Judge: Linda S. Marks, Case: 2018-01006528, Date: 2022-11-28 Tentative Ruling
Motion for Summary Judgment and/or Adjudication filed by Kevin Sadati, The Gallery Of Cosmetic Surgery Professional Corporation on 6/6/22
Defendants Kevin Sadati, M.D. (“Dr. Sadati”) and Gallery of Cosmetic Surgery Professional Corporation’s (collectively, “Defendants”) moved for summary judgment and/or summary adjudication as to Plaintiff Jean Shir’s (“Plaintiff”) operative Second Amended Complaint.
This is a medical malpractice action relating to the plastic surgery Plaintiff received from Dr. Sadati at the Gallery of Cosmetic Surgery Professional Corporation. Plaintiff’s operative Second Amended Complaint contains one remaining cause of action for professional negligence.
Legal Authority:
“Summary judgment is appropriate if all the papers submitted 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.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 603, as modified (Nov. 29, 1999) [citing Code Civ. Proc., § 437c, subd. (c)].)
“We must determine whether the facts as shown by the parties give rise to a triable issue of material fact.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 604, as modified (Nov. 29, 1999).) “In making this determination, the moving party's affidavits are strictly construed while those of the opposing party are liberally construed.” (Ibid.) “We accept as undisputed facts only those portions of the moving party’s evidence that are not contradicted by the opposing party's evidence” (Ibid.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true.” (Ibid.)
The elements of a cause of action for professional negligence (medical malpractice) are: “(1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)
“The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607, as modified (Nov. 29, 1999).)
“When 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.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607; Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 289.)
Defendants Did Not Carry Their Burden:
The records submitted with Defendants’ “Amended Notice of Lodgment of Records Reviewed by Medical Expert, Terry Dubrow, M.D.” in support of their motion for summary judgment were not properly authenticated. (See ROA # 303.) Defendants did not submit a declaration with their moving papers that properly authenticates the exhibits included in the Notice of Lodgment. (Evid. Code, §§ 1400 and 1401, subd. (a) [“Authentication of a writing is required before it may be received in evidence.”].) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.)
“Without those hospital records, and without testimony providing for authentication of such records, [the expert’s] declaration had no evidentiary basis.” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742.) Without proper authentication, “expert medical opinion on whether defendant [] met the standard of care ha[s] no evidentiary value.” (Ibid.)
“A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact.” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742–743 [citing Evid. Code, § 801, subd. (a)].) “Even so, the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact.” (Ibid.)
Here, Defendants submitted an “Amended Notice of Lodgment of Records Reviewed by Medical Expert, Terry Dubrow, M.D.” in support of their motion for summary judgment. (See ROA # 303.) In the Amended Notice of Lodgment, Defendants identify eleven sets of documents that Dr. Dubrow reviewed in forming his opinion “to comply with the requirements set forth in Garibay v. Hemmat (2008) 161 Cal.App.4th 735.” (Id. at p. 2:10-11.) The documents include:
(1) Plaintiff’s medical records from Kevin Sadati, D.O.
(2) Plaintiff medical records from California Head and Neck
(3) Plaintiff’s medical records from Rancho Medical Group, Inc.
(4) Deposition Transcript of Jean Shir
(5) Plaintiff’s Verified Responses to Form Interrogatories, Set One, dated July 13, 2021.
(6) Plaintiff’s Verified Responses to Request for Admissions, Set One, dated July 13, 2021.
(7) Plaintiff’s Verified Responses to Request for Production of Documents, Set One, Dated May 17, 2019.
(8) Plaintiff’s Verified Responses to Form Interrogatories, Set One, Dated May, 17, 2019.
(9) Complaint
(10) First Amended Complaint
(11) Plaintiff’s Medical Records from Yoram Haviv, M.D. (ROA # 303.)
Notably, however, these records are authenticated in the declarations submitted by Defendants. (See ROA #274, at p.15, Declaration of David Klehm, ¶¶1-5; see also ROA #275, Declaration of Terry Dubrow, M.D., ¶¶ 1-13.) Although Dr. Dubrow mentions a number of documents that he reviewed in forming his opinion, his reference to the documents does not authenticate the documents because they do not establish that the documents are what they claim to be. (ROA #275, Declaration of Terry Dubrow, M.D., ¶ 4.) In fact, neither the declaration of David Klehm nor Terry Dubrow expressly identify each of the documents attached as Exhibit A or state that such medical records are attached as an exhibit.
Dr. Dubrow’s only reference to the medical records is as follows:
“In forming the opinions set forth in this Declaration, I have reviewed medical records concerning the plaintiff, Jean Shir., [sic] from the medical office of Kevin Sadati, M.D., and the Gallery of Cosmetic Surgery, and the deposition transcript of plaintiff, Jean Shir, and plaintiff’s responses to defendants’ Judicial Special Interrogatories, Requests for Admissions and Demands for Productions of Documents and the recently provided medical records from Dr. Yoram Haviv, M.D. My review of the aforementioned medical records reveals the following pertinent facts:” (ROA # 275, Declaration of Terry Dubrow, M.D., ¶ 4.)
David Klehm only states the following regarding Exhibit A, which has nothing to do with the medical records Dr. Dubrow apparently relies upon in his declaration:
“Attached hereto as Exhibit “A” is a true and correct copy of the highlighted relevant excerpts from plaintiff’s expert, Dr. Hershcovitch’s deposition taken on June 23, 2021, indicating that after his review of additional medical records not previously provided to him, he no longer holds his prior opinions as stated in his Declaration filed in Opposition to defendants’ prior MSJ.” (ROA #274, at p.15, Declaration of David Klehm, ¶ 4.)
As seen from both of the declarations, the only document that is properly authenticated is the Dr. Herschcovitch’s deposition excerpts. Accordingly, the medical records relied on by Dr. Dubrow were not properly authenticated by either Dr. Dubrow or David Klehm.
Defendants’ expert’s opinion is not supported by an evidentiary basis as required by Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742.
Even If Defendants Carried Their Burden, Plaintiff Submitted Sufficient Conflicting Expert Evidence:
Here, Plaintiff submitted sufficient conflicting expert evidence such that the motion must be denied. Plaintiff presented the declaration of expert Meir Hershcovitch, M.D. Dr. Hershcovitch’s declaration disputes Defendants’ Undisputed Material Facts 8, 11, 12, and 13 regarding whether Defendant breached the standard of care and caused the injuries to Plaintiff.
Defendants argue that in his deposition, Dr. Hershcovitch recanted his declaration testimony. The court finds that Dr. Hershcovitch did not recant his declaration testimony such that there are no triable issues of material fact. Rather, Dr. Hershcovitch’s deposition testimony highlights triable issues of material facts surrounding the timeline and scope of the facial nerve injury that Plaintiff allegedly sustained, which are directly relevant to the elements of breach of duty and cause. As Dr. Hershcovitch repeatedly stated in his deposition, there are conflicts between the information given by Plaintiff and the information given by Dr. Sadati surround when Plaintiff sustained the allege nerve injuries, what/who caused those injuries, and whether Dr. Sadati met the standard of care in treating those injuries based on when, how, and by whom Plaintiff sustained those injuries. These conflicts are triable issues of material fact that must be resolved by the jury.
Accordingly, even if Defendants have met their burden, Plaintiff has raised triable issues of material fact regarding the first cause of action for professional negligence.
Tentative Ruling: Defendants’ Motion for Summary Judgment and/or Summary Adjudication is DENIED.
Prevailing party to give notice.