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1 JOSEPH S. PICCHI, ESQ. (State Bar No. 157102)
AARON T. SCHULTZ, ESQ. (State Bar No. 222949)
2 GALLOWAY, LUCCHESE, EVERSON & PICCHI ELECTRONICALLY
3
A Professional Corporation F I L E D
2300 Contra Costa Blvd., Suite 350 Superior Court of California,
Pleasant Hill, CA 94523-2398 County of San Francisco
4 Tel. No. (925) 930-9090 12/17/2021
Fax No. (925) 930-9035 Clerk of the Court
5 E-mail: aschultz@glattys.com BY: RONNIE OTERO
Deputy Clerk
6 Attorneys for Defendant
VICTOR PRIETO, M.D.
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN FRANCISCO
10 ERICA SANDBERG, Case No. CGC-20-584686
11 Plaintiff,
MEMORANDUM OF POINTS AND
12 vs. AUTHORITIES IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT OF
13 DIGNITY HEALTH, INC.; ST. FRANCIS DEFENDANT VICTOR PRIETO, M.D.
MEMORIAL HOSPITAL; ST. FRANCIS
14 ORTHOPEDIC INSTITUTE: ST. FRANCIS
MEMORIAL HOSPITAL CENTER FOR Date: March 4, 2022
15 SPORTS MEDICINE; STEPHEN VAN Time: 9:30 AM
PELT, M.D.; VICTOR PRIETO, M.D.; and Dept: 302
16 DOES 1 through 50, Inclusive,
Date Complaint Filed: June 2, 2020
17 Defendants. Trial: April 4, 2022
18
19
20 I. INTRODUCTION
21 This case arises out of care and treatment provided to Plaintiff in connection with
22 an injury to her right wrist that occurred when she fell playing hockey. As demonstrated
23 by the evidence offered in support of this Motion, moving Defendant Dr. Victor Prieto’s
24 involvement in Plaintiff’s care complied with the standard of care, and there are no triable
25 issue as to any material fact with respect thereto.
26 ///
27 ///
28 ///
GALLOWAY, LUCCHESE,
EVERSON &PICCHI
2300 Contra Costa Blvd., 1
Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040
Pleasant Hill, CA 94523
(925) 930-9090
FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D.
1 II. FACTS
2 On the evening of April 29, 2019, Plaintiff fell while playing recreational ice hockey
3 and injured her right wrist. [See Defendant’s Separate Statement of Undisputed Material
4 Fact (hereafter “Def. Sep. Stmt.”), No. 1.] Plaintiff was taken immediately thereafter to
5 the emergency department at California Pacific Medical Center (CPMC). [See Def. Sep.
6 Stmt., No. 2.]
7 At CPMC an x-ray was taken that demonstrated she has suffered a comminuted
8 distal radial fracture with impaction and dorsal angulation and associated soft tissue
9 swelling of the right wrist. A non-displaced fracture of the ulnar styloid was also evident.
10 [See Def. Sep. Stmt., No. 3.] Plaintiff was splinted that evening and was referred to Dr.
11 Stephen Van Pelt. [See Def. Sep. Stmt., No. 4.]
12 Plaintiff saw Dr. Van Pelt on April 30, 2019, and a new set of x-rays were also
13 ordered. [See Def. Sep. Stmt., No. 5.] During the April 30, 2019 visit, Dr. Van Pelt told
14 Plaintiff she did not require surgery. [See Def. Sep. Stmt., No. 6.]
15 During the April 30, 2019 visit, Dr. Van Pelt asked Dr. Prieto to come into to the
16 exam room after Dr. Van Pelt had already examined Ms. Sandberg and her x-rays, and
17 after they had discussed treatment options. [See Def. Sep. Stmt., No. 7.]
18 During the April 30, 2019 visit, it was Dr. Prieto’s understanding that Ms. Sandberg
19 did not want to proceed with surgery or reduction under anesthesia. Dr. Van Pelt wanted
20 to know Dr. Prieto’s opinion on whether casting was a reasonable option for treating Ms.
21 Sandberg’s wrist fracture. Dr. Prieto that absent the option of surgery or reduction under
22 anesthesia, casting was a reasonable treatment option. [See Def. Sep. Stmt., No. 8.] Dr.
23 Van Pelt’s plan was to continue the patient in a wrist splint and Plaintiff would return in a
24 week for a cast. [See Def. Sep. Stmt., No. 9.]
25 The following day, May 1, 2019, Plaintiff returned to see Dr. Van Pelt because the
26 hand had become red, swollen and slightly blue. Her fingers were swollen and difficult to
27 move. [See Def. Sep. Stmt., No. 10.] Dr. Van Pelt recommended that the posterior splint
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2300 Contra Costa Blvd., 2
Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040
Pleasant Hill, CA 94523
(925) 930-9090
FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D.
1 be taken off and redressed, Plaintiff was again asked to return in a week to have the wrist
2 casted. [See Def. Sep. Stmt., No. 11.]
3 Plaintiff returned, on May 7, 2019 and she was again seen by Dr. Van Pelt. During
4 this visit, at Dr. Van Pelt’s request, Dr. Prieto provided assistance to him while he place
5 a cast on Ms. Sandberg. [See Def. Sep. Stmt., No. 12.]
6 On June 4, 2019, Plaintiff returned to see Dr. Van Pelt. Another set of x-rays were
7 ordered to check for healing. The x-rays showed a "shift in the fracture", Dr. Van Pelt
8 then referred Ms. Sandberg to Dr. Victor Prieto. [See Def. Sep. Stmt., No. 13.] That
9 same day, June 4, 2019, Plaintiff was seen by Dr. Victor Prieto. Prior to the June 4,2019
10 visit, Ms. Sandberg was not a patient of Dr. Prieto. [See Def. Sep. Stmt., No. 14.]
11 When Dr. Prieto saw Plaintiff on June 4, 2019 visit, Dr. Prieto believed that, given
12 the nature of the fracture and the time since the injury, it was reasonable to proceed with
13 conservative management consisting of monitoring the patient to determine the level of
14 functionality of the wrist. He felt that by allowing time for the wrist to heal we would be
15 able to see what level of functionality and appearance would be present, and at that time,
16 other treatment options such as surgery could be evaluated. Plaintiff was thereafter
17 placed in a "cock-up" splint and she was referred to start hand therapy. [See Def. Sep.
18 Stmt., No. 15.] Thereafter, Plaintiff sought, out treatment elsewhere. [See Def. Sep.
19 Stmt., No. 16.]
20 Plaintiff presented to The Hand Center of San Francisco, on June 11th. The
21 physician’s impression was an impending malunion of her right distal radius fracture and
22 displacement of the carpus relative to the forearm. He recommended open corrective
23 reconstruction of the malunion, which would involve a volar approach with mobilization of
24 the fracture followed by reduction & fixation using volar locking hardware. Surgery went
25 forward on June 13th and was performed by Dr. Patrick Lang, with Dr.. Bickel assisting.
26 [See Def. Sep. Stmt., No. 17.]
27 Plaintiff underwent a second surgery on her right wrist, which was performed by
28 Dr. Patrick, O’Lang on November 13, 2019. The purpose of this procedure was to remove
GALLOWAY. LUCCHESE,
EVERSON &PICCHI
2300 Contra Costa Blvd., 3
Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040
Pleasant Hill, CA 94523
(925) 930-9090
FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D.
1 the volar and distal hardware placed during the first surgery. Dr. Lang removed the right
2 distal radius volar locking plate and the two distal radius dorsal locking plates. [See Def.
3 Sep. Stmt., No. 18.]
4 On December 17, 2019, Plaintiff was six days out from the hardware removal and
5 she was having no issues other than some mild post-op swelling. She was referred to
6 hand therapy for help with ROM and she was instructed to wear a removable splint for
7 comfort PRN, and return for follow up within a month. [See Def. Sep. Stmt., No. 19.]
8 On June 2, 2020, Plaintiff filed the operative Complaint, which includes a single
9 cause of action for medical malpractice. [See Def. Sep. Stmt., No. 20.]
10 III. LAW AND ARGUMENT
11 A. SUMMARY JUDGMENT STANDARD
12 It is well established that the purpose of the Summary Judgment procedure is to
13 “penetrate through evasive language and adept pleading and ascertain the existence or
14 absence of triable issues.” (Vanderbilt Growth Fund, Inc. v. Superior Court (1980) 105
15 Cal.App.3d 628, 637.) Therefore, itis proper to grant a Motion for Summary Judgment if
16 there is no triable issue as to any material fact or if the action has no merit. California
17 Code of Civil Procedure § 437c provides, in pertinent part, as follows:
18 (a) Any party may move for summary judgment in any action
or proceeding if it iscontended that the action has no merit or
19 that there is no defense to the action or proceeding. ...
20 (b) The motion for summary judgment shall be granted if all
papers submitted show that there is no triable issue as to any
21 material fact and that the moving party is entitled to judgment
as a matter of law.
22
(c) For purposes of motions for summary judgment and
23 summary adjudication: . ..
24 (d) A defendant... has met his or her burden of showing that
a cause of action has no merit if that party has shown that one
25 or more elements of the cause of action, even if not separately
pleaded, cannot be established. . .. Once the defendant. . .
26 has met that burden, the burden shifts to the plaintiff... to
show that a triable issue of one or more material facts exists
27 as to that cause of action. . . . The plaintiff. . . may not rely
upon the mere allegations ... of its pleadings to show a triable
28 issue of material fact exists but, instead, shall set forth the
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2300 Contra Costa Blvd., 4
Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040
Pleasant Hill, CA 94523
(925) 930-9090
FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, NI.D.
I
1 specific facts showing that a triable issue of material fact
exists.
2
3 When a defendant moves for Summary Judgment and supports her motion with
/
4 expert declarations that her conduct fell within the community standard of care, the
5 defendant is entitled to Summary Judgment unless the plaintiff comes forward with
6 conflicting expert evidence. {Munro v. Regents of the University of California (1989) 215
7 Cal.App.3d 977, 984-985.) The opinion that a defendant met the standard of care can be
8 supported either by direct evidence of acts demonstrating adherence to the standard of
9 care, or a lack of evidence in the record to demonstrate a breach of the standard of care.
10 {Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509.) If it appears from
11 an examination of the affidavits and evidence filed in connection with a motion for
12 Summary Judgment that no triable issue of material fact exists, Summary Judgment is
13 proper. {Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 562.)
14 B. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT
15 Plaintiffs bear the burden of proving all of the elements of their cause of action.
16 {Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 156.) The elements of a cause
17 of action for medical malpractice include: (1) a duty to use such skill, prudence and
18 diligence as other members of the profession commonly possess and exercise; (2) a
19 breach of the duty; (3) a proximate causal connection between the negligent conduct and
20 the injury; and (4) resulting loss or damage. {Hanson v. Grode (1999) 76 Cal.App.4th 601,
21 606; See also CACI No. 501; Huffman v. Lindquist (1951) 37 Cal.2d 465, 473; Sinz v.
22 Owens (1949) 33 Cal.2d 749, 753.)
23 To prove a prima facie case of medical malpractice, the plaintiffs must present
24 expert witness testimony to prove a breach of the standard of care by the health care
25 professional and that the defendant's breach of the standard of care was the cause of the
26 patient's injury. Bromme, supra, at 1487, 1498; Jennings v. Palomar Pomerado Health
27 Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118; Keen v. Prisinzano (1972) 23
28 Cal.App.3d 275, 279.)
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2300 Contra Costa Blvd., 5
Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040
Pleasant Hill, CA 94523
FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D.
(925) 930-9090
1 As the Court in Jones v. Ortho Pharmaceuticals (1985) 163 Cal.App.3d 396, 402-
2 403, explained:
3 The law is well settled that in a personal injury action
causation must be proven within a reasonable medical
4 probability based upon competent expert testimony. Mere
possibility alone is insufficient to establish a prima facie case.
5 [Citations.] That there is a distinction between a reasonable
medical 'probability' and a medical 'possibility' needs little
6 discussion. There can be many possible 'causes,' indeed, an
infinite number of circumstances which can produce an injury
7 or disease. A possible cause only becomes 'probable' when,
in the absence of other reasonable causal explanations, it
8 becomes more likely than not that the injury was a result of its
action. This is the outer limit of inference upon which an issue
9 may be submitted to the jury.
10 Dr. Prieto complied with the standard of care with respect to the care and treatment
11 he provided to Plaintiff. [See Def. Sep. Stmt. No. 21.] Specifically, as noted by Dr. Stine,
12 when Plaintiff first presented for care, on April 30, 2019, she was a patient of Dr. Van Pelt
13 and not Dr. Prieto. The records and the deposition testimony of Plaintiff reflect that
14 Plaintiff had discussed with Dr. Van Pelt surgery, and Dr. Van Pelt had advised that
15 surgery was not necessary. Dr. Van Pelt requested Dr. Prieto's opinion as to whether the
16 course of treatment he had discussed with Plaintiff was reasonable, given Plaintiff’s
17 reluctance to undergo surgery. When Dr. Prieto was asked to come into the room,
18 Plaintiff’s physician, Dr Van Pelt, had already decided on a course of treatment. Based
19 on Dr. Van Pelt’s prior discussions with Plaintiff it was Dr. Prieto’s understanding that
20 Plaintiff wanted to avoid surgery. Dr. Prieto agreed with Dr. Van Pelt that, under the
21 circumstances, casting was a reasonable treatment option. Dr. Prieto’s opinion, as set
22 forth in the Declaration of Dr. Stine, was consistent with the standard of care.
23 When Plaintiff returned on May 7th, she was still a patient of Dr. Van Pelt. She had
24 previously returned and saw Dr. Van Pelt on May 1st and when she returned on May 7th
25 she returned to see Dr. Van Pelt, and not Dr. Prieto. Dr. Van Pelt continued with the plan
26 he had discussed with Plaintiff on April 30th and again on May 1st, casting of the fracture.
27 Dr. Prieto’s only involvement with the May 7th visits was to assist Dr. Van Pelt in placing
28 the agreed to cast. As noted in the Declaration of Dr. Prieto, he was never paid to provide
GALLOWAY, LUCCHESE,
EVERSON &PICCHI
2300 Contra Costa Blvd., 6
Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040
Pleasant Hill, CA 94523
(925) 930-9090
FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D.
1 the assistance or opinions to Dr. Van Pelt, nor had he ever prepared any treatment notes,
2 nor had Plaintiff been listed as his patient.
3 On June 4th Plaintiff returned again to see Dr. Van Pelt. It was only during this visit
4 that Dr. Van Pelt referred Plaintiff to see Dr. Prieto. Once referred to Dr. Prieto, she
5 became his patient. Dr. Prieto reviewed her x-rays and it was determined that her fracture
6 had shifted and Dr. Prieto explained that he felt it would be best to continue with
7 conservative treatment in order to evaluate the results, and then if necessary consider
8 other options, such as surgery, if necessary. Dr. Stine agrees that this advice was also
9 consistent with the standard of care. However, Plaintiff decided to seek treatment
10 elsewhere immediately after this visit, and Dr. Prieto had no further involvement in
11 Plaintiff’s care.
12 As demonstrated by the undisputed facts, Plaintiff was a patient of Dr. Van Pelt
13 until she was referred to Dr. Prieto on June 4th. At this time, Dr. Prieto provided
14 recommendations to Plaintiff, but she chose to proceed with a different course of
15 treatment and did not return. With respect to the June 4th visit, Dr. Prieto’s care and
16 treatment were consistent with the standard of care, but even if they had not been it would
17 not have mattered given that Plaintiff decided to proceed with other treatment options.
18 Prior to the June 4th visit, Plaintiff was the patient of Dr. Van Pelt, and he was
19 responsible for her care and treatment. Dr. Prieto’s provided his opinion to Dr. Van Pelt
20 as to whether the course of treatment he had decided upon was appropriate, but Dr.
21 Prieto did not have a duty to Plaintiff pursuant to a physician patient relationship. (See
22 Keene v. Wiggins (1977) 69 Cal.App.3d 308, 313; Mero v. Sadoff (1995) 31 Cal.App.4th
23 1466,1471.) However, even if there had been a duty to Plaintiff during this time, as noted
24 in the Declaration of Dr. Stine, the opinions on care and treatment offered by Dr. Prieto
25 were consistent with the standard of care.
26 ///
27 ///
28 ///
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2300 Contra Costa Blvd., 7
Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040
Pleasant Hill, CA 94523
FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D.
(925) 930-9090
1 IV. CONCLUSION
2 Based on the foregoing, Defendant Victor Prieto, M.D., respectfully requests that
3 the Court grant his motion for Summary Judgment.
4
5
6
7 Dated: December 14, 2021
GALLOWAY, LUCCHESE, EVERSON
8 & PICCHI
9
10 By:
AARON T. SCHULTZ, ESQ.
11 Attorneys for Defendant
VICTOR PRIETO, M.D.
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2300 Contra Costa Blvd., 8
Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040
Pleasant Hill, CA 94523
FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D.
(925) 930-9090
Preview
1 JOSEPH S. PICCHI, ESQ. (State Bar No. 157102) AARON T. SCHULTZ, ESQ. (State Bar No. 222949) 2 GALLOWAY, LUCCHESE, EVERSON & PICCHI ELECTRONICALLY 3 A Professional Corporation F I L E D 2300 Contra Costa Blvd., Suite 350 Superior Court of California, Pleasant Hill, CA 94523-2398 County of San Francisco 4 Tel. No. (925) 930-9090 12/17/2021 Fax No. (925) 930-9035 Clerk of the Court 5 E-mail: aschultz@glattys.com BY: RONNIE OTERO Deputy Clerk 6 Attorneys for Defendant VICTOR PRIETO, M.D. 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN FRANCISCO 10 ERICA SANDBERG, Case No. CGC-20-584686 11 Plaintiff, MEMORANDUM OF POINTS AND 12 vs. AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OF 13 DIGNITY HEALTH, INC.; ST. FRANCIS DEFENDANT VICTOR PRIETO, M.D. MEMORIAL HOSPITAL; ST. FRANCIS 14 ORTHOPEDIC INSTITUTE: ST. FRANCIS MEMORIAL HOSPITAL CENTER FOR Date: March 4, 2022 15 SPORTS MEDICINE; STEPHEN VAN Time: 9:30 AM PELT, M.D.; VICTOR PRIETO, M.D.; and Dept: 302 16 DOES 1 through 50, Inclusive, Date Complaint Filed: June 2, 2020 17 Defendants. Trial: April 4, 2022 18 19 20 I. INTRODUCTION 21 This case arises out of care and treatment provided to Plaintiff in connection with 22 an injury to her right wrist that occurred when she fell playing hockey. As demonstrated 23 by the evidence offered in support of this Motion, moving Defendant Dr. Victor Prieto’s 24 involvement in Plaintiff’s care complied with the standard of care, and there are no triable 25 issue as to any material fact with respect thereto. 26 /// 27 /// 28 /// GALLOWAY, LUCCHESE, EVERSON &PICCHI 2300 Contra Costa Blvd., 1 Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040 Pleasant Hill, CA 94523 (925) 930-9090 FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D. 1 II. FACTS 2 On the evening of April 29, 2019, Plaintiff fell while playing recreational ice hockey 3 and injured her right wrist. [See Defendant’s Separate Statement of Undisputed Material 4 Fact (hereafter “Def. Sep. Stmt.”), No. 1.] Plaintiff was taken immediately thereafter to 5 the emergency department at California Pacific Medical Center (CPMC). [See Def. Sep. 6 Stmt., No. 2.] 7 At CPMC an x-ray was taken that demonstrated she has suffered a comminuted 8 distal radial fracture with impaction and dorsal angulation and associated soft tissue 9 swelling of the right wrist. A non-displaced fracture of the ulnar styloid was also evident. 10 [See Def. Sep. Stmt., No. 3.] Plaintiff was splinted that evening and was referred to Dr. 11 Stephen Van Pelt. [See Def. Sep. Stmt., No. 4.] 12 Plaintiff saw Dr. Van Pelt on April 30, 2019, and a new set of x-rays were also 13 ordered. [See Def. Sep. Stmt., No. 5.] During the April 30, 2019 visit, Dr. Van Pelt told 14 Plaintiff she did not require surgery. [See Def. Sep. Stmt., No. 6.] 15 During the April 30, 2019 visit, Dr. Van Pelt asked Dr. Prieto to come into to the 16 exam room after Dr. Van Pelt had already examined Ms. Sandberg and her x-rays, and 17 after they had discussed treatment options. [See Def. Sep. Stmt., No. 7.] 18 During the April 30, 2019 visit, it was Dr. Prieto’s understanding that Ms. Sandberg 19 did not want to proceed with surgery or reduction under anesthesia. Dr. Van Pelt wanted 20 to know Dr. Prieto’s opinion on whether casting was a reasonable option for treating Ms. 21 Sandberg’s wrist fracture. Dr. Prieto that absent the option of surgery or reduction under 22 anesthesia, casting was a reasonable treatment option. [See Def. Sep. Stmt., No. 8.] Dr. 23 Van Pelt’s plan was to continue the patient in a wrist splint and Plaintiff would return in a 24 week for a cast. [See Def. Sep. Stmt., No. 9.] 25 The following day, May 1, 2019, Plaintiff returned to see Dr. Van Pelt because the 26 hand had become red, swollen and slightly blue. Her fingers were swollen and difficult to 27 move. [See Def. Sep. Stmt., No. 10.] Dr. Van Pelt recommended that the posterior splint 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 2300 Contra Costa Blvd., 2 Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040 Pleasant Hill, CA 94523 (925) 930-9090 FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D. 1 be taken off and redressed, Plaintiff was again asked to return in a week to have the wrist 2 casted. [See Def. Sep. Stmt., No. 11.] 3 Plaintiff returned, on May 7, 2019 and she was again seen by Dr. Van Pelt. During 4 this visit, at Dr. Van Pelt’s request, Dr. Prieto provided assistance to him while he place 5 a cast on Ms. Sandberg. [See Def. Sep. Stmt., No. 12.] 6 On June 4, 2019, Plaintiff returned to see Dr. Van Pelt. Another set of x-rays were 7 ordered to check for healing. The x-rays showed a "shift in the fracture", Dr. Van Pelt 8 then referred Ms. Sandberg to Dr. Victor Prieto. [See Def. Sep. Stmt., No. 13.] That 9 same day, June 4, 2019, Plaintiff was seen by Dr. Victor Prieto. Prior to the June 4,2019 10 visit, Ms. Sandberg was not a patient of Dr. Prieto. [See Def. Sep. Stmt., No. 14.] 11 When Dr. Prieto saw Plaintiff on June 4, 2019 visit, Dr. Prieto believed that, given 12 the nature of the fracture and the time since the injury, it was reasonable to proceed with 13 conservative management consisting of monitoring the patient to determine the level of 14 functionality of the wrist. He felt that by allowing time for the wrist to heal we would be 15 able to see what level of functionality and appearance would be present, and at that time, 16 other treatment options such as surgery could be evaluated. Plaintiff was thereafter 17 placed in a "cock-up" splint and she was referred to start hand therapy. [See Def. Sep. 18 Stmt., No. 15.] Thereafter, Plaintiff sought, out treatment elsewhere. [See Def. Sep. 19 Stmt., No. 16.] 20 Plaintiff presented to The Hand Center of San Francisco, on June 11th. The 21 physician’s impression was an impending malunion of her right distal radius fracture and 22 displacement of the carpus relative to the forearm. He recommended open corrective 23 reconstruction of the malunion, which would involve a volar approach with mobilization of 24 the fracture followed by reduction & fixation using volar locking hardware. Surgery went 25 forward on June 13th and was performed by Dr. Patrick Lang, with Dr.. Bickel assisting. 26 [See Def. Sep. Stmt., No. 17.] 27 Plaintiff underwent a second surgery on her right wrist, which was performed by 28 Dr. Patrick, O’Lang on November 13, 2019. The purpose of this procedure was to remove GALLOWAY. LUCCHESE, EVERSON &PICCHI 2300 Contra Costa Blvd., 3 Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040 Pleasant Hill, CA 94523 (925) 930-9090 FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D. 1 the volar and distal hardware placed during the first surgery. Dr. Lang removed the right 2 distal radius volar locking plate and the two distal radius dorsal locking plates. [See Def. 3 Sep. Stmt., No. 18.] 4 On December 17, 2019, Plaintiff was six days out from the hardware removal and 5 she was having no issues other than some mild post-op swelling. She was referred to 6 hand therapy for help with ROM and she was instructed to wear a removable splint for 7 comfort PRN, and return for follow up within a month. [See Def. Sep. Stmt., No. 19.] 8 On June 2, 2020, Plaintiff filed the operative Complaint, which includes a single 9 cause of action for medical malpractice. [See Def. Sep. Stmt., No. 20.] 10 III. LAW AND ARGUMENT 11 A. SUMMARY JUDGMENT STANDARD 12 It is well established that the purpose of the Summary Judgment procedure is to 13 “penetrate through evasive language and adept pleading and ascertain the existence or 14 absence of triable issues.” (Vanderbilt Growth Fund, Inc. v. Superior Court (1980) 105 15 Cal.App.3d 628, 637.) Therefore, itis proper to grant a Motion for Summary Judgment if 16 there is no triable issue as to any material fact or if the action has no merit. California 17 Code of Civil Procedure § 437c provides, in pertinent part, as follows: 18 (a) Any party may move for summary judgment in any action or proceeding if it iscontended that the action has no merit or 19 that there is no defense to the action or proceeding. ... 20 (b) The motion for summary judgment shall be granted if all papers submitted show that there is no triable issue as to any 21 material fact and that the moving party is entitled to judgment as a matter of law. 22 (c) For purposes of motions for summary judgment and 23 summary adjudication: . .. 24 (d) A defendant... has met his or her burden of showing that a cause of action has no merit if that party has shown that one 25 or more elements of the cause of action, even if not separately pleaded, cannot be established. . .. Once the defendant. . . 26 has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists 27 as to that cause of action. . . . The plaintiff. . . may not rely upon the mere allegations ... of its pleadings to show a triable 28 issue of material fact exists but, instead, shall set forth the GALLOWAY, LUCCHESE, EVERSON & PICCHI 2300 Contra Costa Blvd., 4 Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040 Pleasant Hill, CA 94523 (925) 930-9090 FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, NI.D. I 1 specific facts showing that a triable issue of material fact exists. 2 3 When a defendant moves for Summary Judgment and supports her motion with / 4 expert declarations that her conduct fell within the community standard of care, the 5 defendant is entitled to Summary Judgment unless the plaintiff comes forward with 6 conflicting expert evidence. {Munro v. Regents of the University of California (1989) 215 7 Cal.App.3d 977, 984-985.) The opinion that a defendant met the standard of care can be 8 supported either by direct evidence of acts demonstrating adherence to the standard of 9 care, or a lack of evidence in the record to demonstrate a breach of the standard of care. 10 {Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509.) If it appears from 11 an examination of the affidavits and evidence filed in connection with a motion for 12 Summary Judgment that no triable issue of material fact exists, Summary Judgment is 13 proper. {Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 562.) 14 B. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT 15 Plaintiffs bear the burden of proving all of the elements of their cause of action. 16 {Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 156.) The elements of a cause 17 of action for medical malpractice include: (1) a duty to use such skill, prudence and 18 diligence as other members of the profession commonly possess and exercise; (2) a 19 breach of the duty; (3) a proximate causal connection between the negligent conduct and 20 the injury; and (4) resulting loss or damage. {Hanson v. Grode (1999) 76 Cal.App.4th 601, 21 606; See also CACI No. 501; Huffman v. Lindquist (1951) 37 Cal.2d 465, 473; Sinz v. 22 Owens (1949) 33 Cal.2d 749, 753.) 23 To prove a prima facie case of medical malpractice, the plaintiffs must present 24 expert witness testimony to prove a breach of the standard of care by the health care 25 professional and that the defendant's breach of the standard of care was the cause of the 26 patient's injury. Bromme, supra, at 1487, 1498; Jennings v. Palomar Pomerado Health 27 Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118; Keen v. Prisinzano (1972) 23 28 Cal.App.3d 275, 279.) GALLOWAY, LUCCHESE, EVERSON & PICCHI 2300 Contra Costa Blvd., 5 Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040 Pleasant Hill, CA 94523 FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D. (925) 930-9090 1 As the Court in Jones v. Ortho Pharmaceuticals (1985) 163 Cal.App.3d 396, 402- 2 403, explained: 3 The law is well settled that in a personal injury action causation must be proven within a reasonable medical 4 probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. 5 [Citations.] That there is a distinction between a reasonable medical 'probability' and a medical 'possibility' needs little 6 discussion. There can be many possible 'causes,' indeed, an infinite number of circumstances which can produce an injury 7 or disease. A possible cause only becomes 'probable' when, in the absence of other reasonable causal explanations, it 8 becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue 9 may be submitted to the jury. 10 Dr. Prieto complied with the standard of care with respect to the care and treatment 11 he provided to Plaintiff. [See Def. Sep. Stmt. No. 21.] Specifically, as noted by Dr. Stine, 12 when Plaintiff first presented for care, on April 30, 2019, she was a patient of Dr. Van Pelt 13 and not Dr. Prieto. The records and the deposition testimony of Plaintiff reflect that 14 Plaintiff had discussed with Dr. Van Pelt surgery, and Dr. Van Pelt had advised that 15 surgery was not necessary. Dr. Van Pelt requested Dr. Prieto's opinion as to whether the 16 course of treatment he had discussed with Plaintiff was reasonable, given Plaintiff’s 17 reluctance to undergo surgery. When Dr. Prieto was asked to come into the room, 18 Plaintiff’s physician, Dr Van Pelt, had already decided on a course of treatment. Based 19 on Dr. Van Pelt’s prior discussions with Plaintiff it was Dr. Prieto’s understanding that 20 Plaintiff wanted to avoid surgery. Dr. Prieto agreed with Dr. Van Pelt that, under the 21 circumstances, casting was a reasonable treatment option. Dr. Prieto’s opinion, as set 22 forth in the Declaration of Dr. Stine, was consistent with the standard of care. 23 When Plaintiff returned on May 7th, she was still a patient of Dr. Van Pelt. She had 24 previously returned and saw Dr. Van Pelt on May 1st and when she returned on May 7th 25 she returned to see Dr. Van Pelt, and not Dr. Prieto. Dr. Van Pelt continued with the plan 26 he had discussed with Plaintiff on April 30th and again on May 1st, casting of the fracture. 27 Dr. Prieto’s only involvement with the May 7th visits was to assist Dr. Van Pelt in placing 28 the agreed to cast. As noted in the Declaration of Dr. Prieto, he was never paid to provide GALLOWAY, LUCCHESE, EVERSON &PICCHI 2300 Contra Costa Blvd., 6 Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040 Pleasant Hill, CA 94523 (925) 930-9090 FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D. 1 the assistance or opinions to Dr. Van Pelt, nor had he ever prepared any treatment notes, 2 nor had Plaintiff been listed as his patient. 3 On June 4th Plaintiff returned again to see Dr. Van Pelt. It was only during this visit 4 that Dr. Van Pelt referred Plaintiff to see Dr. Prieto. Once referred to Dr. Prieto, she 5 became his patient. Dr. Prieto reviewed her x-rays and it was determined that her fracture 6 had shifted and Dr. Prieto explained that he felt it would be best to continue with 7 conservative treatment in order to evaluate the results, and then if necessary consider 8 other options, such as surgery, if necessary. Dr. Stine agrees that this advice was also 9 consistent with the standard of care. However, Plaintiff decided to seek treatment 10 elsewhere immediately after this visit, and Dr. Prieto had no further involvement in 11 Plaintiff’s care. 12 As demonstrated by the undisputed facts, Plaintiff was a patient of Dr. Van Pelt 13 until she was referred to Dr. Prieto on June 4th. At this time, Dr. Prieto provided 14 recommendations to Plaintiff, but she chose to proceed with a different course of 15 treatment and did not return. With respect to the June 4th visit, Dr. Prieto’s care and 16 treatment were consistent with the standard of care, but even if they had not been it would 17 not have mattered given that Plaintiff decided to proceed with other treatment options. 18 Prior to the June 4th visit, Plaintiff was the patient of Dr. Van Pelt, and he was 19 responsible for her care and treatment. Dr. Prieto’s provided his opinion to Dr. Van Pelt 20 as to whether the course of treatment he had decided upon was appropriate, but Dr. 21 Prieto did not have a duty to Plaintiff pursuant to a physician patient relationship. (See 22 Keene v. Wiggins (1977) 69 Cal.App.3d 308, 313; Mero v. Sadoff (1995) 31 Cal.App.4th 23 1466,1471.) However, even if there had been a duty to Plaintiff during this time, as noted 24 in the Declaration of Dr. Stine, the opinions on care and treatment offered by Dr. Prieto 25 were consistent with the standard of care. 26 /// 27 /// 28 /// GALLOWAY, LUCCHESE, EVERSON & PICCHI 2300 Contra Costa Blvd., 7 Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040 Pleasant Hill, CA 94523 FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D. (925) 930-9090 1 IV. CONCLUSION 2 Based on the foregoing, Defendant Victor Prieto, M.D., respectfully requests that 3 the Court grant his motion for Summary Judgment. 4 5 6 7 Dated: December 14, 2021 GALLOWAY, LUCCHESE, EVERSON 8 & PICCHI 9 10 By: AARON T. SCHULTZ, ESQ. 11 Attorneys for Defendant VICTOR PRIETO, M.D. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 2300 Contra Costa Blvd., 8 Suite 350 CGC-20-584686: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 950-11123/ATS/1215040 Pleasant Hill, CA 94523 FOR SUMMARY JUDGMENT OF DEFENDANT VICTOR PRIETO, M.D. (925) 930-9090