Judge: Michael Small, Case: 22STCV23033, Date: 2024-04-02 Tentative Ruling

Case Number: 22STCV23033    Hearing Date: April 2, 2024    Dept: 57

Pending before the Court is the motion for summary judgment of Defendants Cedars-Sinai Health System dba Cedars-Sinai Medical Center; Glenn B. Pfeffer, M.D. and Cedars-Sinai Medical Center (collectively, “Defendants”) on Plaintiff Edwin Savadian’s complaint against them for medical malpractice.  Savadian’s medical malpractice claim arises from a procedure that Defendants performed on his leg in  2021.  The Court is denying Defendants’ motion.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c(a)(1).)  A cause of action has no merit if “one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.” (Id., § 437c(o)(1).)    The function of a motion for summary judgment is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  In analyzing motions 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.)  Under this framework, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).

As to each claim as framed by the complaint, a defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense.  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)  Once the defendant moving party has met its burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (Code Civ. Proc., § 437c(p)(2).) When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication.  (Id., § 437c(c), (o).)   

 “The elements of a cause of action for 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.)   “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 [“Avivi”].)  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.’ [citations.]” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 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.)    “[C]ausation in actions arising from medical negligence must be proven within a reasonable medical probability based on competent expert testimony, i.e., something more than a ‘50–50 possibility.’ [Citations.]” (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504.)   “[T]he appropriate test for expert qualification in ordinary medical malpractice actions is whether the expert is familiar with circumstances similar to those of the respondents; familiarity with the standard of care in the particular community where the alleged malpractice occurred, while relevant, is generally not requisite . . .” (Avivi, supra, 159 Cal.App.4th at 465.)

Defendants contend that they complied with the applicable standard of care and there is nothing they did or failed to do that caused or contributed to Savadian’s injury. In support of those contentions, Defendants present the expert declaration of Dr. Michael Pinzur.  Dr. Pinzur’s declaration sets forth his professional opinion that the procedure Defendants performed on Savadian was necessary for his “presenting condition and functional complaints” and that “pre-operative vascular studies were not necessary . . . because [Savadian] had good palpable pulses to his foot.” (Pinzur Dec., ¶¶ 7-8.) As to causation, Dr. Pinzur opines that “[t]he post-operative complications suffered by Mr. Savadian were not the result of any vascular insufficiency, nor were they the result of the cast” Defendants placed on Savadian. (Id., ¶ 12.)

In opposition to Defendants’ motion for summary judgment, Savadian objects to Dr. Pinzur’s declaration on the grounds that Dr. Pinzur is not qualified to render his opinion and that his opinion lacks foundation.  As to his qualifications, Dr. Pinzur states that he is licensed to practice in the State of Illinois where he has been in practice for more than 40 years. (Pinzur Decl., ¶ 1.)  Savadian contends that Dr. Pinzur is not qualified to testify on the standard of care in 2021 in Southern California (the geographic location where Defendants performed the procedure on Savadian) because Dr. Pinzur has not practiced there and is not licensed to practice there either.   As to the foundation of Dr. Pinzur’ opinion, Savadian contends that Dr. Pinzur fails to lay the foundation for his stated “familiar[ity] with the standard of care as it existed in 2021 in Southern California for the management of patients and medical conditions such as those presented by Edwin Savadian.” (Id., ¶ 5.)

The Court need not rule on the validity of Savadian’s objections to Dr. Pinzur’s declaration in order to dispose of Defendants’ motion for summary judgment.  That is because even if those objections are invalid, Savadian has submitted the declaration of his own medical expert, Dr. David Tepper, and Dr. Tepper’s declaration fundamentally contradicts Dr. Pinzur’s declaration and thereby creates triable issues of material fact on Savadian’s medical malpractice claim.  

Specifically, in his declaration, Dr. Tepper opines that Defendants fell below the applicable standard of care when they proceeded to operate on Savadian without ordering a CT arteriogram of the left lower extremity to evaluate the vascular system pre-operatively. (Tepper Decl., ¶ 12.)  Dr. Tepper notes that Savadian had previously undergone multiple lengthening procedures on the same leg and had a history of smoking; according to Dr. Tepper, this meant that Savadian was not a candidate to undergo an additional lengthening procedure to his already compromised vascular system in his left lower extremity. (Id.., ¶¶ 9, 12, 17, 18.)  In direct contrast to Dr. Pinzur’s opinion, Dr. Tepper  opines that preoperatively palpating the foot for vascular integrity is an outdated standard of care. (Id., ¶ 14.) Dr. Tepper further opines that the applicable standard of care for circumstances like Savadian’s is an arteriogram, which has been the standard for the past 20 years. (Ibid.)  Dr. Tepper’s declaration also contradicts Dr. Pinzur’s as to causation. In particular, Dr. Tepper opines to a reasonable degree of medical probability that Savadian’s pain, discoloration, and dying tissue post-operation resulted from poor circulation that was caused by the procedure itself and the way Savadian’s foot was positioned in the cast that was placed on Savadian after the procedure. (Id., ¶ 19.)  Dr. Tepper concludes that Defendants’ “failures to address complication of the loss of circulation post operatively and make adjustments to the foot position, more than just a bivalved cast, was a substantial factor in the necrosis of the left calf flap and distal foot.” (Id., ¶ 21.)

Defendants did not file a reply brief in support of their motion for summary judgment.   As a result, they have not presented any evidence or argument to convince the Court to ignore the opinions that Dr. Tepper offers in his declaration.   The Court thus has before it two  competing expert declarations, Dr. Pinzur’s and Dr. Tepper’s, that come to diametrically opposite conclusions on whether the Defendants engaged in medical malpractice in performing the procedure on Savadian that gives rise to this action.  In sum, there are disputed issues of material arising from the competing expert declarations.  Accordingly, Defendants’ motion for summary judgment must be denied.