Judge: Gail Killefer, Case: 20STCV32169, Date: 2023-01-23 Tentative Ruling
Case Number: 20STCV32169 Hearing Date: January 23, 2023 Dept: 37
HEARING DATE: January 23, 2023
CASE NUMBER: 20STCV32169
CASE NAME: Suzanna Pathan, et al. v. West Coast Dental Services, Inc., et al.
MOVING PARTY: Defendant, Susan Zand, D.D.S.,
MS.
OPPOSING PARTIES: Plaintiff, Suzanna Pathan, a minor, by
and through her Guardian Ad Litem, Mary Palin-Pathan
TRIAL DATE: October 31, 2023
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary Judgment
OPPOSITION: December 1, 2022
REPLY: December
12, 2022
TENTATIVE: Defendant Zand’s motion
for summary judgment is denied. Plaintiff is to give notice.
Background
This is a dental malpractice action arising out of the treatment
of Plaintiff Suzanne A. Pathan (“Pathan”), a minor,[1] at Defendant West Coast
Dental Services, Inc. dba Magicland Dental Group aka Magicland Children’s Dental
of Torrance, a California corporation (“West Coast”). The treating dentists at
West Coast included Defendants Michael
Laureola ("Laureola"), Humairah Shah ("Humairah"), Bita
Kerendian Partiyeli ("Partiyeli"), Laurel Termini
("Termini"), Anjalee Shah ("Anjalee"), David Dewberry ("Dewberry"), Soseh Zamani
("Zamani"), Gregg Tartakow as Doe 1 (“Tartakow”), Roland Lee Chung
(“Chung”) as Doe 4, and Susan Zand (“Zand”) as Doe 3 (collectively “Dentist
Defendants”).
Plaintiff’s First Amended Complaint (“FAC”) contends
Plaintiff suffered injuries as a result of services provided by Defendants,
namely the putting on of braces, the treatment of those braces, and their
removal. Plaintiff contends Defendants’ treatment resulted in a dead tooth,
root canal surgery, stunted teeth growth, intense pain and suffering, and psychological
and emotional distress.
Plaintiff’s operative FAC contains one cause of action for
professional negligence against all defendants.
Plaintiff has so far dismissed Defendants Partiyeli,
Tartakow, Zamani, Chung, Laureola, Shah, Termini, and Dewberry.
Dr. Zand now moves for summary judgment on Plaintiff’s
Complaint. Plaintiff opposes the motion.
Dr. Zand treated the Plaintiff between August 11, 2018, and August 12,
2019.
The parties filed supplemental briefing after this court
continued the hearing on this motion. The
court disregards the supplemental evidence provided. Such new additional evidence cannot be
included in the supplemental briefing; consideration of the supplemental
briefing would violate plaintiff’s right to due process. (San Diego
Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308,
316.)
Evidentiary Objections
Plaintiff’s Objections to Dr.Zand’s
Declarations & Materials
Overruled: 1-24, 25-37, 39-40
Sustained: 38
Objections 19-24 were omitted from
the filing.
Defendant’s Objections to Declaration of Mary
Palin-Pathan
Overruled: 2
Sustained: 1
Defendant’s Objections to Declaration of Stephen
Howard
Overruled: 1-3, 5, 7-11.
Sustained: 4, 6.
Factual Summary
The majority of the factual background of this litigation is
heavily disputed.
Defendant Susan Zand, D.D.S., M.S., has been licensed as a
dentist by the Dental Board of California since 1990 and has treated over
25,000 orthodontic patients. (Separate Statement of Undisputed Material Facts
(“DSS”), ¶¶ 1-2.) On March 28, 2015, Plaintiff was seen by Defendant Laureola
at West Coast and diagnosed with “severe early Caries.” (DSS ¶ 3.) Between 2015
and 2016, Plaintiff visited Defendant West Coast on several occasions to
receive fillings, cleanups, fluoride treatments, and cavity treatments. (DSS ¶ 4-8.)
On August 11, 2018, Plaintiff saw Dr. Zand for a
consultation regarding orthodontic treatment. (DSS ¶ 12.) On October 18, 2018, Dr.
Zand reviewed the treatment plan with Plaintiff; x-ray photographs were taken
and “upper brackets were direct bonded to the upper arch.” (DSS ¶ 15.) On
November 20, 2018, Plaintiff had the biteplate inserted, brackets bonded to the
lower arch. (DSS ¶ 16.) On December 26, 2018, Plaintiff had her brackets
connected with orthodontic wire. (DSS ¶ 17.) On January 22, 2019, Plaintiff had
her upper and lower arch ties replaced, and Dr. Zand applied spacers. (DSS ¶ 18.)
On March 8, 2019, Plaintiff saw received cleaning and
“banding of the lower first molars and a placement of lower arch Nitinol
wires.” (DSS ¶ 19.) On April 19, 2019, Plaintiff’s existing wires were re-tied
by Dr. Zand. (DSS ¶ 20.) On May 16, 2019, “orthodontic chains were placed in
the upper arch and adjustments were made to the lower ach wire.” (DSS ¶ 21.)
On August 12, 2019, after a three months’ absence,
Plaintiff’s biteplate was removed. (DSS ¶ 22.) Dr. Zand contends the
three-month absence was “substantial.” (Id.) Plaintiff did not see Dr. Zand following the August 12, 2019, visit, due
to the request of Plaintiff’s mother that all future appointments be on
Saturdays, when Dr. Zand did not work. (DSS ¶ 23.)
On November 9, 2019, Dr. Tartakow repaired Plaintiff’s bracket
on tooth 23. (DSS ¶ 24.) On December 14,
2019, Dr. Chung re-tied Plaintiffs’ upper and lower arch wires. (DSS ¶ 26.) On
January 20, 2020, Plaintiff’s tooth L was removed during a visit with
Defendants Termini and Laureola. (DSS ¶ 28.) On May 16, 2020, during the next
visit, Plaintiff’s brackets were debanded and impressions taken for upper and
lower retainers; Plaintiff’s mother signed a “Statement of Satisfaction.” (DSS
¶ 29.) On June 13, 2020, Plaintiff was provided with upper and lower retainers
by Defendant Zamani; “[g]ray discoloration was observed on tooth 9,” with “a
suspicion of necrotic pulp due to possible trauma.” (DSS ¶ 30.) Defendant also
notes Plaintiff’s mother refused to allow Plaintiff to be x-rayed on several
occasions. (DSS ¶¶ 3-30.)
On June 27, 2020, Defendants Zamani and Dewberry saw
Plaintiff for retainer adjustment; Dewberry evaluated Plaintiff’s tooth 9 “for
possible pulp necrosis and/or internal root resorption” and Plaintiff was
referred for endodontic evaluation. (DSS ¶ 31.)
On July 8, 2020, Plaintiff’s tooth 9 was evaluated by Jo Ho
Baag, DDS, MS, and diagnosed with “a short root, periapical radiolucency and
necrotic asymptomatic chronic apical periodontitis;” root canal treatment was
scheduled. (DSS ¶ 33.) On July 20, 2020, Dr. Baag performed root canal
treatment for tooth 9. (DSS ¶ 34.)
On July 31, 2020, Plaintiff was seen by Jane Kim, DDS for
“comprehensive oral evaluation;” Plaintiff had “mobile lower right molar and
decay.” (DSS ¶ 37.) On September 25, 2020, Plaintiff’s teeth 3 and 14 received
“single surface occlusal fillings.” (DSS ¶ 39.) On March 3, 2021, Plaintiff’s
teeth A and C were extracted. (DSS ¶ 42.)
Discussion
“The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties' pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(a) provides:
A party may move for summary judgment in any action or
proceeding if it is contended that the action has no merit or that there is no
defense to the action or proceeding. The
motion may be made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the motion is
directed or at any earlier time after the general appearance that the court,
with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30
days before the date of trial, unless the court for good cause orders
otherwise. The filing of the motion
shall not extend the time within which a party must otherwise file a responsive
pleading.
A motion for summary judgment may be granted “if all the
papers submitted show that there is no triable issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” (CCP § 437c(c).)
“The
motion shall be supported by affidavits, declarations, admissions, answers to
interrogatories, depositions, and matters of which judicial notice shall or may
be taken. The supporting papers shall
include a separate statement setting forth plainly and concisely all material
facts that the moving party contends are undisputed. Each of the material facts stated shall be
followed by a reference to the supporting evidence. The failure to comply with this requirement
of a separate statement may in the court’s discretion constitute a sufficient
ground for denial of the motion.” (CCP §
437c(b)(1); see also Cal. Rules of
Court, rule 3.1350(c)(2) & (d).)
In
analyzing motions for summary judgment, courts must apply a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine
whether the moving party has negated the opponent's claims; and (3) determine
whether the opposition has demonstrated the existence of a triable, material
factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) CCP § 437c(p)(2) provides:
A defendant or cross-defendant has met his or her burden of
showing that a cause of action has no merit if the party has shown that one or
more elements of the cause of action, even if not separately pleaded, cannot be
established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met
that burden, the burden shifts to the plaintiff or cross-complainant to show
that a triable issue of one or more material facts exists as to the cause of
action or a defense thereto. The
plaintiff or cross-complainant shall not rely upon the allegations or denials
of its pleadings to show that a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to the cause of action or a defense thereto.
The
court must “view the evidence in the light most favorable to the opposing party
and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39
Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.”].)
A
motion for summary judgment must be denied where the moving party’s evidence
does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d
462, 475) or where the opposition is weak (Salasguevara
v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387). A material fact
is one that “must relate to some claim or defense in issue under the pleadings,
and it must also be essential to the judgment in some way.” (Riverside
County Community Facilities District v. Bainbridge 17 (1999) 77
Cal.App.4th 644, 653.) Importantly, the court must not engage in a
weighing of evidence in considering a motion for summary judgment. (Mann v.
Cracchiolo (1985) 38 Cal.3d 18, 39.)
II.
Analysis
The elements of a claim for professional negligence are:
“(1) the duty of the professional to use such skill, prudence, and
diligence as other members of his profession commonly possess and exercise; (2)
a breach of that duty; (3) a proximate causal connection between the negligent
conduct and the resulting injury; and (4) actual loss or damage resulting from
the professional's negligence.” (Paul v. Patton (2015) 235
Cal.App.4th 1088, 1095.) The elements of a cause of action for
medical malpractice are: (1) a duty to use such skill, prudence, and diligence
as other members of the profession¿commonly possess and exercise;¿(2) a breach
of the duty; (3) a proximate causal connection between the negligent conduct
and the injury; and (4) resulting loss or damage.¿ [Citation.]”¿ (Johnson v.
Superior Court¿(2006) 143 Cal.App.4th 297, 305.)¿¿¿
Dr.
Zand contends that she is entitled to summary judgment on Plaintiff’s Complaint
because the Sheridan Declaration, establishes that her care and treatment of
Plaintiff was within the standard of care. (Motion, 13-14.)
“Dr.
Zand used the level of skill, knowledge and care in examining, diagnosing,
treating and prognosing Plaintiff that other reasonably careful general
dentists and orthodontists in the Southern California area would use in the
same or similar circumstances.” (Motion, 14; DSS ¶47.)
Dr. Zand contends she explained the treatments proposed, “including
the likelihood of success and the potential associated risks and complications
with both undergoing or foregoing the proposed treatments,” provided as much
information “as was needed to make an informed decision,” and had already
received sufficient prior informed consent. (Motion, 14-15.) “No treatment
provided by Dr. Zand was substantially different from the treatment for which
the minor Plaintiff and her Mother provided prior informed consent.” (Motion,
15.) Thus, Dr. Zand contends Plaintiff “cannot meet her burden of proof as to
the essential element of breach of the relevant standard of care.” (Id.)
Dr. Zand contends Plaintiff also cannot meet her burden of
proof of establishing causation here, conceding:
“though the issue of proximate causation is generally a
question for the trier of fact, the issue may be resolved on summary judgment
as a question of law where the facts permit only one reasonable conclusion to
be drawn. (Motion, 16; citing Capolungo v. Bondi (1986) 179 Cal.App.3d
346, 354.)
Dr. Zand therefore points to the Sheridan Declaration again and
its contention that “no act or omission by Dr. Zand was a substantial factor in
causing or contributing to any injury or damage to the Plaintiff.” (Id.;
Sheridan Decl., 18-19.)
As Capolungo provides, the relevant inquiry for this
court remains whether there is “only one reasonable conclusion to be drawn” regarding
the elements of breach of standard of care and causation as disputed here.
In opposition, Plaintiff correctly contends that in medical
malpractice or negligence cases,
“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.” (Opp., 3; citing Munro v. Regents of
University of California (1989) 215 Cal.App.3d 977, 984-985.)
Thus, in a
medical malpractice case, “[w]hen 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 (citations
omitted).¿ An expert declaration, if uncontradicted, is conclusive proof as to
the prevailing standard of care and the propriety of the particular conduct of
the health care provider.¿¿(Starr v.¿Mooslin¿(1971) 14 Cal. App. 3d 988,
999.)
In opposition,
Plaintiff relies on the declaration of their own expert, Stephen Howard, DDS.
(Opp., 3-4.) Plaintiff points to Howard’s declaration and opinions that Dr. Zand’s
conduct was below the standard of care in the community and “was a substantial
factor in causing or contributing to the damage and injury” to Plaintiff.
(Opp., 3-6.)
Expert
Qualifications
Here, both
parties offer expert declarations. Evidence Code § 720(a) provides that: “a
person is qualified to testify as an expert if he has the special knowledge,
skill, experience, training, or education sufficient to qualify him as an
expert on the subject to which his testimony relates.” In a medical malpractice
case, an expert witness doctor “must have enough knowledge, learning, and skill
with the relevant subject to speak with authority, and he or she must be familiar
with the standard of care to which the defendant was held.” (Avivi v. Centro
Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “[A]
party opposing a motion for summary judgment may use declarations by an expert
to raise a triable issue of fact on an element of the case provided the
requirements for admissibility are established as if the expert was testifying
at trial.” (Towns v. Davidson (2007) 147 Cal.App.4th 561, 472.)
Dr. Zand relies
on their expert, Allan Sheridan, DDS, MS; Plaintiff relies on their expert in
opposing this motion, Stephen Howard DDS.
In reply, Dr. Zand argues Dr. Howard’s declaration fails to
comply with the standards for expert testimony under Hesler v. California Hospital Co., (1918) 178 Cal. 764, 766. (Reply, 5-7.)
The court understands Defendant’s contentions that Dr. Howard is not an
orthodontist to be an assertion that the expert testimony does not meet the
requirements of Garibay v. Hemmat (2008) 161 Cal.App.4th 735, or, in the
alternative, that the declaration lacks factual foundation and sufficient
reasoned explanation pursuant to Kelley v. Trunk (1998) 66 Cal.App.4th
519. The Court rejects this argument because the “reasoned explanation”
required in an opposing expert’s declaration “need not be as detailed or
extensive as that required in expert testimony presented in support of a
summary judgment motion or at trial.” (Garrett v. Howmedica Osteonics Corp.
(2013) 214 Cal.App.4th 173, 187-189.) Further, Dr. Howard attests to his
practice as an orthodontist, his review of the materials, his personal
treatment of Plaintiff, and his opinions thereafter. (Howard Decl. ¶¶1-6, Accordingly, the Court finds that both
parties’ experts are sufficiently qualified.
Breach
“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”.¿¿(Jambazian¿v.
Borden¿(1994) 25 Cal.App4th 836, 844 (citations omitted).)¿¿Additionally,
“causation must be proven within a reasonable medical probability based upon
competent expert testimony. Mere possibility alone is insufficient to establish
a prima facie case.”¿¿(Jones v. Ortho Pharmaceutical Corp.¿(1985) 163
Cal.App.3d 396, 402.)¿¿Expert testimony “can enable a plaintiff's action to go
to the jury only if it establishes a reasonably probable causal connection
between an act and a present injury.”¿¿(Id.¿at 403.)¿¿“The issue of
proximate cause ordinarily presents a question of fact. However, it becomes a
question of law when the facts of the case permit only one reasonable
conclusion.”¿ (Capolungo¿v. Bondi¿(1986) 179 Cal.App.3d 346, 354.)¿
“‘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 (“Munro”) ; citing Hutchinson
v. United States (9th Cir.1988) 838 F.2d 390, 392; Willard v.
Hagemeister (1981) 121 Cal.App.3d 406, 412, 175 Cal.Rptr. 365.)¿
Here, Dr. Zand’s expert opined that Dr. Zand’s treatment and
assessment were appropriate and within the standard of care, shifting the
burden to Plaintiff. (DSS ¶¶46-55; Sheridan Decl., 18-19.) Plaintiff, in turn,
relies on their expert testimony, opining Dr. Zand’s conduct fell below the
relevant standard of care. (Opp., 3-6; Howard Decl. ¶¶5-8.) Thus, Plaintiff has
shown a triable issue of material fact as to the element of breach of the
relevant standard of care, pursuant to Munro.
Causation
A plaintiff must
show that the defendant’s act or omission was a substantial factor in bringing
about the injury.¿ (Saelzler¿v. Advanced Group 400¿(2001) 25 Cal.4th
763, 778 (“[P]laintiff¿must show some substantial link or nexus between
omission and injury”).)¿¿Further, “causation must be proven within a reasonable
medical probability based upon competent expert testimony.”¿ (Jones v. Ortho
Pharmaceutical Corp.¿(1985) 163 Cal.App.3d 396, 402-03.)¿
The proper test
for proving causation in a negligence action is the substantial factor test.¿ (Mayes
v. Bryan¿(2006) 139 Cal.App.4th 1075, 1092-93.)¿ The plaintiff must
establish that “(1) that the defendant's breach of duty ... was a substantial
factor in bringing about the plaintiff's harm and (2) that there is no rule of
law relieving the defendant of liability.”¿ (Id.¿at 1093.)¿¿“Conduct can
be considered a substantial factor in bringing about harm if it ‘has created a
force or series of forces which are in continuous and active operation up to
the time of the harm’ [citation], or stated another way, ‘the effects of the
actor's negligent conduct actively and continuously operate to bring about harm
to another’ [citation].”¿ (Id.¿at 1093.)¿ In a medical malpractice
action, causation is proven when a plaintiff produces sufficient evidence to
allow a jury to infer that in the absence of defendant’s negligence, there was
a reasonable medical probability the plaintiff would have obtained a better
result.¿ (Id.)¿
Here again, the dueling expert declarations of the parties
successfully shift the burden from Dr. Zand to Plaintiff, and move toward
showing triable issues of material fact regarding causation. (Sheridan Decl., 18-19;
Howard Decl. ¶¶ 6-7.) The contested nature of the factual circumstances,
especially regarding a causation of Plaintiff’s injuries, shows the court this
question is rife with material facts that cannot be determined at this junction
without a weighing of the evidence. The court cannot engage in such weighing of
credibility, and recognizes the disputed factual nature of this litigation. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.)
In sum, the court finds that several triable issues of fact
exists as to whether Defendant Zand was professionally
negligent in her care and treatment of Plaintiff. Dr. Zand’s motion for summary
judgment is denied.
Conclusion
Dr. Zand’s motion for summary judgment is denied. Plaintiff
is to give notice.