Judge: Daniel M. Crowley, Case: 21STCV00821, Date: 2022-09-08 Tentative Ruling

Case Number: 21STCV00821    Hearing Date: September 8, 2022    Dept: 28

Defendants Emile Shenouda, M.D. and Nagwa Mina, M.D.’s Motions for Summary Judgment

Having considered the moving papers, the Court rules as follows. 

BACKGROUND

On January 8, 2021, Plaintiffs Talal Hamati (“Hamati”) and Ekhlas Al-haddadin (“Al-haddadin”) filed this action against Mission Hills Family Medical Clinic Corp. (“Mission Hills”), Emile Shenouda, M.D. (“Shenouda”) and Nagwa Mina, M.D. (“Mina”) for medical malpractice.

On April 12, 2021, Defendants filed an answer.

On February 1, 2022, Plaintiffs filed an action against Defendant Piyush Jogani, M.D. (“Jogani”)  for medical malpractice.

On March 29, 2022, Jogani filed an answer.

On June 17, 2022, Mina and Shenouda both filed Motions for Summary Judgment to be heard on September 8, 2022.

Trial is scheduled for May 8, 2023. 

PARTY’S REQUESTS

Mina and Shenouda request the Court grant summary judgment on the basis that there are no triable issues of material facts.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

The elements of a cause of action for medical negligence are: (1) duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of duty; (3) proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702.) The standard of care that a medical professional is measured by is a matter within the exclusive knowledge of experts; it can only be proven by their testimony, generally. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) Causation must be proven within a reasonable medical probability based on competent expert testimony; “a less than 50-50 possibility that defendants’ omission caused the harm does not meet the requisite reasonable medical probability test of proximate cause.” (Bromme v. Pavitt (1 992) 5 Cal.App.4th 1487, 1504.)

DISCUSSION

Plaintiffs allege that Defendants provided negligent medical care to Hamati in not performing a colon cancer screening, resulting in a delay in diagnosing Hamati’s colon cancer.

Standard of Care

Mina and Shenouda provided a declaration from Jeffrey P. Salberg, M.D., who is a medical doctor licensed to practice in California. (Declaration of Jeffrey P. Salberg ¶1.) Based upon Hamati’s medical records and discovery, Salberg opined that Mina and Shenouda complied with the standard of care at all times. (Salberg Decl. ¶8.) Both doctors gave continuous referrals to a gastroenterologist to undergo the screening colonoscopy process; Hamati refused to undergo the procedure. (Salberg Decl. ¶9.) A primary care physician is not responsible for a patient’s failure to undergo the recommended referral and cannot force him to see one. (Id.) By routinely recommending Hamati to undergo the procedure and providing referrals, both doctors complied with the standard of care. (Id.)

Moving Defendants have met their burden, which shifts to Plaintiff. As the motion is unopposed, the Court grants summary judgment.

CONCLUSION

Defendant Emile Shenouda, M.D.’s Motion for Summary Judgment is GRANTED.

Defendant Nagwa Mina, M.D.’s Motion for Summary Judgment is GRANTED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.