Krantz v. Kim CA2/8 ( 2022 )

Filed 9/19/22 Krantz v. Kim CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
STEVEN M. KRANTZ, B313607
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV15642)
v.
JOO HYUNG KIM,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Thomas D. Long, Judge. Affirmed.
Lara Ruth Shapiro for Plaintiff and Appellant.
Ford, Walker, Haggerty & Behar, James D. Savage, Jennie
L. Hertzog, and Ashley S. Loeb for Defendant and Respondent.
_________________________________
Plaintiff Steven M. Krantz sued defendant Dr. Joo Hyung
Kim, a prosthodontist, for negligence arising from preparation
and treatment of six of Krantz’s teeth. Dr. Kim moved for
summary judgment.1 The trial court granted summary
judgment, finding that Krantz’s expert failed to opine or offer any
explanation as to how any breach of the duty of care by Dr. Kim
caused Krantz’s injuries to a medical probability. We agree and
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Dr. Kim’s Treatment of Krantz’s Teeth
At issue in this case are six of Krantz’s teeth that Dr. Kim
placed crowns or veneers on, specifically teeth numbers 8, 9, 14,
18, 30, 31, between March 2017 and January 2019.
In October 2015, nearly two years before Krantz first
visited Dr. Kim, Krantz visited Dr. Beigi at Pacific Dental Care.
Dr. Beigi recommended root canals with posts and crowns on
teeth numbers 14 and 18, noting that tooth number 18 might
need extraction. He also recommended root canals for teeth
numbers 30 and 31, or in the alternative, extraction of those
teeth and implants. In his notes, Dr. Beigi observed that Krantz
grinds his teeth, and had a lot of tarter, bone loss, and “bad” and
“infected” gums. Krantz did not get any of the recommended
treatment at Pacific Dental Care.
Dr. Kim treated Krantz at Del Dental Group in Playa Del
Ray, California. At Krantz’s first visit in March 2017, Dr. Kim
performed a consultation and took X-rays of Krantz’s teeth.
Dr. Kim’s notes from that day reflect that Krantz was missing a
tooth and had several chipped teeth. Dr. Kim presented Krantz
1 The parties have not provided us any information about the
status of Krantz’s claims against the codefendants.
2
with two treatment options for restorations of teeth numbers 14,
18, 30, and 31. Krantz returned to Dr. Kim in September 2017,
at which time he underwent “scaling” and “root planning.” Dr.
Kim also proposed two additional treatment plans for teeth
numbers 14, 18, 30, and 31. On September 20, 2017, Krantz
signed a document titled “treatment plan” for teeth numbers 14,
18, 30, 31. Krantz than returned to Dr. Kim’s office for work on
those teeth, and eventually for veneers and then crowns on his
two upper front teeth (teeth numbers 8 and 9), on numerous
occasions between October 2017 and January 2019. These visits
included various adjustments and recementing of the crowns,
onlays, and veneers when they came off the teeth.
Regarding teeth numbers 8 and 9, Dr. Kim first made
Krantz a “diagnostic wax-up” of the proposed veneers, so that
Kratz could see and feel how the veneers would fit before they
were placed because, as reflected in Dr. Kim’s chart, Krantz was
concerned about how the veneers would look. Krantz tried the
“wax-up” between November 1, 2017 and January 10, 2018,
during which time Dr. Kim made adjustments to them, including
so that they would not interfere with Krantz’s lower lip because
he complained of issues with his speech. Once Krantz was “very
satisfied” with the “wax-up,” he approved the creation of
permanent veneers. After the final veneers were cemented in
January 2019, Krantz approved their “esthetics.” A week later,
he returned for the recementing of the veneer on tooth number 9.
In August 2018, Krantz returned to Dr. Kim because the
veneer on tooth number 9 had come off while he was eating. Dr.
Kim recommended removing the veneers and applying crowns for
additional retention, and Dr. Kim placed crowns on these teeth in
September 2018.
3
Krantz returned a month later and reported that he did not
like how the crowns looked. The chart from that day also notes
inflamed gums around the crowns. Dr. Kim removed the original
crowns and placed new crowns on teeth numbers 8 and 9 in
November 2018. Dr. Kim told the laboratory to use the previous
impression from the veneers because Krantz liked the shape of
the veneers. Krantz does not dispute that prior to placing the
crowns on teeth numbers 8 and 9 on November 14, 2018, Dr. Kim
“went over the shape and shade of the crowns with [Krantz] and
[Krantz] approved the crowns.”
II. The Parties and the Complaint
Krantz filed this lawsuit in May 2019, alleging a single
cause of action of general negligence against Del Dental Group,
Dr. Kim, and Dr. Shahrzad Fattahi Zarrinnam, DDS.2
The complaint alleged that the defendants were “negligent
in the preparation and treatment of [Krantz’s] two upper front
teeth for veneers, which were filed too small to hold veneers,”
“resulting in the ability only for crowns on teeth numbers 8 [and]
9.” The complaint also alleged that the defendants “were
negligent in the preparation of his teeth for the crowns” because
another dentist told Krantz that Dr. Kim was “negligent in the
preparation of [the] teeth for crowns” and the teeth were “filed
improperly.” The complaint further stated that when Krantz
went to defendants for treatment he had “substantial teeth to
work with, [and] Defendants simply filed away all of his teeth
until there was nothing left to attach the veneers to, and filed his
2 Although the parties do not explain who Dr. Zarrinnam is,
it appears from the record that he is a member or owner of Del
Dental Group, and his name is listed as the provider for Krantz
on the treatment plan.
4
back teeth too much and uneven so that the crowns cannot hold.”
As to the upper front teeth, Krantz also claimed that the crowns
were mismatched in color to his other teeth, too thick, and caused
his upper lip to be irritated and his mouth to droop on the left
side. Krantz alleged that he visited defendants for care over 40
times and that defendants caused him “pain and suffering” and
“emotional distress from the facial disfigurement.”
III. Defendant Dr. Kim’s Motion for Summary Judgment
Dr. Kim moved for summary judgment in February 2021,
contending that Krantz could not establish two of the four
elements of his negligence claim. Specifically, he argued that his
actions met or exceeded the standard of care and that no
negligent act or omission by Dr. Kim caused or contributed to
Krantz’s injuries.
A. Declaration of Dr. Edmond Hewlett
In support of his motion for summary judgment, Dr. Kim
submitted a declaration from Dr. Edmond Hewlett, D.D.S., a
board-certified prosthodontist in Southern California who
practices dentistry and is also a professor in the Division of
Restorative Dentistry at the University of California, Los
Angeles.
Dr. Hewlett reviewed Krantz’s treatment records, images,
and photographs from Del Dental Group; Krantz’s responses to
various discovery requests; Dr. Zarrinnam’s responses to various
discovery requests; records and radiographs from Pacific Dental
Care; other subpoenaed records from various other dentists, a
hospital, and dental insurance; Krantz’s deposition transcript;
and Dr. Kim’s declaration in support of summary judgment.
5
1. Opinions on Standard of Care
Dr. Hewlett opined that Dr. Kim’s dental care and
treatment was at all times within the standard of care. He
opined that when Krantz first visited Dr. Kim his teeth were in
poor condition and that Dr. Kim created an appropriate
“conservative” treatment plan that allowed for future treatment
if the recommended treatment was unsuccessful; that
recommending veneers and onlays as a first step for some teeth
was appropriate due to the poor condition of the teeth because it
would allow for future crowns if these treatments were
unsuccessful; that the teeth that were given crowns right away
had little natural tooth remaining, so the crowns were
appropriate; and that Dr. Kim used high quality material for all
restorations, which was within the standard of care. Dr. Hewlett
also concluded that there was no evidence that Dr. Kim removed
an unreasonable amount of tooth structure during his
preparation for restorations, that restorations falling out is a risk
of treatment, and that restorations can and do fall out absent any
negligence by a dentist. Dr. Hewlett opined that in this case they
likely fell out because of the poor condition and minimal tooth
structure with which Krantz first presented at Dr. Kim’s office,
and that Krantz’s teeth grinding habit could have also
contributed to the failure of the restorations. Dr. Hewlett also
opined that Dr. Kim’s follow up attempts to address Krantz’s
dental complaints were within the standard of care, citing that
Dr. Kim tried a different kind of cement, recommended that
veneers be converted to full crowns for additional retention, and
that existing crowns be “splinted” to increase retention.
6
Dr. Hewlett further opined that Dr. Kim’s treatment of
upper front teeth numbers 8 and 9 was within the standard of
care because he proceeded in a “pain-staking and step-wise
manner” by first using wax try-ups, which he had Krantz wear
for a period of time and made adjustments to before placing final
veneers, and discussed the shape and shade with Krantz and
obtained his approval before doing the final restorations. He
opined that when the veneers failed, it was appropriate to place
crowns after obtaining his approval, also noting that Krantz
never complained to Dr. Kim about the shape and shade of these
crowns and approved the “esthetics of the crowns prior to
delivering them.”
2. Opinions on Causation
Regarding causation, Dr. Hewlett specifically opined that
in his professional experience to a reasonable degree of dental
probability, no negligent act or omission by Dr. Kim caused any
injury to Krantz. Dr. Hewlett opined that Krantz’s “teeth were in
poor condition when he presented to Del Dental,” citing the
findings and treatment recommendations of Dr. Beigi as to teeth
numbers 14, 18, 30, and 31, but also the records from when
Krantz first presented at Del Dental showing that Krantz ground
his teeth, was missing teeth, and had chipped teeth. Dr. Hewlett
opined that these findings suggest, together with the pre-
treatment radiograph, that the teeth were “weakened due to
missing tooth structure.” According to Dr. Hewlett, “weak[ening]
and lack of tooth structure can contribute to failure of
restorations. Grinding can also cause restorations to fail. To a
reasonable degree of dental probability, it is more likely than not
that it was plaintiff’s preexisting dental condition that caused his
restorations to fall out and require recementation and/or
7
fail . . . .”
Regarding the crowns on the two front upper teeth (teeth
numbers 8 and 9), Dr. Hewlett opined that a dentist cannot
guarantee that restorations will match natural tooth structure
and that Dr. Kim was not negligent, to a reasonable degree of
dental probability, because he reviewed the shape and shade of
the crowns with Krantz and obtained his approval from Krantz
before applying the final crowns. He also opined that the shape
of these crowns “would and dentally could not cause his lower lip
to droop, as plaintiff claims.”
IV. Plaintiff’s Opposition to Summary Judgment
Krantz opposed Dr. Kim’s motion for summary judgment,
arguing (1) lack of informed consent to specific treatment;
(2) inadequate treatment planning and execution of treatment;
(3) overtreatment of the upper front teeth; (4) failure to
adequately access the teeth and plan treatment; and that
(5) expert testimony by Dr. Missirlian created a triable issue of
material fact. Krantz specifically contended that Dr. Kim’s
treatment was below the standard of care and caused him
injuries and damages, stating that teeth numbers 18, 30, and 31
“were extremely broken down and required crown lengthening,
root canal and post buildups to restore them,” the onlay was not
executed correctly on tooth number 14, and teeth numbers 8 and
9 were overtreated because they did not need veneers or crowns.
Nowhere in his opposition did Krantz contend that Dr. Kim
failed to meet his initial burden as the moving party. Nor do the
parties point us to any evidentiary objections by Krantz to
Dr. Hewlett’s declaration, or any trial court ruling on such an
objection.
8
A. Declaration of Dr. Donald Missirlian
In support of his opposition to summary judgment, Krantz
submitted a declaration by Dr. Donald Missirlian, D.D.S., a
board-certified prosthodontist. Dr. Missirlian practices dentistry
in Southern California and is a professor of Preventative and
Restorative Dentistry at Arthur A. Dugoni University of the
Pacific School of Dentistry.
Dr. Missirlian reviewed Krantz’s treatment records and
images from Pacific Dental Care and Del Dental Group; Dr.
Kim’s responses to various discovery requests; Dr. Zarrinnam’s
responses to various discovery requests; Krantz’s responses to
various discovery requests, and Dr. Kim’s declaration in support
of his motion for summary judgment.
Dr. Missirlian’s declaration nowhere directly opines on
causation. He has opinions and conclusions scattered throughout
sections titled “Notes,” “My findings from records review,”
“Damages and discussion,” “Comments on Edmond R. Hewlett,
DDS,” and “Violations of Standard of Care.”
1. Opinions on “Violations of Standard of Care”
Dr. Missirlian explicitly opined that Dr. Kim violated the
standard of care. He cited inadequate treatment planning and
execution of treatment. His declaration includes the following
criticisms: every restoration, except that on tooth number 8, came
off, “most on multiple occasions”; failure to “deal[] with
periodontal disease and referral to a periodontist and lack of
documentation”; “[o]vertreatment. Upper front teeth #8 and 9 did
not require veneers or crowns”; no offer of a “splint”; X-rays that
failed to show the “apex” of some teeth; Dr. Kim’s suggestion of
leaving a crown off tooth [number 18] was below the standard of
care because of periodontal disease and exposed dentin; lack of
9
periodontal charting; inaccurate charting in probing and
recording a non-existent tooth; failure to inform and offer
extraction of certain teeth that should have been extracted; the
need to re-bond many restorations in general; and “inept dental
care.”
2. Remaining Opinions
Although not specifically tied to an opinion on the duty of
care, or causation (the sole issue before us), Dr. Missirlian further
opined in his declaration that there was: “inadequate follow up
and inadequate amount of time from root planning to restorative
treatment”; “Dr. Kim made no mention of crown lengthening, root
canals or posts. It is obvious and apparent that when onlays
began coming off that Mr. Krantz would have been better off
following the treatment plan of Pacific Dental Care. Del Dental’s
treatment was incomplete and did not address the core issues”;
that teeth numbers 8 and 9 had “glistening, natural enamel
which has now been destroyed. The treatment could have just
been smoothing the chipped edges and, at most, a mesial-incisal
composite on [number] 9” ; teeth numbers 8 and 9 “could have
kept tooth structure with just smoothing and polishing. A
conservative, small composite restoration was optional;” Krantz
is “not happy with the change from natural teeth to crowns [on
numbers 8 and 9] and has spent the last years with crowns that
are very large, do not blend or look anything like natural teeth
they were replacing, and irritate his lower lip”; “upper third
molars should have been extracted”; teeth numbers 30 and 31 did
not have “clinical crown structure sufficient to retain a
restoration”; “Krantz is correct in that the upper teeth support
the lower lip”; and Dr. Kim made various poor suggestions to
Krantz that he never carried out and made inaccurate charts.
10
From reviewing the photographs and X-rays from when
Krantz first visited Dr. Kim in March 2017, Dr. Missirlian also
opined that the teeth showed “severe erosion, chemical looking
like from bulimia, soda, or citrus,” “minor chipping and wear on
front teeth [numbers] 8 and 9”; that teeth numbers 18, 30, and 31
were “extremely broken down and required crown lengthening,
root canal, and post buildups to restore them.”
The only time Dr. Missirlian directly mentions Dr. Kim
causing any injury to Krantz in his declaration is when he states
that “there is no reason why an onlay [on tooth number 14] was
not retained if executed correctly. Most likely, operator error
caused debonding.”
V. Dr. Kim’s Reply
In reply, Dr. Kim argued that (1) nowhere in
Dr. Missirlian’s declaration did he state his opinions to a
reasonable medical probability, so Krantz failed to establish a
triable issue of fact on causation; and (2) Dr. Missirlian’s opinions
were conclusory and irrelevant, lacked factual support and
foundation, and failed to establish causation. Dr. Kim also filed
31 evidentiary objections to Dr. Missirlian’s declaration.
VI. The Trial Court’s Decision
On April 20, 2021, the trial court granted Dr. Kim’s motion
for summary judgment. It found that Dr. Kim met his burden as
the moving party. It then determined that Krantz failed to
adequately oppose summary judgment because Dr. Missirlian’s
declaration did not opine or offer any explanation as to how
Dr. Kim caused or contributed to Krantz’s injuries to a
reasonable medical probability.
The trial court overruled the majority of Dr. Kim’s
evidentiary objections to Dr. Missirlian’s declaration.
11
It sustained only three objections (objections 6, 12, and 14)
because Dr. Missirlian did not establish independent knowledge
of the facts.3 Krantz, on appeal, does not claim any error in these
rulings, asserting that the remaining evidence is sufficient to
show that the trial court erred in failing to find a material
dispute of fact on causation.
Krantz timely appealed.
DISCUSSION
The sole issue before us is whether Dr. Missirlian’s
declaration opined on causation to a reasonable medical
probability such that the trial court erred in finding no triable
issue of fact.4
I. Summary Judgment Standard and Standard of
Review
A defendant moving for summary judgment must show
“ ‘that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
3 The three objections it sustained were: (1) objection 6,
a statement attributed to Krantz about what Dr. Kim told him
about a “Maryland Bridge,” and to which Dr. Missirlian stated he
needed to wait to see the “bridge” to reach a conclusion;
(2) objection 12, a statement attributed to Pacific Dental Care
about a referral to an endodontist for infected gums; and
(3) objection 14, statements attributed to what Dr. Hewlett said
in part of his declaration.
4 In his opening brief, Krantz also argues that there is a
triable issue of fact as to breach of the duty of care, but the trial
court did not grant summary judgment on that issue, which
Krantz explicitly recognizes in his opening brief. Dr. Kim also
only opposes this appeal on the issue of causation, citing the trial
court’s judgment against Krantz only on that issue.
12
action.’ (Code Civ. Proc., § 437c, subd. (p)(2).) Summary
judgment is appropriate where ‘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.]” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770,
778 (Fernandez).)
“On review of a summary judgment, the appellant has the
burden of showing error, even if he did not bear the burden in the
trial court. [Citation.]” (Claudio v. Regents of the University of
California (2005) 134 Cal.App.4th 224, 230 (Claudio).)
“On appeal, ‘we take the facts from the record that was
before the trial court . . . [and] “ ‘[w]e review the trial court’s
decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained.’ ” ’ [Citation.]” (Fernandez, supra, 31
Cal.App.5th at p. 778.) We do not consider evidence that the trial
court properly excluded to determine whether a triable issue of
fact exists. (Regents of Univ. of California v. Superior Court
(2018) 4 Cal.5th 607, 618.) We liberally construe the evidence
presented by the party opposing summary judgment, and resolve
doubts in favor of that party. (Ibid.; Hampton v. County of San
Diego (2015) 62 Cal.4th 340, 347.) “ ‘[D]e novo review does not
obligate us to cull the record for the benefit of the appellant in
order to attempt to uncover the requisite triable issues. As with
an appeal from any judgment, it is the appellant’s responsibility
to affirmatively demonstrate error and, therefore, to point out the
triable issues the appellant claims are present by citation to the
record and any supporting authority. In other words, review is
limited to issues which have been adequately raised and
briefed.’ ” (Claudio, supra, 134 Cal.App.4th at p. 230.)
13
II. Applicable Law on Expert Opinions
“Under California law, causation ‘in a personal injury
action . . . must be proven within a reasonable medical
probability based upon competent expert testimony.’ [Citation.]
The reasonable medical probability standard mirrors the more-
likely-than-not standard of proof in general negligence actions.
[Citation.]” (Kline v. Zimmer, Inc. (2022) 79 Cal.App.5th 123,
129.)
“ ‘When the moving party produces a competent expert
declaration showing there is no triable issue of fact on an
essential element of the opposing party’s claims, the opposing
party’s burden is to produce a competent expert declaration to the
contrary.’ [Citations.] ‘The same rules of evidence that apply at
trial also apply to the declarations submitted in support of and in
opposition to motions for summary judgment. Declarations must
show the declarant’s personal knowledge and competency to
testify, state facts and not just conclusions, and not include
inadmissible hearsay or opinion.’ [Citation.] ‘The declarations in
support of a motion for summary judgment should be strictly
construed, while the opposing declarations should be liberally
construed. [Citation.] This does not mean that courts may relax
the rules of evidence in determining the admissibility of an
opposing declaration. Only admissible evidence is liberally
construed in deciding whether there is a triable issue.’
[Citation.]” (Fernandez, supra, 31 Cal.App.5th at p. 779.)
This means that the declaration of the party opposing summary
judgment is “ ‘entitled to all favorable inferences that may
reasonably be derived,’ ” from the declaration. (Id. at p. 782,
quoting Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.)
14
“ ‘ “[W]hen an expert’s opinion is purely conclusory because
unaccompanied by a reasoned explanation connecting the factual
predicates to the ultimate conclusion, that opinion has no
evidentiary value because an ‘expert opinion is worth no more
than the reasons upon which it rests.’ ” ’[Citation.] ‘Regarding
causation, “the plaintiff must offer an expert opinion that
contains a reasoned explanation illuminating why the facts have
convinced the expert, and therefore should convince the jury, that
it is more probable than not the negligent act was a cause-in-fact
of the plaintiff’s injury.” ’ [Citation.]” (Fernandez, supra, 31
Cal.App.5th at p. 781.)
III. Dr. Missirlian’s Declaration Does Not Establish a
Material Dispute of Fact That Dr. Kim Caused The
Alleged Injuries to a Reasonable Medical Probability
Krantz contends that Dr. Missirlian’s declaration
establishes a triable issue of fact on causation, so the trial court
erred in granting summary judgment on this element of
negligence. We disagree.
Krantz’s allegations of negligence fall into two general
categories: (1) Dr. Kim’s negligence in preparation and
treatment caused his restorations to debond or otherwise fail,
except for the veneer on tooth 8; and (2) Dr. Kim’s negligence
caused Krantz to have crowns on his two front teeth that are
mismatched in color to his other teeth, too thick, and cause his
upper lip to be irritated and his mouth to droop on the left side.
We address each category in turn.
A. Debonding and Failure of the Restorations
Nowhere does Dr. Missirlian state in a nonconclusory
fashion that it is more likely than not (or otherwise opine to a
reasonable medical probability) that Dr. Kim’s act or omission
15
was the cause of the debonding or failure of any of the
restorations. In his entire declaration, Dr. Missirlian directly
opines that Dr. Kim “likely . . . caused” Krantz an injury on only
one occasion, when he declares, “there is no reason why an onlay
[on tooth number 14] was not retained if executed correctly.
Most likely, operator error caused debonding.” (Italics added.)
This conclusory statement lacks evidentiary value, and thus does
not create a triable issue of fact, because it fails to provide a
reasoned explanation connecting any facts to the conclusion that
it was “most likely” Dr. Kim’s “error” caused the debonding.
(Fernandez, supra, 31 Cal.App.5th at p. 781.)
In his opening brief, Krantz argues that various other
statements by Dr. Missirlian also opine on causation, and do so to
a reasonable degree of medical certainty, but the declaration does
not support this contention. We have already described Dr.
Missirlian’s declaration in detail. (See part IV.A, ante.) We now
examine each statement Krantz cites in turn.
Krantz first points to Dr. Missirlian’s statement that “Dr.
Kim made no mention of crown lengthening, root canals or posts.
It is obvious and apparent that when onlays began coming off
that Mr. Krantz would have been better off following the
treatment plan of Pacific Dental Care. Del Dental’s treatment
was incomplete and did not address the core issues.”
Dr. Missirlian later elaborates: “It is a dentist’s responsibility
that sufficient tooth exists to retain crowns before beginning
restorative treatment. Therefore, Pacific Dental Care offered root
canals, posts, and crown lengthening. Dr. Kim ignored this and
therefore failed.” He further opines that teeth numbers “18, 30,
31 were extremely broken down and required crown lengthening,
root canal, and post buildups to restore them,” and teeth numbers
16
30 and 31 did not have “clinical crown structure sufficient to
retain a restoration.”5
Taking all reasonable inferences from these opinions in
Krantz’s favor as we must (Fernandez, supra, 31 Cal.App.5th at
p. 782), Dr. Missirlian is opining that there was insufficient tooth
structure to retain the crowns on teeth numbers 18, 30, and 31,
so Dr. Kim should have done root canals, posts, and lengthening
on these teeth before applying crowns. First and foremost, Dr.
Missirlian never opines that these alleged omissions by Dr. Kim
were more likely than not the cause of the debonding of the
crowns. He never provides a reasoned explanation illuminating
why the facts have convinced him, and therefore should convince
the jury, that “in the absence of the defendant’s negligence, there
was a reasonable medical probability the plaintiff would have
obtained a better result.” (Alef v. Alta Bates Hospital (1992) 5
Cal.App.4th 208, 216, italics added.) Or, as we stated in
Fernandez, where the plaintiff’s claim is that a medical
professional caused the injury by recommending one course of
treatment instead of another, the plaintiff’s expert is required to
opine on whether the defendant’s course of treatment caused the
alleged injury to a greater degree than the treatment he allegedly
should have chosen. (See Fernandez, supra, 31 Cal.App.5th at p.
5 Relatedly, Krantz claims that Dr. Hewlett in his
declaration “ignores th[e] central issue of what needed to be done
to prepare Steven’s teeth which were in poor condition and
lacking in structure to retain restorations.” But Krantz never
argued in his opposition to summary judgment that Dr. Kim
failed to meet his initial burden as the moving party through the
evidence in the Dr. Hewlett declaration, and it is far too late to do
so now. (See Fernandez, supra, 31 Cal.App.5th at p. 780.)
17
781.) Dr. Missirlian thus needed to opine that placing crowns
without first doing “root canals, posts and crown lengthening” on
teeth numbers 18, 30, 31 more likely than not caused the crowns
to fail to a greater degree than if he had first performed these
tasks.6 Additionally, Dr. Missirlian did not opine that first
ordering “root canals, posts and crown lengthening” was the
standard of care before applying a crown when the teeth were in
the condition they were here, such that not taking those steps
caused the injury to a medical probability. (Cf. Powell v.
Kleinman (2007) 151 Cal.App.4th 112, 128 [medical expert opined
that standard of care required a doctor to order an MRI upon a
patient presenting with the plaintiff’s specific symptoms and to
act on the results of the MRI immediately, and declaration
showed that the doctor never confirmed the results of the MRI, so
the declaration created a triable issue of fact on causation].)
Next, Krantz points to Dr. Missirlian’s statement that
there was “inadequate follow up and inadequate amount of time
from root planning to restorative treatment.” This statement is
6 Dr. Missirlian also does not explain why his recommended
approach is different from that of Dr. Beigi’s (at Pacific Dental
Care), despite stating that it was preferred. Krantz stated it was
“undisputed” that Dr. Beigi recommended “root canals with
posts” and “crowns” on teeth numbers 14 and 18, and also noted
that tooth number 18 might need extraction. It is also
undisputed that Dr. Beigi recommended “root canals” for teeth
numbers 30 and 31, or in the alternative, “extraction” of those
teeth and “implants.” Dr. Missirlian does not explain the basis
for his assertion that it was “crown lengthening, root canal, and
post buildups” that should have been done, and thus Dr. Kim was
negligent for these omissions. Nor does Dr. Missirlian explain
why Dr. Kim was negligent for failing to employ treatment
options that Krantz had rejected with Dr. Beigi.
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conclusory and therefore without evidentiary value. It fails to
explain what about the follow up and the amount of time between
“root planning” and treatment was “inadequate.” Similarly, Dr.
Missirlian opined that there was a failure to deal with
periodontal disease and no referral to a periodontist, but, again,
these statements are not linked to a “reasoned explanation
illuminating why the[se] facts have convinced the expert, and
therefore should convince the jury, that it is more probable than
not the negligent act was a cause-in-fact of the plaintiff’s injury.” ’
[Citation.]” (Fernandez, supra, 31 Cal.App.5th at p. 781.)
Krantz also cites Dr. Missirlian’s opinion that the two
upper front teeth were “overtreated,” and “could have just been
[treated by] smoothing the chipped edges and, at most, a mesial-
incisal composite on #9.” Yet, again, this is conclusory. He does
not explain how Dr. Kim’s choice to place veneers was
“overtreatment” as opposed to different treatment, nor does he
assert that “smoothing” and a “mesial-incisal composite” would
have had a better outcome as to debonding, as he is required to
do. (Fernandez, supra, 31 Cal.App.5th at p. 781 [expert needs to
assert that alternative treatment plan would have had a better
outcome].) Dr. Missirlian does not, for example, explain what a
mesial-incisal composite is and why it would not have debonded
the way one of the veneers did, nor why it is not “overtreatment”
compared to a veneer.7 (We address Krantz’s additional asserted
7 Dr. Missirlian’s statements are also seemingly
contradictory: At one point he declares that the two upper front
teeth were “over reduced”—without providing any measurements
to explain this conclusion—but then states that a “millimeter or
two of reduction is not an issue, particularly [for] teeth of these
19
injuries relating to these two teeth (the aesthetic and physical
comfort injuries) in part B, post.) Dr. Missirlian’s simple
suggestion of another treatment plan, without more, is
insufficient to create a triable issue of material fact. (Fernandez,
supra, 31 Cal.App.5th at p. 781.) Moreover, “[a] difference of
medical opinion concerning the desirability of one particular
medical procedure over another does not, however, establish that
the determination to use one of the procedures was negligent.”
(Clemens v. Regents of Univ. of California (1970) 8 Cal.App.3d 1,
13.)
Krantz next points to Dr. Missirlian’s conclusions that Dr.
Kim’s charting and X-rays were inadequate in various ways, but
Dr. Missirlian never opines on how these inadequacies caused or
contributed to the restorations failing or debonding, let alone
resulting in causation to a medical probability.
Dr. Missirlian also points to various other suggestions by
Dr. Kim that he disagrees with, but that Dr. Kim never actually
carried out. For example, the suggestion to leave a tooth without
a crown, and a failure to suggest the extraction of various teeth.
But Dr. Missirlian never explains how these suggestions caused
or contributed to Krantz’s injuries to a reasonable medical
probability.
Finally, Dr. Missirlian opined that there was a lack of
“proper informed consent” to the treatments because Krantz only
signed a financial document, a claim that Krantz relied upon in
opposing summary judgment.8 On appeal, Krantz does not argue
age. As teeth age there is the advantage of increased reduction
potential for retention.”
8 The complaint did not contain allegations of inadequate
consent. Defendants moving for summary judgment need
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he did not consent to the treatment and therefore Dr. Kim was
negligent. He argues only that one cannot “choose negligent
care.” Moreover, there is no mention of lack of consent as the
basis for an injury in the complaint.
In sum, Dr. Missirlian’s declaration fails to opine that any
acts or omissions by Dr. Kim were more likely than not the cause-
in-fact of the debonding of the restorations. Ultimately, while
Dr. Missirlian was “critical of Dr. [Kim’s] treatment . . . [he] did
not actually offer an expert opinion that it was a substantial
factor in causing plaintiff’s injuries within a reasonable medical
probability.” (Chakalis v. Elevator Solutions, Inc. (2012) 205
Cal.App.4th 1557, 1572.) While Dr. Missirlian’s declaration is
entitled to all favorable inferences that we may reasonably derive
from it, and must be “liberally construed,” “these principles in no
way eliminate the need for some form of ‘reasoned explanation.’ ”
(Fernandez, supra, 31 Cal.App.5th at pp. 779, 782.)
Dr. Missirlian’s declaration did not create a material dispute of
fact that Dr. Kim caused the failure of the restorations to a
reasonable medical probability.
address only the issues raised by the complaint, and plaintiffs
may not bring up new issues in their opposing papers. (Kanovsky
v. At Your Door Self Storage (2019) 42 Cal.App.5th 594, 601.)
“Summary judgment proceedings usually are limited to the issues
framed by the pleadings. [Citation.] However, courts are
encouraged to take a liberal approach in determining the scope of
the pleadings, so long as those pleadings provide adequate notice
to the opposing party of the theories on which relief is generally
being sought.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1211.)
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B. Appearance and Physical Discomfort of Crowns
on Teeth Numbers Eight and Nine
The remaining injuries alleged in the complaint relate to
the appearance and physical discomfort caused by the crowns on
Krantz’s two upper front teeth (teeth numbers 8 and 9).
In his declaration, Dr. Missirlian opines as follows on these
injuries: (1) “#8 and 9 were beautiful teeth with glistening,
natural enamel which has now been destroyed. The treatment
could have just been smoothing of the chipped edges, and, at
most, a mesial-incisal composite on #9. He is not happy with the
change from natural teeth to crowns and has spent the last years
with crowns that are very large, do not blend or look anything
like natural teeth [that] they were replacing and irritate his
lower lip.”9 Dr. Missirlian concludes teeth numbers 8 and 9 were
“beautiful God-given teeth, ruined by Dr. Kim,” but also states
that the photographs from when Krantz first presented to Dr.
Kim showed “minor chipping and wear.”
As detailed in part III.A. ante, Dr. Missirlian never directly
opines that his proposed alternative plan of treatment for teeth
numbers 8 and 9 was superior to Dr. Kim’s plan of veneers, but
that is the reasonable inference from a liberal construction of his
declaration. Still, more is required. (See Fernandez, supra,
31 Cal.App.5th at p. 781 [expert needed to opine that defendant’s
9 Dr. Missirlian does not mention Krantz’s mouth or lip
drooping, as alleged in the complaint, nor does Krantz mention it
in his briefing, so we do not address it. Similarly, Dr. Missirlian
does not state that teeth numbers 8 and 9 were “filed too small,”
another injury alleged in the complaint, and, as noted ante in
footnote 6, he states that filing of teeth of this age is acceptable
up to a “millimeter or two.”
22
course of treatment caused the alleged injury to a greater degree
than the treatment he allegedly should have chosen].)
Dr. Missirlian does not provide any factual reasoning or
explanation. He does not state the polishing and “mesial-incisal
composite” would have been more aesthetically pleasing and less
physically irritating than the veneers and subsequent crowns,
while still fixing the pre-existing problems in those teeth. For
example, one is left to wonder how a “mesial-incisal composite on
#9” would look or feel as opposed to a veneer, and thus why it
would have been a better course of treatment. Krantz cannot
simply rely on a conclusory statement without factual predicate
to create a triable issue of fact as to causation. (Id. at p. 782.)
Moreover, in opposing summary judgment, Krantz did not
dispute the evidence presented by Dr. Kim that prior to placing
the crowns on teeth numbers 8 and 9 on November 14, 2018, Dr.
Kim “went over the shape and shade of the crowns with [Krantz]
and [Krantz] approved the crowns.” (Italics added.) Krantz
stated that this fact was “undisputed” when he opposed summary
judgment. Dr. Hewlett opined that by reviewing the shape and
shade of the crowns with Krantz before placing them, and by
obtaining his approval, Dr. Kim acted within the standard of care
and therefore did not cause or contribute to any injuries
stemming from the appearance or feel of the crowns to a
reasonable medical probability. Dr. Missirlian did not directly
dispute this opinion; rather, he proffered the conclusory
statement that there was “[n]o proper informed consent.
Mr. Krantz signed a financial document. He did not sign
anything that he was informed of the treatment he was to
receive.” But Dr. Missirlian did not rebut Dr. Hewlett’s opinion
that Dr. Kim acted within the standard of care, nor directly opine
23
that the standard of care required written consent stating he was
“informed of the treatment.” Dr. Missirlian would have had no
personal knowledge to contradict Krantz’s concession in his
summary judgment opposition that Krantz approved the shape
and shade of the crowns with Dr. Kim.
Dr. Missirlian’s declaration did not create a triable issue of
fact as to Dr. Kim contributing to or causing, to a reasonable
medical probability, the aesthetic and physical discomfort
injuries in the upper top two teeth alleged in the complaint.
DISPOSITION
The judgment of the trial court is affirmed. Dr. Kim is
entitled to costs on appeal.
*
HARUTUNIAN, J.
We concur:
STRATTON, P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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