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Marine v. Kennedy11/30/2004
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this medical malpractice action, plaintiffs Ursel and George Marine appeal from judgment entered in favor of defendant Paul Byron Kennedy, M.D., following defendant's successful motion for summary judgment. Our review of the whole record reveals a triable issue of material fact, which requires us to reverse the judgment.
A. Background
Plaintiff Ursel Marine was scheduled to undergo surgery for removal of a brain tumor on June 15, 2000. Defendant was her anesthesiologist. In preparing plaintiff for surgery, defendant chose to insert a catheter into her subclavian vein in order to monitor her fluid status during the surgery. He first attempted to insert the catheter into the right subclavian vein but was unsuccessful in doing so. After abandoning his attempt to place the catheter on the right, he was able to insert the line on the left and surgery proceeded as planned.
The brain surgery concluded without any complications but some time afterward plaintiff began having right arm or shoulder pain and bruising appeared in the area of her right shoulder. It was eventually determined that plaintiff's right subclavian artery had been injured, apparently as a result of defendant's unsuccessful attempts to insert the catheter into the right subclavian vein prior to surgery. Plaintiff had a second surgery on June 21, 2000, to repair the damage to the artery. The surgeon who performed that surgery observed a six-millimeter tear in the artery. He was unable to say whether the tear had been six millimeters when it was first made or whether it had increased in size over the intervening six days. Plaintiff suffered a stroke during the second surgery that reportedly left her partially paralyzed.
B. The Summary Judgment Standard of Review
Before proceeding to a discussion of defendant's summary judgment motion, we briefly set forth the well-settled standard of review.
" he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, fns. omitted (Aguilar).) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Id. at p. 850.) The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact. (Code Civ. Proc., ยง 437c, subd. (c).) "There is a triable issue of material fact if, and only 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, supra, 25 Cal.4th at p. 850.)
On an appeal from summary judgment we review the record de novo. (Aguilar, supra, 25 Cal.4th at p. 860.)
C. The Summary Judgment Motion
1. Introduction
The first amended complaint contains causes of action for medical negligence and loss of consortium and
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