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

Case Number

22CV02279

Case Type

Hearing Date / Time

Wed, 12/13/2023 - 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. The Trial date of 1/24/24 is vacated.

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 though 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 pp. 4 & 8.) Plaintiff’s X-rays 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, based on the X-rays that were taken at SBOA, he has a broken bone behind his collar bone. (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.) Dr. Romero delayed and misdiagnosed Plaintiff’s injuries. (Id. at pp. 3 & 4.)

On one occasion, Dr. Romero suggested that Plaintiff look for work that didn’t require heavy lifting or bending. (FAC at p. 6.) Plaintiff attempted to get a job at SBOA. (Id. at p. 6.) On four occasions, SBOA staff denied Plaintiff the right to speak to a human resources representative. (Id. at p. 4)

Plaintiff also mentioned that he had to verify his medical 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 were purposefully left blank and stated “[d]iagnosis: unknown & expected recovery of 3 months”. (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 held onto Plaintiff’s medical reports 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.)

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-rays taken by Dr. Romero. (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, 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 and asked Defendants to sign the forms accurately. (Id. at p. 2.)

From June 2021 through November 2021, Plaintiff emailed Defendants regarding the contempt charges, but Defendants 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, Plaintiff would face 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 the conduct of Dr. Romero or other physicians at SBOA was not outrageous or undertaken 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 asserting that they had not received an opposition from Plaintiff. Plaintiff did not file an opposition to Defendants’ motion.

On September 27, 2023, Plaintiff appeared at the hearing on Defendants’ motion and informed the Court that he was had just been released from custody and had not had an opportunity to respond to the motion. The Court continued the matter to December 13, 2023, to permit Plaintiff additional time to file a response or opposition to the motion. (Sept. 27, 2023, Minute Order.) The Court ordered Plaintiff to file and serve any opposition or response to the motion on or before November 1, 2023. (Sept. 27, 2023, Minute Order.) The Court further ordered Defendants to file and serve any reply to Plaintiff’s opposition on or before December 1, 2023. (Ibid.)

Court records reflect that Plaintiff did not file an opposition to the motion on or before November 1, 2023, as ordered by the Court. Court records further reflect that on November 6, 2023, Defendants filed a statement asserting that Defendants had not, as of that date, received any opposition to the motion from Plaintiff.

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.) 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 that resulted in damages to Plaintiff are alleged to be the negligent diagnosis and treatment of Plaintiff’s injuries and the inaccurate completion of or refusal to complete Plaintiff’s medical verification forms 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).) “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].) 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 has been a staff physician at Sherman Oaks Community Hospital, Northridge Community Hospital, and Antelope Valley Hospital since 1990. (Ibid.) Dr. Sisto has been Board Certified in the field of Orthopedic Surgery since 1990. (Ibid.) Dr. Sisto is currently 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 together with the completion of medical verification forms regarding Plaintiff’s 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 level and standard of skill and care required of a physician practicing in the field of orthopedic surgery. (Sisto Decl., ¶ 2.) The Court 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.)

Dr. Sisto states that he 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 include various Court records, hospital 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 based on 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 states 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].) 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 elements of intent, malice, or outrageousness with respect to the second cause of action for intentional tort or that Plaintiff is entitled to recover punitive damages under Civil Code section 3294. (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”].)

Code of Civil Procedure section 425.13, subdivision (a), requires a Plaintiff in an action for damages arising out of the professional negligence of a health care provider to obtain a Court order before asserting a claim for punitive damages. (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].) Court records 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, as this action arises out of the professional negligence of a health care provider, Defendants have also met their burden to show that Plaintiff has not complied with statutory requirements.

For all reasons discussed above, Defendants have made a prima facie showing that Plaintiff cannot establish a breach of duty by Dr. Romero or SBOA or the elements of causations of or intent. 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 any opposition or other response to the motion notwithstanding that the Court continued the hearing on the motion to permit Plaintiff additional time to file opposing or responding papers. 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.