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JAMS ARBITRATION CASE REFERENCE NO. 1120014688

Arbitration No. 15764

Claimant,

and

;

,

Respondents.

_____________________________________________

ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT AND

FINAL AWARD

On December 20, 2019, Respondent1, , submitted a motion for

summary judgment. Claimant, , did not submit an opposition to the motion. A

telephonic hearing regarding the motion was held March 11, 2020. Claimant appeared for the

hearing on the motion. , Esq. appeared on behalf of Respondent. Having

considered the motion for summary judgment and oral arguments the Arbitrator orders as

follows:

I. INTRODUCTION

This is a medical malpractice action arising out of Claimant ’s

("Claimant") claim that Respondent was negligent in its care and treatment of Claimant with

regards to a hemorrhoidectomy performed in November 2015. On or about November 6, 2018,

Claimant submitted a Demand for Arbitration to Respondent

("Respondent") for damages arising out of

Respondents’ alleged negligence.

1 For purposes of this Motion in this professional negligence matter, Respondent did not challenge the sufficiency,

or dispute the validity, of the Claimant’s Demand for Arbitration, both generally and specifically, as to the naming

of a valid and proper Respondent. Respondent addressed the claim for damages alleged in the Demand for

Arbitration on the merits and assume that the action was submitted against the correct Respondent entity who

rendered Claimant’s medical care at issue. is used generically when addressing

the merits because it is the only Respondent currently named.

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II. SUMMARY OF FACTS

Claimant served her Demand for Arbitration to

on or about November 6, 2018. (Undisputed Material Fact “UMF” #1)

On December 30, 2014, the patient presented to Dr. , a general

surgeon. The patient complained of bleeding from her rectum and prolapsing hemorrhoids,

which had been a problem for years. The patient noted that she had a normal colonoscopy

earlier in the month. Dr. noted a prolapsing internal exterior hemorrhoid and small

internal hemorrhoids and recommended a Sitz bath and an evaluation in two to three weeks.

She also agreed to see Dr. for a general surgery consultation. (HealthConnect

records, Exhibit “B”, Page 2397) (UMF #2)

Dr. drafted a History and Physical on November 5, 2015. He noted that the

patient was a 55-year-old female with a 30-40 year history of hemorrhoidal disease. She

complained of prolapsing and non-reduceable hemorrhoids, severe pain, and occasional bright

red blood per her rectum. He noted the patient to be 5’4” in height and 166 pounds. A rectal

exam was performed, with his chaperone, , present. He noted a huge prolapsed right

anterior lateral hemorrhoid with dilated engorged vessels and no thrombosis. A digital rectal

exam and anoscopy were deferred. ( records, Exhibit “B”, Pages 2469-2473)

(UMF #3)

Due to the patient’s severe pain, an anal block was performed on November 5, 2015

with 1% Lidocaine, 10 milliliters. Dr. ’s assessment was that the patient had inflamed

external hemorrhoids. He discussed with the patient the pathophysiology of hemorrhoidal

disease. He instructed her to increase her fiber and water intake and for sitz baths.

( records, Exhibit “B”, Pages 2469-2473) (UMF #4)

Dr. proposed that the patient undergo a hemorrhoidectomy. He discussed the

benefits and risks of surgery including, but not limited to, infection, bleeding, allergies to

medications or anesthesia, and injury to nerves, arteries, veins or other adjacent organs or

structures in the operative field. Dr. charted he also advised her of the risks of leaks,

strictures, abscesses, recurrences, and need for more procedures or surgeries. The option of

non-operative treatment was offered. Dr. noted the patient appeared to understand all

of the issues involved in the surgery and decided to proceed forward. ( records,

Exhibit “B”, Pages 2469-2473) (UMF #5)

The patient underwent surgery by Dr. on November 9, 2015. The rationale

for the procedure was treatment for rectal bleeding and a prolapsed, fourth-degree internal

hemorrhoid. Dr. noted a grade 4 hemorrhoid in the anterior midline projection

toward the left lateral, occupying 25% of the anal verge circumference. He also noted small

external hemorrhoids at the left posterior lateral and right posterior lateral projections. The

hemorrhoid was excised all the way up towards the neck and then properly marked and sent to

pathology. The anal verge was closed with interrupted 3-0 Vicryl suture. In a similar fashion,

the other two smaller hemorrhoids were excised as well, and the rectum was copiously irrigated.

No bleeding was noted. The patient tolerated the procedure well and was extubated. She was

discharged that same day to her home with self-care. ( records, Exhibit “B”,

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Pages 2502-2504) (UMF #6)

The specimens taken from the patient’s surgery on November 9, 2015 came back from

pathology with the following final pathologic diagnosis: A. Anorectum, anterior midline

hemorrhoid, hemorrhoidectomy: Consistent with hemorrhoid. No dysplasia or malignancy

identified. B. Anorectum, posterior midline hemorrhoid, hemorrhoidectomy: Consistent with

hemorrhoid. No dysplasia or malignancy identified. ( records, Exhibit “B”,

Pages 2514-2515) (UMF #7)

On November 27, 2015, the patient was seen by Dr. for a post-op wound

check. In his assessment, Dr. noted that the patient complained of no pain. A rectal

exam was performed and Dr. noted well-healing small open wounds, with no signs of

infection. The patient was advised to follow up should she experience draining of incision,

swelling, redness, chills, or fever. ( records, Exhibit “B”, Page 2647) (UMF #8)

The patient saw Dr. in follow up on January 14, 2016. On that date, he noted

she had anal pain and bright red blood per rectum since the previous Sunday when she

developed constipation. He performed a rectal exam and noted an anterior midline fissure. He

discussed with the patient the pathophysiology of the fissure. He instructed her to increase fiber

intake up to 25 to 30 grams per day and water up to 2.5 liters per day. He also recommended

sitz baths for 20 to 30 minutes, Tramadol for pain, Nifedipine, Lidocaine topical, and

recommended that the patient email him in one week with an update. ( records,

Exhibit “B”, Pages 2675-2676) (UMF #9)

The patient then saw Dr. on September 13, 2016. She presented with

complaints of minimal anal pain after bowel movements, with bright red blood per rectum from

her anterior midline. The patient also complained of urgency with bowel movements. Dr.

noted that the patient had an anterior midline anal fissure nine months ago, which was

treated medically. The patient denied constipation and stated that she had daily bowel

movements, used iron pills for anemia, and supplements of Colace. She denied stool

incontinence. A rectal exam was once again performed, and Dr. noted a superficial

anal verged head at one o’clock, but no fissure. A digital rectal exam revealed normal resting

and squeeze tone. An anoscopy revealed tiny internal hemorrhoids. Dr. ’s assessment

was that an anal verge tear appeared to be almost healed. He again instructed the patient to

increase her fiber and water intake, and he coagulated the small anal verge tear with silver

nitrate. ( records, Exhibit “B”, Pages 3235-3236) (UMF #10)

Dr. next saw the patient on November 23, 2016. At this time, the patient

denied constipation and stated that she had daily bowel movements and used iron pills for

anemia. The patient also stated that she used supplements with Colace and denied stool

incontinence. The patient had new complaints of urgent defecation and stated that she could not

hold her stool for a long time. She denied blood in her stool. A rectal exam was again

performed, and Dr. noted thin mucosa at one o’clock, but no fissure. A digital rectal

exam revealed normal resting and squeeze tone. An anoscopy revealed tiny internal

hemorrhoids. Dr. oted no obvious spasm on exam. His plan was for the patient to

continue her fiber intake. The thin area of previous anal verge tear was coagulated with silver

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nitrate. Dr. stated that he would refer the patient for pelvic floor physical therapy.

( records, Exhibit “B”, Pages 3312-3313) (UMF #11)

To a reasonable degree of medical probability,

complied with the standard of care at all times and in all respects in connection with its care and

treatment of Claimant, (UMF #12)

Claimant was an appropriate candidate for a hemorrhoidectomy procedure as she

presented to Dr. with rectal bleeding and a prolapsed, fourth-degree internal

hemorrhoid. (UMF #13)

It was within the standard of care for Dr. to perform Claimant’s

hemorrhoidectomy as this procedure is performed by general surgeons. Claimant had a fourth-

degree internal hemorrhoid, and it was within the standard of care for Dr. to proceed

with surgery to remove it at that time as the benefits of removal far outweighed the risks. (UMF

#14)

Dr. ’s surgical technique also complied with the standard of care as he

successfully excised Claimant’s hemorrhoids as evidenced by the pathology report. (UMF #15)

To a reasonable degree of medical probability, did

not cause or contribute to Claimant ’s claimed injuries and those claimed injuries

were not the result of any breach in the standard of care on the part of

(UMF #16)

To a reasonable degree of medical probability, Dr. did not remove a portion of

Claimant’s anal sphincter during his November 9, 2015 surgery as evidenced by the surgical

pathology report, which came back showing that Dr. removed Claimant’s

hemorrhoids. Had a portion of Claimant’s anal sphincter been removed during the November 9,

2015 surgery, it would have been identified in the pathology report. (UMF #17)

To a reasonable degree of medical probability that Dr. ’s November 9, 2015

surgery did not cause Claimant’s complaints of fecal incontinence. Claimant’s fecal

incontinence symptoms developed more than nine months after Dr. ’s November 9,

2015 surgery. Had Dr. removed a portion of Claimant’s anal sphincter during the

November 9, 2015 surgery, Claimant would have developed symptoms of fecal incontinence

within the first month following surgery. (UMF #18)

III. DISCUSSION

A. Legal Standard

A motion for summary judgment or summary adjudication shall be granted when the

moving party demonstrates that there is no triable issue as to any material fact and that the

moving party is entitled to judgment or adjudication as a matter of law. The trial court may rely

on “... affidavits, declarations, admissions, answers to interrogatories, depositions and matters of

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which judicial notice shall or may be taken.” California Code of Civil Procedure §437c(b)(1).

California Code of Civil Procedure, §437c(p)(2) requires that a motion for summary

judgment or adjudication be granted when it is shown that one or more elements of a cause of

action cannot be established or that there is a complete defense of that cause of action. By

demonstrating that one of the above conditions exists, a Respondent has met its burden in

showing that a cause of action has no merit. Id. The burden then shifts to the Claimant to show

that a triable issue of material fact exists as to that cause of action or defense by setting forth

specific facts. Id.

The purpose of the summary judgment motion is to expedite litigation by avoiding

needless trials and to "penetrate through evasive language and inept pleading and to ascertain the

existence or absence of triable issues." (Michael H. v. Gerald D. (1987) 191 Cal.App.3d 995,

1004.) This results in judicial economy by allowing only meritorious claims to be litigated.

“[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.’”

(Hanson v. Grode (1999) 76 Cal.App.4th 601, 606; Avivi v. Centro Medico Urgente

Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2.)

B. Respondent Met Standard of Care in the Care and Treatment of Claimant

In a medical malpractice action, the requisite standard of care is determined by the

applicable standard of care then existing in the particular professional community. Barton v.

Owens (1977) 71 Cal.App.3d 484, 139 Cal.Rptr. 494. In Landeros v. Flood (1976) 17 Cal.3d

399, 131 Cal.Rptr. 69, the Supreme Court determined that the standard of care against which the

acts of physicians are measured is a matter within the knowledge of experts and can only be

proven by their testimony. The rationale for requiring expert testimony in medical malpractice

actions was succinctly stated by the court in Barton:

In most instances there is a need for expert testimony on the

subject of just what constitutes medical negligence, because the

average judge or juror does not possess the necessary level of

knowledge about medical malpractice to decide on its own whether

the doctor was negligent. (Barton, supra, at pg. 494.)

The role of expert testimony in a medical malpractice action was explained in Willard v.

Hagemeister (1981) 121 Cal.App.3d 406, 175 Cal.Rptr. 365. In Willard, the court was called

upon to review the granting of a summary judgment motion in favor of the Defendants dentist,

where Defendants secured declarations of experts to support his motion for summary judgment.

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In describing the weight to be given such expert testimony, the court stated:

Expert evidence in a malpractice suit is conclusive as to the proof

of the prevailing standard of care and learning in the locality and of

the propriety of particular conduct by the practitioner in particular

instances because such standard and skill is not a matter of general

knowledge and can only be supplied by expert testimony. (Willard,

supra, at pg. 413.)

In this case, the Declaration of expert colo-rectal surgeon M.D. provides

competent expert testimony as to the applicable standard of care. Dr. is a qualified

physician specializing in colo-rectal surgery. (See Dr. ’s Declaration, ¶ 2, and CV

attached as Exhibit 1.) According to Dr , to a reasonable degree of medical

probability, complied with the standard of care at all times

and in all respects in connection with its care and treatment of Claimant, . (UMF

#12) Claimant was an appropriate candidate for a hemorrhoidectomy procedure as she

presented to Dr. with rectal bleeding and a prolapsed, fourth-degree internal

hemorrhoid. (UMF #13)

It was within the standard of care for Dr. to perform Claimant’s

hemorrhoidectomy as this procedure is performed by general surgeons. Claimant had a fourth-

degree internal hemorrhoid, and it was within the standard of care for Dr. to proceed

with surgery to remove it at that time as the benefits of removal far outweighed the risks. (UMF

#14) Dr. ’s surgical technique also complied with the standard of care as he

successfully excised Claimant’s hemorrhoids as evidenced by the pathology report. (UMF #15)

The expert declaration of Dr. should be taken as conclusive as to the issues in

this lawsuit. An expert’s own declaration is sufficient to show the absence of triable issues for

purposes of summary judgment and the motion shall not be denied on the grounds of credibility

if the party is otherwise entitled to summary judgment. Lerner v. Superior Court (1970) 70

Cal.App.3d 656, 660, 130 Cal.Rptr. 51.

Here, the only material issues raised in the Claimant’s Arbitration Demand is whether or

not Respondent fell below the standard of care as it pertains to the care and treatment provided

to her, and, if so, whether this resulted in Claimant’s alleged injuries and damages. The relevant

treatment and chronology of events regarding the Claimant as set forth above, coupled with the

Declaration of Dr. , clearly establish that, at all times, Respondent met the applicable

standard of care.

In a medical malpractice action, the Claimant must present expert testimony to establish

the necessary elements of his or her case; that is, that the Respondent’s acts or omissions fell

below the applicable standard of practice, and that this substandard care caused the Claimant

injury. Folk v. Kilk (1975) 53 Cal.App.3d 176, 126 Cal.Rptr. 172.

As such, Claimant must come forward with admissible evidence, by a competent

qualified physician, that the care and treatment rendered by Respondent fell below the

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applicable standard of care and actually caused Claimant’s alleged injuries and damages. Id.

Absent such evidence, there is no triable issue as to any material fact.

In addition to proving that the Respondent fell below the standard of care, to prevail in a

medical negligence claim, the Claimant must demonstrate that the Respondent’s malpractice

caused injury to the Claimant. Bolen v. Woo (1979) 96 Cal.App.3d 944, 953, 158 Cal.Rptr.

454. The standard for establishing causation in a medical malpractice action was set forth in

Jones v. Ortho Pharmaceutical Corporation (1985) 163 Cal.App.3d 396, 209 Cal.Rptr. 456. In

Jones, the court held that causation must be proven by reasonable medical probability based

upon competent expert testimony. The court noted that a mere possibility is insufficient to

establish a prima facie case and distinguished a reasonable medical probability from a medical

possibility:

There can be many possible causes, indeed an indefinite number of

circumstances which can produce an injury or death. A possible

cause only becomes probable when in the absence of other

reasonable causal connections, it becomes more likely than not that

the injury was a result of its action. (Id. at 402-403.)

Dr. has opined that to a reasonable degree of medical probability,

did not cause or contribute to Claimant ’s claimed

injuries and that those claimed injuries were not the result of any breach in the standard of care

on the part of (UMF #16) To a reasonable degree of

medical probability, Dr. did not remove a portion of Claimant’s anal sphincter during

his November 9, 2015 surgery, as evidenced by the surgical pathology report, which came back

showing that Dr. removed Claimant’s hemorrhoids. Had a portion of Claimant’s anal

sphincter been removed during the November 9, 2015 surgery, it would have been identified in

the pathology report. (UMF #17)

To a reasonable degree of medical probability, Dr. ’s November 9, 2015

surgery did not cause Claimant’s complaints of fecal incontinence. Claimant’s fecal

incontinence symptoms developed more than nine months after Dr. ’s November 9,

2015 surgery. Had Dr. removed a portion of Claimant’s anal sphincter during the

November 9, 2015 surgery, Claimant would have developed symptoms of fecal incontinence

within the first month following surgery. (UMF #18)

Accordingly, the undisputed facts, supported by Dr. s expert testimony,

demonstrate that Claimant’s purported injuries and damages were not the result of any act or

omission by Respondent as Respondent at all times met the applicable standard of care. Thus,

Claimant cannot prove the essential element of causation regarding her professional negligence

cause of action. Moving Defendant, is therefore entitled to

summary judgment as a matter of law.

//

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C. Respondent, Does Not Render

Medical Care

Respondent denies that it is responsible for the

quality of the medical care provided because it is not responsible for providing medical care to

patients and cannot be held liable in this matter. Respondent contends it entitled to summary

adjudication on this issue.

Respondent is a Health Maintenance Organization and a prepaid healthcare

service plan within the purview of California's Knox-Keen Healthcare Service Plan Act of 1975,

Health and Safety Code § 1340 et seq. (UMF #19.)

contracts with and

to provide medical and hospital services to its members. (UMF #20.) The medical care

rendered to the Claimant was provided through her membership with

by physicians and staff of and

(UMF #21.) did not provide

medical care or treatment to the Claimant at any time. (UMF #22.)

As was made clear by court in

, cannot be held liable as a medical

provider. In that case, a wrongful death action, the plaintiffs sued, among others,

, and

, for medical treatment rendered at

sought summary judgment on the grounds that it could not

be held vicariously liable for any negligence on the part of .

The trial court in granted summary judgment in favor of

(referred to in the opinion as “ ”), which was affirmed by the Court

of Appeal. The plaintiffs maintained that could be held

vicariously liable for any negligence “because should

legally be treated as a single entity.” Id. at . This was rejected by the Court of Appeal,

which held that could not be held vicariously liable for any

negligence on the part of .

The court in explained the relationship between : “

[ ] is a health care service plan that exclusively

contracts with [ and with [

] to provide health care to its members. also

provide acute care to nonmembers who present in one of its emergency departments.” Id. at

. “... , as a health care service plan, exclusively contracted with

(a separate entity) and (a separate entity) to be its providers.” Id. at .

The plaintiffs in maintained that “ , and

constitute a single enterprise, and, thus, is liable for all acts and omissions of the

other components of the enterprise.” Id. at . However, the Court of Appeal rejected this

argument, recognizing that cannot be held vicariously liable for any