Judge Ronald F. Frank, Case Number: 21STCV22927, Date: 2024-03-19 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV22927, Date: 2024-03-19 Tentative Ruling

Case Number: 21STCV22927 Hearing Date: March 19, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: March 19, 2024

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CASE NUMBER: 21STCV22927

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CASE NAME: Gayne Ambartsumyan, et al. v. Torrance Memorial Medical Center, et al.

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MOVING PARTY: Defendant Michelle Y. McNee, M.D. (“DOE 1”)

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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: April 29, 2024

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MOTION:¿ (1) Motion for Summary Judgment

Tentative Ruling: (1) Defendant, Michelle Y. McNee’s Motion for Summary Judgment is GRANTED, but the parties are to DISCUSS with the Court the waiver-of-costs contingency in Plaintiffs’ statement of non-opposition

I. BACKGROUND¿¿

A. Factual¿¿

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”) for Wrongful Death Due to Medical Negligence.

On March 1, 2023, Plaintiff named Defendant Michelle Y. McNee, M.D. as “DOE 1”. Dr. McNee now files a Motion for Summary Judgment

B. Procedural¿¿

On December 29, 2023, Defendant McNee filed a Motion for Summary Judgment. On February 6, 2024, Plaintiff filed a conditional non-opposition to Defendant McNee’s Motion for Summary Judgment, the condition being that Dr. McNee waive her right to recover costs. On February 27, 2024, Defendant McNee filed a reply brief that did not mention the cost waiver issue.

II. 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

Defendant McNee has filed this Motion for Summary Judgment on the grounds Defendant McNee argues that the evidence and declaration of expert Richard Ofstein, M.D. proves there was no breach in the standard of care and there was nothing Defendant McNee did, or failed to do, that caused the alleged injuries of Plaintiffs and/or the death of Decedent James Terpanjuan. Based on this, Defendant McNee argues that Plaintiffs are unable to establish the requisite elements of their claim and there are no triable issues of fact.

No Breach of the Standard of Care

Dr. McNee has carried her initial burden in showing that her care did not fall below the standard of care. Dr. McNee, who may have sufficient qualification herself to give an expert opinion on the issue, provides independent proof of the standard of care and her conformity with the same. A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “When 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.” (Munro v. Regents of University of California (1989) 215 Cal.3d 977, 984-985

With her Motion for Summary Judgment, Dr. McNee attaches the declaration of Richard A. Ofstein, M.D. (“Ofstein Decl.”), Board Certified by the American Board of Radiology with a certification of added qualifications in neurology. Dr. Ofstein’s declaration asserts that: (1) Dr. McNee did not breach the standard of care; (2) there was no act or failure to act on behalf of Defendant McNee that caused decedent’s death or Plaintiffs’ alleged damages; and (3) the Plaintiffs’ claim against Defendant McNee is barred by the statute of limitations. Defendant McNee uses Ofstein’s declaration to argue that she correctly reported the significant findings, plus that she met the standard of care when she noted the cardiomediastinal silhouette was at the upper limits of normal in size in her report and in determining that there was no acute cardiopulmonary findings. (McNee SSUF, ¶ 15.)

Next, Defendant McNee uses the declaration to assert that her role in the care of decedent was limited to the interpretation of the portable chest x-ray and that her finding properly alerted the ordering physician team of her findings, including the size of the heart. (McNee SSUF, ¶¶ 16-17.) The declaration also asserts that there was nothing emergent or life threatening noted in the imaging study, so Dr. McNee had no duty to contact the physician directly to discuss the findings verbally (McNee SSUF, ¶ 18.) Instead, Dr. McNee contends that her actions met the standard of care for her to report her findings in a written report. (McNee SSUF, ¶ 18.) As such, she contends the Ofstein Declaration shows she has not breached her standard of care. The declaration of Dr. Ofstein also contends that to a reasonable degree of medical probability, that there was no act or omission on the part of Defendant McNee that caused or contributed to the decedent’s death of Plaintiffs’ injuries. (McNee SSUF, ¶ 33.)

Lastly, Defendant McNee contends that Plaintiffs’ claim is against her is barred by the statute of limitations, and that the relation back doctrine for Doe Defendant McNee does not apply. The Court does not touch this issue as Plaintiffs have filed a non-opposition, noting that they have no objection to judgment being entered in favor of Defendant McNee in exchange for a waiver of any and all costs and potential claims for malicious prosecution incurred by said defendant. As noted above, “[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.” (Munro, supra, 215 Cal.3d at 984-985.) Here, Plaintiffs have not filed any expert opinion, or opposition at all. As such, Defendant McNee met her initial burden, but Plaintiffs failed to carry their shifted burden.

Defendant McNee’s reply brief does not indicate whether she has accepted Plaintiffs’ offer to waive any and all costs and potential claims for malicious prosecution incurred by Defendant McNee in exchange for the filing of the non-opposition. As such, the Court’s inclination is to GRANT this motion. However, the Court would like the parties to indicate, during oral argument, whether or not they have agreed to the proposition in Plaintiffs’’ non-opposition.