Opinion
B330339
07-02-2024
JUNG YEOL IM, Plaintiff and Appellant, v. BENJAMIN I. SONG, Defendant and Respondent.
Law Offices of Andrew Kim and Andrew Kim for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza, Alysia B. Carroll; Law + Brandmeyer, Yuk K. Law and Kathleen D. McColgan for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. 20STCV37931, Michael C. Small, Judge.
Law Offices of Andrew Kim and Andrew Kim for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Alysia B. Carroll; Law + Brandmeyer, Yuk K. Law and Kathleen D. McColgan for Defendant and Respondent.
ASHMANN-GERST, J.
Plaintiff and appellant Jung Yeol Im (Im) appeals from the judgment entered after the trial court granted the motion for summary judgment filed by defendant and respondent Benjamin I. Song (Song).
We affirm.
BACKGROUND
I. Facts
A. Song diagnoses Im with advanced osteoarthritis
Im, complaining of pain in both knees and difficulty ambulating, saw Song, an orthopedic surgeon, on March 18, 2019. Song diagnosed Im with advanced osteoarthritis with genu varum deformity and presented two treatment options: (1) total knee arthroplasty or (2) physical therapy.
Im had follow-up appointments with Song on March 29 and August 7, 2019. Song's plan was to perform a total left knee arthroplasty, and he ordered CT scans during both appointments to prepare for the surgery.
B. Song performs a total knee arthroplasty
On August 27, 2019, Im was seen at the Yonsei Medical Clinic, where she was assessed as having average perioperative risk for knee surgery. In early September 2019, cardiologist Dr. Peter J. Chung cleared Im for surgery from a cardiovascular standpoint.
Im was admitted to Hollywood Presbyterian Medical Center for surgery on September 24, 2019. On that day, both Song and infectious disease specialist Dr. Suman Radhakrishna assessed and cleared Im for surgery. Song performed the total knee arthroplasty, and Im left the operating room in good condition.
Prior to performing the surgery, Song informed Im of her condition, the goal of surgery, alternative methods of treatment, and possible benefits and risks of surgery.
C. Song's postoperative care of Im
Im was discharged from the hospital on September 27, 2019. Prior to her discharge, Im had started physical therapy and was making good progress.
Song examined Im in his office on October 10, 2019, noting that Im's knee had healed well and that swelling was down. Song recommended that Im continue physical therapy.
Dr. Julie Sun reviewed an x-ray of Im's left knee on November 11, 2019, and noted a total knee replacement with good alignment. Dr. Sun observed a small suprapatellar left knee effusion but no acute fracture, dislocation, or prosthetic loosening.
Song examined Im again on November 11, 2019. Im reported feeling some pain and stiffness. Song noted some mild swelling but attributed Im's complaint of stiffness to a lack of exercise.
After missing three appointments, Im saw Song again on January 27, 2020. Im continued to complain of knee pain and stiffness. Song noted no effusion, that Im's left knee was stable on a stress test, and that she was able to ambulate with minimal pain. Song reiterated his advice to participate in a physical therapy program and warned Im that she would otherwise develop persistent stiffness and pain.
D. Im seeks other opinions
Im saw Dr. Yung Han on July 23 and October 12, 2020, for a second opinion on her surgery. Im complained of severe pain and functional limitations. Dr. Han noted that the femoral component was internally rotated and the patellofemoral joint was overstuffed.
Im was seen by Dr. Abraham Kim on February 24, 2021. Dr. Kim informed Im that there was no reliable solution for her subjective left knee pain. Dr. Kim did not recommend revision surgery because there was no structural justification.
E. Im undergoes revision surgery
On October 4, 2021, Dr. Sean Rajaee performed an elective revision of the total knee arthroplasty.
II. Procedural History
A. The complaint
On October 5, 2020, Im filed the instant action against Song for professional negligence (medical malpractice). The complaint alleges that Song "negligently, carelessly and otherwise tortuously failed to properly examine, diagnose and/or treat [Im] in such a manner that [Im] suffered physical and emotional damages and pain and suffering ...."
B. Song's motion for summary judgment
Song moved for summary judgment, arguing that his provision of medical care to Im was within the professional standard of care and did not cause any harm.
In support of his motion, Song submitted an expert declaration from orthopedic surgeon Dr. Daniel R. Laster. Based on his background, training, and experience, and upon review of Im's medical records, Dr. Laster opined "that the care and treatment provided to . . . Im by . . . Song was appropriate and was within the standard of care at all times." According to Dr. Laster, Song "performed a technically sound knee replacement surgery" that "was indicated." Dr. Laster further opined that "to a substantial medical probability, there is nothing that . . . Song did or failed to do that caused or contributed to any injury to . . . Im."
C. Im's opposition
Im opposed Song's motion for summary judgment. She argued that a triable issue of fact existed as to whether the revision surgery performed by Dr. Rajaee would have been necessary without Song's negligence. She also argued that there was a triable issue of fact as to whether Song obtained informed consent prior to performing the total knee arthroplasty. In support, Im submitted her own declaration, in which she averred that Song had failed to warn her of the risks of surgery or to present any alternative treatment.
D. Order granting summary judgment
The trial court held a hearing on Song's motion for summary judgment on March 14, 2023. After entertaining oral argument and taking the matter under submission, the court granted the motion on the ground that Im failed to submit expert evidence rebutting Dr. Laster's expert opinions that Song did not breach the duty of care and did not cause Im's injuries. The court rejected Im's argument that a triable issue of fact existed as to whether she had provided informed consent to the procedure because the complaint did not allege a lack of informed consent. Accordingly, informed consent was "not part of the case."
E. Judgment; appeal
The trial court subsequently entered judgment in favor of Song, and Im timely appealed.
DISCUSSION
I. Summary Judgment Principles
Summary judgment is properly granted where "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." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment bears the burden of showing that at least one element of a cause of action "cannot be established, or that there is a complete defense to the cause of action." (Id., § 437c, subd. (p)(2).) If the defendant meets this initial 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." (Ibid.) II. Standard of Review
We review a trial court's order granting summary judgment de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in that party's favor. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.) "[W]e may affirm on any basis supported by the record and the law. [Citation.]" (Vulk v. State Farm General Ins. Co. (2021) 69 Cal.App.5th 243, 254.)
III. Analysis
A. Im forfeited her claim of error
On appeal, a lower court's order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 619 (L.O.).) It is the appellant's burden to overcome this presumption of correctness by affirmatively showing error. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.) "This means that an appellant must do more than assert error and leave it to the appellate court to search the record and the law books to test [her] claim. The appellant must present an adequate argument including citations to supporting authorities and to relevant portions of the record. [Citations.]" (Id. at p. 557.) Thus, an appellant forfeits issues unsupported by reasoned argument or citations to legal authority and the record. (L.O., supra, 96 Cal.App.5th at p. 620.)
Im's opening brief is procedurally defective. The statement of facts section includes no record citations, in violation of California Rules of Court, rule 8.204(a)(1)(C) (appellate briefs must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"). Im cites three cases regarding the standard of review but otherwise provides no legal authority to support her claim that the trial court improperly granted Song's motion for summary judgment. And, she fails to grapple with any of the case law cited by the trial court in its order granting the motion. (See Abir Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th 882, 888 ["We are troubled by . . . [the appellants'] failure to cite . . . directly applicable contrary authority anywhere in their briefs"].)
Im did not file a reply brief.
By failing to support her factual and legal assertions with citations to the record and relevant case law, Im has forfeited her claim of error on appeal. (See L.O., supra, 96 Cal.App.5th at p. 618 ["Failure to comply with time-honored rules of appellate procedure may result in forfeiture of the issues on appeal"].)
B. The trial court properly granted Song's motion for summary judgment
Even if we were to overlook Im's forfeiture, we would still affirm the judgment on the merits.
The complaint in this action alleges that Song committed medical malpractice by "negligently, carelessly and otherwise tortuously fail[ing] to properly examine, diagnose and/or treat"
Im. "[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.' [Citation.]" (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.) In support of his motion for summary judgment, Song submitted the declaration of Dr. Laster, who provided his expert opinion that Song's treatment of Im was within the standard of care and did not cause injury.
When, as here, "a defendant health care practitioner moves for summary judgment and supports his motion with an expert declaration that his conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. [Citation.]" (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.) And, "[w]henever the plaintiff claims negligence in the medical context, the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff. [Citation.]" (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123; see also Sinz v. Owens (1949) 33 Cal.2d 749, 753 ["The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts"].)
Im failed to submit any expert evidence rebutting Dr. Laster's opinions. Accordingly, no triable issue of material fact exists as to a breach of the standard of care or causation, and Song is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c) &(p)(2).)
Below and on appeal, Im resists this conclusion by contending that her claim for professional negligence encompasses a theory of liability based on a lack of informed consent. Although not stated directly, the implication is that Im's own declaration was sufficient to raise a triable issue of fact as to whether Song failed to obtain Im's informed consent. The insurmountable problem with this argument, however, is that Im did not allege a lack of informed consent in her complaint.
"[A] physician can be found liable for negligence for failing to obtain a patient's informed consent if (1) the physician failed to 'disclose to the patient all material information-that is, "information which the physician knows or should know would be regarded as significant by a reasonable person in the [plaintiffpatient's] position,"' and (2) that failure proximately caused the plaintiff-patient harm. [Citations.]" (Flores v. Liu (2021) 60 Cal.App.5th 278, 295-296.)
"'"The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues . . ."' and to frame 'the outer measure of materiality in a summary judgment proceeding.' [Citation.]" (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 (Hutton).) "Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. [Citations.]" (Ibid.)
"[A] plaintiff wishing 'to rely upon unpleaded theories to defeat summary judgment'" (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648)-as Im did here-"must move to amend the complaint before the hearing. [Citations.]" (Ibid.; see also Ignat v. Yum! Brands, Inc. (2013) 214 Cal.App.4th 808, 820 ["A plaintiff opposing . . . a motion [for summary judgment] cannot defeat it by proffering new, unpleaded theories or issues"].) Im failed to do so. (See Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1664 ["Declarations in opposition to a motion for summary judgment 'are no substitute for amended pleadings[]'"].)
Because Song satisfied his burden on summary judgment by "negat[ing] [Im]'s theor[y] of liability as alleged in the complaint" (Hutton, supra, 213 Cal.App.4th at p. 493), and Im failed to satisfy the burden that subsequently shifted to her to show the existence of a triable issue of fact as to that theory of liability, the motion for summary judgment was properly granted.
DISPOSITION
The judgment is affirmed. Song is entitled to his costs on appeal.
We concur: LUI, P. J., HOFFSTADT, J.