Judge: Shirley K. Watkins, Case: 21STCV17965, Date: 2023-05-10 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 21STCV17965    Hearing Date: May 10, 2023    Dept: T

21STCV17965 ESTATE OF DAVID N. GLASER, ... vs NOJAN TOOMARI, D.O.,,

[TENTATIVE] ORDER:  Defendants Nojan Toomari, D.O. and Toomari Surgery’s Motion for Summary Judgment is DENIED.

Introduction

            Defendants Nojan Toomari, D.O. and Toomari Surgery (collectively, Defendants) moved for summary judgment (MSJ) against Plaintiffs Estate of David N. Glaser, (Decedent), by and through Michael Narvid, Executor of the Estate of the decedent, with Letters of Appointment; and Mallory Glaser and Geena Glaser (collectively, Plaintiffs).  The MSJ placed into issue the two causes of action (COA) for professional negligence

            Discussion 

            Defendants argued that there is no triable issue of material fact as to the negligence elements of breach and causation.  Summary judgment must be granted where health care providers file a supportive expert declaration establishing conduct falling within the community standard of care, and opposing parties file no conflicting expert declaration.  (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123; Munro v. Regents of the Univ. of Cal. (1989) 215 Cal.App.3d 977, 984-85 (“‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony …, unless the conduct required by the particular circumstances is within the common knowledge of the layman.’”).  Summary judgment must be denied if an opposing expert declaration raises a triable issue as to whether a physician deviated from the standard of care, thereby causing an injury and actual loss or damage. (Tortorella v. Castro (2006) 140 Cal.App.4th 1, 12-13.)  Defendants submitted the expert testimonies of Tracey Childs, M.D. (colon and rectal surgeon) and Thomas Velling, M.D. (radiologist) to support their contention that there are no issues of fact as to breach and causation.  (Defendants’ Separate Statement of Fact (DSSF) 1-10.)  Defendants met their initial burden of proof and the burden transferred to Plaintiffs. 

  In response, Plaintiffs submitted the expert testimony of Yuri Novitsky, M.D. (abdominal surgeon) to show that Defendants’ treatment fell below the standard of care and the breach caused Plaintiffs’ Decedent’s injuries/death.  (Plaintiffs’ Statement of Disputed Facts (PSDF) 1, 7, 8-10.) The Court does not find that Dr. Novitsky’s declaration to lack foundation or competence for purposes of this motion.  Defendants’ evidentiary objections to Dr. Novitsky’s declaration are overruled, as provided for in the Court’s separate ruling. 

Because Plaintiffs submitted expert testimony to dispute Defendants’ expert testimony as to the elements of breach and causation, there are triable issues of fact.  Plaintiffs met their burden of proof on the MSJ. 

Defendants’ MSJ is DENIED.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.