Judge: H. Jay Ford, III, Case: 20STCV38817, Date: 2024-10-29 Tentative Ruling

Case Number: 20STCV38817    Hearing Date: October 29, 2024    Dept: O

  Case Name:  Hatanian, et al. v Ace Medical Pharmacy

SUBJECT:                 MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY:   Defendant Sanjay Khurana, M.D.

RESP. PARTY:         Plaintiffs Moussa Hatanian and Soheila Akhlashy

TENTATIVE RULING

            Defendant Sanjay Khurana, M.D. Motion for Summary Adjudication as to the 2^nd–4^th causes of action in Plaintiffs Moussa Hatanian and Soheila Akhlashys’ FAC is DENIED. Defendant and Plaintiffs provide competing expert declarations creating a dispute of material fact as the statute of limitations and the elements of the causes of action.  

            Plaintiffs’ objections to the declaration of Mark \J. Spoonamore M.D. are OVERRULED.  

            Defendant’s objections to the declaration of Hooman Melamed, MD are OVERRULED.

REASONING

            “A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition. The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 [landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].)

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

            Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.” (Code Civ. Proc. §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.)

            Expert testimony is also required to establish the element of causation in a medical malpractice action.  “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. That there is a distinction between a reasonable medical probability and a medical possibility needs little discussion. There can be many possible causes, indeed, an infinite number of circumstances that can produce an injury or disease. A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” ( Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 [trial court properly struck medical expert testimony on issue of causation where expert’s opinion failed to provide a reasoned explanation regarding the etiology connecting plaintiff’s infected subcutaneous tissue to the nidus inside peritoneal cavity where retractor was retained].)   

I.                MSA based on 1 year statute of limitations under CCP § 340.5

“In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.)

“Although generally the reasonability of a plaintiff's “belated discovery” is a question of fact, where reasonable minds can draw only one conclusion from the evidence, the question becomes one of law. In that case, summary judgment based on the statute of limitations is proper.” (Rose v. Fife (1989) 207 Cal.App.3d 760, 770, modified (Feb. 1, 1989).)

Defendant Sanjay Khurana, M.D. (“Khurana”) argues that the 2^nd–4^th causes of action for breach of fiduciary duty, battery, and fraud are related to the medical malpractice claims that CCP § 340.5 applies, thus creating a one-year statute of limitation after the Plaintiff discovered the injuries to file the causes of action. Khurana cites to Plaintiffs Soheila Akhlaghy and Moussa Hatanians’ testimony which Khurana argues shows that at some point prior to 9-19-19, “Plaintiffs were suspicious of potential wrongdoings and negligence on behalf of Dr. Khurana.” (See SSUF, ¶ 6; Ex. L, p. p. 100:1-6; 100:23-101:3; 102:2-103:14.) Khurana argues that Plaintiffs were required to file the amended complaint by latest 10-13-20 due to their suspicions regarding the surgery revealed within the deposition, and that date would have been a year after the injury, the Decedents death. (Motion, pp. 16–17.)

The Court does not agree with the one-year statute of limitation applies. The statute of limitations for battery claims is generally two years under CCP § 335.1, three years for fraud under CCP § 338(d), and four years for breach of fiduciary duty claims under CCP § 343. CCP § 340.5 applies to actions for injury or death against a health care provider based on professional negligence, or medical malpractice claims, not for claims of battery, fraud, or breach of fiduciary duty. (See Code Civ. Proc., § 340.5.) That being said, even if the Defendant were to meet their burden to show that the causes of action were not filed within the one to four year period, Plaintiffs meet their burden to show a triable issue of fact as to when the discovery of injury took place.

Plaintiffs provide a declaration from expert witness Dr. Hooman Melamed, M.D which states that Melamed contacted Plaintiffs counsel in December of 2022 regarding Melamed’s experience working with Khurana for 17 years. (Melamed Decl., ¶ 3.) Melamed declares that by early 2018 latest, he discovered that “Khurana had developed a custom and practice of recommending surgeries which were lucrative for him through DISC, but not necessary, or at times not even beneficial for the patient(s).” (Id., ¶ 4.) Plaintiffs argue that that they were not aware, and had no reason to suspect, that Khurana had committed battery, fraud, or breached his fiduciary duty until Melamed contacted Plaintiffs to explain that certain procedures in the operative reports were not actually performed. (SSUF, ¶¶ 25, 28, 44, 47, 63, 66; Melamed Decl., ¶¶ 7g, 8c, 8di; Ex. C.)

Plaintiffs filed for leave to amend the complaint on 3-10-23, within three months of the alleged date when Plaintiffs discovered the facts of possible breach of fiduciary duties, battery, and fraud. Thus, Plaintiff has created a triable issues of material fact as to when the discovery period begun, and if Plaintiff’s date of discovery is the operative date, Plaintiff would be well within the one-year statute of limitations for claims of, or related to, medical negligence.

Additionally, the Court cannot state that only one conclusion can be drawn from Khurana’s submitted evidence allegedly showing Plaintiffs’ were suspicious of Khurana’s additional recommended surgeries sometime prior to 9-19-19. Plaintiffs may have been suspicious of possible negligence, but Khurana provides no evidence that this suspicion would lead Plaintiffs to be suspicious that fraud, battery, or a breach of fiduciary duty occurred as well. Thus, the date of discovery is a question of fact for the jury to decide.

Khurana’s MSA as to the 2^nd-4^th causes of action being barred due to statute of limitations is DENIED.

II.             MSA as to Breach of fiduciary Duty cause of action

“The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. Whether a fiduciary duty exists is generally a question of law.” (Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 546.)

“Our Supreme Court has acknowledged that it is difficult to enunciate the precise elements required to show the existence of a fiduciary relationship.  But the high court has noted that before a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.”  (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 631–632.)  “A fiduciary duty undertaken by agreement arises when one person enters into a confidential relationship with another.”  (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 742.)   

“[I]n soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 128.) “[A] physician must disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment; and . . . a physician's failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty.” (Ibid.)

Whether a fiduciary duty exists is generally a question of law . . . . Whether the defendant breached that duty towards the plaintiff is a question of fact.” (Marzec v. California Public Employees Retirement System (2015) 236 Cal.App.4th 889, 915, emphasis in original.)

Khurana argues that a breach of fiduciary duty against a medical professional claim cannot be based on a duty to disclose personal or economic interests, and that even if the claim can be based on these duties, Khurana did not have a conflicting “ownership or financial interest in the medical instrumentation used during the procedures. (Motion, p. 18:19–26; SSUF, ¶ 29; Spoonamore Decl., ¶ 36(f); Khurana Decl., ¶¶ 3–4.) Khurana argues and provides expert declarations that Khurana “informed Decedent of the possible outcomes following a revision spinal surgery after Decedent completed an initial surgery with another surgeon Dr. Anand, including Decedent’s symptoms becoming worse.” (Motion, p. 19.)

Khurana is incorrect that a breach of fiduciary duty claim cannot be based on a duty to disclose personal or economic interests. A breach of fiduciary duty claim can be based on a duty to disclose personal or economic interests. (See Moore, supra, 51 Cal.3d at p. 128.) That being said, Khurana has met their burden to show that Khurana had no personal or financial interest in the procedures at issue, and that Khurana informed Decedent of the potential risks through expert testimony declarations. The burden now shifts to the Plaintiffs to show a triable issue of material fact as to either issue raised by the Defendant since the claim is based on multiple duties.

Plaintiffs meet their burden to show a triable issue of material fact as to the one issue of duty to disclose personal or financial interest through expert witness declarations. Plaintiffs’ expert witness Melamed declares he “discovered that Dr. Khurana had developed a custom and practice of recommending surgeries which were lucrative for him through DISC, but not necessary, or at times not even beneficial for the patient(s), and  “[a]t least one of Dr. Khurana’s recommendations regarding the November 21, 2018, fusion surgery, was motivated by financial gain and not patient care, specifically the facet fusion was not indicated.” (SSUF, ¶ 29; Melamed Decl., ¶¶ 4, 8a.) Thus, Plaintiffs provide an expert witness declaration to dispute the fact that Khurana had no personal or financial interests in the procedures at issue. The breach of fiduciary duty cause of action is based on multiple duties, so providing disputed facts to this individual duty allows the claim to survive summary adjudication.

Khurana’s Motion for Summary Adjudication as to the 2^nd cause of action is DENIED.

III.           MSA as to Medical Battery cause of action

The essential elements of a medical battery cause of action are as follows:

[Name of plaintiff] claims that [name of defendant] committed a medical battery. To establish this claim, [name of plaintiff] must prove all of the following:

1. [That [name of defendant] performed a medical procedure without [name of plaintiff]'s consent; [or]]

[That [name of plaintiff] consented to one medical procedure, but [name of defendant] performed a substantially different medical procedure;]

2. That [name of plaintiff] was harmed; and

3. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

A patient can consent to a medical procedure by words or conduct.

(See CACI, 530A.)

“The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324; see, e.g., Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266 [a battery “is an intentional and offensive touching of a person who has not consented to the touching”]; Perry v. Shaw (2001) 88 Cal.App.4th 658, 664 [doctor committed battery—a claim distinct from professional negligence—when he “performed an operation to which [plaintiff] did not consent”]; Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1194 [discussing statute of limitations for “medical malpractice action arising out of a failure to obtain informed consent to surgery”]; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 634 [battery “should be reserved for those circumstances where a doctor performs an operation to which the patient has not consented”].

“Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.” (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495; see Cobbs v. Grant (1972) 8 Cal.3d 229, 240 [“When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present”].)

Both Khurana and Plaintiffs provide expert witness declaration to show a dispute of material fact as to the battery cause of action, and thus Khurana’s MSA to the battery cause of action is DENIED. Khurana shows that “there was no unconsented touching by Dr. Khurana, as Dr. Khurana performed medically indicated procedures with Decedent’s consent.” (SSUF, ¶¶ 39, 42–44; Spoonamore Decl., ¶¶ 29–32, 36.)

Plaintiffs provide an expert declaration to show that “Dr. Khurana did not educate or discuss the fact that he was advising Mr. Hatanian on surgeries that were not, or may not be indicated,” and even if there was consent to certain procedures, “[i]n the September 9, 2019, Operative Report Dr. Khurana indicated that he performed a vertebrectomy, yet the post-operative X-rays do not show any evidence of that procedure being done. Dr. Khurana also claimed that he performed “posterior lateral and intertransverse fusion, L4-5, S1”, yet the intraoperative x-rays and the postoperative September 17, 2019 Xrays show no evidence of that occurring.” (SSUF, ¶¶ 43–44; Melamed Decl., ¶¶ 7g, 8di; Ex. C.)

Thus, Plaintiff has met their burden to show a disputed material fact as to whether the patient gave permission to perform one type of treatment and the doctor performed another, which is one way to reach a medical battery claim.

Khurana’s MSA to the battery cause of action is DENIED

IV.           MSA as to Fraud cause of action

"A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded. [citations omitted]" (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.)

“[T]he facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” (Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.) Fraud actions against corporations require the plaintiff “to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) However, the specificity requirement is “relaxed when the allegations indicate that the defendant must necessarily possess full information concerning the facts of the controversy or when the facts lie more in the knowledge of the opposite party.” (Ibid., citations omitted.)

            Both Khurana and Plaintiffs provide expert witness declaration to show a dispute of material fact as to the fraud cause of action, and thus Khurana’s MSA to the fraud cause of action is DENIED. Khurana shows that Decedent voluntarily, and on his own accord with informed consent, underwent two spinal surgeries with Khurana, and Khurana appropriately managed the Decedent post-operatively. (SSUF, ¶¶ 52–56, 66; Spoonamore Decl., ¶¶ 13–19, 36.) Khurana also argues that Plaintiffs have no evidence that Khurana made false representations to Decedent, or concealed information from Decedent, to induce Decedent into undergoing spinal surgeries through the provided evidence of informed consent. (Ibid.)

            Plaintiffs provide an expert declaration showing that numerous procedures that were recommended and allegedly performed on the Decedent were not actually performed. (Melamed Decl., ¶ 8(a)–(d).) Plaintiffs’ expert declares that there was no investigation conducted by Khurana to determine why the 11-2-18 surgery was not successful and “instead Dr. Khurana recommended a second surgery.” (Id., ¶ 7(e).) Plaintiff’s expert declares that “Dr. Khurana had developed a custom and practice of recommending surgeries which were lucrative for him through DISC, but not necessary, or at times not even beneficial for the patient(s).” (Id., ¶ 4.) Thus, Plaintiffs have provided evidence of a disputed material fact as to whether Khurana obtained consent through concealing information, or making false representations, to Decedent in order to induce the spinal surgeries.

            Khurana’s MSA to the Fraud cause of action is DENIED.