Frierson v. Coast Gastroenterology etc. CA2/2 ( 2021 )

Filed 2/9/21 Frierson v. Coast Gastroenterology etc. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MICHAEL G. FRIERSON, B299140
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. YC072800)
v.
COAST GASTROENTEROLOGY
A MEDICAL GROUP, INC.,
et. al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Ramona G. See, Judge. Affirmed.
Ivie, McNeill & Wyatt, Byron Michael Purcell, Shant L.
Vayvayan and Julio C. Navarro for Plaintiff and Appellant.
LaFollette, Johnson, De Haas, Fesler & Ames,
Christopher P. Wend, Janee M. Tomlinson and David J. Ozeran
for Defendants and Respondents.
_________________________
Plaintiff and appellant Michael G. Frierson (appellant)
claims that he developed rectal cancer because defendants and
respondents Coast Gastroenterology A Medical Group, Inc.
(Coast) and Steven Lerner, M.D. (collectively respondents)
breached the standard of care by, inter alia, failing to follow up or
advise appellant to follow up after a colonoscopy. The trial court
granted respondents’ motion for summary judgment after
concluding that there were no triable issues as to breach of the
standard of care or causation. Appellant now appeals and argues
that summary judgment was improper because there is a triable
issue as to whether respondents breached the standard of care.
We find no error and affirm.
FACTS
The complaint for medical malpractice alleged: Dr. Lerner,
through Coast, performed a colonoscopy on appellant and found
polyps and other evidence of polyposis syndrome. The syndrome
has a near 100 percent chance of developing into cancer.
Dr. Lerner did not inform appellant of either the diagnosis or
prognosis. A year later, Dr. Lerner performed a second
colonoscopy, found that some of appellant’s polyps had grown,
and referred appellant to a specialist. Genetic testing confirmed
that appellant had familial adenomatous polyposis. A different
doctor performed a third colonoscopy and discovered Stage 3
rectal cancer. Appellant underwent various treatments,
including surgery, chemotherapy, and radiation. The negligent
failure of Dr. Lerner to initiate treatment, follow-up and/or refer
appellant to a specialist after the diagnosis of polyposis syndrome
caused appellant to suffer severe injury and pain. Coast is
vicariously liable for the negligence of Dr. Lerner, and directly
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liable for failing to ensure that only quality physicians provided
care to appellant.
Respondents moved for summary judgment and argued
that they met the standard of care, and that nothing they did
caused appellant damage.
In support, respondents provided, inter alia, a declaration
from their expert, Dr. Rudolph A. Bedford. Dr. Bedford stated
that at the first appointment on October 15, 2015, Dr. Lerner told
appellant to have a colonoscopy and follow up in four weeks.
After the colonoscopy on December 16, 2015, the recommendation
included the same follow up instruction. A note in Dr. Lerner’s
chart indicated that appellant was called on January 7, 2016, and
he said he was busy and would call back later. Dr. Bedford
opined that “the care and treatment provided by [respondents]
. . . complied with the standard of care at all times. It is also my
opinion that no act or omission on the part of [respondents]
caused or contributed to [appellant’s] claimed injuries[.]”1
Appellant opposed the motion. He submitted a declaration
averring: “Neither Dr. Lerner, nor any of [respondents’]
employees informed me to follow up with Dr. Lerner or his office
on December 16, 2015;” “I did not receive a phone call from
Dr. Lerner following up with me related to my visit on
. . . December 16, 2015;” and, “I did not receive any letters from
Dr. Lerner or any of [respondents’] employees to follow up with
Dr. Lerner after December 16, 2015.” Two medical experts,
Dr. Joel Dennis Feinstein and Dr. Michael Van Scoy-Mosher,
provided declarations. Appellant filed objections to various
1 Dr. Bedford’s declaration referenced other procedures and
recommendations, such as those related to an upper endoscopy
performed on appellant.
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portions of respondents’ separate statement of facts but not to
any evidence.
Respondents filed a reply. In addition, they filed objections
to the entireties of Dr. Feinstein’s and Dr. Van Scoy-Mosher’s
declarations.
The trial court allowed supplemental briefing. Appellant
revised his declaration to add a statement that no one told him to
follow up with Dr. Lerner during the January 7, 2016, phone call.
The trial court granted the motion after taking the matter
under submission. It ruled that it was undisputed that
respondents’ care and treatment of appellant complied with the
standard of care, and that none of respondent’s acts or omissions
caused appellant’s injuries. The trial court determined that
neither Dr. Feinstein nor Dr. Van Scoy-Mosher established that
they were competent to offer opinions regarding the applicable
standard of care; neither expert stated that respondents breached
the standard of care; and neither expert stated that respondents
caused appellant’s injuries. The trial court overruled all
appellant’s objections and sustained all of respondents’
objections.
This appeal followed.
DISCUSSION
I. Standard of Review.
Our review of summary judgment is de novo. (Wiener v.
Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
“When analyzing the issues[,] we follow the traditional three-step
analysis. ‘We first identify the issues framed by the pleadings,
since it is these allegations to which the motion must respond.
Secondly, we determine whether the moving party has
established facts which negate the opponents’ claim and justify a
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judgment in the movant’s favor. Finally, if the summary
judgment motion prima facie justifies a judgment, we determine
whether the opposition demonstrates the existence of a triable,
material factual issue. [Citation.]’ [Citation.]” (Shamsian v.
Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 975.)
“Although our review of a summary judgment is de novo, it is
limited to issues which have been adequately raised and
supported in [an appellant’s] brief.” (Reyes v. Kosha (1998) 65
Cal.App.4th 451, 466, fn. 6.)
II. Medical Malpractice Law.
The elements of a medical malpractice claim are: (1) a
physician’s duty to use the same skill and diligence as other
members of the profession in providing care; (2) breach of that
duty; (3) causation of injury; and (4) damages. (Lattimore v.
Dickey (2015) 239 Cal.App.4th 959, 968 (Lattimore).) Generally,
expert testimony is required to prove duty and breach of duty. A
physician’s duty is defined by the standard of care in his or her
community. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–
607; Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 762.)
Only an expert can establish causation. (Lattimore, supra, 239
Cal.App.4th at p. 970.)
III. Analysis.
Appellant argues that there is a triable issue as to whether
respondents breached their duty to follow up or advise him to
follow up after his colonoscopy. We need not reach this issue.
Appellant does not argue in his opening brief that the trial court
erred when it ruled that there is no triable issue as to causation.
Consequently, we must presume that the unchallenged ruling
was correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 564),
and that respondents successfully negated an element of
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appellant’s claim. In this situation, the law dictates affirmance.
(Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 176 [“A
defendant moving for summary judgment is entitled to summary
judgment if he or she . . . conclusively negates an element of the
plaintiff’s cause of action”].)
Only in the reply does appellant argue that the trial court
erred in sustaining objections to the declarations of Dr. Feinstein
and Dr. Van Scoy-Mosher, and that their declarations create a
triable issue as to causation. “‘[P]oint[s] not presented in a
party’s opening brief [are] deemed to have been abandoned or
waived. [Citations.]’ [Citation.]” (Wurzl v. Holloway (1996) 46
Cal.App.4th 1740, 1754, fn. 1.)
All other issues are moot.
DISPOSITION
Summary judgment is affirmed. Respondents are entitled
to their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
_______________________, J.
HOFFSTADT
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