Judge: Loren G. Freestone, Case: 37-2022-00016606-CU-MM-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Medical Malpractice Summary Judgment / Summary Adjudication (Civil) 37-2022-00016606-CU-MM-CTL DALY VS ALAVI MD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Sassan Alavi MD, Sassan Alavi MD Inc.'s motion for summary judgment as to the complaint filed by Plaintiff Jayme Daly is DENIED.

Evidentiary Issues Defendants' evidentiary objections to the Declarations of Dr. Munish Barta and Dr. Joshua Rosenbaum (ROA #99) are overruled.

Both parties' objections that were made directly in the separate statement are also overruled. (Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8–9.) Analysis Daly alleges a single cause of action for medical malpractice. Defendants move for summary judgment on the grounds they met the standard of care and did not cause Daly's injuries.

'Whenever the plaintiff claims negligence in the medical context, the 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. California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care [or was not the cause of the plaintiff's injuries], he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.' (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) In terms of the sufficiency of expert declarations, courts have drawn a distinction between those supporting the motion and those opposing the motion. (See Powell, supra, 151 Cal.App.4th at pp.

123–125.) To satisfy the moving party's initial burden, the expert declaration must 'be detailed and with foundation.' (Id. at p. 125, citing Kelley v. Trunk (1998) 66 Cal.App.4th 519.) To satisfy the opposing party's burden of raising a triable issue, the expert declaration does 'not have to be detailed' and is 'entitled to all favorable inferences.' (Powell, supra, 151 Cal.App.4th at p. 125, citing Hanson v. Grode (1999) 76 Cal.App.4th 601.) Calendar No.: Event ID:  TENTATIVE RULINGS

3007216  44 CASE NUMBER: CASE TITLE:  DALY VS ALAVI MD [IMAGED]  37-2022-00016606-CU-MM-CTL Here, Defendants submitted a declaration from their expert plastic surgeon (Marek Dobke M.D.), who opines that Defendants met the standard of care and did not cause Daly's injuries. Dr. Dobke opines that it is 'inconceivable' the cannula inserted into Daly's lower abdomen during the liposuction procedure could have reached her lung or breast. He also opines that if Daly's lung had been punctured, then there would have been blood and the anesthesiologist would have noticed it on her vitals. Daly does not dispute that Dr. Dobke's declaration is sufficient to meet Defendants' initial burden.

Daly, on the other hand, submits declarations from her expert diagnostic radiologist (Joshua Rosenbaum M.D.) and expert plastic surgeon (Munish Batra M.D.), who collectively opine that Defendants did not meet the standard of care and caused Daly's injuries. Dr. Rosenbaum reviewed Daly's radiology scans to determine the 'surgical tract and surgical pathway during [her] liposuction procedure.' Dr.

Rosenbaum noted that location of the liposuction stated in Defendants' surgical report 'does not correlate with the findings evidenced on the CT scan of Plaintiff following the surgery,' and that despite Defendants' claim that liposuction was not performed near Daly's pneumothorax, 'the surgical tract and fluid is near that area.' Based upon 'the absence of other radiographical causes for pneumonthorax within the scans, the proximity of the surgical tract to the pneumothorax and pleural fluid, the timing of Plaintiff's symptoms, and other evidence depicted in the scans,' Dr. Rosenbaum opines that Defendants were the cause of Daly's lung injury. Dr. Batra, in turn, opines that Defendants act of puncturing Daly's lung during the liposuction procedure fell below the standard of care. Further, Dr. Batra opines Defendants' failure to timely treat her complications from the surgery fell below the standard of care, an issue not satisfactorily addressed by Dr. Dobke's declaration.

Defendants object to the Rosenbaum and Batra expert declarations on the grounds they lack foundation and are impermissibly speculative/conclusory. But under Powell and Hanson, they are sufficient to raise a triable issue.

Defendants also argues that Dr. Rosenbaum did not offer his opinion 'to a reasonable degree of medical probability.' However, Dr. Rosenbaum did opine that Defendants 'more likely than not' caused the injury. The two quoted phrases mean the same thing. (See Kline v. Zimmer, Inc. (2022) 79 Cal.App.5th 123, 129 ['The reasonable medical probability standard mirrors the more-likely-than-not standard in general negligence actions']; Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735, 745 [there is no 'heightened standard for causation in medical malpractice cases' and 'the reference to 'medical probability' in medical malpractice cases is no more than a recognition the case involves the use of medical evidence'].) Conclusion There are triable issues as to whether Defendants' conduct fell below the standard of care and caused Daly's injuries. As such, the motion for summary judgment is denied.

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