Mousavi v. Woodburn CA2/6 ( 2014 )

Filed 10/1/14 Mousavi v. Woodburn CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MORVARID MARY MOUSAVI, 2d Civil No. B251529
(Super. Ct. No. 56-2012-00418964-CU-
Plaintiff and Appellant, MM-VTA)
(Ventura County)
v.
JAMES D. WOODBURN III,
Defendant and Respondent.
This action arises from an intra-operative injury allegedly sustained by
appellant Morvarid Mary Mousavi during a procedure performed by respondent James D.
Woodburn III, M.D. Mousavi sued Dr. Woodburn for medical malpractice, assault and
battery, false imprisonment and related claims. After successfully demurring to all but
the medical malpractice claim, Dr. Woodburn moved for summary judgment. He
submitted expert evidence that his participation in the surgery did not require Mousavi's
advance express consent and that his treatment was within the standard of care and did
not cause her claimed injuries. Mousavi offered no expert evidence in response.
Concluding she had failed to raise a triable issue of material fact, the trial court granted
summary judgment. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Mousavi consulted with Dr. Terry Cole, a board-certified specialist in
obstetrics and gynecology (OB/GYN), regarding various gynecological issues. Dr. Cole
determined Mousavi suffered from uterine fibroids, ovarian cysts and excessive
menstrual bleeding. Her past surgical history included multiple caesarean sections, an
ectopic pregnancy, bowel resection and abdominoplasty (tummy tuck).
Mousavi elected to have Dr. Cole perform a total abdominal hysterectomy
and removal of her remaining ovary. When she arrived at Community Memorial
Hospital (CMH) for the procedure, Mousavi signed the surgical consent, which stated:
"The operations or procedures will be performed by the supervising physician or surgeon
named above [Dr. Cole] (or in the event that physician is unable to perform or complete
the procedure, a qualified substitute supervising physician or surgeon) . . . ." Dr. Cole
asked Dr. Woodburn, a general surgeon, to assist with the surgery.
Dr. Cole performed the initial incision to open the abdomen, but was unable
to identify the pelvic structures due to extensive adhesions and scar tissue from Mousavi's
past surgeries. Because he could not safely remove the uterus and ovary at that point, Dr.
Cole requested Dr. Woodburn's assistance. Dr. Woodburn performed extensive lysis of
the adhesions and scar tissue to expose the pelvic structure for Dr. Cole. Once this
process was completed, Dr. Cole removed the uterus and right ovary. Dr. Woodburn
closed the surgical wound.
Against medical advice, Mousavi discharged herself from CMH two days
later. She returned to the hospital that same evening and was re-admitted for pain
complaints. A few hours later, before she could be fully evaluated, Mousavi again
discharged herself against medical advice. She went to Los Robles Regional Medical
Center, where she was diagnosed with a distal right ureter injury. She underwent a
successful ureter re-implantation the next day.
Mousavi filed a complaint in pro per against Dr. Woodburn and CMH for
medical malpractice, assault and battery, and negligent infliction of emotional distress by
gross negligence. She alleged Dr. Woodburn committed malpractice by failing to obtain
her consent prior to assisting with the surgery and by causing the ureter injury. Dr.
Woodburn demurred to the complaint. While that demurrer was pending, Mousavi filed
a first amended complaint against Dr. Woodburn, CMH and several other defendants
2
alleging (1) aggravated assault, (2) assault and battery of a high and aggravated nature,
(3) false imprisonment, (4) fraud, (5) breach of duty, (6) gross negligence, (7) negligent
and intentional infliction of emotional distress and (8) medical malpractice. Dr.
Woodburn demurred to the first seven causes of action. The trial court sustained the
demurrer without leave to amend. Because Mousavi had filed a second amended
complaint, the court clarified that only the cause of action for medical malpractice
remained against Dr. Woodburn.
Dr. Woodburn moved for summary judgment on the medical malpractice
claim, based on the expert witness testimony of surgeon Barry Gardiner, M.D. Mousavi
opposed the motion, but submitted no expert testimony to contradict Dr. Gardiner's
opinions. She relied on various medical records and her lay opinion as to the standard of
care and causation.
The trial court granted the motion and entered judgment for Dr. Woodburn,
plus costs. The court noted that because the matters in controversy are beyond the
common understanding of laypersons, Dr. Woodburn's compliance or non-compliance
with the standard of care may be proven only through a qualified medical expert. It
concluded that Dr. Woodburn had made the requisite prima facie showing, through Dr.
Gardiner's expert declaration, that his participation in Mousavi's surgery did not require
her advance consent, that his surgical actions and subsequent care were within the
applicable standard of care and that his actions were not a proximate cause of her claimed
injuries. In the absence of any contradictory expert evidence, the court found Mousavi
had failed to demonstrate a triable issue of material fact.
Dr. Woodburn filed a timely memorandum of costs in the amount of
$4,456.15. When Mousavi did not object to the memorandum or move to tax the costs,
the trial court amended the judgment to include those costs. Mousavi appeals.1
1 Dr. Woodburn is the only respondent in this appeal. The trial court also granted
motions for summary judgment filed by CMH and Dr. Michael Green. Mousavi's
appeals from those judgments (Case Nos. B255498, B258195) are awaiting preparation
of the record.
3
DISCUSSION
Mousavi purports to appeal both the demurrer and the summary judgment
rulings, but her briefs are confusing and disjointed in many respects. Aside from
occasional references to "battery," Mousavi does not address the claims that were
dismissed on demurrer. Nor does she suggest how the complaint could be amended to
correct the pleading deficiencies. She also makes a number of factual and legal
assertions without explaining their significance to the trial court's rulings or providing
adequate supporting authority. In some instances, she simply poses a question (e.g.,
"Should the Attorney representing the Health care provider be held to the same standards
as the Health care professional in matters involving privacy?") without offering any
explanation or discussion.
It is appellant's burden to affirmatively demonstrate error. (Denham v.
Superior Court (1970) 2 Cal. 3d 557, 564; Hernandez v. California Hospital Medical
Center (2000) 78 Cal. App. 4th 498, 502.) That Mousavi is self-represented does not
change this burden. (Dowden v. Superior Court (1999) 73 Cal. App. 4th 126, 129-130;
Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246-1247.) We are not required to
examine undeveloped claims or to make arguments for the parties. (Paterno v. State of
California (1999) 74 Cal. App. 4th 68, 106; People v. Turner (1994) 8 Cal. 4th 137, 214,
fn. 19 [reviewing court may disregard contentions not adequately briefed, e.g., claims
perfunctorily asserted without development]; Kim v. Sumitomo Bank (1993) 17
Cal. App. 4th 974, 979 [appellate court not required to consider points not supported by
citation to authorities or record].) Accordingly, we confine our discussion to Mousavi's
appeal from the grant of summary judgment and award of costs.
Standard of Review
We review the trial court's decision granting summary judgment de novo
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 860), applying the same three-
step analysis required of the trial court. (Bono v. Clark (2002) 103 Cal. App. 4th 1409,
1431-1432.) After identifying the issues framed by the pleadings, we determine whether
the moving party has established facts justifying judgment in its favor. If the moving
4
party has carried its initial burden, we then decide whether the opposing party has
demonstrated the existence of a triable issue of material fact. (Id. at p. 1432.) We strictly
construe the moving party's evidence and liberally construe the opposing party's
evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832, 838-839; Code Civ.
Proc., § 437c, subd. (c).) A triable issue of material fact exists 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, at p. 850.)
Medical Malpractice
To prove a medical malpractice claim, the plaintiff must establish the
applicable standard of care and a breach of that standard. (Hanson v. Grode (1999) 76
Cal. App. 4th 601, 607; Powell v. Kleinman (2007) 151 Cal. App. 4th 112, 122 (Powell).)
"Because the standard of care in a medical malpractice case is a matter 'peculiarly within
the knowledge of experts' [citation], expert testimony is required to 'prove or disprove
that the defendant performed in accordance with the standard of care' unless the
negligence is obvious to a layperson." (Johnson v. Superior Court (2006) 143
Cal. App. 4th 297, 305.) Similarly, "'[c]ausation must be proven within a reasonable
medical probability based upon competent expert testimony. . . .'" (Dumas v. Cooney
(1991) 235 Cal. App. 3d 1593, 1603; Bromme v. Pavitt (1992) 5 Cal. App. 4th 1487, 1498
[competent expert testimony necessary to establish negligent conduct caused patient's
injury].)
Mousavi asks this court "to review the facts reasonably understood by
reasonable laymen." But that is not the requisite standard. A medical malpractice
defendant who supports a summary judgment motion with applicable expert declarations
"'. . . is entitled to summary judgment unless the plaintiff comes forward with conflicting
expert evidence.'" (Munro v. Regents of University of California (1989) 215 Cal. App. 3d
977, 985 (Munro); Powell, supra, 151 Cal.App.4th at p. 123.) Dr. Woodburn submitted
the declaration of Dr. Gardiner, a board-certified general surgeon, who opined that (1) the
standard of care did not require Mousavi's advance express consent to Dr. Woodburn's
participation in the surgery, (2) the treatment provided by Dr. Woodburn conformed to
5
the standard of care, and (3) Dr. Woodburn's actions did not cause the injury to the ureter.
As to the latter issue, Dr. Gardiner explained that the ureteral injury was not in the
anatomic area where Dr. Woodburn had performed the adhesiolysis and closure of the
surgical wound.
Mousavi did not raise any substantive evidentiary objections to Dr.
Gardiner's declaration or establish he was incompetent to provide expert opinion on these
issues.2 (See Evid. Code, § 720, subd. (a); Code Civ. Proc., § 437c, subd. (b)(5)
["Evidentiary objections not made at the hearing shall be deemed waived"].) Nor did she
demonstrate that the facts identified as the bases for Dr. Gardiner's opinion were not the
salient facts from her medical records. Mousavi's beliefs as a layperson were insufficient
to raise a triable issue as to either the standard of care or causation. (Munro, supra, 215
Cal.App.3d at p. 985; Powell, supra, 151 Cal.App.4th at p. 123.) In the absence of any
conflicting expert testimony, the trial court properly granted summary judgment for Dr.
Woodburn. (Munro, at p. 985.)
Mousavi suggests the trial court should have invoked its authority under
Evidence Code section 7303 to appoint an expert to respond to Dr. Gardiner's declaration.
Although Mousavi referenced this statute in her opposition to the summary judgment
motion, she did not request appointment of an expert. Nor did she raise the issue at the
2 Mousavi did raise procedural objections to Dr. Woodburn's evidence, claiming it
was not appropriately bound with a table of contents and incorporated an improper
citation format. (See Cal. Rules of Ct., rule 3.1350(d), (g).) The law favors substance
over form. (Civ. Code, § 3528.) Even if there was a technical procedural violation, it did
not hinder the trial court's review of the evidence or prevent Mousavi from seeking
responsive expert evidence. At the hearing, Mousavi admitted she had consulted with at
least two physicians but was "having a very difficult time" obtaining an expert opinion.
She stated that one physician had sent her an e-mail but was "hesitant to present as an
expert."
3 Evidence Code section 730 states: "When it appears to the court, at any time
before or during the trial of an action, that expert evidence is or may be required by the
court or by any party to the action, the court on its own motion or on motion of any party
may appoint one or more experts to investigate, to render a report as may be ordered by
the court, and to testify as an expert at the trial of the action relative to the fact or matter
as to which the expert evidence is or may be required. The court may fix the
compensation for these services, if any, rendered by any person appointed under this
section, in addition to any service as a witness, at the amount as seems reasonable to the
court."
6
hearing on the motion. Consequently, the issue was waived. (See Ventura v. ABM
Industries Inc. (2012) 212 Cal. App. 4th 258, 265 [failure to seek ruling from trial court
forfeited issue on appeal].)
Award of Costs
Mousavi challenges the amount of the costs award, claiming the trial court
improperly allowed fees for a medical expert who did not provide a declaration in the
summary judgment proceeding. By failing to object to Dr. Woodburn's memorandum of
costs in the trial court, Mousavi has waived the issue on appeal. (Staples v. Hoefke
(1987) 189 Cal. App. 3d 1397, 1409; Oak Grove School Dist. v. City Title Ins. Co. (1963)
217 Cal. App. 2d 678, 698 [party who neglects to file timely or proper objection to
memorandum of costs waives right to object].)
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
7
Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Morvarid Mary Mousavi, in pro. per., for Appellant.
Boyce Schaeffer LLP, Karen A. Newcomb for Respondent.
8