Judge: William A. Crowfoot, Case: 21STCV18879, Date: 2022-10-17 Tentative Ruling

Case Number: 21STCV18879    Hearing Date: October 17, 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 Suhail Dohad, M.D. (“Defendant”) and Cedars-Sinai Medical Center (“Cedars-Sinai”) asserting three causes of action for: (1) medical malpractice, (2) negligent hiring/retention, and (3) negligent infliction of emotional distress (“NIED”).  The only cause of action asserted against Defendant is for medical malpractice arising from a cardiac catheterization.  (Compl., ¶ 10.)  Plaintiff alleges Defendant punctured his artery during the procedure and closed the hole with a laser, causing a heart attack and causing permanent damage to his heart.  (Compl., ¶ 11.)  Plaintiff further alleges that his lung and heart was filled with water and it took three days to remove all the excess water.  (Compl., ¶ 12.) 

On August 1, 2022, Defendant filed this motion for summary judgment or, in the alternative, summary adjudication.  The motion is unopposed.

II.     FACTUAL BACKGROUND

Plaintiff had heart problems dating back to 2011, when Defendant first performed a coronary angiogram.  (Defendant’s Undisputed Material Fact (“UMF”) No. 2.)  Plaintiff has a history of discharging himself from medical care against medical advice.  (UMF No. 3.)  On February 19, 2020, a complication arose during Plaintiff’s procedure.  (UMF No. 4.)  On February 24, 2020, Plaintiff left the care of Defendant against medical advice.  (UMF No. 6.) 

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code Civ. Proc., § 437c, subd. (f)(1).)  A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc., § 437c, subd. (f)(2).) 

“[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

In a medical malpractice action, a plaintiff must establish the following elements: “(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.  [citations.]”  (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)  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 submits the expert declaration of Subbarao V. Myla, M.D. (“Dr. Myla”), a board-certified physician who specializes in interventional cardiology, critical care medicine, cardiology, and internal medicine.  (Myla Decl., ¶ 1.)  Dr. Myla is familiar with the standard of care required of a cardiologist practicing in the Southern California medical community.  (Id., ¶ 2.)  Based on his review of Plaintiff’s medical records, Dr. Myla opines that Defendant’s treatment of Plaintiff was appropriate and wihin the standard of care because the procedure performed was indicated based on Plaintiff’s medical records, heart condition, admitting diagnosis, and result of imaging studies.  (Id., ¶ 4.)  Dr. Myla notes that Defendant gave Plaintiff intracoronary nitroglycerine, performed aspirations followed with several doses of intracoronary adenosine and epinephrine boluses, and subsequent doses of intracoronary nitroglycerine and adenosine, with no resolution.  Defendant managed Plaintiff’s bradycardia with atropine, which was within the standard of care.  (Id., ¶ 4B.)  Dr. Myla also declares that Defendant did not puncture Plaintiff’s lungs and his heart and lungs did not fill with water as a result of the procedures performed by Defendant.  (Id., ¶¶ 4D-E.)

          Defendant has met his moving burden by submitting an expert declaration.  The burden now shifts to Plaintiff to raise a triable issue of material fact and introduce a competing expert declaration.  As Plaintiff did not oppose the motion, Plaintiff necessarily fails to meet that burden.  Accordingly, summary judgment of Plaintiff’s sole cause of action for medical malpractice against Defendant is appropriate.

V.      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.