Judge Jill Feeney, Case Number: 21STCV20309, Date: 2023-10-11 Tentative Ruling

This is an action for medical malpractice arising from medical treatment Plaintiff received in February 2020. Plaintiff’s Complaint alleges that Defendant Camarena performed unnamed procedures in February 2020 that resulted in injuries to Plaintiff’s leg. (Compl., ¶11.) In April 2020, Defendant Lalezarian performed procedures related to vascular and interventional radiology that caused injuries to Plaintiff’s leg. (Compl., ¶14.) On May 31, 2020, Plaintiff underwent surgery to amputate his leg as a result of the injuries caused by Camarena and Lalezarian. (Compl., ¶15.)

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).)

A summary adjudication cannot be considered “unless the party bringing the motion duly gives notice that summary adjudication is being sought…If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion...There is a sound reason for this rule:... the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by- issue adjudication might be ordered if summary judgment was denied.” (Jimenez v. Protective Life Ins. Co. (1992) 8 Cal. App. 4th 528, 534.)

Defendants Michael Aaron Lalezarian and Michael Aaron Lalezarian, MD Corp. (collectively “Lalezarian”) move for summary judgment on the grounds that Defendants complied with the applicable standard of care and did nothing to cause or contribute to Plaintiff’s injury.

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, Lalezarian provides Plaintiff’s medical records which show that in February 2020, Plaintiff was a 69 year old who presented to Camarena’s podiatry group complaining of a painful, long, thick, discolored toenail deformity which limited his ability to walk in shoes. (Exh. 3, pdf pp.40-49.) Plaintiff had type 2 diabetes, kidney disease, a previous kidney transplant, and a pacemaker implant. (Id.) Plaintiff’s foot exam showed that his second digit nail was almost fully avulsed with mild erythema and purulence from the nail bed. (Id.) All of Plaintiff’s nails were discolored, painful, thickened, elongated, and separated from the nail bed. (Id.) Camarena removed the nail plate, debrided the other nails, recommended that Plaintiff obtain diabetic shoes and inserts, and advised Plaintiff on wound care. (Id.) April 2020, Plaintiff was seen by a Dr. Chan and complained of constant pain which had spread to his foot despite undergoing vascular intervention. (Id at p. 60.) Chan recommended that Plaintiff re-establish care with his doctor to treat his blood sugar. (Id.) Chan explained to Plaintiff that if the pain becomes unbearable or the foot progresses to gangrene, then plaintiff would have to consider below the knee amputation. (Id at p. 63.)

On March 5, 2020, Plaintiff was first seen by Lalezarian. (Exh. 4, pdf pp.104-106.) Plaintiff complained of cramping and pain in his right foot and ankle after his toenail was removed. (Id.) Examination of Plaintiff’s right foot revealed claudication in peripheral vascular disease, atherosclerosis of the artery in the foot with ulceration, and chronic deep vein thrombosis of the femoral vein in both feet. (Id.) Pulses in Plaintiff’s right foot were severely diminished. (Id.) Lalezarian recommended revascularization of Plaintiff’s right foot. (Id.)

In late March 2020, Plaintiff presented to Lalezarian with more severe pain after revascularization. (Id., p.107.) Plaintiff’s second toe had focal gangrene and had darkened. (Id.) Lalezarian recommended consultation with a podiatrist for a toe amputation but felt the rest of the foot remained viable. (Id.) Lalezarian also noted that Plaintiff’s blood sugar needed to be controlled. (Id.) In April 2020, Lalezarian opined that Plaintiff had severe peripheral arterial disease in his left foot and offered him revascularization to treat it before it became as bad as his right foot. (Id., pp.109-110.)

Records from April 2020 show that Plaintiff presented to Dr. Gustavo Torres-Cifuente with right leg gangrene of the toes, foot, and heel. (Exh. 6., pp.221-226.) Torres-Cifuente recommended an angiographic study of the leg, local would care, and offloading the lower extremity. (Id.) On April 29, 2020 Torres-Cifuente performed the angiographic study with intervention, installing stents, performing angioplasty, removing debris and thrombi, and other interventions attempting to salvage the limb. (Id., pp.227-228.) By May 2020, Plaintiff’s leg had undergone more gangrenous changes requiring further angiographic study. (Id., pp.229-230.) On May 11, 2020, Torres-Cifuente performed a second angiographic study and found no blood vessels crossing the ankle and that blood flow stopped at Plaintiff’s ankle. (Id., pp.231-232.) On May 13, 2020, Torres-Cifuentes performed a below-the-knee amputation of Plaintiff’s right leg. (Id., p.233.)

Lalezarian provides the expert testimony of Mark Schechter, a board-certified radiologist with qualifications in vascular and interventional radiology and knowledge of revascularization procedures of the lower extremities. (Schechter Decl., ¶1.) Schechter notes that in March 2020, when Plaintiff was first seen by Lalezarian, Plaintiff presented with cardiovascular risk factors, including longstanding diabetes, a history of smoking, end-stage renal disease, a kidney transplant, a history of implanted cardiac pacemaker, and a history of deep vein thrombosis. (Id., ¶9.) During the visit, Plaintiff reported cramping pain in his right foot and ankle, pain that limited his ability to walk, toenail removal from a visit to his podiatrist, blood clots in his bilateral lower extremities, swelling to the ankle, and that he was taking a blood thinner. (Id., ¶10.) The pulses in the foot were significantly diminished and the foot was discolored. (Id., ¶12.) Arterial ultrasound revealed high-grade stenosis or occlusion, chronic non-inclusive thrombus in the right femoral vein, and acute complete thrombus in the left femoral and popliteal veins. (Id.) Lalezarian recommended arterial revascularization. (Id., ¶13.)

Lalezarian performed an angiogram on Mach 9, 2020 and found severe below knee disease and that there was no blood flow to Plaintiff’s right foot. (Id., ¶14.) Lalezarian performed atherectomy of three arteries and the tibioperoneal trunk and dilated these areas. (Id.) After intervention, there was inline flow through the peroneal artery, improvement in the caliber of the tibioperoneal trunk, improvement in the popliteal artery and superficial artery lesions, and only mild residual stenosis. (Id.) Lalezarian was satisfied with the results of the procedure and hoped the procedure would improve Plaintiff’s pain. (Id., ¶15.) At a follow up appointment on March 10, 2020, Plaintiff reported less pain. (Id., ¶16.) Lalezarian explained that Plaintiff’s peripheral artery disease was more severe than he anticipated and that he performed the only revascularization procedure available given the blockages throughout the entire tibial trunk. (Id., ¶17.) Lalezarian advised that they would try to salvage the limb, but that Plaintiff would continue to have pain. (Id.) If the pain did not improve or the wound on his toe did not heal, Plaintiff would require amputation of the toe, foot, or leg. (Id.) The pain worsened by the end of March 2020. (Id., ¶¶20-22.) Plaintiff agreed to allow Lalezarian to attempt revascularization a second time. (Id., ¶23.)

Lalezarian performed the second procedure on April 16, 2020 and dilated the right peroneal artery, tibial peroneal trunk, the right popliteal artery, and the sight superficial artery. (Id., ¶28.) After the procedure, the foot appeared improved, but Plaintiff’s condition was still tenuous because he had one single vessel providing blood flow to the foot. (Id., ¶29.) Lalezarian explained to Plaintiff that he would not attempt another procedure because of Plaintiff’s renal disease and that Plaintiff’s elevated blood sugar was damaging to his blood vessels, potentially undoing the surgical intervention. (Id., ¶30.) Schechter confirms the contents of Plaintiff’s remaining medical records with Lalezarian and testifies that Plaintiff failed to follow up after Lalezarian offered to attempt revascularization of his left foot before it could deteriorate to the level of the right foot. (Id., ¶35.)

Schechter opines that Lalezarian’s treatment of Plaintiff complied with the standard of care. (Id., ¶45.) Plaintiff already had chronic renal disease, uncontrolled diabetes, and hypertension by the time he first presented to Lalezarian. (Id.) Lalezarian’s recommendation that Plaintiff undergo revascularization was appropriate and complied with the standard of care. (Id.)

The first revascularization procedure complied with the standard of care and Lalezarian was able to get blood flow through the peroneal artery and improve the condition of Plaintiff’s leg. (Id.) Plaintiff was prone to rethrombosing of the arteries because of his chronic peripheral vascular disease, end-stage renal failure, and poor blood sugar control. (Id.) Plaintiff’s worsening condition after the first procedure was not a reflection of poor technique on Lalezarian’s part. (Id.)

The second revascularization procedure also complied with the standard of care because it again resulted in improvement to the peroneal artery and the condition of Plaintiff’s foot. (Id.) Plaintiff’s condition was tenuous because he only had one blood vessel left to supply blood to the foot. (Id.)

Schechter opines that Plaintiff’s amputation was the result of his advanced peripheral vascular disease, end stage renal failure, and uncontrolled diabetes, not Lalezarian’s revascularization procedure. (Id.) Additionally, Lalezarian properly and timely diagnosed Plaintiff. (Id.) Schechter opines to a reasonable degree of medical probability that Plaintiff’s amputation was not caused by Lalezarian’s treatment, but rather by his preexisting conditions. (Id., ¶46.) Before Plaintiff presented to Lalezarian, there was already more than a 50% chance that amputation was necessary. (Id.) The fact that Plaintiff had a single blood vessel supplying blood to his foot made it more likely than not that amputation would be necessary. (Id.)

The evidence shows that Plaintiff had severe peripheral vascular disease, end stage renal failure, and uncontrolled diabetes which caused his right leg to deteriorate to the point that only one blood vessel was supplying blood flow to his right foot. Plaintiff’s severe disease also made it more likely that the vessels in his foot would rethrombose following any revascularization procedure. Lalezarian’s expert provides uncontroverted testimony that Lalezarian performed two revascularization procedures within the standard of care and that his actions did not cause Plaintiff’s amputation. Lalezarian meets his burden of showing no triable issues of material fact remain over whether he met the community standard of care and whether his conduct caused Plaintiff’s injury.