Department 30, Spring Street Courthouse

August 16, 2022

20STCV26554

Motion for Summary Judgment filed by Defendants Mehryar Taban and Mehryar Taban MD, Inc.

The motion for summary judgment is granted.

Defendants are ordered to file a proposed judgment within 20 court days after the date of this order.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

On July 15, 2020, Plaintiff Brendan Tully commenced this action against Defendants Mehryar Taban, Mehryar Taban M.D., Inc., and Does 1 to 20. Plaintiff’s causes of action are medical negligence, fraudulent concealment, negligence per se, and intentional infliction of emotional distress.

On January 25, 2022, Defendants filed their motion for summary judgment.

Defendants argue that Plaintiff’s claim for medical negligence has no merit because Dr. Taban’s care and treatment were at all times within the standard of care and because no act of omission on Dr. Taban’s part contributed to Plaintiff’s claimed injuries. Defendants argue Plaintiff’s claim for fraudulent concealment is without merit because Dr. Taban did remove bone from Plaintiff’s inferolateral orbit quadrant and never altered or modified Plaintiff’s medical records. Defendants also argue Plaintiff’s negligence per se claim has no merit because Defendants did not violate Penal Code section 471.5. Defendants contend Plaintiff’s claim for Intentional Infliction of Emotional Distress has no merit because Plaintiff does not believe Dr. Taban engaged in conduct intended to cause emotional distress and there is no evidence Dr. Taban committed extreme and outrageous conduct toward Plaintiff. Lastly, Defendants argue Plaintiff’s claim for punitive damages fails because there is no evidence that Dr. Taban performed malicious, oppressive, or fraudulent conduct.

None.  

The purpose of a motion for 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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 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.) 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “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 . . . cannot be established.” (Code Civ. Proc., section 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., section 437c(c).) 

Defendants move for summary judgment as to Plaintiff’s cause of action for medical negligence on the grounds that (1) Dr. Taban’s care and treatment was at all times within the standard of care and (2) no act of omission on the part of Dr. Taban caused or contributed to Plaintiff’s claimed injuries.

The elements of medical malpractice 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.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 (citations omitted).)  “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.”  (Avivi, supra, 159 Cal.App.4th at p. 467.) 

 

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.)   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. “Mere possibility alone is insufficient to establish a prima facie case.” (Id.) “There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.” (Id. at 403.) “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.”  (Id.) 

Here, Defendant’s evidence shows that Plaintiff presented to Dr. Taban in May 2019 complaining of relative orbital decompression. (UMF No. 3; Goldberg Decl., ¶7(a).) Dr. Taban assessed Plaintiff and diagnosed him with congenital protruding globes, congenital lower eyelid retraction, exposure dry eyes, under eye fat bags, and hollowness. (Id.) Dr. Taban discussed surgery with Plaintiff and advised him of the risks and benefits of surgery. (UMF No. 4.) In July 2019, Dr. Taban performed bilateral orbital decompression and lower eyelid retraction surgery with canthoplasty and lower blepharoplasty on Plaintiff. (UMF No. 5.) When Plaintiff returned for a post-operative visit, Dr. Taban noted Plaintiff was “healing excellent” and planned to follow up in another month. (UMF No. 6.) In August, 2019, Plaintiff returned to Dr. Taban complaining about asymmetry of his lower eyelids. (UMF No. 7.) Dr. Taban reassured Plaintiff, prescribed medication, and instructed Plaintiff to massage his right lower eyelid upward. (Id.) In August 2019, Plaintiff returned to Dr. Taban and still had concerns over asymmetry in his lower eyelids. (UMF No. 8.) 

Thereafter, Plaintiff presented to Dr. Raymond Douglas with concerns over his lower eyelid height. (UMF No. 9.) Plaintiff underwent an CT scan, which showed normal appearance of the orbits and orbital soft tissues. (UMF No. 10.) Dr. Douglas performed lateral wall decompression surgery, recontouring zygoma, conjunctivoplasty, eyelid retraction repair with hard palate graft, and frost suture tarsorrhaphy on Plaintiff. (UMF No. 12.) After this surgery, Plaintiff presented to otolaryngologist to Dr. Amit Kochhar complaining of left-side facial numbness which he alleges occurred following the initial surgery with Dr. Taban and worsened over time. (UMF No. 15.)

Defendants meet their burden of showing Dr. Taban acted within the standard of care through the expert testimony from Dr. Robert Goldberg. Dr. Goldberg states Dr. Taban acted within the standard of care at all times during his treatment of Plaintiff:

“On the basis of my extensive education, training, and experience, along with my years as a physician and my review of the records and documents provided to me, it is my opinion, to a reasonable degree of medical probability, that the ophthalmologic care and treatment rendered by Moving Defendants to patient Brendan Tully before, during, and after surgery on July 19, 2019 complied with the applicable standard of care at all times. I have formulated this opinion based on the following: 

a. Dr. Taban’s evaluation and treatment of the patient was reasonable and appropriate. 

b. Given the patient’s clinical presentation with congenital protruding globes, congenital lower eyelid retraction, dry eyes, under eye fat bags, and hollowness, it was reasonable and appropriate for Dr. Taban to recommend surgery. 

c. The patient was appropriately cleared for surgery during a pre-operative visit. The standard of care does not require a pre-operative CT scan to be taken. 

d. After obtaining informed consent, Dr. Taban proceeded with surgery. His performance and surgical plan comported with the standard of care.”

(Goldberg Decl., ¶8.)   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 14 Cal.App.3d at p. 999.)  Here, Defendants meet their burden of proving Dr. Taban acted within the standard of care in clearing Plaintiff for surgery and performing the surgery because they provided an expert declaration, which is conclusive of the prevailing standard of care and that Dr. Taban acted within that standard of care. 

As for causation, Defendant’s evidence shows that “[n]umbness is a known risk of surgery and was included in the pre-operative discussion of the risks, benefits, and alternatives to surgery between Dr. Taban and the patient” and that “Dr. Taban’s surgical field did not involve any areas that if injured, would cause facial nerve damage” (Goldberg Decl., ¶9(a)-(b).) Expert testimony establishes that Dr. Taban’s surgical field did not involve any areas that operating upon could cause facial numbness, meaning his complaints of facial nerve damage were not caused by Dr. Taban’s surgery. Defendants meet their burden of proof on causation as well.

The burden shifts to Plaintiff with respect to both of these issues. Plaintiff cannot meet it because he has produced nothing in response. 

Defendants next argue that Plaintiff’s cause of action for fraudulent concealment fails because Dr. Taban did not misrepresent that he removed bone from Plaintiff’s inferolateral orbit quadrant and recorded the Plaintiff’s surgery truthfully and accurately.

The elements of fraud based on concealment are: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248. Absent a fiduciary duty, there are at least three instances in which a cause of action for non-disclosure of material facts may arise: “(1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the Plaintiffs;  (3) the defendant actively conceals discovery from the Plaintiffs.”   Warner Constr. Corp. v. City of Los Angeles  (1970) 2 Cal.3d  285, 294.  

Defendants’ motion turns on whether Dr. Taban made concealed or suppressed a material fact. Defendants’ evidence shows that Dr. Taban recorded the surgery he performed on Plaintiff on July 19, 2019 accurately and truthfully and that Dr. Taban did not alter or modify Plaintiff’s records. When Plaintiff returned to Dr. Taban for post-operative visits, Dr. Taban believed he was healing well and that the asymmetry to his eyes was improving. (UMF Nos. 7-8; Taban Decl., ¶¶7-9.) Dr. Taban provided a declaration testifying that he did not alter Plaintiff’s medical records and that he recorded the surgeries he performed on Plaintiff accurately and truthfully:

“At no time did I alter or modify Plaintiffs medical records with fraudulent intent. All self authored records of my care and treatment of Plaintiff, including but not limited to medical charting and operative reports, were completed accurately and truthfully.”

(Taban Decl., ¶12.) Additionally, Defendants provide expert testimony from Dr. Brian F. King, who testifies that Dr. Taban did remove a small amount of bone during Plaintiff’s surgery:

“On the basis of my extensive education, training, and experience, along with my years as a radiologist and my review of the records, imaging, and documents provided to me, it is my opinion, to a reasonable degree of medical probability, that the patient’s October 14, 2019 orbits CT scan shows approximately 1.5 cm of bone missing in the lateral wall of each orbit.”

(King Decl., ¶ 8.) Defendants’ evidence thus shows that Dr. Taban did not make misrepresentations about Plaintiff’s surgery because he did remove bone from Plaintiff’s orbits as he recorded and he recorded the surgery accurately and truthfully. The burden shifts to Plaintiff. Plaintiff fails to meet his burden because he did not oppose this motion. Accordingly, summary judgment is granted as to Plaintiff’s cause of action for fraudulent concealment.

Defendants also move for summary judgment on the grounds that Plaintiff has not shown that Dr. Taban violated Penal Code section 471.5. 

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.)

Penal Code section 471.5 provides that “Any person who alters or modifies the medical record of any person, with fraudulent intent, or who, with fraudulent intent, creates any false medical record, is guilty of a misdemeanor.”

As discussed above, Plaintiff’s cause of action for negligence fails because Plaintiff has not provided conflicting expert testimony establishing that Dr. Taban breached the community standard of care. Accordingly, Plaintiff’s claim for negligence per se also fails because it is not an independent cause of action. Moreover, Defendants met their burden of showing that Dr. Taban did not modify Plaintiff’s medical record. Thus, Defendants meet their burden of showing Dr. Taban did not violate Penal Code section 471.5. Plaintiff fails to meet his burden because he did not oppose this motion. Accordingly, summary judgment is granted as to Plaintiff’s claim for negligence per se.

Defendants move for summary judgment as to his cause of action for intentional infliction of emotional distress on the grounds that Plaintiff does not believe Dr. Taban engaged in conduct intended to cause emotional distress and there is no evidence Dr. Taban committed extreme and outrageous conduct toward Plaintiff. 

A cause of action for intentional infliction of emotional distress exists when there is: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)  A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.  (Id. at pp. 1050-1051.)  The defendant must either intend his or her conduct to inflict injury or engage in it with the realization that injury will result.  (Id. at p. 1051.)  Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.  (Ibid.)  “[T]he plaintiff must allege with great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in civilized community.”  (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) 

Defendants’ evidence shows that Dr. Taban’s evaluation and treatment of Plaintiff was reasonable and appropriate. (UMF No. 19; Goldberg Decl., ¶8(a).) Additionally, Dr. Taban reasonably recommended surgery to treat Plaintiff’s eye conditions, appropriately cleared Plaintiff for surgery, and proceeded with surgery after obtaining informed consent. (UMF Nos. 20-22; Goldberg Decl., ¶¶8(c)-(d).) During Plaintiff’s post-operative visits, Dr. Taban believed that Plaintiff was healing well and that his asymmetrical lower eyelids were showing improvement. (UMF Nos. 7-8.) At his deposition, Plaintiff could not articulate what conduct Dr. Taban engaged in that was intended to cause emotional distress, responding “I’m not sure.” (UMF No. 30; Tully Depo., 235:4-8.) Plaintiff also stated that Dr. Taban never refused to address his complaints or perform revision surgery. (UMF No. 31; Tully Depo., 235:14-15.) 

Defendants meet their burden of showing Dr. Taban did not engage in conduct that was intended to cause emotional distress. Expert testimony shows Dr. Taban acted reasonably when treating Plaintiff. Plaintiff could not describe what conduct Dr. Taban engaged in that he intended to cause emotional distress. The burden thus shifts to Plaintiff. Plaintiff fails his burden because he did not oppose this motion. Summary judgment is granted as to Plaintiff’s cause of action for intentional infliction of emotional distress.

Defendants also move for summary judgment as to Plaintiff’s claim for punitive damages because there is no evidence that Dr. Taban engaged in oppression, fraud, or malice.

“A claim for punitive damages is one of the substantive areas which is a proper subject of a motion for summary adjudication.” (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 92.) To defeat summary adjudication, the burden is on the plaintiff to produce “clear and convincing evidence” that defendant engaged in “oppression, fraud or malice” in the commission of a tort. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.)

As discussed above, summary judgment is granted for Plaintiff’s causes of action for medical negligence, fraudulent concealment, and intentional infliction of emotional distress. Because there are no remaining torts for which Plaintiff can claim punitive damages, Plaintiff’s claim for punitive damages also fails. Moreover, Defendants provided evidence that Dr. Taban’s conduct during Plaintiff’s treatment was reasonable. The Court does not find clear and convincing evidence that Dr. Taban engaged in oppression, fraud, or malice.