Judge: Upinder S. Kalra, Case: 23STCV00628, Date: 2024-05-22 Tentative Ruling
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Case Number: 23STCV00628 Hearing Date: May 22, 2024 Dept: 51
Tentative Ruling
Judge Upinder S. Kalra, Department 51
HEARING DATE: May 22, 2024
CASE NAME: Vitolo, et al. v. Srour, M.D., et al.
CASE NO.: 23STCV00628
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
MOVING PARTY: Defendants Raja Srour, M.D. and Doheny Sunset Surgery Center
RESPONDING PARTIES: Plaintiffs Stefano Vitolo and Hyun Vitolo
REQUESTED RELIEF:
1. Order granting summary judgment in Defendants Raja Srour, M.D., and Doheny Sunset Surgery Center’s favor.
TENTATIVE RULING:
1. Defendant Raja Srour, M.D.’s Motion for Summary Judgment is DENIED.
2. Defendant Doheny Sunset Surgery Center’s Joinder to Motion for Summary Judgment is DENIED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On January 12, 2023, Plaintiffs Stefano Vitolo and Hyun Vitolo (“Plaintiffs”) filed a Complaint against Defendants Raja Srour, M.D., Doheny Sunset Surgery Center, Inc. (“Defendants”), and DOES 1 through 100, inclusive for: (1) Medical Negligence; and (2) Loss of Consortium.
The Complaint alleges on or about January 28, 2022, and continuing thereafter, Plaintiff Stefano Vitolo consulted and engaged for compensation the services of Defendants for a cosmetic procedure to remove neck bands and submental liposuction of the neck. (Compl., ¶10.) Defendants negligently performed the cosmetic procedure, resulting in damage to Plaintiff Stefano Vitolo’s internal structures including but not limited to external carotid artery branches. (Compl., ¶12.) Plaintiff Stefano Vitolo suffered bleeding, an expanding neck hematoma, defects in carotid artery branches and resulting extravasation, requiring emergency surgery and management in the intensive care unit (“ICU”). (Compl., ¶13.) Plaintiff Hyun Vitolo alleges as a direct and proximate result of Defendants’ negligence, Plaintiff Stefano Vitolo is unable to perform the necessary duties of a husband, and the duties and services usually performed in the case, maintenance and management of the family home. (Compl., ¶23.)
On March 3, 2023, Defendants filed their Answer to the Complaint.
On March 6, 2024, Defendant Raja Srour, M.D. (“Dr. Srour”) filed the instant Motion for Summary Judgment. That same day, Defendant Doheny Sunset Surgery Center (“Doheny”) filed Joinder to the Motion for Summary Judgment. On May 7, 2024, Plaintiffs filed an opposition. A timely reply was due on May 15, 2024. As of May 17, 2024, no reply has been filed.
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.) The Code of Civil Procedure § 437c(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 cause of action as framed by the complaint, the defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2); see also 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.)¿¿
Request for Judicial Notice:
1. Defendant Doheny Sunset Surgery Center’s request for judicial notice of is GRANTED pursuant to Evidence Code sections 452(g), 452(h), and 453.
2. Plaintiffs’ request for judicial notice is GRANTED pursuant to Evidence Code sections 452(g), 452(h), and 453.
Evidentiary Objections:
1. Declaration of Anthony Griffin, M.D.
· Sustained:
· Overruled: 1, 2, 3, 4
ANALYSIS:
Defendant Raja Srour, M.D. (“Dr. Srour”) moves for summary judgment on the grounds that there are no triable issues of material fact with respect to Dr. Srour’s compliance with the applicable standard of care in relation to the care and treatment provided to Plaintiff Stefano Vitolo.
Similarly, Defendant Doheny Sunset Surgery Center (“Doheny”) joins Dr. Srour’s motion for summary on the grounds that the evidence submitted in support of Dr. Srour’s motion for summary judgment conclusively establishes Dr. Srour did not breach the standard of care in this matter, was not negligent in any manner, and no acts or omissions on his part were a substantial factor in Plaintiffs’ claimed injuries, so Doheny cannot be vicariously liable for the alleged negligence of Dr. Srour.
Plaintiffs’ oppose the motion for summary judgment and joinder on the grounds that the declaration of Lloyd Krieger, M.D. creates a triable issue of fact regarding the standard of care and causation.
First Cause of Action for Medical Negligence/Medical Malpractice
“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305 (Johnson).) “Because the standard of care in a medical malpractice case is a matter “peculiarly within the knowledge of experts,” expert testimony is required to “prove or disprove that the defendant performed in accordance with the standard of care” unless the negligence is obvious to a layperson.” (Id.) “With regard to a standard of care derived from a professional practice ‘the induction of a rule from practice necessarily requires the production of evidence of an ascertainable practice.’” (Id.)
Applicable Standard of Care
The Court finds that a triable issue of material does exists as to whether Dr. Srour complied with the applicable standard of care with respect to the care and treatment of Mr. Vitolo.
Here, Dr. Srour argues the undisputed evidence establishes he complied with the applicable standard of care at all times with respect to the care and treatment of Plaintiff Stefano Vitolo. In support of Dr. Srour’s claim, he proffers the expert testimony of Dr. Anthony Griffin, M.D., a board-certified Plastic and Reconstruction Surgeon licensed to practice in the State of California. (Griffin Decl., ¶¶1-2.) Dr. Griffin declares that “Dr. Srour complied with the relevant standard of care at all times in regard to the care provided to Mr. Vitolo during the at-issue surgical procedure.” (Griffin Decl., ¶10.) Dr. Griffin opines that Dr. Srour complied with the applicable standard of care because Dr. Srour discussed the possible risks of bleeding and hematoma with Mr. Vitolo, the authorization signed by Mr. Vitolo indicates the risks were fully explained to him, Dr. Srour utilized appropriate instrumentation and technique during the procedure, proper dressing and compressions were applied during the procedure, the operative report noted no complications during the procedure, and when Mr. Vitolo was discharged, there was no evidence of any active bleeding or other complications. (Griffin Decl., ¶¶8, 12; Srour Decl., ¶¶3-5; Goethals Decl., ¶¶4-7, Exs. B-E.)
However, Plaintiffs’ proffer the expert testimony of Dr. Lloyd Krieger, M.D. (“Dr. Krieger”), who is a licensed Plastics and Aesthetic Surgeon in the State of California. (Krieger Decl., ¶¶1-2.) Dr. Krieger opines that Dr. Srour breached the standard of care by injuring two of Mr. Vitolo’s external branches of his right carotid artery and failing to recognize and repair this injury intraoperatively. (Krieger Decl., ¶12.) Dr. Krieger further opined that the vascular injuries identified and repaired at Dignity Health Northridge Hospital Medical Center do not occur spontaneously but caused by significant penetrating or blunt trauma. (Krieger Decl., ¶12a.) Dr. Krieger also states the location of the injury and timing of the event are consistent with the procedure done by Dr. Srour. (Id.) Moreover, Dr. Krieger states the standard of care required Dr. Srour to perform a thorough washout and visual inspection for active bleeding before closing the muscle layer, however, this is not documented in Dr. Srour’s operative notes. (Krieger Decl., ¶12b.)
As such, both Dr. Srour and Plaintiffs’ proffer expert testimonies from duly licensed Plastic Surgeons, both of whom provided expert opinions based on their specialized knowledge, skill, experience, training, and education in the same field as Dr. Srour. The conflicting opinions of both Dr. Griffin and Dr. Krieger submitted before the court via declarations present a triable issue of material fact as to whether Dr. Srour complied with the applicable standard of care required of a Plastic Surgeon when he performed Mr. Vitolo’s procedure.
Causation
The Court finds that a triable issue of material does exists as to whether Dr. Srour’s acts or omission were a substantial factor in causing Mr. Vitolo’s injuries.
Here, Dr. Srour argues the undisputed evidence establishes the claimed injuries are not attributable to the care and treatment he provided to Mr. Vitolo. In support of this claim, Dr. Srour again proffers the expert testimony of Dr. Griffin, who states “to a reasonable degree of medical probability, no act or failure on the part of Dr. Srour was a substantial factor in causing the plaintiff’s claimed injuries.” (Griffin Decl., ¶10; Goethals Decl., ¶¶8-10, Exs. F-H.) Specifically, Dr. Griffin opines there is no evidence that Dr. Srour punctured the platysma during the procedure and Mr. Vitolo would have complained of severe pain had such puncture occurred. (Griffin Decl., ¶16.) Furthermore, Dr. Griffin states there is no evidence Dr. Srour injured a vessel during the procedure as there was no bleeding noted following the procedure. (Griffin Decl., ¶17.) Finally, Dr. Griffin states Mr. Vitolo’s complication is an unforeseeable complication that occurred in the absence of negligence. (Griffin Decl., ¶18.)
On the other hand, Dr. Krieger opines that to a reasonable degree of medical probability, Dr. Srour’s departures from the standard of care were substantial factors in causing injury to Mr. Vitolo. (Krieger Decl., ¶13.) Specifically, Dr. Krieger states Dr. Srour’s failure to properly inspect for bleeding intraoperatively led to uncontrolled pulsatile bleeding and an expanding hematoma. (Krieger Decl., ¶¶13a-13b.) Dr. Krieger further opines that Dr. Srour’s failure to inspect for active bleeding and address the issue during the procedure led to Mr. Vitolo being in emergency care, needing a transfusion of blood product, and surgery to ligate the affected vasculature. (Krieger Decl., ¶13c.)
As such, Dr. Griffin and Dr. Krieger have provided conflicting expert opinion testimonies, which present a triable issue of material fact as to whether Dr. Srour’s acts or omissions were a substantial factor in causing Mr. Vitolo’s injuries.
Therefore, the motion for summary judgment as to the first cause of action is DENIED.
Second Cause of Action for Loss of Consortium
A claim for loss of consortium at common law has four elements “(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; [¶] (2) a tortious injury to the plaintiff's spouse; [¶] (3) loss of consortium suffered by the plaintiff; and [¶] (4) the loss was proximately caused by the defendant's act.” (LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284.)
As discussed above, there are triable issues of material facts regarding whether Dr. Srour complied with the applicable standard of care and whether his acts or omission were a substantial factor in causing Mr. Vitolo’s injuries. Thus, Plaintiff Hyun Vitolo’s loss of consortium claim will survive because it is derivative of the first cause of action for medical negligence.
Therefore, the motion for summary judgment as to the second cause of action is also DENIED.
Joinder
Due to Defendant Doheny’s joinder being based on the outcome of Dr. Srour’s motion for summary judgment, Defendant Doheny’s joinder to the motion for summary judgment is DENIED.
CONCLUSION:
For the foregoing reasons, the Court decides the pending motion as follows:
1. Defendant Raja Srour, M.D.’s Motion for Summary Judgment is DENIED.
2. Defendant Doheny Sunset Surgery Center’s Joinder to Motion for Summary Judgment is DENIED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: May, 22, 2024
__________________________________
Upinder S. Kalra
Judge of the Superior Court