Hammontree v. Segal CA4/1 ( 2014 )

Filed 11/19/14 Hammontree v. Segal CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DEVIN WESLEY JONES-HAMMONTREE, D064477
a Minor, etc.,
Plaintiff and Appellant,
(Super. Ct. No. 37-2012-00100381-
v. CU-MM-CTL)
DMITRI SEGAL,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed.
Mark B. Simowitz for Plaintiff and Appellant.
Schmid & Voiles, Denise H. Greer, Kyle A. Cruse and Robert B. Fessinger for
Defendant and Respondent.
In establishing his medical malpractice claim, plaintiff and appellant Devin
Wesley Jones-Hammontree (Devin) had the burden of showing that, in treating him,
defendant and respondent Dr. Dmitri Segal, a radiologist, acted below the standard of
care and that Dr. Segal's error caused him some injury. Because, in response to Dr.
Segal's motion for summary judgment, Devin failed to meet that burden, we affirm the
trial court's judgment entered on an order granting Dr. Segal's motion.
In support of his motion for summary judgment, Dr. Segal submitted a declaration
from an expert who stated Dr. Segal did not act below the standard of care in reading X-
rays of Devin's arm and elbow and concluding they showed no acute fractures. The
defense expert further concluded that because the X-rays did not show any acute fracture,
no further treatment or referral was needed, and, therefore, Dr. Segal's treatment did not
cause any injury.
On appeal, Devin concedes there is no direct evidence in the record that any acute
fracture of his elbow has ever been diagnosed. Although Devin submitted the declaration
of his own expert, who believed the disputed X-rays showed "areas of concern," in the
absence of evidence Devin actually suffered a fracture, there is no basis upon which a
reasonable trier of fact could conclude Dr. Segal's failure to find a fracture caused Devin
any harm. Accordingly the trial court did not err in granting Dr. Segal's motion for
summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Elbow Injury
In September 2008, Devin was 11 years old and complained to his mother about
pain in his right arm, which he attributed to an earlier incident in which he had thrown a
ball in a game of dodge ball. Devin's mother and guardian ad litem, Trayce Lowe, took
Devin to his primary care physician, Dr. Gordon Luan. Lowe told Dr. Luan she was
concerned Devin may have broken something. Dr. Luan examined Devin and noted he
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had a tender spot in the lateral epicondyle region but that his right elbow had a full range
of motion. Dr. Luan ordered X-rays and told Lowe that if the X-rays were negative,
Devin could engage in any exercise he could handle.
X-rays were performed on Devin's arm, and Dr. Segal read them on September 29,
2008. Dr. Segal reported the X-rays showed no acute fracture or dislocation. Dr. Segal
also reported the radial head was aligned with the capitellum; that there was asymmetric
ossification of the trochlear and capitellar growth plate; and that there was a small well-
circumscribed calcification adjacent to the radial head epiphysis, representing possible
old trauma.
In light of Dr. Segal's report, Lowe continued to let Devin play sports. However,
Devin continued to complain of pain in his elbow and difficulty fully extending his arm.
In February 2009, Devin was once again examined by Dr. Luan. Dr. Luan suspected a
tendon injury, and his records indicate he referred Devin to an orthopedist.
Lowe stated that notwithstanding what Dr. Luan's records show, she never
received any orthopedic referral from Dr. Luan. Instead, in September 2009, shortly after
Lowe enrolled in a Kaiser Permanente (Kaiser) healthcare plan, Devin was examined by
a Kaiser orthopedist. The Kaiser orthopedist advised Lowe that Devin would need
surgery on his elbow, but that the surgery should wait until Devin's arm had grown more.
In 2011, surgery was performed on Devin's elbow and Lowe reported that, following the
surgery, Devin continued experience many limitations related to his elbow injury.
There is nothing in the record that sets forth the nature of the injury the Kaiser
orthopedist diagnosed or what surgery was performed on Devin's elbow in 2011.
Moreover, by way of supplemental briefing we requested, counsel for the parties have
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confirmed there is nothing in the record that directly shows Devin's elbow was fractured
at the time it was examined in September 2009.
B. Trial Court Proceedings
In July 2012, Devin, acting by and through Lowe, filed a malpractice complaint
against Dr. Segal and Dr. Luan.1 The complaint alleged in pertinent part that: "As a
proximate result of the negligence of Defendants . . . Plaintiff's fracture of his right elbow
went undetected until November 2009." Dr. Segal answered the complaint and filed his
motion for summary judgment.
In support of his motion for summary judgment, Dr. Segal relied on the
declaration of his expert, a board certified radiologist. The defense expert stated: "Dr.
Segal's report of the X-ray of plaintiff's elbow taken on September 29, 2008 was thorough
and completed within the standard of care. Dr. Segal properly found that the radial head
was aligned with the capitellum. There was asymmetric ossification of the trochlear and
capitellar growth plate. A small well-circumscribed calcification adjacent to the radial
head epiphysis was noted—possibly old trauma. There was no elbow effusion. These
findings support Dr. Segal's conclusion of no acute fracture or dislocation. The
conclusion is appropriate and within the standard of care."
The defense expert further stated: "Because there was no acute fracture identified
in the X-ray, no further treatment or referral needed to be recommended by the primary
care physician. Therefore, to a reasonable degree of medical probability, plaintiff's
ultimate outcome was not affected in any manner by the care provided by Dr. Segal."
1 Dr. Luan was dismissed as a defendant while the case was pending in the trial
court.
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In opposing Dr. Segal's motion, Devin relied on two declarations. One from Lowe
and one from another board certified radiologist. Lowe's declaration stated in pertinent
part: "In late 2009 I changed insurance plans and enrolled with Kaiser. I took my son to
be seen by the orthopedic department in September 2009. [¶] . . . I was advised . . . that
my son needed elbow surgery but that they wanted to wait until his arm grew some more.
[¶] . . . In November 2011 my son underwent elbow surgery performed by Dr. Khan.
Presently my son has many limitations due to his elbow injury."
Devin's expert reviewed the X-rays Segal had read in 2008 and stated: "With the
history of 'trauma,' but no site of pain noted, there are two areas of suspicion: a) The
lateral aspect of the unfused radial head, film one, and b) the lateral aspect of the also-
unfused humeral epicondyle. Either or both could represent a fracture. [¶] . . . The third
(lateral) view is off-center, not a true lateral view (possibly the patient couldn't assume
that position); reveals a probable fracture of the radial metaphysis."
Devin's expert then concluded: "[T]he failure to identify the fractures, if present,
and/or the failure to recommend immobilization pending further examination and
evaluation has more likely than not lead to the decrease of range of motion and other
complications and limitations plaintiff presently complains of." (Italics added.)
Devin's expert's declaration also faults Segal for failing to have comparative X-
rays performed on Devin's left elbow. According to Devin's expert, "[t]his can be
important to evaluate for normal variations of epiphyses which can sometimes simulate
fractures."
On April 22, 2013, the trial court granted Segal's motion for summary judgment.
In granting the motion, the court stated: "Plaintiff has not established a causal link
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between the alleged actions of Dr. Segal and Plaintiff's indefinite use restrictions. . . . [¶]
Plaintiff states that the range of motion loss and use restrictions are due to the surgery.
Plaintiff's expert failed to state the purpose for the surgery, and how or if it was related to
the injury from September 2008 as opposed to 'the history of trauma' or another event.
Given these deficiencies, it is unclear how Dr. Segal's conduct caused injury to Plaintiff."
On May 7, 2013, Devin moved for an order reconsidering the trial court's order
granting Segal's motion. Devin argued that his expert's declaration should have been
liberally construed, that it supported his theory that the X-ray showed his arm should
have been immobilized in 2008, and that the failure to immobilize the arm led to the
decrease in range of motion he continued to experience.
On May 9, 2013, a judgment dismissing Devin's claims against Segal was entered.
On August 8, 2013, the trial court denied Devin's motion for reconsideration on
multiple grounds. In particular, the trial court noted Devin's expert did not unequivocally
conclude Devin had actually suffered a fracture; without proof of a fracture, the trial
court found the declaration did not create any triable issue of material fact as to causation.
Devin filed a timely notice of appeal.
DISCUSSION
I
"We review an order granting summary judgment de novo. [Citation.] We
independently review the record and apply the same rules and standards as the trial court.
[Citation.] The trial court must grant the motion 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.' [Citation.]
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"In performing our independent review of a defendant's summary judgment
motion, we apply the rules pertaining to summary judgment procedure. A defendant
moving for summary judgment has the initial burden of showing that a cause of action
lacks merit because one or more elements of the cause of action cannot be established or
there is an affirmative defense to that cause of action. [Citations.] If the defendant fails
to make this initial showing, it is unnecessary to examine the plaintiff's opposing
evidence, and the motion must be denied. However, if the moving papers make a prima
facie showing that justifies a judgment in the defendant's favor, the burden shifts to the
plaintiff to make a prima facie showing of the existence of a triable issue of material fact.
[Citations.]
"In determining whether the parties have met their respective burdens, the court
must 'consider all of the evidence' and 'all of the inferences reasonably drawn therefrom,'
and 'must view such evidence [citations] and such inferences [citations] . . . in the light
most favorable to the opposing party.' [Citation.] 'There is a triable issue of material
fact if, and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.' [Citation.] Consequently, a defendant moving for
summary judgment must 'present evidence that would require . . . a trier of fact not to
find any underlying material fact more likely than not.' [Citation.]
"Although our review of a summary judgment motion is de novo, we review the
trial court's final rulings on evidentiary objections by applying an abuse of discretion
standard." (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121-122, italics omitted
(Powell).)
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In broadly outlining the law of summary judgment, the Supreme Court has stated:
"If a party moving for summary judgment in any action . . . would prevail at trial without
submission of any issue of material fact to a trier of fact for determination, then he should
prevail on summary judgment. In such a case, . . . the 'court should grant' the motion 'and
avoid a . . . trial' rendered 'useless' by nonsuit or directed verdict or similar device.
[Citations.]" (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 855, fn. omitted.)
II
The principal issue we confront on appeal is the question of causation. In a
medical malpractice action, such as this, the plaintiff must be able to show that the
defendant acted below the applicable standard of care and that, in the absence of the
defendant's error, the plaintiff would not have suffered harm. "Liability for medical
malpractice is predicated upon a proximate causal connection between the negligent
conduct and the resulting injury. [Citation.] '[C]ausation must be proven within a
reasonable medical probability based upon competent expert testimony. Mere possibility
alone is insufficient to establish a prima facie case. [Citations.] That there is a
distinction between a reasonable medical "probability" and a medical "possibility" needs
little discussion. There can be many possible "causes," indeed, an infinite number of
circumstances which can produce an injury or disease. A possible cause only becomes
"probable" when, in the absence of other reasonable causal explanations, it becomes more
likely than not that the injury was a result of its action. This is the outer limit of inference
upon which an issue may be submitted to the jury.' [Citation.]" (Dumas v. Cooney
(1991) 235 Cal.App.3d 1593, 1603 (Dumas).)
In Dumas, the plaintiff alleged that his physicians had been negligent in failing to
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properly read a chest X-ray and that, as a consequence, they delayed in diagnosing the
presence of a malignant lung tumor. At trial, the physicians presented expert evidence
that tumors like the one found in the plaintiff are rarely curable, even if diagnosed at a
very early stage. In light of that evidence, the physicians argued that the delay in
diagnosis did not harm the plaintiff. The trial court gave the jury an instruction that
permitted the plaintiff to recover damages from the physicians if an earlier diagnosis
would have provided the plaintiff with the possibility of a cure, the possibility of a
lengthened life, or the possibility of more comfort. The jury returned a verdict in favor of
the plaintiff and, on appeal, the Court of Appeal reversed. The Court of Appeal found
that merely proving the possibility of a cure or lengthened life did not establish causation.
In rejecting the plaintiff's invitation that it adopt the so-called "lost chance" theory of
causation, the court stated: "'Relaxing the causation requirement might correct a
perceived unfairness to some plaintiffs who could prove the possibility that the medical
malpractice caused an injury but could not prove the probability of causation, but at the
same time could create an injustice. Health care providers could find themselves
defending cases simply because a patient fails to improve or where serious disease
processes are not arrested because another course of action could possibly bring a better
result. No other professional malpractice defendant carries this burden of liability
without the requirement that plaintiffs prove the alleged negligence probably rather than
possibly caused the injury. . . . We cannot approve the substitution of such an obvious
inequity for a perceived one.'" (Dumas, supra, 235 Cal.App.3d at p. 1608, italics added.)
III
Here, Dr. Segal's expert's declaration was sufficient to support a prima facie case
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in his favor both on the issues of standard of care and causation. As we have noted, Dr.
Segal's expert stated that, in reading the X-rays of Devin's elbow, Dr. Segal acted within
the standard of care in finding no acute fracture. Importantly, having found no breach of
the standard of care, the defense expert further found Dr. Segal's treatment did not cause
Devin any injury. Unchallenged, the defense expert's opinion would require a judgment
in Segal's favor because it defeats two elements of Devin's cause of action: breach of the
standard of care and causation. Thus, the defense expert's opinion shifted to Devin the
burden of proving that there is a triable issue of fact with respect to both of those
elements. (See Powell, supra, 151 Cal.App.4th at pp. 121-122.)
Devin's expert's opinion plainly conflicts with Segal's expert with respect to the
standard of care. Although Devin's expert did not find that the X-rays actually disclosed
any acute fractures, the expert did find possible fractures in two areas and a probable
fracture in another area. According to the expert, those possible and probable fractures
required that Devin's arm be immobilized until further diagnostic procedures could be
completed. Thus, Devin's expert found a breach of the standard of care in Segal's failure
to notice the possible and probable fracture, advise immobilization and conduct the
further diagnostic procedures. Arguably then, with respect to the standard of care,
Devin's expert created a triable issue of fact.
The failing in Devin's expert's opinion is with respect to the element of causation.
Devin's expert found causation only by assuming Devin's elbow was in fact fractured and
concluding that the failure to immobilize it caused the decrease in range of motion Devin
later experienced. However, contrary to Devin's argument on appeal, there is no evidence
in the record that will support an inference Devin's elbow was in fact ever fractured. As
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we have noted, Devin's expert only found abnormalities, which suggested the possibility
or probability of fractures and the need for follow-up diagnostic procedures. However,
Devin has not submitted any medical records from Kaiser or declarations from the
doctors who treated him there. Lowe's declaration itself is oddly silent with respect to
what the Kaiser doctors actually told her was wrong with Devin's elbow and the nature of
the surgery that was eventually performed on her son. This record does not tell us
whether Devin was treated for a fracture in his elbow or, as Dr. Luan suspected, an
injured tendon.
Although there is no evidence of any fracture in the form of either X-rays that
show a fracture or an expert diagnosis of a fracture, Devin nonetheless argues that based
on his mother's declaration, evidence of his continuing discomfort and loss of range of
motion, the possibilities and probability of fracture identified by his expert, and the fact
he later underwent surgery, a trier of fact could infer that he had suffered a fracture. We
are compelled to reject this argument. When any number of other conditions, including
the possibility identified by Dr. Luan of a torn tendon, might readily explain each of the
circumstances Devin relies on, a trier of fact would have to engage in impermissible
speculation to conclude that Devin had a fracture at the time Dr. Segal read the X-rays in
2008. (See Dumas, supra, 235 Cal.App.3d at p. 1603.)
We of course recognize that both in the trial court and on appeal, a plaintiff
opposing a motion for summary judgment is entitled to the benefit of the rule that "when
considering the declarations of the parties' experts, we liberally construe the declarations
for the plaintiff's experts and resolve any doubts as to the propriety of granting the motion
in favor of the plaintiff. [Citation.]" (Powell, supra, 151 Cal.App.4th at pp. 125-126, fn.
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omitted.) Were there any evidence in the record here that Devin had suffered a fracture
of his elbow in the areas of concern identified by his expert, this rule would plainly come
into play. Evidence of an actual fracture would permit a trier of fact to draw the
inference that, as suggested by Devin's expert, the failure to immobilize the arm in 2008
increased the harm Devin thereafter suffered. (See, e.g., Id. at pp. 128-129 [obtuse
declaration from the plaintiff's expert nonetheless sufficient to defeat summary judgment
where, under liberal construction, declaration sets forth theory of both treatment below
the standard and causation].) However, as we have discussed, there is simply no
evidence Devin suffered a fractured elbow. Without such evidence, even the most liberal
interpretation of his expert's declaration does not show that Segal's treatment caused
Devin any harm.
In sum then, the trial court did not err in granting Segal's motion for summary
judgment.
DISPOSITION
The judgment is affirmed. Dr. Segal to recover his costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
NARES, J.
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