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MOTION FOR SUMMARY JUDGMENT OF DEFENDANT PHILLIP G. PEARSON, M.D. |
BACKGROUND
A. Allegations
Plaintiff Hosie Bennett (“Plaintiff”) is an elderly man who sought treatment for mild symptoms associated with his lower urinary tract. He was prescribed Flomax medication and noticed improvements to his symptoms. Plaintiff alleges that despite the improvement, he was scheduled to undergo invasive surgery. On March 15, 2018, Plaintiff was admitted to Defendant Huntington Memorial Hospital (“Hospital”) for a robotic-assisted radical prostatectomy, positive lymph node dissection, and anterior urethropexy, but he alleges that these procedures, alternative treatment, and the associated risks were never fully explained to him. He alleges that while Defendant Philip Pearson, M.D. (“Dr. Pearson”) performed the procedure, Defendants punctured Plaintiff’s bladder causing a urine leak and kidney contamination. Plaintiff alleges as a result of this “botched” medical procedure, he was forced to remain in the hospital for approximately 3 weeks, lost 47 pounds, and is now incontinent.
The third amended complaint (“TAC”), filed June 26, 2020, alleges causes of action for: (1) medical malpractice against all Defendants; and (2) failure to obtain informed consent against Dr. Pearson.
B. Motion for Summary Judgment
On July 8, 2020, Defendant Phillip G. Pearson, M.D. filed a motion for summary judgment as to Plaintiff’s TAC. Dr. Pearson argues that there are no triable issues of material fact and that he is entitled to judgment as a matter of law on the TAC because he acted at all times within the standard of care in his care and treatment of Plaintiff and nothing he did or failed to do caused or contributed to Plaintiff’s claimed injuries.
On November 30, 2020 and December 1, 2020, Plaintiff filed opposition papers. On December 2, 2020, Plaintiff filed a notice of errata to the opposition papers.
On December 4, 2020, Dr. Pearson filed his reply brief.
LEGAL STANDARD
A defendant moving for summary judgment has the burden of proving that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. In a medical malpractice action, the elements are: “(1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) 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 negligence (citations omitted).” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612, emphasis in original.) Additionally, the standard of care against which doctors are measured is a matter within the knowledge of experts. Breach of the standard of care may only be proven by expert testimony. ( Landeros v. Flood (1976) 17 Cal.3d 399, 410.)
DISCUSSION
A. Continuance
In his opposition, Plaintiff requests that the Court continue the hearing on the motion for summary judgment because Plaintiff is still awaiting outstanding discovery responses from Dr. Pearson and Dr. Pearson was only recently deposed on November 11, 2020. (Opp. at p.3.) Plaintiff only briefly mentions the request for continuance in the second paragraph of his introduction and does not discuss it in the remainder of his papers. Thus, Plaintiff does not provide the legal basis for the request for continuance. Further, his counsel, Ayo Omotosho, does not provide any statements in her declaration supporting a request for continuance.
Nevertheless, the Court will grant the request for continuance in light of Dr. Pearson’s recent deposition.
CONCLUSION AND ORDER
Dr. Pearson’s motion for summary judgment to the TAC is continued to February 5, 2021 at 8:30 a.m. in this department. The Court sets the following briefing schedule: (a) Plaintiff’s amended opposition papers shall be filed and served by January 22, 2021; and (b) Dr. Pearson’s amended reply papers shall be filed and served by January 29, 2021. The parties are ordered to provide courtesy copies of their respective papers with the Court by each of deadlines.
Dr. Pearson shall provide notice of this order.