Judge: Ronald F. Frank, Case: 21STCV22927, Date: 2023-04-03 Tentative Ruling
Case Number: 21STCV22927 Hearing Date: April 3, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: April 3, 2023¿¿
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CASE NUMBER: 21STCV22927
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CASE NAME: Gayane
Ambartsumyan, et al. v. Torrance Memorial Medical Center, et al.
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MOVING PARTY: Defendants, David Z. Presser,
M.D.’s, Pinky R. Thakker, PA-C’s, and Torrance Emergency Physicians, Inc.
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RESPONDING PARTY: Plaintiffs, Gayane Ambartsumyan; Nicholas Harutyun
Terpanjian, a Minot, by and through his Guardian ad Litem, Gayane Ambartsumyan;
Jonathan Christian Terpanjian, a Minor, by and through his Guardian ad Litem,
Gayane Ambartsumyan; Michael Andrew Terpanjian, a Minor, by and through his
Guardian ad Litem, Gayane Ambartsumyan.
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TRIAL DATE: August 22, 2023
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MOTION:¿ (1)
Defendant, Eric J. Castleman, M.D. and COR Healthcare Medical Associates’
Motion for Summary Judgment
(2) Defendant, Ankush K. Chhabra, M.D.’s Motion for Summary
Judgment
(3)
Defendant, Torrance Memorial Medical Center’s Motion for Summary Judgment
(4)
Defendants, David Z. Presser, M.D.’s, Pinky R. Thakker, PA-C’s, and Torrance
Emergency Physicians, Inc.’s Motion for Summary Judgment
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Tentative Rulings: (1) If Defendant accepts the
offer of settlement contained in Plaintiff’s Statement of Non-Opposition, the
Court will dismiss the moving defendants with prejudice in exchange for a costs
waiver and waiver of malicious prosecution claims
(2)
Same as (1)
(3)
Off calendar per call to the Court’s staff in light of settlement and as
reflected in TMMC’s Now-Pending Motion for Good Faith Settlement Determination
(4) Deny. Triable
issues of fact are raised by the Declaration of Angelique Campen M.D. regarding
the standard of care, Dr. Campen’s opinion of a failure to consider or test for
the differential diagnosis of aortic dissection, and the failure to diagnose
the cause of Decedent’s presenting symptoms
I. BACKGROUND¿¿
A. Factual¿¿
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This
action arises out of a wrongful death claim between Plaintiffs Gayane Ambartsumyan,
Nicholas Harutyan Terpanjian, a minor, by and through his Guardian Ad Litem,
Gayane Ambartsumyan, Jonathan Christian Terpanjian, a minor, by and through his
guardian ad litem, Gayane Ambartsymyan, Michael Andrew Terpanjian, a minor, by
and through his guardian ad litem, Gayane Ambartsumyan (collectively,
“Plaintiffs”) against Torrance Memorial Medical Center, Regents of the
University of California, COR Healthcare Medical Associates, Pinky R. Thakkar,
PAC, David Z. Presser, M.D., Ankush Chhabra, M.D., Eric Castleman, M.D., Hyunah
L POA M.D., and Does 1 through 30, inclusive (collectively, “Defendants”).
B. Procedural¿¿
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On June 15, 2022, Defendants,
Eric J. Castleman, M.D. and COR Healthcare Medical Associates filed a Motion
for Summary Judgment. On March 8, 2023, Plaintiffs filed a non-opposition to
Defendant Eric Castleman, M.D.’s and COR Health Care Medical Associates’ Motion
for Summary Judgment. Plaintiffs noted that they have no objection to judgment
being entered in favor of Defendant, COR Health Care Medical Associates and
Eric Castleman, M.D., in exchange for a waiver of any and all costs and
potential claims for malicious prosecution incurred by said defendant.
On July 8, 2022, Defendant,
Ankush K. Chhabra, M.D. filed a Motion for Summary Judgment. On March 8, 2023,
Plaintiffs filed a non-opposition to Defendant Ankush Chhabra, M.D.’s Motion
for Summary Judgment. Plaintiffs noted that they have no objection to judgment
being entered in favor of Defendant, COR Health Care Medical Associates and
Eric Castleman, M.D., in exchange for a waiver of any and all costs and
potential claims for malicious prosecution incurred by said defendant.
On October 21, 2022, Defendants,
David Z. Presser, M.D., Pinky R. Thakker, PA-C, and Torrance Emergency
Physicians, Inc. filed a Motion for Summary Judgment. On March 8, 2023,
Plaintiffs filed an opposition to Motions for Summary Judgment or in the
Alternative, Summary Adjudication by Defendants, David Z. Presser, M.D., Pinky
R. Thakker, PA-C and Torrance Emergency Physicians, Inc.
II. EVIDENTIARY OBJECTIONS
Defendants David Z. Presser,
M.D., Pinky R. Thakkar, PA-C, and Torrance Emergency Physicians Evidentiary
Objections to Plaintiffs’ Opposition Evidence (the Declaration of Dr. Campen in
its entirety):
Overrule: Objection No. 1
Sustain: None. Had a specific
objection been raised as to Paragraph
19 of Dr. Campen’s declaration, which repeats the substance of the autopsy
report and its findings, the Court would have sustained that objection under Sanchez
and People v. Garton.
III. ANALYSIS¿
A. Legal Standard
The function of a motion for summary judgment or
adjudication is to allow a determination as to whether an opposing party cannot
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.) CCP Section 437(c) “requires the trial
judge to grant summary judgment if all the evidence submitted, and ‘all
inferences reasonably deducible from the evidence’ and uncontradicted by other
inferences or evidence, show that there is no triable issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose whether
there is any triable issue of fact within the issues delimited by the
pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67,
citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367,
381-382.)¿
As to each claim as framed by the complaint, the 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.
(CCP § 437c(p)(2); 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 has met that burden, the burden shifts
to the plaintiff to show that a triable issue of one or more material facts
exists as to that cause of action or a defense thereto.¿¿¿
To establish a triable issue of material fact, the party
opposing the motion must produce substantial responsive evidence. (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
B. Discussion
Defendants, Presser, M.D., Pinky R. Thakkar, PA-C, and
Torrance Emergency Physicians, Inc., first argue that Dr. Ricci’s Expert Declaration
Establishes that Dr. Presser, Ms. Thakkar, and Torrance Emergency Physicians,
Inc. complied with the standard of Care at all times during their care and
treatment of Plaintiffs’ Decedent. Defendants Presser, M.D., Pinky R. Thakkar,
PA-C, and Torrance Emergency Physicians, Inc., argue that as an emergency room
physician practicing in the California community, Dr. Ricci has the requisite
education, training, knowledge, and experience to offer expert opinion related
to the standard of care applicable to emergency room physicians and physician’s
assistants in California. They also argue that it is Dr. Ricci’s professional
opinion, based on his education, training, and experience as an emergency room
physician within the California community, that Dr. Presser and Ms. Thakkar
acted at all relevant times within the standard of care related to their care
and treatment of Plaintiffs’ Decedent. (Ricci Dec., ¶ 8.)
Specifically, Defendants, Presser, M.D., Pinky R.
Thakkar, PA-C, and Torrance Emergency Physicians, Inc. assert that Ms. Thakkar
appropriately evaluated, treated, and reviewed all laboratory, radiology, and
electrocardiogram findings and found them to be unremarkable. They also argue
that Ms. Thakkar also discussed Decedent’s care and disposition with Dr.
Presser, her supervisor, and cardiologist Dr. Chhabra, who agreed with the
plan. As such, they contend that Ms. Thakkar met the standard of care with
regard to her treatment and discharge of Decedent. (Ricci Dec., ¶ 9.)
Further, Defendants, Presser, M.D., Pinky R. Thakkar,
PA-C, and Torrance Emergency Physicians, Inc. assert Dr. Ricci’s expert opinion
establishes that no act or omission by Dr. Presser, Ms. Thakkar, or Torrance
Emergency Physicians caused or contributed to Decedent’s passing. Based upon
his education, training, and experience, Defendants note that it is Dr. Ricci’s
opinion that the unfortunate outcome of this case was not due to any action or
inaction on the part of Dr. Presser and/or Ms. Thakkar. (Ricci Dec., ¶ 11.)
Here,
Defendants argue that the undisputed evidence shows that Dr. Presser, Ms.
Thakkar, and thus, Torrance Emergency Physicians, Inc. acted within the
standard of care at all times during their care and treatment of Decedent. As
such, Defendants assert they are entitled to summary judgment in their favor.
In
opposition, Plaintiffs note that they have submitted a declaration from expert
witness in emergency medicine, Angelique S. Campen, M.D., FACEP, to support
their contention that Defendants, David Z. Presser, M.D., Pinky R. Thakkar,
PA-C and Torrance Emergency Physicians, Inc. breached the standard of care on
February 4, 2021 in numerous ways. Plaintiffs also note that Dr. Campen has
further opined that in the absence of these multiple breaches of the standard
of care by defendants on February 4, 2021, plaintiffs' decedent James
Terpanjian's aortic dissection would have been diagnosed and treated, and to a
reasonable degree of medical probability, he would not have died on February
18, 2021 at the age of 46 of a ruptured aortic dissection. Based on this,
Plaintiff contends that they are able to meet their burden of proof in this
case and it is sufficient to overcome the Motion for Summary Judgment
In
their reply brief, Defendants argue that Plaintiffs failed to attach copies of
the records Dr. Campen states that she reviewed to form her expert opinions, as
outlined in their objection to Plaintiff’s evidence.
The Court finds that triable issues of fact have been raised by
the Declaration of Dr. Campen. While hospital
records are hearsay, they can be -- and in this case have -- been used as a
basis for both sides’ expert medical opinions so long as a hearsay exception
such as the business records or statements to a health care provider exception
applies. The
Defendants’ objection and Reply brief rely on the proposition that Dr. Campen
herself did not lay a business records exception to the hearsay rule sufficient
to place the Decedent’s medical records properly before the Court. This objection and argument rest on the
principles articulated in Garibay v. Hemmat (2008) 161
Cal.App.4th 735, 743. In Garibay,
a case in which the moving party’s expert “had no personal
knowledge of the underlying facts of the case, and attempted to testify to
facts derived from medical and hospital records which were not properly before
the court,” The Second District reversed the trial court’s ruling which had
granted a doctor’s MSJ in a medical malpractice case because the moving papers
failed to present the requisite foundation for the medical records relied upon
by the moving party’s expert. Here, Dr.
Ricci’s Declaration in support of the moving party’s MSJ satisfies the
foundation and hearsay exception problems that prevented summary judgment in Garibay. Dr. Ricci’s Declaration lists in Paragraph 6
the documents upon which Dr. Ricci bases his opinion, many of which are the same
records that Dr. Campen relies in support of her contrary opinions. Dr. Campen also states that she relies on
deposition testimony given by various parties and witnesses in this action,
which are not “former testimony” withing the meaning of the hearsay exception and
thus might well be objectionable as to any specific opinion which rests only on
deposition testimony of her retaining parties.
Dr. Ricci’s relied-upon documents include verified discovery responses, medical
records of Decedent for which the foundation was laid by the Custodian of Records
Declaration (Exhibit H at page 161 and Exhibit I at page 167 of Defendants’
Index of Exhibits), and coroner records which also had a COR declaration (Exhibit
J at page 188 of Defendants’ Index of Exhibits) but which also contain the
opinion of another expert. Defendants’ own
moving papers thus lay the foundation required by Garibay, both for the
opinions of the moving party and of the opposing party who considered and
relied upon the same records, except for the autopsy report. Defendants’ moving papers attach the autopsy
report but do not discuss or seek to explain any agreement or disagreement with
the Coroner’s opinion. Dr. Ricci’s fine and
well-qualified expert opinion, as far as it goes, addresses a number of claimed
breaches of the standard of care.
But Dr.
Ricci’s declaration and opinions as stated in the Declaration filed in support
of this motion do not go far enough. Dr.
Ricci does not address the autopsy report’s stated cause of death, i.e.,
whether Dr. Ricci has an opinion, disagrees with the Coroner, or agrees with
the Coroner. Dr. Ricci’s declaration
gives no opinion as to whether the emergency room PA, attending physician, or
consulting physicians did or should have considered a differential diagnosis of
aortic dissection. Dr. Campen, relying
on the Coroner’s autopsy report, opines that one of the three potentially
life-threatening coronary conditions that should have been ruled out did not appear
to have been considered or tested for by the emergency room team. Statements made in an autopsy report that are
offered for the truth of those matters are hearsay. (People v. Garton (2018) 4
Cal.5th 485, 506; People v. Sanchez (2016) 63 Cal.4th 665, 684 [“If
an expert testifies to case-specific out-of-court statements to explain the
bases for his [or her] opinion, those statements are necessarily considered by
the jury for their truth, thus rendering them hearsay.”].) Paragraph 19 of Dr. Campen’s declaration
references the autopsy report and its findings, although she does not state her
opinion as to cause of death. “The
proponent of hearsay has to alert the court to the exception relied upon and
has the burden of laying the proper foundation.” (People v. Livaditis (1992)
2 Cal.4th 759, 778.) Plaintiff has not
sought to do so here. Accordingly, the Court
does not consider that case-specific multiple hearsay in Paragraph 19 in its
decision to deny this motion, but without prejudice to a foundation being laid
by either party to render the autopsy report to be admissible hearsay at a
future proceeding or trial.
Paragraph
20 of the Campen Declaration opines that there are three potential life-threatening
conditions that should have been considered by Defendants, but they only
considered two. That alone, together
with the moving party’s evidence contained in Exhibit J, is sufficient to raise
a triable issue of material fact sufficient to deny this motion. Paragraphs 22-27 of Dr. Campen’s Declaration
raise triable issues of fact as to the standard of care, and paragraph 32
raises a triable issue of fact as to the failure to diagnose a cause for
Decedent’s presenting symptoms. Other
elements of Dr. Campen’s declaration and standard of care opinions raise
related triable issues which are not tainted by the case-specific hearsay
discussed above.
Accordingly,
the Court denies the motion for summary judgment.