Judge: William A. Crowfoot, Case: 21STCV18879, Date: 2022-09-16 Tentative Ruling

Case Number: 21STCV18879    Hearing Date: September 16, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On May 19, 2021, plaintiff Rudolf Kenessey (“Plaintiff”) filed this action against defendants Cedars-Sinai Medical Center (“Defendant”) and Suhail Dohad, M.D. (“Dr. Dohad”) asserting three causes of action for: (1) medical malpractice, (2) negligent hiring/retention, and (3) negligent infliction of emotional distress (“NIED”).  Only the second and third causes of action were asserted against Defendant.  On September 23, 2021, the Court granted Defendant’s demurrer to the NIED claim, leaving only the negligent hiring and retention claim.  Specifically, Plaintiff asserts that Defendant breached its duty to employ competent and skilled professionals and that Dr. Dohad lacked basic diagnostic and surgical skills. 

On June 30, 2022, Defendant filed a motion for summary judgment arguing that: (1) it satisfied its duty of care by permitting Dr. Dohad to maintain privileges at its facility, and (2) Plaintiff cannot establish the element of causation because there was no act or failure to act on behalf of Defendant that caused Plaintiff’s alleged damages.

The motion is unopposed.        

II.      FACTUAL BACKGROUND

Plaintiff Rudolf Kenessey had a long history of cardiac issues that pre-dated the injuries alleged in this matter.  (Defendant’s Undisputed Material Fact (“UMF”) No. 1.)  The alleged care at issue in this case is related to laser atherectomy of the right coronary artery and balloon angioplasty performed by Dr. Dohad on or around February 19, 2020.  (UMF No. 12.)  The following day, Dr. Suhail Dohad performed a selective right coronary angiography and pacemaker removal.  (UMF No. 12.)  On February 24, 2020, the patient expressed a desire to leave against medical advice.  (UMF No. 13.)  It was explained that it would be unsafe and dangerous to Plaintiff’s health given his complicated hospitalization and the lack of discharge planning.  (UMF No. 13.)  The patient was able to reiterate the risks of him leaving that night, including an understanding of why it was unsafe, along with possible repercussions.  (UMF No. 13.)  He had medical decision-making capacity and signed a form acknowledging that he was leaving Defendant’s facility against medical advice.  (UMF No. 13.) 

A few days after he left, an ambulance transported him to Los Robles Hospital for a myocardial infarction.  (UMF No. 14.)  Following his heart attack, his ejection fraction, which reflects his heart function, continued to decrease.  (UMF No. 15.) 

III.     LEGAL STANDARDS

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 facie 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

The elements of medical negligence 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].)  A hospital owes a duty to screen the competency of its medical staff and evaluate the quality of medical treatment rendered on its premises.  (Walker v. Sonora Regional Medical Center (2012) 202 Cal.App.4th 948, 959-60.)  A hospital thus could be held liable for negligence for failing to ensure the competence of its medical staff through careful selection and review.  (Id. at 960; CACI 516.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.”  (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)  “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.3d 977, 984-985.)

Defendant first argues that it acted in accordance with the standard of care when it permitted Dr. Dohad to maintain privileges at its facility because it properly screened his competency by confirming his professional and academic degrees, clinical training, licensures, residency, and/or training certifications, which were confirmed by acceptable board certification.  Defendant’s expert, Mina R. Kang, M.D. (“Dr. Kang”) is board certified by the American Board of Internal Medicine and Pediatrics.  (Kang Decl., ¶ 2.)  She has practiced internal medicine from 2009 to the present and, in addition to her clinical practice, has served in several administrative positions related to screening and credentialing physician privileges at hospitals.  (Ibid.)  Based on her background, training, and experience, Dr. Kang declares she is familiar with the standard of are required of hospitals related to screening the competency of medical staff.  (Kang Decl., ¶ 3.)  She opines that Defendant met the standard of care related to screening the competency of Dr. Dohad by confirming his qualifications with acceptable board certifications.  (Kang Decl., ¶ 8.)  She reviewed Dr. Dohad’s board certifications and states that the American Board of Medical Specialties (“AMS”) confirmed Dr. Dohad was qualified to perform the care he provided to Plaintiff.  (Ibid.)  She states there was nothing negative on Dr. Dohad’s medical license through the California Medical Board or his board certification through ABMS.  (Kang Decl., ¶ 9.)  therefore, she states, there was no information available to Defendant to conclude that Dr. Dohad presented a risk to patients or that he lacked the skill, care, or competence to treat patients in the field of cardiovascular disease and interventional cardiology.  (Kang Decl., ¶ 10.) 

Having produced sufficient expert testimony to establish a prima facie case that Plaintiff cannot show a breach in the standard of care, Defendant has met its moving burden.  The burden now shifts to Plaintiff to raise a triable issue.  However, Plaintiff did not oppose this motion and therefore fails to meet his burden.  Accordingly, Defendant’s motion is GRANTED.

VI.     CONCLUSION

          In light of the foregoing, the 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’s 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.