Judge: John J. Kralik, Case: 22BBCV00587, Date: 2024-01-19 Tentative Ruling

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Case Number: 22BBCV00587    Hearing Date: January 19, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Shelby H. Haro (“Plaintiff”) alleges that on October 31, 2021, she fell while carrying a ceramic dish, which shattered and cut her right wrist.  She alleges that she sought necessary care and treatment for her injured right wrist of her dominant hand from Defendants Providence Health System-Southern California dba Providence St Joseph Medical Center, Burbank Emergency Medical Group Inc., Nahal Sahelimoghavami, P.A., Nadia Jean Fakoory, M.D., Stephen Edward Kishineff, M.D., Christina Barragar, P.A., Harout Chouljian, P.A. (“Defendants”).  Plaintiff alleges that on November 9, 2021, she returned and was treated again by Defendants to have sutures removed from her right wrist that was put in place by Defendants.  She alleges that she complained that her right hand had numbness, tingling, and pain on the tips of her fingers.  On November 18, 2021, Plaintiff sought medical attention to her right hand and was seen by Dr. Raymond Raven at Orthopedic Surgery Specialist, he diagnosed a retained foreign body in her right wrist with a possible nerve injury to her right wrist, and he recommended surgery.  On November 22, 2021, Plaintiff alleges she underwent surgery to remove the retained foreign body and explore the median nerve on her right wrist, which showed that a median nerve was lacerated on the Ulnar side. 

Plaintiff alleges that Defendants’ acts and omissions on October 31, 2021 caused Plaintiff’s median nerve, forearm, wrist, fingers, hand, and lacerations to her flexor digitorum superficialis of the right index finger, lacerations to her flexor digitorum superficialis right long finger, and lacerations to her flexor digitorum superficialis right ring finger. 

The complaint, filed August 16, 2022, alleges a single cause of action for professional negligence (medical malpractice).     

On June 14, 2023, Stephen Edward Kishineff, M.D. and Harout Chouljian, P.A. were dismissed from the complaint without prejudice. 

On July 5, 2023, Christina Barragar, P.A. was dismissed from the complaint without prejudice.   

On October 12, 2022, Providence Health & Services – Southern California dba Providence St. Joseph Medical Ctr was dismissed from the complaint without prejudice.  

B.     Motions on Calendar

On October 18, 2023, Defendants Nahal Sahelimoghavami PA-C (“Ms. Sahelimoghavami”), Nadia Jean Fakoory, M.D. (“Dr. Fakoory”), and Burbank Emergency Medical Group, Inc. (“BEMG”) filed a motion for summary judgment on the ground that the complaint has no merit.[1]  They argue that there are no triable issues of material fact regarding whether they met the standard of care at all times and that no negligent act or omission by Defendants caused or contributed to Plaintiff’s alleged injuries.  On October 19, 2023, Defendants filed the motion papers again with the same reservation number. 

On December 21, 2023, Plaintiff filed the opposition papers. 

On January 12, 2024, Defendants filed 2 sets of reply papers. 

EVIDENTIARY OBJECTIONS

            With the reply brief, Defendants submitted evidentiary objections to Plaintiff’s evidence.  The Court rules as follows:

·         Declaration of Dr. Ryan O’Connor: Objection Nos. 1-2 are overruled. 

·         Declaration of Raymond B. Raven: Objection Nos. 4 is overruled. 

DISCUSSION

            Defendants Ms. Sahelimoghavami, Dr. Fakoory, and BEMG move for summary judgment on the complaint, arguing that they met the standard of care at all times and to a reasonable degree of medical certainty, no negligent act/omission on their part caused or contributed to Plaintiff’s alleged injuries. 

            Defendants provide the following material facts in support of their burden on this motion.  Plaintiff presented to St. Joseph Emergency Department (“ED”) on October 31, 2021 at 1:28 a.m.  (Def.’s Fact 1.)  She reported to the triage nurse, Tracy Baker, R.N., that she had been at a Halloween party and fell while carrying a ceramic dish, which “shattered” and cut her right wrist; she was seen by medics who applied dressing to the area.  (Id. at 2.)  Physician’s Assistant (“PA”) Harout Chouljian performed a Medical Screening Exam and marked in the chart that “ancillary testing required to determine if emergency medical condition exists” and his preliminary diagnosis was “laceration of right hand without foreign body, initial encounter”; Mr. Chouljian did not order any imaging studies.  (Id. at 3.)  Plaintiff was next seen by PA Sahelimoghavami, who was being supervised by Emergency Medicine physician Dr. Fakoory.  (Id. at 4.)  Ms. Sahelimoghavami interviewed Plaintiff and noted that she had a 1.5 cm laceration to her right wrist.  (Id.)  Plaintiff reported that the dish did not shatter but did cut her wrist, and denied any glass involvement.  (Id. at 5.)  Ms. Sahelimoghavami examined Plaintiff and noted that she had full range of motion of her hand, fingers, and wrist and she denied any tingling.  (Id. at 6-7.)  Ms. Sahelimoghavami noted that there was no foreign body involvement, and that the neurovascular and tendon structures were intact.  (Id. at 8.)  A topical anesthetic (Lidocaine) was used, the wound was irrigated and closed with 7 sutures and antibiotic ointment, and the wound was dressed.  (Id. at 9.)  Plaintiff was told to return to the ED for suture removal in 5-7 days and was given a Velcro splint.  (Id. at 10.)  Plaintiff was discharged at 5:14 a.m. and was instructed to return to the ED in case of any worsening symptoms, numbness, infection, decreased movement, etc.  (Id. at 11.)  Ms. Sahelimoghavami was not involved in Plaintiff’s care following this discharge.  (Id. at 12.)  Dr. Fakoory reviewed Plaintiff’s chart prior to signing and did not see any ambiguities/mistakes in the record.  (Id.) 

            On November 9, 2021, Plaintiff presented to the ED for removal of the sutures and was seen by PA Christina Barragar.  (Def.’s Fact 25.)  At that time, Plaintiff reported having mild numbness in the middle fingers of her right hand (the wound was on her right wrist) and intermittent pain with movement of her fingers in the range of 2 out of 10. Ms. Barragar noted that the wound appeared to be healing well with no surrounding erythema, edema, or drainage. When one suture was removed, Ms. Barragar noted that there was some dehiscence (opening), so the remaining sutures were left in place. On physical exam, Ms. Barragar noted full range-of-motion of Plaintiff’s right hand, but she also noted that sensation to light touch was diminished at Plaintiff’s right middle and ring fingers. Plaintiff was told to return in 5-7 days for full suture removal.  (Id.)  During the November 9, 2021, visit, Ms. Barragar referred Plaintiff to a hand specialist, Raymond Raven, M.D., to evaluate the hand due to mild numbness. Plaintiff’s discharge instructions stated that she was to see Dr. Raven in 1 day and Dr. Raven’s contact information was provided immediately following this instruction.  (Id. at 26.) Plaintiff was seen initially at Orthopedic Surgery Specialists on November 18, 2021, by nurse practitioner, Omar Duenes. She had continued to use the splint given to her in the ED on October 31 to this point and presented with that splint in place at this appointment.  (Id. at 27.)  Plaintiff reported that she tripped and fell and landed on a ceramic platter and that she went to the ED where the laceration was repaired, and she was referred to the orthopedic surgeon for further evaluation due to continued pain and swelling at the volar wrist with “occasional” numbness/tingling in the fingers.  (Id. at 28.)  Her physical exam that day showed swelling to the volar wrist (internal wrist) with a sutured laceration repair in that area which was well healed. Plaintiff reported a limited range of motion due to pain, but there was no tenderness to palpation from elbow to the fingers.  (Id.)  On November 18, 2021, an x-ray was taken, which showed a residual foreign body in the soft tissue, and an ultrasound was also performed, which demonstrated evidence of the foreign body, but with no intraarticular loose fragments and an otherwise normal wrist exam.  (Id. at 29.)  On November 22, 2021, Plaintiff underwent neuroplasty of the median nerve to her right wrist with Dr. Raven, which would release the scar tissue around the nerve and repair of the flexor tendon. Dr. Raven also noted that the foreign body was localized within the flexor digitorum profundus muscle belly.  (Id. at 30.)  On November 30, 2021, Plaintiff presented back for a follow-up visit with Dr. Raven and was noted to have good range of motion but some discomfort with the extension of her middle finger.  (Id. at 31.)  Dr. Raven noted also that Plaintiff’s Seemes-Weinstein test showed normal sensation along the median nerve distribution and she was given a prescription for physical therapy.  (Id.)  On December 8, 2021, when she presented for her suture removal, she reported decreased sensation to light touch in her middle and ring fingers.  (Id.)  She presented back to Dr. Raven for follow-up on December 21, 2021; February 10, 2022; April 12, 2022; and June 27, 2022.  (Id.)  By the time of her last visit with Dr. Raven, her only remaining symptom was of some decreased sensation to light touch in her middle finger; an x-ray was taken that day and there were no abnormalities.  (Id.)  Plaintiff attended physical therapy at a clinic operated within Dr. Raven’s practice 2-3 times a week from December 14, 2021 through May 16, 2022 and by the end of her physical therapy, Plaintiff had no more difficulty with range of motion and only had slight sensation loss on her middle finger.  (Id. at 32.)  She reported she was 95% back to normal and was discharged from physical therapy.  (Id.) 

            Defendants provide the declarations of their retained experts Emergency Medicine Physician Dr. Raymond Ricci (“Dr. Ricci”) and Orthopedic Surgeon Dr. Charles S. Lane (“Dr. Lane”) in support of this motion.  Their declarations are summarized in the separate statement as follows:

·         Dr. Ricci’s Opinions re the Standard of Care: Dr. Ricci states that Ms. Sahelimoghavami’s care and treatment of Plaintiff on October 31, 2021 met the applicable standard of care in the ED community at all times relevant to this proceeding.  (Def.’s Fact 13.)  He states that Ms. Sahelimoghavami reviewed Plaintiff’s chart from triage and any other medical record available to her in the hospital system and appropriately interviewed Plaintiff according to the information available.  He states that the information from triage, the standard of care required Ms. Sahelimoghavamito personally interview Plaintiff and discuss the history of Plaintiff’s present illness, which Ms. Sahelimoghavami did, and the initial discussion and workup were reasonable, appropriate, and within the standard of care.  (Id. at 14.)  Dr. Ricci opines that Ms. Sahelimoghavami must have asked Plaintiff about the events surrounding the ER encounter and he opines that Plaintiff reported to Ms. Sahelimoghavami that the ceramic platter that cut her wrist did not shatter.  (Id. at 15.)  He also opines that Ms. Sahelimoghavami’s examination of the patient met the standard of care because she examined Plaintiff’s laceration, range of motion, neurovascular integrity, and motor exam, which were reasonable and appropriate and showed that Plaintiff’s tendons and nerves were intact.  (Id. at 16.)  Dr. Ricci opines that Ms. Sahelimoghavami’s sutures and instructions for follow-up and discharge were within the standard of care in the community by informing Plaintiff of the anticipated return, follow up with her primary care provider, and any additional follow up that might be necessary.  (Id. at 17.)  Plaintiff alleges that Ms. Sahelimoghavami was negligent in failing to order imaging studies at the ED on October 31, 2021.  (Id. at 18.)  Dr. Ricci opines that within Ms. Sahelimoghavami’s medical judgment, it was determined that the laceration was irrigated, examined, and explored, and no foreign bodies were retained. Further, based on the testimony, Ms. Sahelimoghavami’s understanding based on her documented conversation with Plaintiff was that the dish had not shattered, such that (after an interview and physical exam) Dr. Ricci opines that it was reasonable, appropriate, and within the standard of care for Ms. Sahelimoghavami to suture and repair the laceration without ordering imaging studies, without admission to the hospital, and without emergency consultation by a hand surgeon.  (Id. at 19.)  He opines that no negligent act or omission on her part caused any injury to Plaintiff and that to a degree of medical probability, no negligent act or omission on behalf of Ms. Sahelimoghavami caused or significantly contributed to Plaintiff claimed injuries or damages.  (Id. at 20.)  He opines that Dr. Fakoory’s review and signing of Ms. Sahelimoghavami’s patient note met the standard of care because a wrist laceration such as this is within the purview of a PA to treat without direct Attending Physician assistance and her note was complete and there was nothing which would have required Dr. Fakoory to see Plaintiff.  (Id. at 21.)  Dr. Ricci opines that to a reasonable degree of medical certainty, Ms. Sahelimoghavami met the standard of care and nothing she did, or failed to do, caused injury or damages to Plaintiff.  (Id. at 22.)  He also opines that Dr. Fakoory met the standard of care in her supervision of Ms. Sahelimoghavami as her supervising physician in the ED.  (Id. at 23.) 

·         Dr. Lane’s Opinions re whether Defendants Caused or Contributed to Plaintiff’s Injuries: Dr. Lane opines that to a reasonable degree of medical certainty, any alleged delay in removal of the ceramic shard from Plaintiff’s wrist was not the cause of any injury to Plaintiff, and that any injury Plaintiff suffered occurred at the time of her initial fall at home, prior to her presentation to the ED on October 31, 2021.  (Def.’s Fact 33.)  He opines that, to a reasonable degree of medical certainty, any tendon or nerve injury occurred at the time of Plaintiff’s fall at her home, when the ceramic piece was driven into her wrist by the force of the fall and was not caused by any delay in discovery of the shard in her wrist. (Id. at 34.)  He states anatomically, there is very little room in the wrist which would allow a piece of ceramic to move around absent direct force and that passive movements would not allow this foreign body to migrate. Additionally, Plaintiff testified that she had been wearing a splint between October 31 and November 18, which would further prevent movement of the foreign body within her wrist. Dr. Lane states that the ceramic shard was found in the muscle belly per Dr. Raven’s operative note, but the muscle is too thick for a ceramic shard to have migrated into it through general wrist movements, further confirming that the ceramic piece entered the muscle through the force of the fall where it remained. (Id.)  He opines that there was no urgency to remove the shard, even if the shard had been found in the ED on x-ray, because it was not causing any peripheral problems.  (Id. at 35.) In the ED on October 31, Ms. Haro had full range of motion (indicating no tendon severing) and her sensation was intact (indicating the nerve had not been severed).  (Id.)  Based on the foregoing, Dr. Lane opines that, to a reasonable degree of medical certainty, any delay in locating the ceramic shard was not a substantial factor in causing Plaintiff any injury. (Id. at 36.) 

In opposition, Plaintiff disputes that material facts and, in particular, the expert declaration submitted by Defendants.  Plaintiff provides the declarations of Emergency Medicine Physician Ryan O’ Connor, M.D. and Orthopedic Surgeon Dr. Raven.  They opine as follows:

·         Dr. O’Connor’s Opinions: Dr. O’Connor opines that Ms. Sahelimoghavami failed to order ancillary testing in the form of a radiographic study to definitively rule out the presence of a foreign body in Plaintiff’s wrist.  (Pl.’s Additional Disputed Material Facts [AMF], 1.)  He opines that Ms. Sahelimoghavami failed to document the record and failed to describe in her deposition testimony adequate exploration of the wound to visualize its base to determine the presence or absence of a deep foreign body.  (Id. at 2.)  He opines that the ceramic dish that caused the laceration did not shatter and cut her wrist and since Ms. Sahelimoghavami performed such an examination of the laceration and did not discover a foreign body, that it is within the standard of care to presume that no foreign body is present.  (Id. at 3.)  He states that certain materials such as ceramic and glass are considered to be a high risk to result in a foreign body due to their tendency to break into multiple, sharp fragments or shards, such that they are functionally equivalent materials when considering the likelihood of resulting in a retained foreign body.  Dr. O’Connor opines that ignoring the fact that the triage provider, Tracy Baker, documented that the platters Plaintiff was carrying did in fact shatter, the mere involvement of a high-risk material such as ceramic should have greatly heightened Ms. Sahelimoghavami’s suspicion of a retained foreign body in Plaintiff’s right wrist.  (Id. at 4.)  He opines that the wrist is a high-risk area for complication should a foreign body be missed because the presence of multiple vulnerable structures such as nerves, tendons, veins, and arteries aligned together in a compact anatomical area. The threshold for ordering a confirmatory ancillary study such as an x-ray should be quite low for a laceration of a high-risk area caused by a mechanism with an increased risk of foreign body.  (Id. at 5.)  While a thorough physical examination, including exploration of the wound to its base is capable of localizing some foreign bodies, Dr. O’Connor opines it is not a definitive measure because depending on the size, shape, orientation, and depth of a foreign body, its presence can be missed on physical examination alone.  (Id. at 6.)  He opines that while irrigation is capable of removing foreign bodies, this procedure is not definitive, as a foreign body can be retained despite irrigation depending on its size, depth, and possible impaction.  (Id. at 7.)  He states that radiographic imaging has a significantly higher sensitivity for the detection of the presence of radio-opaque foreign bodies than does physical examination alone. He states that there is a preponderance of evidence in the field of Emergency Medicine, that physical examination alone is not sufficient to rule out a retained foreign body.  (Id. at 8.)  He opines that Ms. Sahelimoghavami’s documentation of her examination of Plaintiff’s laceration to rule out the presence of a foreign body is substandard because she noted the presence of a 1.5 cm laceration that is “Linear into the dermis without any foreign body,” but there is no description of any attempt to determine the depth of the wound. The key aspect to an examination of a wound to rule out a foreign body is the exploration of the wound to its base to ensure that no foreign body is present. He states that Ms. Sahelimoghavami fails to discuss visualization of the base of the wound in her medical documentation and during her deposition.  (Id. at 9.)  Dr. O’Connor opines that defense expert Dr. Ricci incorrecntly bases his opinion regarding the standard of care in part on the fact that Ms. Sahelimogahavami, documented that the ceramic dish that caused the laceration “…did not shatter and cut her wrist” and that since she performed an examination of the laceration and did not discover a foreign body, that it was within the standard of care to presume that no foreign body was present.  (Id. at 10.)  He opines that Dr. Lane’s declaration is deficient because it is based in part on assumption and speculation that there was no foreign body, which was without evidentiary support or were based on factors that are speculative or conjectural. He opines that the key aspect to an examination of a wound to rule out a foreign body is the exploration of the wound to its base to ensure that no foreign body is present.  He states that Ms. Sahelimoghavami failed to discuss visualization of the base of the wound in her medical documentation and deposition statements, such that he opines that Dr. Lane’s opinion has no evidentiary value and fails to assist the trier of fact.  (Id. at 11.)

·         Dr. Raven’s Opinions:  Dr. Raven opines that to a reasonable degree of medical certainty that Plaintiff’s ongoing issues are directly related to the initial laceration and the retained ceramic fragment. The ceramic piece, acting like a shard foreign body, likely caused chronic irritation and potential degradation of the tendons, analogous to a rope fraying against a sharp object. This delayed removal more likely than not exacerbated the initial nerve injury, substantially contributing to her prolonged symptoms. Given Plaintiff’s current clinical condition, Dr. Raven states that her prognosis is cautiously optimistic, though her functional capacity remains significantly impacted due to the nerve injury and its consequences. (Pl.’s AMF 12.)  He opines that this case underscores the necessity of thorough initial evaluations in trauma cases, especially when foreign bodies might be involved.  He states that the absence of X-rays or ultrasound in the ER, which would have identified the foreign body, demonstrates a critical oversight in the initial assessment.  (Id. at 13.)  He opines that the delayed removal of the shard in Plaintiff’s wrist more likely than not exacerbated the initial nerve injury and contributed to her prolonged symptoms.  (Id. at 14.)  He opines that Defendants’ negligence is a substantial factor in causing Plaintiff’s injuries.  (Id. at 15.)  Dr. Raven opines that contrary to Dr. Lane’s declaration (¶16) that there was no urgency to remove the shard in Plaintiff’s wrist, the medical records reveal the shard embedded in her wrist was discovered by Dr. Raven on November 18, 2021, via x-ray/ultrasound and that Dr. Raven immediately scheduled Plaintiff for emergency surgery on November 22, 2023 due to “nerve damage, right wrist” and “foreign body, right wrist.”  At the November 22, 2021, surgery, he states it was necessary for him to repair of the median nerve with synthetic conduit, and repair of the flexor tendon to the index finger, flexor tendon to the long finger, and flexor tendon to the ring finger.  (Id. at 16.) 

Plaintiff argues that because PA practice is directed by a supervising physician, and a PA acts as an agent for that physician, the orders given and tasks performed by a PA shall be considered the same as if they had been given and performed by the supervising physician, such that the delegation of procedures to a PA shall not relieve the supervising physician of primary continued responsibility for the welfare of the patient.  (Pl.’s AMF 17.)  She argues that due to the agency relationship between Dr. Fakoory and Ms. Sahelimoghavami and as Ms. Sahelimoghavami’s supervising physician, he states that Dr. Fakoory is vicariously liable for the negligent actions of the PA.  (Id.)  Plaintiff argues that the evidence shows that at the time of Ms. Sahelimoghavami’s clinical encounter with Plaintiff, Ms. Sahelimoghavami did not consult with Dr. Fakoory on any topic at all.  (Id. at 18.) 

At the summary judgment stage, the Court finds that Plaintiff’s opposing expert declarations raise sufficient triable issues of material fact that warrant denying the motion for summary judgment as to Plaintiff’s sole cause of action for professional negligence (medical malpractice).  (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [stating that courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”]; Zavala v. Arce (1997) 58 Cal.App.4th 915, 935 [liberally construing plaintiff’s expert witness declaration and resolving any doubts as to the propriety of granting the motion in favor of the plaintiff, finding that the declaration was sufficient to raise triable issues of material fact].)  The parties have each provided conflicting expert declarations from physicians regarding the standard of care of Defendants and whether Defendants’ acts and/or omissions caused or contributed to Plaintiff’s injuries.

After considering the parties’ papers, the Court finds that Plaintiff has raised triable issues of material fact in her shifted burden on Defendants’ summary judgment motion.  As such, the motion for summary judgment is denied. 

CONCLUSION AND ORDER

            Defendants Nahal Sahelimoghavami PA-C, Nadia Jean Fakoory, M.D., and Burbank Emergency Medical Group, Inc.’s motion for summary judgment is denied.

            Defendants shall provide notice of this order.

DATED:  January 19, 2024                                                    ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court