Judge Melvin D. Sandvig, Case Number: 21STCV26434, Date: 2023-09-21 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 21STCV26434, Date: 2023-09-21 Tentative Ruling

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Case Number: 21STCV26434 Hearing Date: October 3, 2023 Dept: F47

Dept. F47

Date: 10/3/23 TRIAL DATE: 2/5/24

Case #21STCV26434

2 MOTIONS FOR SUMMARY JUDGMENT

Motion # 1 filed on 9/28/22. Motion # 2 filed on 6/7/23.

MOVING PARTY: Defendant Bassam Bejjani, M.D.

RESPONDING PARTY: Plaintiff Felix Soto

NOTICE: ok

RELIEF REQUESTED: Both motions seek an order granting summary judgment in favor of Defendant Bassam Bejjani, M.D. The motion filed on 9/28/22 is based on statute of limitations. The motion filed on 6/7/23 is based on the “merits.”

RULING: The motion filed on 9/28/22 is placed off calendar. The motion filed on 6/7/23 is denied.

SUMMAR OF FACTS & PROCEDURAL HISTORY

This action arises out of the care and treatment provided by Defendant Bassam Bejjani, M.D. (Defendant) to Plaintiff Felix Soto (Plaintiff).

Defendant first saw Plaintiff, then 68 years old, on 12/18/18, at Mission Community Hospital. At that time, Plaintiff presented with kidney stones; therefore, Defendant performed extracorporeal shock wave lithotripsy (ESWL) therapy which is a procedure to break up stones inside the urinary tract with a series of shock waves generated by a machine called a lithotripter. (See Fred Kuyt, M.D. Decl. (Dr. Kuyt Decl.) ¶7; Ex.D, F). An x-ray of the abdomen performed on 4/19/19, revealed that Plaintiff still had a stone in his ureter. (Dr. Kuyt Decl. ¶8; Ex.D, F).

On 5/28/19, Defendant performed a cystoscopy, left ureteropyeloscopy, and laser lithotripsy at Southern California Stone Center. Defendant also placed a J-J stent into Plaintiff’s bladder and kidney, with a string attached to it that was wrapped around the penis and was taped to the penis to secure the string which is a recognized manner of securing the stent. (Dr. Kuyt Decl. ¶9; Ex.D, F).

Defendant noted that Plaintiff failed to appear for his follow-up appointment on 6/3/19, and instead came into the office on 6/7/19. (Dr. Kuyt Decl. ¶10; Ex.D, F). Defendant assessed the penis for the string that he had attached to secure the stent; however, when Defendant could not find the string, he concluded that the stent had come out four days prior. (Dr. Kuyt Decl. ¶¶11-12, Ex.D, F).

On 9/18/19, Plaintiff’s son called Defendant’s office and indicated that he wanted to bring his father in. Either Defendant, or his representative, advised Plaintiff/Plaintiff’s son that the office would need to request health insurance authorization in advance of seeing the patient. When the insurance group (Regal) was contacted, it was discovered that Plaintiff was no longer covered, and had not been so as of 6/30/19. Plaintiff was so advised. (Dr. Kuyt Decl. ¶13; Ex.D, F).

On 11/19/20, Defendant was contacted by Mission Community Hospital to perform a urologic consultation, who happened to be Plaintiff. At that time, Defendant discovered that the J-J stent was still there, and that Plaintiff’s insurance would only cover treatment at Olive View-UCLA Medical Center. (Dr. Kuyt Decl. ¶14; Ex.D, F). Defendant spoke to the case manager, and arranged for transfer to Olive View, where Plaintiff’s stent was removed. (Dr. Kuyt Decl. ¶15; Ex.D, F).

On 7/19/21, Plaintiff filed this action against Defendant for medical negligence. Defendant Bassam Bejjani, M.D. (Defendant) has filed two separate motions for summary judgment. The first motion, based solely on the statute of limitations, was filed on 9/28/22 and originally set for hearing on 4/25/23 when this action was pending in Department 27 in the Spring Street Courthouse. Before the 4/25/23 hearing, this action was transferred to this department and rescheduled for hearing on 10/3/23.

On 6/7/23, Defendant filed a second motion for summary judgment on the merits of the case which was scheduled for hearing on 9/21/23.

On 9/14/23, Plaintiff Felix Soto (Plaintiff) filed an opposition which lists the 10/3/23 hearing date and addresses the arguments in both motions. The opposition is untimely for the 9/21/23 hearing date but is timely for the 10/3/23 date. On 9/15/23, Defendant filed a reply to the opposition on the merits for the 9/21/23 hearing date.

To ensure both parties had the opportunity to present their arguments in support of and in opposition to the two motions, on 9/21/23, the Court continued the hearing on the motion for summary judgment on the merits to 10/3/23 and allowed Defendant to supplement its reply arguments in relation to that motion as well as address the opposition arguments made in relation to the motion for summary judgment based on statute of limitations. (See 9/21/23 Minute Order).

On 9/26/23, Defendant filed another reply wherein he indicates that he is withdrawing the motion for summary judgment based on statute of limitations and the reply only addresses the motion for summary judgment on the merits. (See 9/26/23 Reply, p.1:27-p.2:1). Accordingly, the analysis only addresses the motion for summary judgment on the merits.

ANALYSIS

The elements of a medical negligence cause of action 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.” Johnson (2006) 143 CA4th 297, 305.

The duty owed in medical negligence/malpractice actions is measured by the standard of care in the community. See Munro (1989) 215 CA3d 977, 983-984. Whether the duty owed by a physician to a patient has been breached and whether such breach caused the patient’s injury is usually a matter peculiarly within the knowledge of experts whose testimony is required to prove or rebut such an allegation. See Willard (1981) 121 CA3d 406; Keen (1972) 23 CA3d 275, 279; Bromme (1992) 5 CA4th 1487, 1498; Williams (1995) 33 CA4th 120, 132-133.

Defendant does not dispute that he owed a duty of care to Plaintiff. Rather, the motion is based on the claim that Defendant has provided expert opinion through the declaration of Fred Kuyt, M.D. (Dr. Kuyt) that Defendant met the applicable standard of care and nothing Defendant did or did not do caused or contributed to Plaintiff’s injuries.

While the motion is supported by an expert declaration and the opposition is not, in this case, Plaintiff’s failure to submit an opposing expert opinion is not fatal to his claim. Here, Defendant’s expert’s declaration is based, in part, on the following:

“19. In this case, Dr. Bejjani initially complied with the standard of care by offering the patient the opportunity to have the stent removed by him as his urologist; however, when Mr. Soto presented to Dr. Bejjani, he reported information consistent with the scenario that the stent had either come out on its own or that the patient had removed it, which Dr. Bejjani concluded was the case.

20. Based upon the information reported to Dr. Bejjani, and Dr. Bejjani's interpretation of the totality of the information available, it was not unreasonable for Dr. Bejjani to have construed that the stent had come out on its own, in which case follow-up imaging would not have been required by the standard of care to confirm same.” (emphasis added).

(Fred Kuyt, M.D. Decl. ¶¶19-20).

Defendant’s notes from 6/7/19, the day Plaintiff purportedly reported information to Defendant which made Defendant reasonably presume the stent had been removed by Plaintiff or had come out on his own, do not reflect any conversation between Plaintiff and Defendant. (See Defendant’s Evidence, Ex.F, DEF003). Additionally, Dr. Kuyt’s declaration never states what information was purportedly reported to Defendant by Plaintiff which makes Dr. Kuyt opine that it was reasonable for Defendant to construe that the stent had come out on its own or that Plaintiff had removed it. (See Dr. Kuyt Decl. ¶¶19-20). Dr. Kuyt says that he reviewed the complaint, Plaintiff’s medical records from Defendant’s office and the depositions of Defendant and Plaintiff. (Kuyt Decl. ¶6). However, he does not identify what portions of the deposition transcripts or medical records helped form his opinion.

Additionally, both Plaintiff and his son, who was present at the 6/7/19 appointment, state in their declarations that during the 6/7/19 appointment, Defendant “did not use the word stent,” “did not ask any questions about any string or string attached to a stent,” “did not discuss a stent or any string that was attached to a stent,” and that “[t]he only statement [Defendant] made … was that [Plaintiff] smelled and that he should take a shower.” (See Michael Soto Decl. ¶4; Felix Decl. ¶3).

Because there is a dispute regarding the facts which underlie Dr. Kuyt’s opinion, a triable issue of material fact exists as to the validity of Dr. Kuyt’s opinion that Defendant met the applicable standard of care and/or did not cause or contribute to Plaintiff’s injuries. As such, the Court finds that an opposing expert opinion declaration is not necessary to deny the motion.

CONCLUSION

Based on the foregoing, Defendants motion for summary judgment on the merits filed on 6/7/23 is denied.

Based Defendant’s withdrawal of his motion for summary judgment based on statute of limitations filed on 9/28/22, that motion is placed off calendar.