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Berry v. Martin

October 20, 2010

WAYNE BERRY AND KAREN BERRY, HUSBAND AND WIFE, PLAINTIFF,
v.
DR. MICHAEL MARTIN, M.D. AND JANE DOE MARTIN, HUSBAND AND WIFE; ANESTHESIA SERVICE MEDICAL GROUP, INC.; AND SCRIPPS MEMORIAL HOSPITAL LA JOLLA, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ON SUMMARY JUDGMENT

Wayne Berry underwent spine surgery at Scripps Memorial Hospital on September 26, 2007. His vision was fine before the surgery, but horrible after; he also left surgery with renal failure and impaired cognition. Berry sued his attending anesthesiologist Dr. Michael Martin as well as Scripps for negligence on the theory that these injuries are attributable to lapses in his surgical care. Now before the Court is Scripps's motion for summary judgment. Dr. Martin has not moved for summary judgment.

I. Legal Standard

Summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

All reasonable inferences are to be drawn in favor of the non-moving party. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir. 2005). Reasonable inferences are those supported by a chain of logic, rather than speculation. Juan H. v. Allen, 408 F.3d 1262, 1277 (9th Cir. 2005). The Court may not weigh the evidence or make credibility determinations. Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114, 1118 (9th Cir. 2009). Reasonable inferences are those supported by a chain of logic, rather than speculation. Juan H. v. Allen, 408 F.3d 1262, 1277 (9th Cir. 2005). In order to deny a summary judgment motion, "[t]here must be enough doubt for a reasonable trier of fact to find for [the non-moving party]." Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) (internal quotations omitted).

II. Summary of Argument

Berry's complaint doesn't allege, specifically, what happened before or during his surgery that he believes makes Scripps responsible for his loss of eyesight and other injuries. But the briefing clears it up: Berry's blood pressure prior to surgery was low, and the nurses at Scripps failed to notify his attending surgeon of that fact. As Berry's opposition brief puts it, "The one material fact in dispute is whether or not the nursing staff had a duty to notify the physician of the low blood pressure." (Doc. No. 39, p. 7.) And even that's not exactly right. The question isn't whether the nursing staff had a duty to notify, but whether their alleged breach of that duty caused a surgery to take place that otherwise wouldn't have, and from which Berry emerged the worse.

This theory of liability emerges from the deposition testimony of Berry's medical expert, Dr. Michael Wingate. It's worth reciting that testimony at some length.

Q: "And if I understand it correctly, there's only one opinion set forth within your report that indicates that there was a breach in the standard of care and that's your belief that the standard of care requires the nurses contact [sic] Dr. Tung and notify both him and Dr. Martin of the low blood pressure; is that correct?" (Wingate Dep. 149:5--11.)

A: "Yes." (Id. at 12.)

Q: "Okay. And that's all of the opinions regarding the breach in the standard of care you have as to the nursing staff; is that correct?" (Id. at 13--15.)

A: "That's my only opinion which I believe contributed to the causation of the injuries." (Id. at 16--17.)

Q: "And in terms of the issue of causation it's your belief that had the nurse notified Dr. Tung of the pre-operative blood pressure, this Plaintiff would not have sustained the injuries; is that correct?" (Id. at 153:15-18.)

A: "Yes." (Id. at 19.)

Q: "That's based on the assumption that Dr. Tung would not have taken this patient to surgery with that pre-operative blood ...


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