Cesar Peralta vs. Anthony Romero, M.D., et al

Case Number

22CV02279

Case Type

Hearing Date / Time

Wed, 09/27/2023 - 10:00

Nature of Proceedings

Motion For Summary Judgment Or, In The Alternative, Summary Adjudication By Defendants Anthony C. Romero, M.D., And Santa Barbara Orthopedic Associates, Inc.

Tentative Ruling

For Plaintiff Cesar Peralta: Self Represented

For Defendants Anthony C. Romero, M.D. and Santa Barbara Orthopedic Associates, Inc.: Kevin E. Thelen, Law Offices of LeBeau Thelen, LLP

RULING

For all reasons discussed herein, the motion of Defendants Anthony C. Romero, M.D., And Santa Barbara Orthopedic Associates, Inc., for summary judgment or, in the alternative, summary adjudication, is granted. Defendants shall submit a proposed order in accordance with this ruling.

Background

Plaintiff Cesar Peralta filed his operative first amended complaint (FAC) in this matter on September 19, 2022, against Defendants Anthony C. Romero, M.D. (Dr. Romero) and Santa Barbara Orthopedic Associates, Inc. (SBOA) (collectively, Defendants). Using a Judicial Council form complaint, the FAC identifies three causes of action: negligence, intentional tort, and breach of duty of care by falsifying, misleading, and misdiagnosing a medical condition while failing to treat in a timely manner. (FAC, ¶ 10.) Attachment 1 to the FAC alleges a first cause of action titled “general negligence” against Defendants. (Id. at Attachment 1.) Attachment 2 to the FAC alleges a second cause of action titled “intentional tort” against Defendants. (Id. at Attachment 2.) The FAC also includes an “Exemplary Damages Attachment” in which Plaintiff alleges that Dr. Romero is guilty of malice. (Id. at p. 19, ¶ EX-1.)

The text of the first cause of action for negligence is set forth in a disorganized narrative fashion. In the first cause of action, Plaintiff alleges that in late 2017, he sustained injuries while he was carrying a car battery in a backpack while riding a bicycle. (FAC, Attachment 1, ¶ GN-1, p. 1.) Plaintiff needed a doctor to accurately diagnose and treat his injuries so that he could be with his kid a lot sooner. (Id. at p. 4.) Plaintiff was referred to SBOA by his primary care provider. (Id. at p. 2.)

In September 2020, Plaintiff was evaluated by Defendants. (FAC, Attachment 1, ¶ GN-1, p. 2.) Plaintiff was under Defendants’ care from October 2020 through January 2022. (Id. at pp. 1 & 9.) During this time, Plaintiff was given two X-rays and one therapy session for his right arm while his collar bone and rotator cuff felt twisted, and Plaintiff’s hips and ribs were displaced. (Id. at pp. 6-7.) During this time frame, Plaintiff called and emailed SBOA regarding his X-rays but was told the computer system was down and that no one had reviewed the X-rays. (Id. at at pp. 4 & 8.) Plaintiff’s X-rays also show that Plaintiff’s ribs are fractured but nobody mentioned this to Plaintiff and nor was Plaintiff treated for fractured ribs. (Id. at pp. 7 & 10.) Plaintiff also alleges that he has a broken bone behind his collar bone based on the X-rays that were taken at SBOA. (Id. at pp. 7 & 10.)

Plaintiff expressed pain to Dr. Romero, told Dr. Romero that he could not bend forward at the hips or lift his right shoulder above chest level without pain, and showed Dr. Romero his concerns on the X-rays taken by SBOA. (FAC, Attachment 1, ¶ GN-1, p. 3.) On one occasion, Dr. Romero suggested that Plaintiff look for work that didn’t require heavy lifting or bending. (Id. at p. 6.) Plaintiff attempted to get a job at SBOA but never got the chance to speak with “HR”. (Id. at p. 6.) On four occasions, SBOA staff denied Plaintiff the right to speak to a human resources representative. (Id. at p. 4) Dr. Romero delayed and misdiagnosed Plaintiff’s injuries. (Id. at pp. 3 & 4.)

Plaintiff also mentioned that he had to verify his medical condition and status so he could have visits with his child and because child services wanted to know why Plaintiff could not pay support. (FAC, Attachment 1, ¶ GN-1, pp. 3-4, 9.) On November 1, 2020, Plaintiff dropped off medical verification forms to Defendants. (Id. at pp. 3 & 9.) Throughout Plaintiff’s care at SBOA, Plaintiff’s medical verification forms were misleading and inaccurate because they stated “[d]iagnosis: unknown & expected recovery of 3 months”, and the forms were purposefully left blank. (Id. at pp. 7, 10.) On one occasion, Dr. Romero mentioned that he felt uncomfortable signing Plaintiff’s forms. (Id. at p. 6.) Dr. Romero refused to verify Plaintiff’s medical status, falsified medical reports, and delayed in returning Plaintiff’s medical report by holding onto the forms for months before returning them unsigned. (Id. at pp. 3 & 4.) Dr. Romero also refused to help Plaintiff get on disability and unemployment while Plaintiff was under Dr. Romero’s care. (Id. at p. 6.)

After waiting months and having Plaintiff’s medical status denied, the mother of Plaintiff’s child requested that child support continue because Plaintiff failed to provide his medical forms. (FAC, Attachment 1, ¶ GN-1, p. 6.) Plaintiff is also facing a criminal contempt charge for failure to pay child support and failure to provide a medical verification report in a timely manner during the time in which Plaintiff was injured. (Id. at p. 7.)

From January to May 2022, Plaintiff requested another doctor. (FAC, Attachment 1, ¶ GN-1, p. 11.) Plaintiff was told by “Wendy @ G.V.C.H. Therapy” that he would not be seen until December 2022. (Ibid.) Plaintiff switched primary care providers in May 2022 and received therapy at Sansum Clinic in July 2022. (Id. at p. 11.) On March 1, 2022, Plaintiff asked his primary care physician at American Indian & Health to sign Plaintiff’s medical verification report. (Id. at p. 11.) The forms were signed by “Holy” who, after reading Dr. Romero’s notes. wrote “no temp. disability, not injured and capable of working.” (Ibid.) This led to Plaintiff’s contempt charges even though Plaintiff is still injured, and his fractured ribs can be seen on the X-ray Dr. Romero took. (Ibid.)

The FAC also includes allegations regarding the following: the dates of Plaintiff’s office visits with Drs. Romero, Moore, Zweber, and Kahman; the dates on which X-rays were performed; the dates on which Plaintiff contacted SBOA to discuss pain and other medical complaints and concerns over Plaintiff’s X-rays; the dates on which Plaintiff was referred to, evaluated and diagnosed by Drs. Kahman and Zweber; the diagnoses provided by Dr. Zweber; the dates on which Plaintiff requested an updated medical report and an expected treatment plan; the dates on which Plaintiff dropped off medical verification forms and followed up to request that the forms be signed; and dates on which Dr. Romero rejected and refused to sign Plaintiff’s medical verification forms. (See FAC, Attachment 1, GN-1, pp. 2-3, 5-10.)

In a similar fashion to the first cause of action, the text of the second cause of action for intentional tort is set forth in a disorganized narrative fashion. The second cause of action repeats many of the allegations asserted in the first cause of action and further discussed above.

The second cause of action includes allegations that Plaintiff requested help with unemployment and SSI when he dropped off his medical forms at SBOA’s front desk. (FAC, Attachment 2, ¶ IT-1, p. 1.) Though Dr. Romero stated that Plaintiff would recover within 3 months from March 2021, there was no real treatment plan. (Ibid.) On June 14, 2021, Plaintiff made it clear to Defendants that he was facing legal problems with child services due to inaccurate and late medical reports clearing Plaintiff for work before he received treatment. (Id. at p. 2.) Plaintiff asked Defendants to sign his forms accurately. (Ibid.) From June 2021 through November 2021, Plaintiff emailed Defendants regarding the contempt charges but Defendants intentionally delayed Plaintiff’s diagnosis, misdiagnosed Plaintiff, and did not sign the reports. (Ibid.) Dr. Romero intentionally denied Plaintiff’s pain and injuries and falsified and delayed the medical reports because Plaintiff had a child support case and a face tattoo. (Id. at p. 4.) Dr. Romero knew that by denying Plaintiff’s pain and injuries, it would lead Plaintiff to fines and jail time. (Ibid.)

In the Exemplary Damages Attachment, Plaintiff alleges that Dr. Romero acted with malice by intentionally minimizing Plaintiff’s injuries and refusing to sign Plaintiff’s medical verification report knowing this was crucial to Plaintiff’s freedom and everyday life. (FAC, Exemplary Damages Attachment, ¶ EX-1.)

On June 29, 2023, Defendants filed a motion for summary judgment or, in the alternative, summary adjudication on the grounds that Dr. Romero and other physicians at SBOA met the applicable standard of care at all times during their involvement with Plaintiff’s care and treatment, that there was nothing that Dr. Romero and the other physicians at SBOA did or did not do in connection with Plaintiff’s care that was to a reasonable degree of medical probability a substantial factor in causing harm or injury to Plaintiff, that none of the actions of Dr. Romero or other physicians at SBOA were outrageous or done with a reckless disregard of the probability of causing injury, and that Plaintiff failed to obtain a Court order allowing for punitive damages to be claimed pursuant to Code of Civil Procedure section 425.13. On September 25, 2023, Defendants filed a statement of non-opposition to Defendants’ motion asserting that they have not received an opposition from Plaintiff. Plaintiff has not filed an opposition to Defendants’ motion.

Analysis

A motion for summary judgment “shall be granted 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 judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) “From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, 850 (Aguilar).)

A Defendant moving for summary judgment bears the burden of persuasion that “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 235 Cal.4th at p. 850, 853 [Defendant is not required to conclusively negate the element that Defendant contends the Plaintiff cannot establish].) A moving Defendant also bears an initial burden of production to make a sufficient prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 845, 850-851.)

If a moving Defendant carries its burden of production, this “causes a shift, and the [Plaintiff] is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) The Plaintiff must set forth specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (o).) If the Plaintiff cannot meet its burden of proof regarding an essential element of Plaintiff’s case, Defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.) However, there is no obligation by the Plaintiff to establish anything unless and until the Defendant has by affidavit stated facts establishing every element necessary to sustain a judgment in its favor. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

A triable issue of fact exists “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.” (Aguilar, supra, 25 Cal.4th at p. 850.) “In ruling on the motion, the Court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Id. at p. 843.) Furthermore, the Court “may not weigh the evidence or conflicting inferences and must deny the motion if there is a single issue of material fact in dispute.” (Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1308.)

Motions for summary adjudication “proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2); Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 399.) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty….A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

The pleadings frame the issues to be considered on a motion for summary judgment. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) Therefore, to meet their burden, Defendants must adduce evidence negating the theories of liability alleged in the FAC. (Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846.) The acts or omissions alleged in the FAC that Plaintiff alleges resulted in the damages sought in the FAC was negligence in the diagnosis and treatment of Plaintiff’s injuries and in the accurate completion of or refusal to complete Plaintiff’s medical verification forms as part of the services provided by Dr. Romero and SBOA. Therefore, Plaintiff’s claim is one of professional negligence notwithstanding the form of action selected by Plaintiff. (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-192 (Central Pathology) [when injured party seeks damages “for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such”, then the action arises out of the provider’s professional negligence]; accord, Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 353-354 [also noting that tortious actions undertaken for a purpose other than the rendering of medical professional services would not constitute professional negligence].)

“ ‘ “[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.]” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310 (Borrayo).) “Both the standard of care and Defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467 (Avivi).) Therefore, “[o]pinion testimony from a properly qualified witness is generally necessary to demonstrate the elements for medical malpractice claims….When 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.” (Borrayo, supra, 2 Cal.App.5th at p. 310.)

“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” (Evid. Code, § 720, subd. (a).) In support of the motion, Defendants submit the declaration of Domenick J. Sisto, M.D. (Dr. Sisto). Dr. Sisto is a licensed physician in the field of Orthopedic Surgery. (Sisto Decl., ¶ 1.) Dr. Sisto has maintained his medical license in good standing since it was originally issued in 1984. (Ibid.)

Dr. Sisto obtained his medical degree from George Washington University Medical School in 1979. (Sisto Decl., ¶ 1 & Exh. A [Curriculum Vitae].) After receiving his medical degree, Dr. Sisto completed a General Surgery internship in 1980, a fellowship in Sports Medicine in June 1985, and a fellowship in the field of hand surgery in June of 1986. (Ibid.) From 1986 to 1988, Dr. Sisto served as a Clinical Instructor at the Department of Orthopedic Surgery at the UCLA School of Medicine and since 1990, has been a staff physician at Sherman Oaks Community Hospital, Northridge Community Hospital, and Antelope Valley Hospital. (Ibid.) Dr. Sisto has been Board Certified in the field of Orthopedic Surgery since 1990. (Ibid.) Currently, Dr. Sisto is in private practice. (Ibid.)

The evidence offered by Defendants demonstrates that the medical professional services rendered to Plaintiff by Drs. Romero, Kahmann, and Moore at SBOA included orthopedic medical evaluations, diagnoses, and treatments and the completion of medical verification forms regarding Plaintiff’s orthopedic injuries and treatment plan. (See, e.g., Thelen Decl., Exh. B [DECL0039-0041, DECL0045-0053, DECL—57-0058, DECL0059-0061, DECL 0066-0067].) Dr. Sisto states that he possesses knowledge of and is familiar with the knowledge, skill, and care required of a physician practicing in the field of orthopedic surgery and is familiar with the standard of care to which Defendants are held. (Sisto Decl., ¶ 2.) The Court accordingly finds that Dr. Sisto is qualified to provide expert opinion testimony on the subject to which Dr. Sisto’s testimony relates. (Avivi, supra, 159 Cal.App.4th at p. 467.)

As a basis for the opinions set forth in his declaration, Dr. Sisto has reviewed the FAC, copies of Plaintiff’s medical records from Dr. Romero and other physicians at SBOA, Plaintiff’s deposition transcript and the exhibits thereto which included various Court records, Emergency Department notes, radiology reports, physical therapy notes, and other medical records including records from Cottage Health, neurologist Dr. Thomas Zweber, American Indian Health & Services, and UCLA / Santa Monica Orthopedics. (Sisto Decl., ¶ 4 & Exh. B.)

Based on his review of the materials described above and attached to the Sisto declaration as Exhibit B, Dr. Sisto provides a chronology of the medical evaluations, diagnoses, and treatments provided to Plaintiff by Drs. Romero, Moore, and Kahmann at SBOA. (Sep. Stmt., UMF Nos. 1-17 [Sisto Decl., ¶ 5(a)-(x)].) The chronology includes facts relating to two “Medical Information Verification” forms that were completed and signed by Dr. Romero on, respectively, January 19, 2021 and April 12, 2021, on behalf of Plaintiff. (Id. at UMF Nos. 8, 11 [Sisto Decl., ¶ 5(h) & (k); Thelen Decl., ¶ 3 & Exh. B].) The medical verification forms were returned to the Department of Child Support Services. (Ibid.)

Based on Dr. Sisto’s review of and reliance on the records and underlying facts concerning the care and treatment of Plaintiff, which includes the information contained in the chronology described above, and Dr. Sisto’s education, training, qualifications, and experience, it is Dr. Sisto’s professional opinion that Dr. Romero and the other physicians at SBOA jointly and individually met the standard of care applicable to physicians specializing in the field of orthopedic surgery at all times and in all aspects of their respective involvement in the care and treatment provided to Plaintiff. (Sep. Stmt., UMF No. 19 [Sisto Decl., ¶ 6].) Dr. Sisto further asserts that Dr. Romero did not violate the standard of care in connection with his assessments or evaluations of Plaintiff’s strength or motility as documented in Plaintiff’s medical verification forms. (Id. at UMF No. 25 [Sisto Decl., ¶ 6(d)].) Dr. Sisto also opines that there was nothing that Dr. Romero and the other physicians at SBOA did or did not do in connection with the care of Plaintiff that was, to a reasonable degree of medical probability, a substantial factor in causing harm or injury to Plaintiff. (Id. at UMF No. 30 [Sisto Decl., ¶¶ 6(g) & (h), 7].) Further, Dr. Sisto provides the specific bases for his opinion. (Id. at UMF Nos. 20-28 [Sisto Decl., ¶ 6(a)-(g).)

Based on the information and opinions contained in the Sisto declaration, Defendants have made a prima facie showing that Plaintiff cannot establish the breach of duty or causation elements of the first cause of action for professional negligence alleged in the FAC. Because the second cause of action for intentional tort is also dependent on the alleged misdiagnosis of Plaintiff’s injuries and resulting improper completion of or refusal to complete Plaintiff’s medical verification forms, Defendants have also met their burden to demonstrate that Plaintiff cannot establish the intent, malice, or outrageousness elements of the second cause of action for intentional tort or that Plaintiff is entitled to recover punitive damages under Civil Code section 3294, based on alleged malice in the misdiagnosis of Plaintiff’s injuries and failure to properly complete Plaintiff’s medical verification forms. (Civ. Code, § 3294, subd. (a) & (c) [requiring Plaintiff seeking to recover exemplary damages to prove by “clear and convincing evidence that the Defendant has been guilty of oppression, fraud, or malice”].)

Court records further reflect that Plaintiff did not request and the Court did not issue an order permitting Plaintiff to include a claim for punitive damages in this matter. Therefore, Defendants have also met their burden to show that Plaintiff has not complied with the requirements of Code of Civil Procedure section 425.13, subd. (a), which requires Plaintiff to obtain a Court order before asserting a claim for punitive damages in the FAC. (Central Pathology, supra, 3 Cal.4th at p. 192 [Plaintiff must meet requirements of Code of Civil Procedure section 425.13 whether asserting cause of action as an intentional tort or negligence].)

Because Defendants have made a prima facie showing that the breach of duty and causation elements of Plaintiff’s first cause of action and the intent element of Plaintiff’s second cause of action cannot be established, the burden now shifts to Plaintiff to make a prima facie showing of the existence of a triable issue of material fact and to rebut the expert testimony offered by Defendants. (Aguilar, supra, 25 Cal.4th at p. 850.) Plaintiff has not filed an opposition to the motion. Therefore, Plaintiff has failed to meet his burden. For these reasons, the Court will grant Defendants’ motion. Defendants shall submit a proposed order in accordance with this ruling.