Judge William A. Crowfoot, Case Number: 23AHCV00977, Date: 2025-06-06 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00977, Date: 2025-06-06 Tentative Ruling

On May 1, 2023, plaintiff Lala Hovhannisyan (“Plaintiff”) filed this action against defendants Huntington Hospital and Seth Cohen, M.D. (“Defendant”) for professional negligence/medical malpractice.

The Court notes that Plaintiff’s two objections to the Declaration of Marianna Alperin, M.D. (“Alperin Declaration” or “Alperin Decl.”) do not comply with California Rules of Court rule 3.1354 because it does not “quote or set forth the objectionable statement or material”, but merely refers to paragraph 14 and paragraphs 16 through 19 as “Description of plaintiff’s [sic] presentation to USC Verdugo Hills Hospital including diagnosis of small bowel obstruction” and “Opinions that all care by [Defendant] met the standard of care and did not cause injury.” Nevertheless, the Court rules on Plaintiff’s evidentiary objections to each of these paragraphs pursuant to Code of Civil Procedure section 437c(q) as follows:

Objection to Paragraph 14 of the Declaration of Marianna Alperin, M.D. (“Alperin Decl.”): OVERRULED.

Objection No. 2 to Paragraphs 16 through 19 of the Alperin Decl.: OVERRULED as to ¶¶ 16 and 18; SUSTAINED as to ¶¶ 17 and 19 as conclusory.

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 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).) “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.)

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 declaration of Marianna Alperin, M.D. (“Dr. Alperin”), a board-certified Obstetrics & Gynecology and Urogynecology & Reconstructive Pelvic Surgery physician. (Alperin Decl., ¶ 2.) Dr. Alperin is currently a Urogynecology & Reconstructive Pelvic Surgery specialist at the University of California, San Diego School of Medicine. (Alperin Decl., ¶ 4.) She states she is familiar with the standard of care for urogynecology and pelvic reconstructive physicians/surgeons in the Southern California community at all times relevant to this litigation, including 2021 and 2022. (Alperin Decl., ¶ 5.)

Dr. Alperin opines that, based on her review of Plaintiff’s medical records, as well as her own education and experience, “[t]he operative care provided by Dr. Cohen (and staff) complied with the standard of care at all times because the procedures including robotic-assisted laparoscopic supracervical hysterectomy, bilateral salpingo-oophorectomy, cerclage, robotic-assisted laparoscopic sacrocolpopexy, anterior vaginal repair, and cystoscopy were indicated based on plaintiff’s clinical history and symptoms, and the procedures were performed with appropriate technique as described in the operative report.” (Alperin Decl., ¶ 16, 18.) Dr. Alperin further opines that “it was appropriate for Dr. Cohen to reperitonealize the mesh to decrease the risk of bowel adhesion to the mesh.”

In opposition, Plaintiff argues that Dr. Alperin’s opinion regarding pre-operative care and post-operative care is too conclusory for Defendant to meet his moving burden to show that no triable issue of material fact exists. The Court agrees that these portions of Dr. Alperin’s declaration are conclusory. The Court disagrees, however, that Defendant fails to show that Plaintiff cannot establish her medical malpractice claim. Defendant propounded a special interrogatory requesting Plaintiff “state with particularity and specificity each and every act or omission” that she contends Defendant was negligent in rendering medical care and treatment. (Boyadzhyan Decl. ISO Plaintiff’s Opp., Ex. D, SROG No. 18.) Plaintiff responded: “Surgery performed negligently by physicians and nurses at Huntington Memorial Hospital which resulted in bowel obstruction, 50 cm of nonviable bowel, internal hernia from mesh of said surgery, abdominal pain and swelling, colitis, nausea.” (Id., Ex. E, Response to SROG No. 18.) Therefore, the only part of Dr. Alperin’s declaration relevant to Plaintiff’s contentions is the portion which pertains to the manner in which Defendant performed the surgery. Dr. Alperin opines in sufficient detail that the surgical procedures were performed “with appropriate technique as described in the operative report” and that “it was appropriate for [Defendant] to reperitonealize the mesh to decrease the risk of bowel adhesion to the mesh.” Therefore, her conclusion that Defendant complied with the applicable standard of care is not conclusory and Plaintiff’s failure to submit a competing expert declaration means that she fails to raise a triable issue of material fact.

The Court also notes that Dr. Alperin opines “to a reasonable degree of medical probability” that no act or omission by Defendant “caused or contributed” to Plaintiff’s injuries and that bowel obstruction “is a known and accepted complication of sacrocolpopexy, which can occur even in the absence of negligence. In addition, bowel obstruction can occur remote from surgery.” (Alperin Decl., ¶ 20.) Again, since Plaintiff fails to submit a competing expert declaration, Plaintiff also fails to show that a triable issue of material fact exists as to the element of causation.

Accordingly, the Court grants the motion for summary judgment on the grounds that there is no triable issue of material fact as to Defendant’s compliance with the applicable standard of care and the element of causation. The Court therefore does not need to analyze Defendant’s alternative ground for summary judgment based on the statute of limitations.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at AHLDEPT3@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.