Judge Lynne M. Hobbs, Case Number: 22STCV08492, Date: 2023-10-27 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV08492, Date: 2023-10-27 Tentative Ruling

Case Number: 22STCV08492 Hearing Date: October 27, 2023 Dept: 30

ALLISON WU, AN INDIVIDUAL vs PAYMAN JOSEPH M.D., AN INDIVIDUAL, et al.

Motion for Summary Judgment

TENTATIVE

Defendants Payman Joseph, MD and Payman Joesph, MD (d/b/a Van Nuys Women’s Care Medical Center)’s Motion for Summary Judgments is DENIED.

Discussion

Plaintiff presented to Defendants’ medical facility on March 22, 2021 with extreme left sided abdominal pain and vaginal bleeding. Plaintiff alleges Defendants negligently failed to diagnose her with an ectopic pregnancy and discharged her without providing proper treatment.

On March 9, 2022, Plaintiff filed a complaint against Defendants Payman Joseph, MD and Van Nuys Women’s Care alleging (1) medical negligence and (2) negligence-failure to adequately screen medical staff.

Defendants Payman Joseph, MD and Payman Joesph, MD (d/b/a Van Nuys Women’s Care Medical Center) moves for summary judgment of Plaintiff’s complaint for negligence and negligent hiring/retention.

Arguments:

Defendants argue they acted within the standard of care as attested to by expert Joseph Ouzounian, MD. Defendants argue Payman diagnosed Plaintiff with an intrauterine pregnancy via ultrasound and was not required by the standard of care to test for an ectopic pregnancy. Defendants argue that the condition suffered by Plaintiff was a heterotopic pregnancy, an extremely rare condition. Defendants argue that Payman complied with the applicable standard of care given the circumstances.

Defendants argue nothing they did or failed to do caused Plaintiff’s alleged injuries. Defendants argue earlier diagnosis of Plaintiff’s condition would not have affected the outcome. Defendants argue that the later diagnosis and treatment of the ectopic aspect of Plaintiff’s pregnancy may have resulted in a better outcome, because the intrauterine pregnancy was more stable when surgery was performed.

In opposition, Plaintiff argues Defendants failed to meet their burden. Plaintiff argues that even if Defendants had met their burden, Plaintiff’s expert raises a triable issue of fact as to both breach of the duty of care and causation. Plaintiff’s expert opines that Payman’s treatment of Plaintiff fell below the standard of care, because he failed to properly take her medical history, failed to perform a proper physical exam, failed to perform a proper sonogram and failed to make a reasonable medical record.

Plaintiff also argues earlier diagnosis of her condition would have resulted in her not having to undergo tubal removal. Plaintiff argues she would have been able to preserve her left fallopian tube had her condition been diagnosed earlier.

On reply, Defendants argue they satisfied their burden as moving party by submitting a proper expert declaration negating both breach and causation. Defendants argue Plaintiff did not formally object to the expert declaration based on lack of foundation.

Defendants argue Plaintiff’s expert practices in Texas and is therefore unqualified as an expert on the applicable standard of care to California obstetricians. Defendants also argue Plaintiff’s experts opinions regarding both breach and causation lack foundation.

Rationale:

Defendants satisfy their burden of production as moving parties. Defense expert Joseph Ouzanian opines that the treatment provided by Defendants to Plaintiff was within the applicable standard of care given the circumstances. (Ouzanian Dec., ¶¶10-21.) Ouzanian also opines that nothing Defendants did or failed to do caused injury to Plaintiff within a reasonable degree of medical probability. (Id. at ¶¶22-25.) Defendants negate the elements of breach and causation. Plaintiff did not file any objections to Ouzanian’s declaration.

Since Defendants have met their burden, the Court turns to Plaintiff to determine whether she raises a triable issue of fact as to both breach and causation. Plaintiff’s expert James Wheeler opines that Defendant Payman breached the applicable standard of care in multiple ways, including failing to elicit a comprehensive medical history, failing to perform a physical examination of Plaintiff, failing to perform a sufficiently detailed ultrasound exam, failing to perform a transvaginal ultrasound, and failing to record a reasonable medical record besides the extant two ultrasound images. (Wheeler Dec., ¶22.) Wheeler also opines that if Payman had not breached the standard of care, Plaintiff’s heterotopic pregnancy would have been diagnosed and surgery would only have required removal of the ectopic with preservation of the tube and intrauterine pregnancy, rather than removal of her fallopian tube. (Id. at ¶¶22-26.)

Defendants’ evidentiary objections to the declaration of Wheeler are overruled. The Court finds that Wheeler is qualified to attest to the applicable standard of care, even though he is a physician who practices in Texas, not California. "The test for determining familiarity with the standard of care is knowledge of similar conditions. Geographical location may be a factor considered in making that determination, but, by itself, does not provide a practical basis for measuring similar circumstances.” (Avivi, supra, 159 Cal.App.4th at 480 (orthopedist from Israel was sufficiently qualified to provide an opinion about standard of care for treating fractures in the United States and fractures similar to patient’s).) In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100.) “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.) His expert opinion that Payman’s treatment of Plaintiff fell below the standard of care, because he failed to properly take her medical history, failed to perform a proper physical exam, failed to perform a proper sonogram and failed to make a reasonable medical record, thereby causing her to lose a fallopian tube, is enough to raise triable issues of fact regarding breach and causation. ( Wheeler Dec., ¶¶22-26.)

For the foregoing reasons, Defendants’ Motion for Summary Judgment is DENIED.