Judge: Lee S. Arian, Case: 21STCV05557, Date: 2024-06-05 Tentative Ruling

Case Number: 21STCV05557    Hearing Date: June 5, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27 

MOTION FOR SUMMARY JUDGMENT 

Hearing Date: 6/5/24 

CASE NO./NAME: 21STCV05557 SHAHRAM RASHIDIAN, et al. vs FARSHID HEKMAT

Moving Party: Defendant Shirin Hekmat, MD

Responding Party: Plaintiffs

Notice: Sufficient

Ruling: MOTION FOR SUMMARY JUDGMENT IS GRANTED

Background

On February 11, 2021, Plaintiffs Shahram Rashidian and Negar Estakhr filed this case against Farshid Hekmat, M.D., Jamshid Juda Hekmat, M.D., Shirin Hekmat, M.D., and Hekmat Orthopaedics Medical Group Inc. The complaint contains two causes of action: Plaintiff Shahram Rashidian’s claim for medical malpractice and Plaintiff Negar Estakhr’s claim for loss of consortium. Plaintiffs allege that Defendants were negligent in performing Rashidian’s surgeries and in preventing Rashidian from getting an infection during his surgeries. Defendant Shirin Hekmat, the anesthesiologist for the surgeries, now moves the Court for summary judgment on the basis that she did not cause Plaintiff’s injuries and her conduct did not fall below the applicable standard of care. Plaintiff did not file an opposition.

Legal Standard

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.”¿(Code Civ. Proc., § 437c, subd. (p)(2).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿“If the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) 

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿ While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Medical Malpractice and Loss of Consortium

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, 701-02.) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 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.)  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.)

A married person may recover for loss of consortium when his or her spouse has been injured by the negligence of a third party. (See Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, 31.) The elements for a loss of consortium cause of action are: (1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant’s act. (See Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.) “‘A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.’” (Id. (quoting Hahn vs Mirda (2007) 147 Cal.App.4th at 746).)

Discussion

Defendant presented the expert opinion of Dr. Kevin P. Becker who declares that "After reviewing the relevant materials in this case, and based upon my education, training, and experience, it is my opinion that anesthesiologist Shirin Hekmat, M.D., complied with the applicable standard of care in the care and treatment of Shahram Rashidian." (Declaration of Dr. Kevin P. Becker ¶ 8.) The workup and decision to perform the epidural injections by Shirin Hekmat, M.D., on July 22, 2019, and August 14, 2019, complied with the standard of care. (Becker Decl. ¶ 9.)

Furthermore, Dr. Becker further declares that "based upon my education, training, and experience, as well as the medical records in this case, no act or omission by Shirin Hekmat, M.D., caused or contributed to the alleged injuries of Shahram Rashidian." (Becker Decl. ¶ 10.) Shirin Hekmat, M.D., properly performed the epidural injections on July 22, 2019, and August 14, 2019, as well as providing anesthesia services during the procedures on December 5, 2019, and January 23, 2020. (Becker Decl. ¶ 11.) Shirin Hekmat, M.D., was not in the surgical field during the procedure and could not have caused any infection. (Becker Decl. ¶ 11.) Thus, "to a reasonable degree of medical probability, no act or omission by Shirin Hekmat, M.D., caused or contributed to the injuries alleged by Shahram Rashidian." (Becker Decl. ¶ 11.)

Defendant has met her initial burden in negating the elements of duty and causation of Plaintiff Rashidian’s medical malpractice cause of action. Plaintiffs failed to file an opposition and raise a triable issue of fact. Therefore, summary judgment is GRANTED as to Plaintiff Shahram Rashidian’s medical malpractice claim against Defendant Shirin Hekmat, M.D.

Because the Court granted summary judgment dismissing Shahram Rashidian’s medical malpractice claim, there is no existing cause of action for tortious injury upon which Plaintiff Negar Estakhr’s claim for loss of consortium could be based.  donsequently, summary judgment is also GRANTED as to Plaintiff Negar Estakhr’s claim for loss of consortium.

PLEASE TAKE NOTICE: 

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue. 

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion.