Judge: Olivia Rosales, Case: 21STCV15446, Date: 2022-10-20 Tentative Ruling
Case Number: 21STCV15446 Hearing Date: October 20, 2022 Dept: SEC
LEYVA v. PIH
HEALTH, INC.
CASE NO.: 21STCV15446
HEARING: 10/20/22
#6
TENTATIVE ORDER
Defendant PEYMAN KANGAVARI, M.D.’s Motion for Summary
Judgment is DENIED.
Moving Party to give Notice.
Defendant PEYMAN KANGAVARI, M.D.’s Request for Judicial
Notice is GRANTED. (Cal. Ev. Code §452.)
Plaintiff’s Revised Response to Defendant Peyman Kangavari,
M.D.’s Separate Statement of Material Facts and Plaintiff’s Supplemental
Evidence in Opposition to Defendant Kangavari’s MSJ are STRICKEN. On June 10,
2022, this Court issued an Order indicating that Plaintiff would have leave to
file a Sur-Reply if any deposition testimony from Plaintiff’s opposing expert
(Srinivasa) is presented in Reply. On August 12, 2022, Plaintiff filed a Motion
for Taking Hearing Off Calendar stating that “Defendant Kangavari has withdrawn
his Notice of Deposition and deposition subpoena of Ravi N. Srinivasa, M.D.,
FSIR….” (Ntc. 08/12/22). Consequently, Kangavari did not present any deposition
testimony from Dr. Srinivasa in Reply, and Plaintiff’s Sur-Reply papers were
filed without leave of Court.
This medical malpractice action was filed by Plaintiff
CHARLIE LEYVA, a minor and through his Guardian At Litem, DANIELA BARCENAS (“Plaintiff”)
on April 23, 2021. Plaintiff’s Complaint alleges the following relevant facts:
“CHARLIE LEYVA, a minor, became a patient of defendants and each of them on or
about October 11, 2020, when he was taken to the emergency room at PIH HEALTH
HOSPITAL WHITTER, twice-at 0207 hours and again at 0818 hours, for severe
abdominal pain and vomiting.” (Complaint ¶10.) “The defendants and each of them
were negligent, careless and unskillful in their diagnosis, care and treatment
of plaintiff…. That negligence, carelessness and unskillfulness was a legal
cause of injuries and damages to plaintiff as set forth below: [¶] Septic shock
and its sequalae resulting in a brain injury; severe and permanent ischemic
injury to CHARLIE’S gut or bowel resulting in a profound loss of bowel and
bowel function requiring parental lifetime feeding and special drugs and
nutritional support.” (Complaint ¶12.)
Plaintiff’s Complaint asserts one sole cause of action for
Negligence.
Defendant PEYMAN KANGAVARI, M.D. (“Kangavari”) moves for
summary judgment on the grounds that: (1) Dr. Kangavari met the applicable
standard of care as a radiologist; and (2) no negligent act or omission by Dr. Kangavari
caused the injuries alleged.
In Opposition, Plaintiff argues that there are triable
issues as to whether Kangavari complied with the standard of care, and that
Kangavari’s expert’s opinion is inadmissible.
“[I]n any medical malpractice action, the plaintiff must
establish: ‘(1) the duty of the professional to use such skill, prudence, and
diligence as other members of his profession commonly possess and exercise; (2)
a breach of that duty; (3) a proximate causal connection between the negligent
conduct and the resulting injury; and (4) actual loss or damage resulting from
the professional’s negligence.’ [Citation Omitted.]” (Gami v. Mullikin
Medical Center (1993) Cal.App.4th 870, 877.)
“The elements of the cause of action for wrongful death are
the tort (negligence or other wrongful act), the resulting death, and the
damages, consisting of the pecuniary loss suffered by the heirs.
[Citations.]” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th
1256, 1263.)
When a defendant moves for summary judgment/adjudication of
a medical malpractice cause of action and supports the motion with expert
declarations that the defendant’s conduct fell within the community standard of
care, that defendant is entitled to summary judgment unless the plaintiff comes
forward with conflicting expert evidence.” (Munro v. Regents of California
(1989) 215 Cal.App.3d 977, 984-985.)
Here, Kangavari proffers the declaration of John Lieu,
M.D. in support of the instant Motion.
Dr. Lieu is board certified in diagnostic radiology and has been a practicing
radiologist, interpreting imaging studies for pediatric and adult patients
throughout the hospital setting (including the emergency department) for the
past 13 years. (Lieu Decl., ¶1.) Dr. Lieu opines, in pertinent part, “It is my
opinion that the care and treatment rendered to Minor Plaintiff by Dr.
Kangavari at all times complied with the applicable standard of care, including
with respect to Dr. Kangavari’s interpretation of Minor Plaintiff’s x-ray and
ultrasound imaging taken of his abdomen on October 11, 2020…. In summary, it is
my opinion that Dr. Kangavari complied with the requisite standard of care for radiologists
in interpreting Minor Plaintiff’s abdominal x-ray and ultrasound on October 11,
2020
In Opposition, Plaintiff proffers the declaration of Ravi N.
Srinivasa, M.D., FSIR. Dr. Srinivasa is certified by the American Board of
Radiology and specializes in the practice of diagnostic radiology. (Srinivasa
Decl., ¶1.) Dr. Srinivasa opines, in pertinent part, “I disagree with Dr. John
Lieu’s opinions in his declaration…. Dr. Kangavari violated the standard of
care in his interpretations, reporting and actions pertaining to the studies at
issue. To a reasonable degree of reasonable medical probability, his violations
of the standard of care were a substantial factor in causing Charlie’s injuries
pertaining to his small bowel.” (Srinivasa Decl., ¶7.)
In Reply, Kangavari objects to the admissibility of Dr. Srinivasa’s
expert declaration, arguing that Dr. Srinivasa is not qualified to render an
opinion in this case because Dr. Srinivasa’s declaration and resume identify no
clinical experience in any Emergency Department, let alone in the past five
years. As indicated below, Kangavari’s objection to the entirety of Dr. Srinivasa’s
declaration is OVERRULED. For purposes of summary judgment/adjudication, the
Court finds that Plaintiff has adequately submitted a competent expert
declaration to refute Dr. Lieu’s opinions. As the opposing party, this Court
must liberally construe Plaintiff’s evidence. In doing so, the Court finds that
Dr. Srinivasa sufficiently indicates that he possesses an expertise or relevant
knowledge of the standards of care in “the review, evaluation, analysis,
interpretation, diagnosis, and reporting of medical imaging such as X-ray
studies, ultrasonography studies and computed tomography scans would use in the
same or similar locality and under similar circumstances as in the case of the
patient Charlie Leyva during his emergency room visit at PIH Health Hospital
Whitter on October 11, 2020.” (Srinivasa Decl., ¶3.)
Since both parties’ experts have testified to differing
conclusions as to whether PIH complied with the relevant standard of care,
summary judgment is DENIED.
Plaintiff’s Evidentiary Objections:
Nos. 1-3. Overruled
Kangavari’s Evidentiary Objections:
Nos. 1-7. Overruled
Nos. 8-17. Sustained