono v. Michels (1970) 3 Cal.3d 780, 790.)

Here, however, the doctrine of res ipsa loquitur does not apply. The first condition, that the accident or injury be of a kind that ordinarily does not occur in the absence of someone's negligence, is not established. White's expert opinion clearly states that the "separation of an endodontic file during a root canal procedure is a well known risk of such procedures" and, if this occurs, it is "not indicative of treatment that falls below the dental standard of care." Thus, the injury Gortarez complains of can and does ordinarily occur in the absence of someone's negligence.

We also distinguish Gortarez's case from the published retained object cases. Those cases involve surgical procedures where an item, such as a clamp or sponge, was left in the patient after the operation was completed successfully. (See, e.g., Ales, supra, 8 Cal.2d 82 [sponge left in abdominal cavity]; Armstrong v. Wallace (1935) 8 Cal.App.2d 429 [same]; Leonard v. Watsonville Community Hosp. (1956) 47 Cal.2d 509 [clamp left in abdomen].) Here, the endodontic file broke during the procedure and the patient was referred to an endodontist to remove the foreign object and complete the procedure, which White's expert opinion states is a well-known risk and the proper procedure to comply with the dental standard of care.

DISPOSITION

The judgment is affirmed. Costs are awarded to respondents.

________________________

CORNELL, J.

WE CONCUR:

________________________

WISEMAN, Acting P.J.

________________________

GOMES, J.


Summaries of

Gortarez v. Queiroz

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F061633 (Cal. Ct. App. Jan. 31, 2012)
Case details for

Gortarez v. Queiroz

Case Details

Full title:CHARMAIN GORTAREZ, Plaintiff and Appellant, v. LUCIANE QUEIROZ et al.…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 31, 2012

Citations

F061633 (Cal. Ct. App. Jan. 31, 2012)