Judge Kenneth J. Medel, Case Number: 37-2022-00033406-CU-MM-CTL, Date: 2024-05-03 Tentative Ruling

Judge: Kenneth J. Medel, Case: 37-2022-00033406-CU-MM-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024 09:30:00 AM C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited Medical Malpractice Summary Judgment / Summary Adjudication (Civil) 37-2022-00033406-CU-MM-CTL DIKHOW VS JAIBAJI MD [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 02/13/2024

Defendants Moneer Jaibaji, M.D. and Moneer Jaibaji, M.D., Inc.'s Motion for Summary Judgment is DENIED.

Preliminary Matters Plaintiff's evidentiary objection (ROA 49) to Defendants' Exhibit No. 10 is OVERRULED. However, the Court notes the Sharp Grossmont Hospital Consent Authorization offered as Exhibit 10 appears incomplete. (See ROA 40, Benrubi Decl., at Ex. 10, p. 006 [document starts with Item 7 and bottom of the document indicates it is 'Page 2 of 2'].) Defendants' evidentiary objections (ROA 52) failed to comply with California Rules of Court, rule 3.1354(b)(2)-(3), which requires objections to state the exhibit, title, page, and line number of the material objected and quote or set forth the objectionable statement or material. Notwithstanding these deficiencies, Defendants' evidentiary objections are OVERRULED as to Nos. 1, 2, 3, 6, 7, and 8 and SUSTAINED as to Nos. 4, 5, 9, 10, and 12 (foundation).

Plaintiff failed to unequivocally state whether each of Defendants' separate statements of undisputed material fact is 'disputed' or 'undisputed' and failed to reference the exhibit, title, page, and line numbers of supporting evidence in violation of CRC rule 3.1350(f)(2). Plaintiff also failed to comply with CRC rule 3.1116(c), which requires that the relevant portion of any deposition testimony must be marked in a manner that calls attention to the testimony. The Court has nevertheless considered Plaintiff's opposition separate statement.

Generally, 'new evidence is not permitted with reply papers.' (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538 [noting that such evidence 'should only be allowed in the exceptional case' and the other party should be given the opportunity to respond].) The evidence contained in the reply declaration of Gabriel M. Benrubi (ROA 53) goes to Defendants' initial burden on informed consent, rather than to fill gaps created by the opposition. Thus, the Court declines to consider it.

Discussion Defendants move for summary judgment on the grounds there is no triable issue of material fact.

Specifically, Defendants contend they met the standard of care in their medical and surgical treatment and care of Plaintiff, and Defendants did not to a reasonable degree of medical probability cause an injury to Plaintiff. (ROA 39, Notice, at p. 2:1-7.) Calendar No.: Event ID: TENTATIVE RULINGS

3051148 37 CASE NUMBER: CASE TITLE: DIKHOW VS JAIBAJI MD [IMAGED] 37-2022-00033406-CU-MM-CTL Summary judgment 'shall be granted if all 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.' (Code Civ. Proc., � 437c.) A defendant who moves for summary judgment has the initial burden of showing each alleged cause of action is without merit. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) If a defendant meets their burden, the burden shifts to the plaintiff to produce evidence to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., � 437c(p)(2); Aguilar, supra, 25 Cal.4th at 849-851.) If the plaintiff fails to meet that burden, the motion for summary judgment will be granted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) In conducting this analysis, the court must strictly construe the moving party's evidence and liberally construe the opposing party's evidence (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-39), and may not weigh the evidence or conflicting inferences. (Aguilar, supra, 25 Cal.4th at p. 856.) ' 'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed [together with] a reference to the supporting evidence.' ' (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168, emphasis original and citations omitted.) In a medical malpractice action, the plaintiff must establish: (i) the duty of the processional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (ii) a breach of that duty; (iii) a proximate causal connection between the negligent conduct and the resulting injury; and (iv) actual loss or damage resulting from the professional's negligence. (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 238, fn. 3, citing Turpin v. Sortini (1982) 31 Cal.3d 220, 229-30.) The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. (CACI 501; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) 'Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury ... '[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.' ' (Dumas v. Cooney (1991) 25 Cal.App.3d 1593, 1601.) When a defendant moves for summary judgment and supports the motion with expert declarations that the conduct fell within the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) '[T]he plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff.' (Ibid.) Unlike declarations of experts in support of defendants' motions for summary judgment, declarations of plaintiffs' experts in opposition do not have to be detailed and are entitled to all favorable inferences that may be reasonably made from those declarations. (See Id. at p. 125.) When considering expert declarations in the context of a medical malpractice action, the court must liberally construe the opposing declarations, and resolve any doubts as to the validity of the motion in favor of the plaintiff. (Id.

at p. 126.) The Court has considered the evidence and specifically the declarations of Jed H. Horowitz, M.D., and Lloyd M. Krieger, M.D., and finds there are triable issues of fact regarding the standard of care. Liberally construing the declaration of Plaintiff's expert, Dr. Krieger, the Court finds there are triable issues of fact whether Dr. Jaibaji's failure to explain to Plaintiff the increased risks involved in using rib cartilage for her procedure (including the increased risk the rigid rib graft can migrate causing a displacement deformity), failure to obtain Plaintiff's informed and voluntary consent for the procedure, and failure to utilize a less complicated and more routine procedure fell below the standard of care. (ROA 50, Felicia Decl., at Ex. B [Dr. Krieger Decl.], �� 26, 27, 31.) The Court also finds there are triable issues of fact regarding causation. In a medical malpractice action, Calendar No.: Event ID: TENTATIVE RULINGS

3051148 37 CASE NUMBER: CASE TITLE: DIKHOW VS JAIBAJI MD [IMAGED] 37-2022-00033406-CU-MM-CTL the element of causation is satisfied when a plaintiff produces sufficient evidence 'to allow the jury to infer that in the absence of the defendant's negligence, there was a reasonable medical probability the plaintiff would have obtained a better result.' (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216, citations omitted.) Dr. Krieger opines that one of the increased risks of using rib cartilage is the chance that a rigid rib graft can migrate causing a displacement deformity, which occurred here. (Felicia Decl., at Ex. B [Dr. Krieger Decl.], � 27.) Dr. Krieger also opines that had Dr. Jaibaji not used a rib graft, it is more likely than not that Plaintiff's surgery would not have resulted in the rigid rib graft migrating away from its position at the bridge of Plaintiff's nose, would not have caused a disfiguring deformity, extreme pain, and difficulty breathing, and would not have required corrective surgery. (Id. at � 32.) Dr. Krieger further opines that had Dr. Jaibaji explained the increased risks involved with the use of rib cartilage to Plaintiff, she would never have elected that procedure. (Id. at � 28.) Based on these paragraphs, triable issues exist.

As to informed consent, Defendants offer an authorization purportedly signed by Plaintiff. (See ROA 40, Benrubi Decl., at Ex. 10, p. 006.) Defendants did not provide sufficient foundation for this authorization, which as the Court previously noted appears incomplete. Additionally, there are triable issues regarding whether Plaintiff executed the authorization. Plaintiff provides her declaration attesting she never executed an informed consent document and disputes that the signature on the authorization offered by Defendants is hers. (ROA 50, Felicia Decl., Ex. A [Dikhow Decl.] at �� 5-6, 8-13.) Plaintiff also provides evidence that Defendants never produced this document, as well as her deposition testimony that Dr.

Jaibaji's office did not provide Plaintiff with a consent form and Dr. Jaibaji did not explain any potential consequences of the surgery. (Id. at �� 5-11 and Ex. C, pp. 62:9-63:12.) Accordingly, Defendants' motion for summary judgment is DENIED.

Conclusion The minute order will be the final ruling of the Court. Plaintiff is ordered to serve written notice of ruling on all parties.

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3051148 37