Opinion
B229654
09-13-2011
MARVIN MARON et al., Plaintiffs and Appellants, v. ROBERT OBLATH, Defendant and Respondent.
Ron Nelson for Plaintiffs and Appellants. Patterson, Lockwood, Harris, Jurich & Hillyer, Richard G. Harris for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LC086908)
APPEAL from a judgment of the Superior Court of Los Angeles County. James A. Kaddo, Judge. Affirmed.
Ron Nelson for Plaintiffs and Appellants.
Patterson, Lockwood, Harris, Jurich & Hillyer, Richard G. Harris for Defendant and Respondent.
In this medical malpractice case, appellants Marvin Maron and Mary Maron (husband and wife) sued respondent Robert Oblath, a medical doctor, for negligence and loss of consortium in connection with Dr. Oblath's treatment of Marvin Maron. Judgment was entered in respondent's favor after his motion for summary judgment was granted. We affirm.
Facts
In December of 2008, Marvin Maron sought medical attention from his internist, Dr. Allan Klass, for abdominal pain. (Dr. Klass is a defendant in the action, but is not a party to this appeal.) Dr. Klass soon referred Mr. Maron to Dr. Oblath. Dr. Oblath operated on Mr. Maron for repair of an abdominal aortic aneurysm.
Appellants' complaint alleged that Mr. Maron suffered brain damage as a result of the surgery. As to Dr. Oblath, the complaint alleged that he "negligently failed to verify information provided to him by Dr. Klass, negligently made the decision to perform the surgery at issue based upon false and/or wrong information, negligently failed to make a full, honest and complete disclosure of Mr. Maron's complications after surgery, negligently failed to communicate his mistakes, negligently failed to supervise other physicians and staff during the operation and negligently failed to obtain informed consent for the operation."
Dr. Oblath moved for summary judgment. His proposed undisputed facts were based on the declaration of an expert, Dr. David Cossman, and on Mr. Maron's medical records. The proposed undisputed facts set out the history of Mr. Maron's diagnosis and treatment from the time of his initial consultation with Dr. Klass to his discharge from the hospital, and included the details of test results and examinations, the surgery, and the post surgical care. Dr. Cossman opined that it was proper for Dr. Oblath to have recommended the surgery, that the recommendation was within the standard of care, that Dr. Oblath performed the surgery within the standard of care, that the post-operative care Dr. Oblath provided was within the standard of care. He opined that to a reasonable medical probability, there was no negligent act or failure to act on Dr. Oblath's part that caused or was a substantial factor in causing the alleged injuries.
Appellants responded to the proposed undisputed facts with hearsay objections and filed evidentiary objections to the medical records and to Dr. Cossman's declaration.
In some instances, appellants also disputed the facts with reference to a declaration from Dr. Klass or to a declaration from Mary Maron and a document attached thereto.
In turn, Dr. Oblath filed evidentiary objections to appellants' evidence.
The court sustained Dr. Oblath's evidentiary objections and overruled appellants' evidentiary objections and granted summary judgment, then judgment.
Discussion
Appellants contend that Dr. Oblath did not carry his burden on summary judgment because there is no admissible evidence in support of his proposed undisputed facts. They also contend that the court erred in sustaining objections to the evidence they proffered, and that with that evidence, they raised triable issues of material fact.
The medical records
The medical records proffered by Dr. Oblath were accompanied by the declaration of Providence Tarzana Regional Medical Center's custodian of records, who stated that "[t]he records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. The photocopied records submitted herewith are true copies of the complete medical records." In reliance on Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697, appellants contend that this is not adequate, and that the records were inadmissible.
Taggart concerned the business records exception to the hearsay rule, which states that such records are not inadmissible if "(a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1271.)
In Taggart, the records were reports on tests conducted by a research institute, purporting to show that a motorcycle helmet failed to comply with federal safety standards. The reports were admitted over a custodian of records declaration to the effect that the records were true copies of the report. The appellate court wrote that the declaration "contained no evidence as to what the . . . reports were, how they were prepared, or what sources of information they were based on. It offered no evidence that the . . . reports were trustworthy. The reports therefore failed to qualify for admission as business records under section 1271." (Id. at p. 1706, fn. omitted.)
Here, the custodian of records declared not just that the records were true copies of the records, but that the records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. Further, the documents themselves speak to the method of preparation, sources of information, and trustworthiness.
The documents consist of signed and dated reports in which doctors describe their examination and treatment of Mr. Maron, handwritten Telephone Order Sheets, Physician Orders, and Progress Notes which are also signed and dated by the doctor giving the order or making the note, and similar documents. These are medical records and the method of their preparation is obvious. Under these circumstances, the custodian of records' statement that the records are true copies of the complete medical records is adequate.
Dr. Cossman's declaration
Dr. Cossman declared that "I reviewed the following records and documents: Marvin Maron's medical records from Providence Tarzana Regional Medical Center that documents the care and treatment Dr. Oblath provided to plaintiff, Marvin Maron. The documents I reviewed are of the type that I and other medical experts in the community would reasonably review and rely upon in forming an expert opinion with respect to standard of care and causation."
In reliance on Garibay v. Hemmat (2008) 161 Cal.App.4th 735, appellants contend that Dr. Cossman's declaration was inadmissible. In Garibay, the defendant's expert based his opinion on a review of hospital and medical records. However, the records did not accompany the declaration or the summary judgment motion, and were not admitted into evidence under the business records exception to the hearsay rule. The court thus found that the declaration had no evidentiary value. (Id. at p. 743.) Here, in contrast, the records were admissible, and Dr. Cossman's declaration had evidentiary value.
Dr. Cossman's declaration was of evidentiary value and was sufficient for summary judgment.
Appellants' evidence
Appellants also contend that they raised triable issues of fact, with the evidence they presented, and that the court's evidentiary rulings were erroneous.
We first consider appellants' reliance on a report by neurologist Dr. Cyrus Mody. Appellants cited this report in their response to two proposed undisputed facts or portions thereof. The first of those facts was ". . . The 11/10/08 discharge summary indicated that it was believed the encephalopathy was a combination of factors including preceding cognitive decline, mild depression and probable metabolic insult such as hypoxemia, although this could not be confirmed. . . ." The second of those facts was the final one, that to a reasonable medical probability no negligent act or failure to act on Dr. Oblath's part was a substantial factor in causing any injury to Mr. Maron.
Appellants relied on Dr. Mody's report that "[t]he patient's history and neurological examination are most compatible with possible global vs. cerebral neurological dysfunction associated with the abdominal repair aortic aneurysm which is now improving."
The first problem here is that Dr. Mody's report was authenticated by the declaration of Mary Maron that "[i]n response to my oral request, and receipt of written authorization, my husband's treating neurologist provided to us by facsimile my husband's medical records on August 24, 2009. True and correct copies of the seven pages of documents received in response to this request are attached to my attorney's declaration as Exhibit C." This declaration, which was not prepared by the custodian of records, is simply not sufficient to authenticate the records.
Moreover, without an expert declaration, we cannot say that Dr. Mody's statement truly controverts Dr. Oblath's proposed undisputed fact, or that if it does, the difference is material to the issues in the case.
We make similar observations about the remainder of appellants' arguments in this category. Appellants in some instances raised issues of fact, but the absence of an expert's opinion means that appellants did not show that the disputes were material.
For example, Dr. Oblath proposed as undisputed that Dr. Klass ordered a CT scan on a certain date, and that the scan showed a "4.5 cm infrarenal abdominal aortic aneurysm . . . ." Appellants disputed this with reference to a declaration from Dr. Klass which was apparently prepared in support of Dr. Klass's own motion for summary judgment, a motion which was taken off calendar. Dr. Klass declared that a CT scan on that date "revealed evidence of aneurysmal dilation and intermural thrombosis with a widest diameter of 4.1 centimeters."
Dr. Klass's declaration might establish that there is a dispute of fact on the results of the CT scan, but appellants do not explain why the difference would be material to the issue of malpractice, and indeed, we do not see how they could do so without an expert declaration.
Similarly, Dr. Oblath proposed as undisputed that Dr. Oblath's surgical note states that the risk and benefits of the surgery were explained to appellants, and also proposed that Mr. Maron had signed the consent form stating that he had read and understood the information. Appellants sought to dispute this fact with the declaration of Mary Maron to the effect that "Dr. Oblath did not advise me or my husband of any risks of physical injuries -- including brain injury -- that could arise from this surgery. Instead, he advised us that there was a seventy eight percent chance that my husband would survive the surgery, and that if he did, my husband would be discharged from the hospital in five to seven days."
Even if Mary Maron's declaration created a dispute of fact concerning the precise statements made to appellants, it does not establish that Dr. Oblath did not meet the standard of care.
In a medical malpractice case, one element is a breach of the standard of care. Dr. Oblath carried his burden with Dr. Cossman's declaration. "'When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.' [Citations.]" (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985.)
Appellants conclude by arguing that Dr. Oblath is liable for the negligence of hospital personnel, including the anesthesiologist or assistant surgeon "that negligently caused Mr. Maron's brain injury." The "captain of the ship" doctrine is part of California law. (Thomas v. Intermedics Orthopedics, Inc. (1996) 47 Cal.App.4th 957, 967.) As we have seen, however, appellants proffered no admissible evidence to dispute the proposed undisputed fact that to a reasonable medical probability, there was no negligent act or failure to act on the part of Dr. Oblath that caused or was a substantial factor in causing Mr. Maron's alleged injuries. Dr. Oblath was thus entitled to summary judgment on his motion for summary judgment, and to judgment in his favor.
Disposition
The judgment is affirmed. Respondent to recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J. We concur:
MOSK, J.
KRIEGLER, J.