Judge: Elaine W. Mandel, Case: 21STCV19095, Date: 2023-10-11 Tentative Ruling

Case Number: 21STCV19095    Hearing Date: October 13, 2023    Dept: P

Tentative Ruling

Tubol v. Diaz, MD et al., Case No. 21STCV19095

Hearing Date October 13, 2023 (continued from October 11, 2023)

Defendants Diaz’s Motion for Summary Judgment – Reply Brief

Defendants’ summary judgment motion was continued from October 11, 2023 for the court to consider defendants’ reply brief. This tentative ruling addresses the reply brief and is to be considered in conjunction with the prior tentative.

Diaz’s evidentiary objections OVERRULED.

In reply, Diaz argues plaintiff’s expert Dr. Lee’ declaration lacks foundation because Lee failed to review all of Diaz’s post-procedure reports and only some Kaiser records.

Diaz fails to show Lee’s declaration is without evidentiary support. Lee reviewed numerous records, including Kaiser urgent care records, Diaz’s post-procedure notes and operative notes from the implant removal and skin graft procedures. See plaintiff’s compendium exhibit B. Lee examined plaintiff on March 9, 201. Lee declaration ¶7. These documents and the examination provide foundation to make Lee’s opinion admissible.

Diaz argues Lee’s opinion is not stated to a reasonable degree of medical probability, misstates the evidence and fails to address evidence showing lack of causation.

Lee’s declaration states “[e]ach of my opinions stated herein is to a reasonable degree of medical probability,” the standard for expert medical opinion. Lee declaration ¶6.

Diaz argues Lee ignores evidence that Tubol was prescribed antibiotics at Kaiser after a wound culture, proving Tubol’s injuries were not caused by a failure to conduct a wound culture. Lee does not opine plaintiff was never prescribed antibiotics or that she never received a wound culture; it does opine that Diaz failed to conduct his own wound culture, causing him to prescribe an antibiotic to which her infections were resistant. Lee decl. ¶¶10-13, Exhibit B. Lee further opines that had Diaz performed his own culture, he would have determined Tubol had Enterobacter and pseudomonas infections and prescribed the correct antibiotic. Id. ¶13. Lee opines that if the correct antibiotic had been prescribed, Tubol “more likely than not would have avoided her additional surgical procedures.” Id.

Though Lee does not directly address Tubol’s smoking, he provides a sufficiently supported opinion that prescribing the wrong antibiotics was the primary cause of her injury. Lee decl. ¶¶10-12. This is sufficient to create a triable issue of fact as to whether Diaz’s acts and omissions caused her injuries. DENIED.