Judge: William A. Crowfoot, Case: 19STCV26696, Date: 2022-09-01 Tentative Ruling

Case Number: 19STCV26696    Hearing Date: September 1, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On July 31, 2019, Plaintiffs Lance Lobdell (“Lance”) and Debra Lobdell (“Debra”) (collectively “Plaintiffs”) filed this action for damages for medical negligence and loss of consortium.  In addition to moving defendant Aaron M. Shelub, M.D. (“Dr. Shelub”), Plaintiffs named: (1) Regal Medical Group, Inc., (2) Lakeside Community Healthcare, (3) Northridge Hospital Medical Center, (4) Michael R. Shapiro, M.D., (5) Michael R. Shapiro, M.D., Inc., (6) Ryan McBirney, P.A., (7) Mary Ann H. Trephan, M.D., (8) Hrair Darakjian, M.D., (9) Mission Community Hospital, (10) N’deya Kama, M.D., (11) Ali Ozhand, M.D., (12) Emily Alexiadis, NP, and (13) Kalpesh Patel, M.D.

On June 15, 2022, Defendant Dr. Shelub filed this motion for summary judgment.  Plaintiffs filed a notice of non-opposition on August 18, 2022.

II.          FACTUAL BACKGROUND

On or around August 4, 2018, Plaintiff Lance was transferred to Mission Community Hospital with a comminuted intraarticular fracture distal right ulna and comminuted intraarticular fracture distal right humerus as a result of fall from a six-foot ladder in his garage.  (Defendant’s Separate Statement of Undisputed Material Facts (“UMF”) No. 1.)  Plaintiff Lance underwent an open reduction and internal fixation, irrigation and debridement, and olecranon osteotomy performed by Defendant Dr. Shapiro on August 6, 2018.  (UMF No. 2.)  Lance was discharged on August 8, 2018.  (UMF No. 3.)

On October 1, 2018, Plaintiff Lance presented to the Emergency Room at Mission Community Hospital with complaints of right arm pain.  (UMF No. 4.)  Erythema and swelling over the right upper extremity was noted, which was worse from the elbow above.  (UMF No. 4.)  Shortly after admission, Dr. Shapiro took Lance to the operating room where he underwent hardware removal, irrigation and debridement, and open reduction with internal fixation revision to rule out infection with the right elbow.  (UMF No. 6.) 

Plaintiff Lance was evaluated by Defendant Dr. Ozhand on October 2, 2018, who noted Plaintiff was on Vancomycin.  (UMF No. 7.)  Plaintiff Lance was evaluated by Emily Alexiadis, NP on October 3, 2018, and the plan was to continue Vancomycin for at least two weeks, start Rifampin, and continue infectious disease follow-up as an outpatient.  (UMF No. 8.)  Plaintiff Lance was evaluated by Judeen Camacho, NP on October 4, 2018, and the plan was to continue Vancomycin for at least two weeks and continue outpatient infectious disease follow-up.  (UMF No. 9.)  Nurse Camacho noted management was discussed with Dr. Shelub.  (UMF No. 9.)  Plaintiff was discharged by Dr. Ozhand on October 5, 2018.  (UMF No. 10.)

Plaintiff Lance scheduled an appointment with Dr. Shelub on October 25, 2018.  (UMF No. 11.)  On October 24, 2018, the day before the appointment, Plaintiff Lance called Dr. Shelub’s office to cancel, stating he did not need the appointment anymore.  (UMF No. 12.)  Plaintiff did not return to see Dr. Shelub.  (UMF No. 12.)

III.        LEGAL STANDARD

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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, subd. (p)(2).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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 the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.         DISCUSSION

Defendant Dr. Shelub moves for summary judgment in his favor and against Plaintiffs on the causes of action asserted against him in the complaint.

A.   First Cause of Action for Medical Negligence

The elements of 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) a 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.)  Thus, in a medical malpractice case, “[w]hen 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, 984-85 (citations omitted).)  An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider.”  (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)

“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.)

          Defendant Dr. Shelub has submitted a declaration from Howard Pitchon, M.D., a licensed physician who is board-certified in internal medicine and infectious diseases.  (Pitchon Decl., ¶ 1.)  Dr. Pitchon opines that, based on a review of Plaintiff Lance’s medical records and discovery responses and his education, training, and experience, Defendant Dr. Shelub complied with the standard of care in the care and treatment of Plaintiff Lance at all times.  (Id., ¶¶ 5-6, 17.)  Dr. Pitchon states that Dr. Shelub was ready and available to see and evaluate Plaintiff Lance as scheduled, Dr. Shelub and his staff played no part in cancelling Plaintiff’s appointment, and Plaintiff called and stated he did not need the appointment.  (Id., ¶ 17.)  According to Dr. Pitchon, Plaintiff Lance was advised that he needed to continue outpatient infectious disease follow-up appointments, but Plaintiff cancelled his appointment with Dr. Shelub.  (Id., ¶ 18.)  Dr. Pitchon declares the standard of care did not require Dr. Shelub or his staff to contact and follow up with Plaintiff about his cancelled appointment.  (Id.) 

Dr. Pitchon further opines that, to a reasonable degree of probability, any act or omission by Dr. Shelub was not a substantial factor in causing or contributing to Plaintiff’s claimed injuries because Plaintiff was advised he needed to continue to follow up with an infectious disease specialist as an outpatient, Plaintiff cancelled his appointment with Dr. Shelub and never rescheduled or returned, and the standard of care did not require Dr. Shelub or his staff to contact and follow up with Plaintiff about his cancelled appointment.  (Id., ¶ 19.)

          Dr. Pitchon’s declaration is sufficient for Defendant Dr. Shelub to meet his burden of demonstrating he did not breach the duty of care or cause or contribute to Plaintiff Lance’s alleged injuries.

          Plaintiffs have filed a notice of non-opposition.  Plaintiffs have thus conceded that no triable issues of material fact exist as to breach and causation.

          Accordingly, Defendant Dr. Shelub is entitled to judgment on the first cause of action for medical negligence.

B.   Second Cause of Action for Loss of Consortium

“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.”  (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

As Defendant Dr. Shelub is entitled to judgment on the first cause of action, Defendant is also entitled to judgment on the second cause of action for loss of consortium.

VI.     CONCLUSION

          In light of the foregoing, Defendant Aaron M. Shelub, M.D.’s Motion for Summary judgment is GRANTED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.