Judge Audra Mori, Case 20STCV40278 2022-07-28 Tentative Ruling

Plaintiff Kenneth Mendizabal (“Plaintiff”) filed this action against Defendant Koosha Aghajani, DMD (“Defendant”) for medical negligence. Plaintiff alleges he sought dental treatment from Defendant, wherein Defendant performed a tooth extraction. (Compl. ¶ 6.) Plaintiff’s inner cheek and lip were lacerated during the tooth extraction performed by Defendant, which caused Plaintiff to require stitches and additional medical care.

Defendant now moves for summary judgment. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant argues he is entitled to summary judgment because the evidence establishes Defendant’s treatment of Plaintiff was appropriate and within the applicable standard of care. Defendant contends that Plaintiff cannot demonstrate with sufficient medical probability that any conduct on the part of Defendant fell below the applicable standard of care. Defendant supports his motion with the expert declaration of Todd Yamada, D.D.S. (“Dr. Yamada”). Dr. Yamada opines the care and treatment rendered to Plaintiff by Defendant, and Defendant’s employees, was within the standard of care, including the tooth extraction procedures. (Mot. Yamada Decl. ¶ 7.)

Plaintiff argues that Defendant fails to meet his moving burden because the dental and medical records attached to Defendant’s motion are not properly authenticated. Additionally, Plaintiff argues that Defendant failed to comply with the applicable standard of care and treatment of Plaintiff. Plaintiff supports his opposition with the declaration of Jay Grossman, D.D.S. (“Dr Grossman”). Dr Grossman opines that Defendant’s care of Plaintiff was below the standard of care. (Opp. Dr Grossman Decl. ¶¶ 11-13.)

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 317.) Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. (Id.) If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. (Id.)

A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. (CACI 506.) Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. (CACI 505.)

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. (See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844.) “‘When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’“ (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

In opposition to Defendant’s motion, Plaintiff submits 10 objections to defense counsel’s, Timothy J. Travers, Esq. (“Travers”), and Dr. Yamada’s declarations attached to the moving papers.

Objections 1-4 made to Travers’s declaration and Exhibits B and C attached to the motion all pertain to medical and dental records allegedly reviewed by Defendant’s expert, Dr. Yamada. The objections are well taken and are sustained. Defendant submits only the declaration of its counsel stating that the records are true and correct copies of Plaintiff’s dental records from Defendant and medical records from Kaiser, and thus, the underlying records are not properly authenticated. Furthermore, Plaintiff’s objections 6-10 are also sustained. Dr. Yamada’s testimony regarding Plaintiff’s treatment is based almost exclusively on the contents of the unauthenticated medical records, so his expert opinions have no evidentiary value. (See Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-43 (the opinion of a medical expert based upon medical records that have not been authenticated and admitted into evidence has no evidentiary value.); see also Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, 1418 (” ‘Generally speaking, documents must be authenticated in some fashion before they are admissible in evidence.’ “).)

Defendants, in reply, submit three objections to the declaration of Dr. Grossman attached to Plaintiff’s opposition. As will be discussed further below, Defendant does not meet his moving burden to show he is entitled to judgment as a matter of law, and so the objections to Dr. Grossman’s declaration are not material to the disposition of the motion. Consequently, the court declines to rule on them at this time. (CCP § 437c(q).)

Summary judgment may only be granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code of Civil Procedure § 437c (c).) A “party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Once the moving party meets this initial burden, the burden then shifts to the party opposing summary judgment to establish, by means of competent and admissible evidence, that a triable issue of material fact still remains. (Id. at 850-851.)

Here, the medical and dental records attached to Defendant’s motion are not properly authenticated, and thus, Defendant’s expert’s opinion regarding those records is inadmissible. (See People v. Sanchez (2016) 63 Cal.App.4th 665, 686 [“What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.”].) Accordingly, Defendant fails to meet his moving burden to show he complied with the applicable standard of care in treating Plaintiff.

Moreover, even if the court considered Dr. Yamada’s declaration and opinion that Defendant complied with the standard of care in his treatment of Plaintiff, Dr. Grossman’s declaration submitted with the opposition is sufficient to raise a triable issue of fact as to whether Defendant complied with the applicable standard of care in treating Plaintiff.[1]

Specifically, Dr. Grossman opines that Defendant failed to comply with the standard of care in his treatment of Plaintiff because “[t]he proper standard of care requires the dentist to have a firm purchase point such as firmly placing a finger on teeth, so that the blade does not move in a location that it is not intended to cut. The purchase point allows the patient to move their head and the blade will follow, not causing any iatrogenic injury.” (Opp. Dr. Grossman Decl. ¶ 11.2.) Further, Dr. Grossman states that a head movement is a known possible action by a patient, which is why the standard of care requires that a dentist have a “have a firm purchase point on teeth so that the scalpel moves with the head. Compliance with this action will avoid this type of injury even if the patient moves his head.” (Id. at ¶ 11.3.) While Defendant objected to Dr. Grossman’s testimony regarding the known possibility of head movement, Defendant through his expert admitted that “a practitioner who chooses to fully sedate a patient, must watch for involuntary movements from the patient.” (Mot. Yamada Decl. ¶ 7a.) Further, Dr. Grossman asserts that “Dr. Yamada fails to discuss that a purchase point should have been [Defendant’s] protocol to prevent this injury,” and that “Dr. Yamada fails to discuss that a laceration of this nature is a not a known

[1] In ruling on objections to an expert declaration, the court is guided as follows: an expert opinion must be supported “by a reasoned explanation connecting the factual predicates to the ultimate conclusion” or it lacks evidentiary value. (See, e.g., Sanchez v. Kern Emergency etc. (2017) 8 Cal.App.5th 146, 155.)

In Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123-124, the Court of Appeal considered this issue at length. The Court noted that the standard of review for the plaintiff’s opposing declaration was lower than the standard of review for the defendant’s moving declaration. Declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed.

The Court of Appeal went on to discuss a case where the plaintiff’s expert declaration was less than a model of clarify. It noted that the standard of review for the plaintiff’s opposing declaration was lower than the standard of review for the defendant’s moving declaration. Specifically, it held:

We, however, can reconcile Kelley and Hanson. The court in Kelley was considering the sufficiency of the declaration of the defendant's expert in support of the defendant's motion for summary judgment. In such cases, the defendant “bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (See, e.g., Aguilar, supra, 25 Cal.4th at p. 845, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) Thus, the Kelley court was considering the burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. To meet such a burden, the Kelley court concluded the declaration of the defendant's expert had to be detailed and with foundation. (Kelley, supra, 66 Cal.App.4th at p. 524, 78 Cal.Rptr.2d 122.) In contrast, the court in Hanson was considering the sufficiency of the declaration of the plaintiff's expert in opposition to the defendant's summary judgment motion. In such a case, the declaration submitted by the plaintiff did not have to be detailed, was entitled to all favorable inferences and was deemed sufficient to defeat the summary judgment motion. (Hanson, supra, 76 Cal.App.4th at pp. 607–608, 90 Cal.Rptr.2d 396.)

We conclude that both the Kelley and Hanson courts properly applied the rule that, when considering the declarations of the parties' experts, we liberally construe the declarations for the plaintiff's experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff. (See, e.g., Zavala v. Arce, supra, 58 Cal.App.4th at p. 935, 68 Cal.Rptr.2d 571.)2 Accordingly, we apply this well-settled rule of evidence when considering Powell's expert's declaration.

In this case, under Powell, the court must liberally construe Dr. Grossman’s declaration. Under this standard, Dr. Grossman’s declaration is sufficient to raise a triable issue of fact regarding whether Defendant breached the standard of care.