Judge: Stephen P. Pfahler, Case: 20STCV38847, Date: 2022-10-04 Tentative Ruling

Case Number: 20STCV38847    Hearing Date: October 4, 2022    Dept: F49

Dept. F-49

Date: 10-4-22 c/f 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: Denied.

Evidentiary Objections: Overruled

Defendant Imad Abumeri, M.D. moves for summary judgment. 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 submits an admissible counter expert declaration of Dr. Hillel, who challenges the findings of Dr. Alberstone, and concludes both a failure to comply with the standard of care, and an act or omission caused or contributed to Plaintiff’s injuries.

The court finds triable issues of material fact exist on the issue of the standard of care, as well as whether the care and treatment provided by Dr. Abumeri caused or contributed to the injuries of Plaintiff. The court acknowledges the objections regarding the role of Dr. Abumeri as a non-operating surgeon only performing a post-operative, but finds the expert declaration of Dr. Hillel regarding the standard of care of a surgeon performing a post-operative examination proper and exclusively within the realm of expert testimony. The court declines to consider potential new arguments extrinsic to the motion regarding the role of a non-operating surgeon in visiting a patient. The court in no ways relies on the personal comments from Dr. Baldwin, but also finds no basis to reject the declaration based on certain opinionated statements. The motion for summary judgment is therefore denied on the complaint for medical malpractice.

Trial remains set for June 5, 2023.

Moving Defendant to give notice to all parties.