Judge: Stephen P. Pfahler, Case: 20STCV38847, Date: 2022-08-24 Tentative Ruling

Case Number: 20STCV38847    Hearing Date: August 24, 2022    Dept: F49

Dept. F-49
Date: 8-24-22
Case #20STCV38847 
Trial Date: Not Set

SUMMARY JUDGMENT

MOVING PARTY: Defendant, Imad Abumeri, M.D.

RESPONDING PARTIES: Plaintiff, Cinda Mickols

RELIEF REQUESTED

Motion for Summary Judgment

SUMMARY OF ACTION

On October 10, 2019, Plaintiff Cinda Mikols presented to the emergency room, and underwent a right sided lateral interbody fusion and segmental fixation at L4-L5 operation peformed by Defendant Dr. Mark Liker. Plaintiff’s post surgical condition, due to both post-operative infections and developing hypoxemia. On October 14, 2019 Plaintiff was diagnosed with a number of conditions, including but not limited to, septic shock and renal failure, which the diagnosing physician, Imad Abumeri, found unrelated to surgery and therefore required no further intervention. On October 20, 2019, Plaintiff underwent a second operation for a right hemi-colectomy with ileostome placement.

On October 9, 2020, Plaintiff filed a complaint for Medical Malpractice and Medical Negligence. The action was transferred from Department 28 to Department 49 on January 14, 2022.

RULING: Continued.

Evidentiary Objections: Deferred.

Defendant Imad Abumeri, M.D. moves for summary judgment on the remaining cause of action for medical malpractice. Dr. Abumeri moves on grounds that the care and treatment provided complied with the standard of care, and no act or omission of Dr. Abumeri caused or contributed to the injuries of Plaintiff. Dr. Abumeri submits an expert declaration from Cary Alberstone, M.D., in support.

Plaintiff in opposition contends Defendant fails to shift the burden, and triable issues of material fact exist on grounds as to both the standard of care and causation based on the expert declaration of Hillel Baldwin, M.D.

Defendant in reply challenges the declaration of Dr. Baldwin. Without a valid expert declaration, Plaintiff fails to raise triable issues of material fact on the standard of care or causation.

“‘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.App.3d 977, 984-985.) The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 317.)

The defense expert declaration of Dr. Alberstone sets forth his expert qualifications, indicates review of Plaintiff’s medical records, details the care and treatment of Plaintiff, and concludes that the care and treatment provided by Dr. Abumeri complied with the standard of care, and no act or omission by Dr. Abumeri caused or contributed to the development of any injuries. The declaration of Dr. Alberstone sufficiently meets the moving burden on summary judgment.

Plaintiff represents the existence of a counter expert declaration from Dr. Hillel, but no such declaration appears filed on the court electronic filing system with the other August 10, 2022 filed opposition documents. The court therefore continues the hearing in order to allow Plaintiff to submit all evidence in opposition, thereby allowing the court to determine the admissibility of the declaration. The hearing is continued to October 4, 2022.

Because Defendant was apparently served with the declaration as acknowledged in the reply and objections, the court is only resetting the hearing in order to allow consideration of the represented declaration. No new supplemental briefs are invited and will not be considered even if the parties file any such documents. Again, the court is only continuing the hearing to consider a document the parties are familiar with and have had an opportunity to address.

Motion for summary judgment of San Joaquin Community Hospital set for November 3, 2022.

Moving Defendant to give notice to all parties.