Judge: Virginia Keeny, Case: 20STCV41102, Date: 2023-05-19 Tentative Ruling

Case Number: 20STCV41102    Hearing Date: May 19, 2023    Dept: W

NASROLLAHI, et al. v. amirgholami, et al.

MOTION for undertaking

Date of Hearing:          May 19, 2023                                      Trial Date:       Dec. 4, 2023

Department:               W                                                         Case No.:         20STCV41102

Moving Party:             Defendants Mahin Amirgholami and Sedi Hadadian

Responding Party:       Plaintiffs Bita Nasrollahi and Keyvan Darandegan

BACKGROnd

Plaintiffs Bita Nasrollahi and Keyvan Darandegan (collectively “Plaintiffs”) filed their initial Complaint on October 27, 2020 against Defendants Mahin Amirgholami M.D., and Sedi Hadadian M.D. (collectively “Defendants”).

Plaintiffs First Amended Complaint (“FAC”) alleges (1) lack of informed consent; (2) medical battery; (3) res ipsa loquitur; (4) negligence; (5) intentional misrepresentation; (6) negligent misrepresentation; and (7) loss of consortium.

Plaintiffs are husband and wife. (FAC ¶9.) Defendant Dr. Amirgholami (“Defendant Dr. Amirgholami”) agreed to deliver Plaintiffs’ baby. (Id. ¶10)

Plaintiffs initially expressed desire to do a C-section but later emphasized to Defendant Dr. Amirgholami that they would prefer to do vaginal delivery because Plaintiff Bita was already 7 cm dilated. (Id. ¶12.) Despite Plaintiffs’ preference, Defendant Dr. Amirgholami misled Plaintiff Bita that a C-section is a better option even at 7 cm dilated. (Ibid.) Based on Defendant Amirgholami’s recommendation, Plaintiff Bita proceeded with a C-section surgery on July 12, 2019. (Ibid.) Plaintiff Bita alleges Defendant Dr. Amirgholami made misrepresentations and failed to obtain Plaintiff Bita’s informed consent to perform the surgery. (Id. ¶13.)

Plaintiffs also allege Defendant Dr. Amirgholami permitted Dr. Hadadian (“Defendant Dr. Hadadian”) to join the surgical procedure and delivery without Plaintiff Bita’s valid consent. (Id. ¶15).

Plaintiff Bita gave birth on July 12, 2019. Thereafter, she experienced pain around her ribs. She alleges that Defendants indicated that such pain was due to “gas trap” and failed to diagnose any potential rib fracture. (Id. ¶8.). On or about July 27, 2019, Defendant Dr. Amirgholami informed Plaintiff Bita the results of an X-ray showing an acute rib fracture. (Ibid.)

On November 3, 2022, the Court sustained Defendants’ demurrer with leave to amend as to the fifth and sixth causes of action. Further, Plaintiffs agreed to dismiss the second and third causes of action.

On April 4, Defendants filed this motion for an undertaking requiring each Plaintiff to file an undertaking of $35,000, for a total of $70,000 to secure payment of costs. Plaintiffs have opposed the motion, and Defendants have filed a reply. 

[Tentative] Ruling

Defendants motion for an undertaking is granted.

LEGAL STANDARD

“When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking.”  (Code Civ. Proc., § 1030(a).)  The plaintiff, however, will not be required to file an undertaking unless “there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.”  (Id., § 1030(b).)  The motion must be accompanied by an affidavit stating the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur.  (Id.)   

If the motion is granted and the plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action or special proceeding shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.  (Code Civ. Proc., §1030(d).)  “The determinations of the court under this section have no effect on the determination of any issues on the merits of the action or special proceeding and may not be given in evidence nor referred to in the trial of the action or proceeding.”  (Id., §1030(f).) 

ANALYSIS

Defendants request that each Plaintiff file an undertaking of $35,000, for a total of $70,000 to secure payment of costs, pursuant to Code of Civil Procedure section 1030.

Plaintiff’s Residency

Defendants submit evidence that Plaintiffs reside in Iran. (Tomlinson Decl., ¶ 5-7, Ex. A, B, C.) Plaintiffs do not dispute this assertion.

Reasonable Possibility of Prevailing

Plaintiffs’ remaining causes of action are for (1) lack of informed consent, (2) professional negligence, and (3) loss of consortium. Plaintiffs assert that Defendants’ decision to perform a C-section on Plaintiff Bita Nasrollahi caused her to fracture her lower ribs. This fracture was then not treated properly at discharge.

The elements of a medical malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.”  (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02 (citations omitted).)  “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) 

“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.”  (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)  “Mere possibility alone is insufficient to establish a prima facie case.”  (Id.)  “There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.”  (Id. at 403.)  “A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.”  (Id.) 

Defendants submit the declaration of Joel Kessler, M.D., who attests that, based on his background, training, and experience, he is familiar with the standard of care applicable to OB/GYN treating patients such as Plaintiff Bita Nasrollahi. (Kessler Decl., ¶ 3.) Reviewing the complaints, medical records, video of the delivery, and records from doctors, Dr. Kessler opines that the prenatal care and the C-section provided to Plaintiff complied with the standard of care. (Kessler Decl. ¶¶ 25-26.) Dr. Kessler opines that proper informed consent was given for the delivery and C-section. (Kessler Decl. ¶ 27.) Dr. Kessler opines that rib fractures are an uncommon risk, and the pressure placed on the ribs during the C-section was done within the standard of care. (Kessler Decl. ¶¶ 28-29.) Furthermore, Dr. Kessler opines that the post-delivery care and the decision to discharge Plaintiff complied with the standard of care. (Kessler Decl. ¶ 30.) Dr. Kessler opines, to a degree of reasonable probability, no act or omission by Defendants caused or contributed to Plaintiffs’ claimed injuries. (Kessler Decl. ¶ 32.)

This declaration meets Defendants’ burden of showing that there is a reasonable possibility of prevailing.  

In response, Plaintiffs put forward the declaration of Fahimeh Salim, M.D., who states that she is fully familiar with the standard of care in OB/GYN, particularly in the area of C-section delivery. (Salim Decl. ¶ 3.) Dr. Salim states that she reviewed the medical records and the video clip of the delivery. (Salim Decl. ¶ 4.) Dr. Salim concludes that the point of applied pressure on the abdomen to push the fetus out was higher than usual and not within the standard of care. (Salim Decl. ¶ 6.) Dr. Salim states that the pressure is usually placed on the uterus, and not the ribs; thus, the improper pressure was a substantial cause of the rib fractures. (Salim Decl. ¶ 6.) Dr. Salim opines that the first operative report appears to show that no informed consent was given; however, Dr. Salim concludes that the second operative report shows informed consent. (Salim Decl. ¶ 5.)

The court notes that Dr. Salim’s declaration does not state that she is familiar with the standard of care in the United States, or the Southern California area.  Dr. Kessler also does not expressly state that he is familiar with the standard of care in this area, although he has practiced in Santa Monica since 1980.  Based on Dr. Kessler’s declaration the court finds that there is a reasonable possibility that defendant will prevail, as plaintiff bears the burden of proof and Dr. Kessler’s declaration is definitive that the defendants’ treatment met the standard of care.  There is also a reasonable possibility that plaintiffs will prevail, but that does not negate the reasonable possibility supported by defendants’ evidence. 

The court therefore grants defendants’ motion for an undertaking and orders that it  be posted within 30 days.    Moving party is ordered to give notice.