This case was last updated from Los Angeles County Superior Courts on 07/04/2019 at 05:58:03 (UTC).

DEE ANN ABELAR ET AL VS JOHN R DINGILIAN M.D. ET AL

Case Summary

On 12/19/2016 DEE ANN ABELAR filed a Personal Injury - Medical Malpractice lawsuit against JOHN R DINGILIAN M D. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is CURTIS A. KIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1637

  • Filing Date:

    12/19/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CURTIS A. KIN

 

Party Details

Plaintiffs and Petitioners

ABELAR BRIAN

ABELAR DEE ANN

Defendants and Respondents

SIMI VALLEY HOSPITAL & HEALTH CARE SVCS

ANAND WAYNEINDER S. M.D.

TRIVEDI MAYUR M.D.

PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFOR

DINGILIAN JOHN R. M.D.

PROVIDENCE SAINT JOSEPH MEDICAL CENTER

ADVENTIST HEALTH SYSTEM/WEST

DOES 1 THROUGH 100

LEE JOUNG H. M.D.

BADIEI PEJMAN M.D.

PEJMAN BADIEI M.D. INC.

ADVENTIST HEALTH SIMI VALLEY HOSPITAL

TILLES M.D. CORPORATION

TILLES IRA M.D.

HAKIMISAFET BABAK D.O.

MORA JEFFREY M.D.

Not Classified By Court

PEJMAN BADIEI M.D.; PEJMAN BADIEI M.D. INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

RAND GARY ESQ.

RAND-LEWIS SUZANNE ELIZABETH ATTORNEY AT LAW

Defendant Attorneys

BLESSEY RAYMOND LESLIE

TROTTER MICHAEL

GONZALEZ MICHAEL DALE

HESTER CECILLE LOUISE

BARRON JOHN DANIEL

NEIGHBORS JESSICA M.

SCHAEFFER JAMES CRAIG

DOBSON MITZIE LEGREID

SULENTOR WILLIAM ANTHONY

WEND CHRISTOPHER P

SACCOMANO JENNIFER BICKNELL

 

Court Documents

Motion for Terminating Sanctions

6/18/2019: Motion for Terminating Sanctions

Separate Statement

6/25/2019: Separate Statement

Motion for Summary Judgment

7/1/2019: Motion for Summary Judgment

Complaint

12/19/2016: Complaint

Proof of Service of Summons and Complaint

9/17/2018: Proof of Service of Summons and Complaint

Reply

10/16/2018: Reply

Minute Order

10/23/2018: Minute Order

Order

10/23/2018: Order

Notice of Continuance

12/12/2018: Notice of Continuance

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/28/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice

2/6/2019: Notice

Notice

2/6/2019: Notice

Opposition

2/7/2019: Opposition

Notice of Ruling

2/15/2019: Notice of Ruling

Minute Order

2/22/2019: Minute Order

Answer

4/10/2019: Answer

Case Management Statement

5/9/2019: Case Management Statement

CoverSheet

12/19/2016: CoverSheet

220 More Documents Available

 

Docket Entries

  • 07/01/2019
  • Declaration (of Jeffrey P. Salberg, M.D. in Support of Motion for Summary Judgment on behalf of Defendants Pejman Badiei, M.D. and Pejman Badiei, M.D., Inc.); Filed by Pejman Badiei, M.D. (Defendant); Bejman Badiei, M.D. Erroneously Sued As Pejman Badiei M.D., Inc. (Defendant)

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  • 07/01/2019
  • Motion for Summary Judgment; Filed by Pejman Badiei, M.D. (Defendant); Bejman Badiei, M.D. Erroneously Sued As Pejman Badiei M.D., Inc. (Defendant)

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  • 07/01/2019
  • Separate Statement; Filed by Pejman Badiei, M.D. (Defendant); Bejman Badiei, M.D. Erroneously Sued As Pejman Badiei M.D., Inc. (Defendant)

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  • 07/01/2019
  • Declaration (of Andrea D. Vazquez and Exhibits in Support of Motion for Summary Judgment of Defendants Pejman Badiei, M.D. and Pejman Badiei, M.D., Inc.); Filed by Pejman Badiei, M.D. (Defendant); Bejman Badiei, M.D. Erroneously Sued As Pejman Badiei M.D., Inc. (Defendant)

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  • 06/26/2019
  • Notice (Of Errata And Correction); Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/25/2019
  • Motion to Compel (Dee Ann Abelar's Further responses); Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/25/2019
  • Motion to Compel (Brian Abelar's further responses); Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/25/2019
  • Separate Statement; Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/25/2019
  • Separate Statement; Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/21/2019
  • Notice of Posting of Jury Fees; Filed by John R. Dingilian, M.D. (Defendant)

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286 More Docket Entries
  • 08/30/2018
  • Demurrer; Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 08/30/2018
  • Motion to Strike; Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 08/30/2018
  • Demurrer; Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/04/2018
  • at 10:00 AM in Department 4; Final Status Conference (Final Status Conference; Off Calendar) -

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  • 06/04/2018
  • Minute order entered: 2018-06-04 00:00:00; Filed by Clerk

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  • 06/04/2018
  • Minute Order

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  • 12/19/2016
  • Civil Case Cover Sheet

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  • 12/19/2016
  • Complaint

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  • 12/19/2016
  • Summons; Filed by Dee Ann Abelar (Plaintiff); Brian Abelar (Plaintiff)

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  • 12/19/2016
  • Complaint; Filed by Dee Ann Abelar (Plaintiff); Brian Abelar (Plaintiff)

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Tentative Rulings

Case Number: BC641637    Hearing Date: March 13, 2020    Dept: E

(1) MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

(2) MOTION FOR PROTECTIVE ORDER

(3) MOTION TO COMPEL DEPOSITION

Date: 3/13/20

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

I. DEFENDANTS SIMI VALLEY HOSPITAL AND ADVENTIST HEALTH SYSTEMS/WEST’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

With respect to Issue No. 1, Simi Valley Hospital dba Adventist Health Simi Valley and Adventist Health Systems/West (collectively, “Simi”) argue that the causes of action for professional negligence and loss of consortium fail because plaintiffs will be unable to establish that Simi breached any duty of care.

In support, Simi submits the declarations of Janet Geier, RN, BSN and Samantha St. Omar Roy, RN. Plaintiffs object that the declarants do not establish that they are qualified to testify as expert witnesses because the curricula vitae referenced in the declarations are not attached. This contention is well taken. “In order to testify as an expert in a medical malpractice case, a person must have enough knowledge, learning and skill with the relevant subject to speak with authority, and he or she must be familiar with the standard of care to which the defendant was held.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Here, Nurse Geier declares: (1) she obtained her nursing education in 1976; (2) received a certificate in Critical Care Nursing in 1978; (3) and is currently the Emergency Room Supervisor at Marina Del Rey Hospital. (Geier Decl. ¶ 2.) From this, the declaration establishes that Greier underwent some form of unknown education in nursing over four decades ago, obtained a certificate in nursing around that same time, and was employed as an ER supervisor on October 17, 2019, the date she signed her declaration. What the declaration does not establish is what type of nursing education she has had, how long she has been practicing as a nurse, or what relevant experience (if any) she has as a practicing nurse. The Court is thus unable to determine whether Nurse Geier is qualified to opine on any nursing standard of care.

Similarly, Nurse Omar Roy declares that she obtained her nursing education in 2013 and that she is currently a Clinical Nurse II at the University of California Los Angeles Neuroscience/Trauma Intensive Care Unit. (Omar Roy Decl. ¶ 3.) From this, the declaration only conveys that she underwent some sort of education in nursing in 2013 and worked as a nurse on October 20, 2019, the date she signed her declaration. This declaration does not establish what type of nursing education she has had, how long she has been practicing as a nurse, or what relevant experience (if any) she has as a practicing nurse. The Court is thus also unable to determine whether Nurse Omar Roy is qualified to opine on any nursing standard of care.

In Reply, Simi makes no attempt to rebut plaintiffs’ objections that the expert declarations lack foundation, but rather stands by its moving papers. (See Reply at 2 [“[D]efendants refer to the papers submitted and do not further Reply (i.e., whether defendants have meet [sic] their burden . . . .”].) Because Nurses Geier and Omar Roy do not provide a sufficient basis or foundation to opine on the relevant nursing standard of care, plaintiff’s Objection Nos. 1 and 30 are SUSTAINED, thus rendering the two declarations inadmissible in their entirety.

Without any competent evidence, defendants fail to meet their initial burden as to Issue No. 1, and, accordingly, summary adjudication on this ground must be DENIED.

With respect to Issue No. 2, Simi contends that it cannot be held vicariously liable for the conduct of any co-defendant physician, because none of the physicians at issue were employees, agents, or ostensible agents of defendants. The conduct of co-defendants Ira Tilles, M.D. and Pejman Badiei, M.D. are not relevant because they were dismissed on summary judgment. The remaining co-defendant physicians are Jeffrey Mora, M.D. and Mayur Trivedi, M.D., who treated plaintiff during her admission from November 30, 2015 to December 11, 2015. Simi provides the declaration of Ann Marie Svolos, Simi’s Director of Risk Management. Svolos declares that physicians that admit patients and follow them during their admission, such as Dr. Mora, are not employees or agents of Simi. (UMF 44-46 and evidence cited.) Simi also points to plaintiff’s deposition testimony indicating that she has no memory of her admission to Simi, or of her experiences with Dr. Mora and Trivedi while at Simi. (UMF 47-50 and evidence cited.)

“A hospital is liable for a physician's malpractice when the physician is actually employed by or is the ostensible agent of the hospital.” (Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, 635.) Ostensible agency may be shown when the following two elements are satisfied: “(1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital, and (2) reliance on that apparent agency relationship by the plaintiff.” (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.) As to the first element of ostensible agency, “[U]nless the patient had some reason to know of the true relationship between the hospital and the physician—i.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physician—ostensible agency is readily inferred.” (Id. at pp. 1454–55.)

Here, Simi does not present any evidence indicating plaintiff had reason to know the physicians were not employed by the hospital or are agents of the hospital, such as, for example, an admissions agreement signed by plaintiff indicating that physicians were independent contractors. Svolos merely declares in a conclusory fashion that, while physicians at Simi have medical staff privileges, they are not employees or agents of Simi. Thus, based on the evidence presented by Simi, Drs. Mora and Trivedi, ostensible agency may be “readily inferred” such that a triable issue exists as to whether Simi may be held vicariously liable for their conduct.

The motion for summary adjudication as to Issue No. 2 is DENIED.

Accordingly, the motion for summary judgment and summary adjudication is DENIED.

II. DEPOSITION OF DR. RAND-LUBY

Plaintiffs move for a protective order prohibiting the deposition of Dr. Leslie Rand-Luby, who submitted a declaration in opposition to defendant Jeffrey Mora, M.D.’s motion for summary judgment. Defendant Mora, joined by defendants Wayneinder S. Anand, M.D. and Babak Hakimisefat, D.O., move to compel the deposition of Dr. Rand-Luby.

When “a party presents evidence that raises a significant question relating to the foundation of an expert’s opinion filed in support of or in opposition to a motion for summary judgment or summary adjudication, a deposition limited to that subject should be allowed.” (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1534.)

Defendant Mora contends that there is a significant question as to the foundation of Dr. Rand-Luby’s declaration because Dr. Rand-Luby is a general surgeon, but is opining as to a standard of care by defendant Mora, a neurologist. (Rand-Luby Decl. ¶¶ 1, 2.) Dr. Rand-Luby also does not list the medical records and medical literature she reviewed in forming her opinions, or specify the infectious disease physicians she consulted. (Id. ¶ 4.) Dr. Mora also argues that Dr. Rand-Luby avers that the “medical records are purposefully misstated,” which is vague considering that Dr. Rand-Luby does not point to specific medical records she contends are misstated. (Id. ¶ 7.) Although Dr. Rand-Luby lists the symptoms plaintiff had when she presented to Simi Valley Hospital, Dr. Rand-Luby does not indicate how she knows that Dr. Mora was aware, as opposed to should have been aware, that plaintiff had an infection. (Id. ¶ 10.) Contending that plaintiff’s labs were within normal range, Dr. Mora wishes to inquire about Dr. Rand-Luby’s averment that the lab reports were “not normal.” (Id. ¶ 11; Liu Decl. ¶ 21.)

The foregoing is sufficient to establish good cause for defendant Mora to depose Dr. Rand-Luby concerning the foundation of her declaration prior to preparing a reply in support of his motion for summary judgment.

The Court rejects plaintiffs’ contention that Dr. Mora’s request is untimely. Even though defendant Mora may have known Dr. Rand-Luby submitted declarations in opposition to other defendants’ previously filed motions for summary judgment, Dr. Mora was not obligated (or likely permitted) to request Dr. Rand-Luby’s deposition until she executed a declaration to oppose his motion. Thus, Dr. Mora was not dilatory in noticing Dr. Rand-Luby’s declaration. Dr. Mora sent notice of Dr. Rand-Luby’s deposition one business day after plaintiffs filed their opposition to Dr. Mora’s motion for summary judgment with the accompanying declaration of Dr. Rand-Luby in support thereof. (Liu Decl. ¶ 4 & Ex. B.)

Further, the Court’s findings that Dr. Rand-Luby’s declarations submitted in support of previous motions for summary judgment contained sufficient foundation are not binding with respect to the issue of whether defendant Mora is entitled to depose Dr. Rand-Luby. With respect to Drs. Anand and Hakimisefat, the Court considered their contention that Dr. Rand-Luby’s declaration in opposition to their motion lacked foundation but ultimately determined Dr. Rand-Luby was qualified to opine on those defendants’ obligation to diagnose plaintiff’s alleged post-surgery infection as a general surgeon. (Robinson Decl. Ex. D.) Although those defendants made a request, in the alternative, to depose Dr. Rand-Luby in connection with their motion, the arguments they made and the manner in which they presented their request did not cause this Court to conclude granting such request was warranted when made. Drs. Anand and Hakimisefat do not state new facts, circumstances, or law that warrant reconsideration of the denial of their motion, even on the Court’s own motion. While defendants argue that allowing Dr. Mora, but not other defendants, to depose Dr. Rand-Luby would result in potential inconsistencies, the possibility that other co-defendants may be dismissed, thereby preventing defendants from arguing those dismissed defendants are liable for plaintiff’s injury under CCP § 437c(l), existed at the time defendants’ motion was heard. Furthermore, even after months of discovery and less than three months from trial, Drs. Anand and Hakimisefat concede they have no basis to seek indemnification from Dr. Mora. (See Joinder at p.8, n.5.)

In plaintiffs’ opposition to the motion to compel, plaintiffs note that Dr. Rand-Luby may be subject to duplicative depositions if Dr. Rand-Luby provides declarations in opposition to future motions for summary judgment. The Court can and will address only the matters before it. The record does not show that any defendant other than Mora noticed Dr. Rand-Luby’s deposition.

Contrary to plaintiffs’ argument, defendant Mora offered to pay Dr. Rand-Luby a reasonable expert witness fee in the deposition notice. There is no indication that Mora does not intend to pay an expert fee to Dr. Rand-Luby in accordance with CCP § 2034.450(a).)

For the foregoing reasons, the motion to compel deposition is GRANTED as to defendant Mora only. Plaintiffs’ motion for protective order is DENIED.

Defendant Jeffrey Mora, M.D.’s deposition of Dr. Leslie Rand-Luby is to take place on March 24, 2020, at 10:00 a.m., at counsel for defendant Mora’s office, located at 355 S. Grand Avenue, Suite 1750, Los Angeles, CA 90071. No other defendant may depose Dr. Rand-Luby.

Case Number: BC641637    Hearing Date: February 14, 2020    Dept: E

MOTION FOR SUMMARY JUDGMENT

[CCP § 437c; CRC 3.1350 et seq.]

Date: 2/14/20

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

Defendant Juong H. Lee M.D.’s UNOPPOSED Motion for Summary Judgment is GRANTED.

Defendant’s expert, Jon Yu, M.D., explains that Dr. Lee correctly recommended a craniotomy for removal of plaintiff’s meningoma tumor because plaintiff was losing her vision. (UMF 76 and evidence cited.) Prior to the October 6, 2015 craniotomy, Dr. Lee complied with the standard of care in deciding to perform the surgery, as plaintiff’s slightly elevated white blood count was the natural result of the already existing meningoma tumor, and plaintiff’s primary care physician, Dr. Dingilian, had cleared plaintiff for surgery. (UMF 87-88 and evidence cited.)

Dr. Lee did not breach the standard of care during the October 6, 2015 craniotomy because seizures and infection experienced by plaintiff commonly occur absent negligence. (UMF 83 and evidence cited.) Infections, strokes, headaches, seizures, nausea, and vomiting are accepted risks and complications with a craniotomy. (UMF 77-78 and evidence cited.) Dr. Lee correctly detailed the risks of infection after the craniotomy to plaintiff. (UMF 81-83 and evidence cited.) Dr. Lee had no reason to suspect plaintiff had an infection prior to December 14, 2015, when plaintiff was already admitted to USC Keck Hospital. (UMF 86, 89-97 and evidence cited.) In addition, use of foreign objects was required after a craniotomy to place plaintiff’s skull back into place. (UMF 79-80 and evidence cited.)

Based on the foregoing, Dr. Yu concludes that to a reasonable degree of medical probability, Dr. Lee’s care and treatment of plaintiff conformed with the operable standard of care for a neurosurgeon and that nothing Dr. Lee did or failed to do caused plaintiff to suffer an infection, injury from infection, or seizures. (UMF 98-101 and evidence cited.)

The declaration of Dr. Yu sufficiently establishes that the conduct of Dr. Lee fell within the applicable standard of care, and the burden shifts to plaintiffs to raise triable issues of material fact. Because plaintiffs do not submit an expert declaration to dispute Dr. Yu, plaintiffs do not present any triable issues of material fact as to whether Dr. Lee breached the standard of care. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985 [“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 plaintiff comes forward with conflict expert evidence”].)

As to the loss of consortium claim, because the professional negligence claim fails, so too must plaintiff Brian Abelar’s claim based thereon. (Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1067.)

Case Number: BC641637    Hearing Date: January 31, 2020    Dept: E

MOTION FOR SUMMARY JUDGMENT

[CCP § 437c; CRC 3.1350 et seq.]

Date: 1/31/20

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

I. EVIDENTIARY RULINGS

Plaintiffs’ requests for judicial notice as to Exhibits A and B are GRANTED, pursuant to Evidence Code § 452(d). Defendant John Dingilian M.D.’s request for judicial notice as to the declaration of John Yu, M.D. is GRANTED, but for the existence of the document, not for the truth of the matters asserted therein. (Evid. Code § 452(d) (court records); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)

Plaintiffs’ and defendant’s evidentiary objections are OVERRULED. With respect to plaintiffs’ objection to the Declaration of Mark Needham, M.D. based on Garibay v. Hemmat (2008) 161 Cal.App.4th 735, the Court notes that the Garibay Court never stated that the entirety of the medical records needed to be before the Court. Here, defendant submitted relevant portions of the Progress Notes prepared by Dr. Dingilian, as well as records for Joung Lee, M.D. and Adventist Health Simi Valley, and the transcript of plaintiff’s deposition. The medical records were supported by custodian of records declarations. [Solmayor Decl. ¶¶ 24-26, Exs. R-T]. The submitted records are sufficient to support Dr. Needham’s declaration, and the Court otherwise overrules plaintiffs’ objections to his conclusions therein.

II. MOTION FOR SUMMARY JUDGMENT

Defendant John Dingilian, M.D.’s Motion for Summary Judgment is GRANTED.

Defendant’s expert, Mark Needham, M.D., explains that Dr. Dingilian was not obligated to refer plaintiff Dee Ann Abelar to a vision specialist during her pregnancy because pregnancy-related vision changes are common and many physiologic hormonal changes affecting vision occur near the end of a pregnancy. [UMF 14 and evidence cited.] Plaintiff also had vision changes during her prior pregnancy 14 years earlier and that they went away after she gave birth. [UMF 15; Solmayor Decl. ¶ 13, Ex. G, p. 38:7-17]. Because meningiomas are slow growing tumors and plaintiff was pregnant, plaintiff’s course of treatment would not have changed had the meningoma been detected in October 2014. [UMF 17-18 and evidence cited]. According to Dr. Needham, no physician would remove the meningoma during pregnancy or in the immediate post-partum period. [UMF 23 and evidence cited.] Plaintiff also did not have any infection from September 28, 2015 when she was cleared for surgery to November 30, 2015 when she was hospitalized. [UMF 24-26 and evidence cited]. The expert concludes that Dr. Dingilian did not contribute to plaintiff’s brain infection diagnosed at Keck/USC Medical Center during her December 11, 2015 admission and that Dr. Dingilian complied with the standard of care. [Needham Decl., ¶¶ 28, 29].

The declaration of Dr. Needham sufficiently establishes that the conduct of Dr. Dingilian fell within the applicable standard of care, and the burden shifts to plaintiffs to raise triable issues of material fact. Because plaintiffs do not submit an expert declaration to dispute Dr. Needham, plaintiffs do not present any triable issues of material fact as to whether Dr. Dingilian breached the standard of care with respect to plaintiffs’ professional negligence claim (second cause of action). (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985 [“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 plaintiff comes forward with conflict expert evidence”].) As to the loss of consortium claim (seventh cause of action), because the professional negligence claim fails, so too must plaintiff Brian Abelar’s claim based thereon. (Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1067.)

Finally, the Court denies plaintiffs’ request that the Court continue the hearing on Dr. Dingilian’s motion for summary judgment so that plaintiffs can depose Dr. Lee, who purportedly failed to appear for deposition noticed for January 6, 2020. (Rand-Lewis Decl. ¶ 3.) Notably, plaintiffs do not state specific facts why Dr. Lee’s testimony is essential to rebut the declaration of Dr. Needham. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.) Nor to plaintiffs provide an explanation for why they did not seek the deposition of Dr. Lee earlier. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257.) The motion for summary judgment was filed on October 11, 2019. Plaintiffs did not serve the notice of deposition of Dr. Lee until December 13, 2019. (Rand-Lewis Decl. ¶ 3, Ex. A.) Further, even if this motion were continued to allow for Dr. Lee to be deposed, plaintiffs make no showing that Dr. Lee’s testimony would constitute expert evidence sufficient to rebut Dr. Needham’s declaration. (Munro, 215 Cal.App.3d at 985; Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Accordingly, Defendant John R. Dingilian, M.D.’s Motion for Summary Judgment is GRANTED.

Case Number: BC641637    Hearing Date: December 06, 2019    Dept: E

MOTION FOR SUMMARY JUDGMENT

[CCP § 437c; CRC 3.1350 et seq.]

Date: 12/6/19

Case: Dee Ann Abelar, et al. v. John R. Dinglian, M.D., et al. (BC 641637)

TENTATIVE RULING:

Defendant Mayur Trivedi, M.D.’s Motion for Summary Judgment is DENIED.

“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.App.3d 977, 985.) Here, defendant has submitted the declaration of Dr. Ostroff.

Dr. Ostroff’s declaration adequately establishes his qualifications to testify as an expert. He is a licensed physician with the appropriate education, training, and professional experience, is board certified in general internal medicine and gastroenterology subspecialty, and has been in medical practice in California for over thirty years. [Ostroff Decl. ¶¶ 2, 3, & Ex. A.] Dr. Ostroff is familiar with the standard of care required of physicians under the same or similar circumstances such as Mayur Trivedi, M.D. [Ostroff Decl. ¶ 2.] Further, Dr. Ostroff reviewed the complaint in this matter, and appropriate patient medical records, including the records from Adventist Health Simi Valley Hospital and Keck Hospital of USC. [Ostroff Decl. ¶ 4.] Based on the foregoing, Dr. Ostroff states that, to a reasonable degree of medical probability, the care and treatment provided to plaintiff Dee Ann Abelar by Dr. Trivedi met the standard of care required of a gastroenterology physician. [Ostroff Decl. ¶¶ 13.] Dr. Ostroff explains that Dr. Trivedi saw plaintiff Dee Ann Abelar on December 9, 2015, due to plaintiff’s few episodes of coffee-ground emesis earlier that day and complaints of some epigastric abdominal pain. Dr. Ostroff further states that Dr. Trivedi properly evaluated the routine lab results; appropriately planned to monitor liver function tests, amylase and lipase; placed Dee Ann Abelar on a protonix drip and clear liquid diet; monitored her hemoglobin and hematocrit; and ordered a transfuse if needed to keep hemoglobin greater than 8, as well as possible performance of EGD if symptoms persisted. [Ostroff Decl. ¶¶ 7-9.] Dr. Trivedi also instructed Dee Ann Abelar’s other treating physicians to call with any questions or concerns, but never received any such call. [Ostroff Decl. ¶¶ 9, 15.] Dr. Trivedi conducted a follow-up examination the next morning, noting plaintiff was without further episodes of vomiting and that tests were all normal. Dr. Trivedi continued with the drip and transfuse orders, advanced the patient to an as tolerated diet, and canceled the order for an EGD because plaintiff’s gastroenterology symptoms were not persisting. [Ostroff Decl. ¶ 10]. Dr. Ostroff thus concludes that Dr. Trivedi took the appropriate steps to treat plaintiff Dee Ann Abelar’s gastroenterology needs in the acute hospital setting, keeping close observation of plaintiff, documenting his concerns upon consultation, and ordering the appropriate medication, testing, and procedures over the two-day course of treatment. [Ostroff Decl. ¶¶ 14, 15.] Dr. Ostroff further explains that it was not Dr. Trivedi’s role or responsibility, nor his skill set, to diagnose an infection. [Ostroff Decl. ¶ 14].

The declaration of Dr. Ostroff is sufficient to establish that the conduct of Dr. Trivedi fell within the applicable standard of care, thereby shifting the burden to plaintiffs to raise triable issues of material fact. In a medical malpractice case, if a plaintiff’s expert declaration in opposing summary judgment sets forth specific factual breaches of duty, the defendant doctor’s motion should be denied. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) Here, in opposition to the motion, plaintiffs submit the expert declaration of Leslie Rand-Luby, M.D.

Dr. Rand-Luby’s declaration indicates that Dr. Rand-Luby is a medical doctor and general surgeon, with a practice in treating problems such as those presented by plaintiff Dee Ann Abelar in her care and treatment. Further, Dr. Rand-Luby states she is familiar with the standard of care for physicians, hospitalists, surgeons, and hospitals in the care and treatment of patients with the conditions presented by plaintiff, including consulting gastroenterologists in hospital departments. [Rand-Luby Decl. ¶¶ 1-3.] Dr. Rand-Luby also states she has reviewed the pertinent medical records, as well as deposition testimony and discovery responses. [Rand-Luby Decl. ¶ 4.] Ultimately, Dr. Rand-Luby concludes that Dr. Trivedi breached the standard of care because he “was to assess the Plaintiff overall” and should have requested a specialist’s treatment and consultation for her condition. [Rand-Luby Decl. ¶¶ 12, 15.] Specifically, Dr. Rand-Luby states her disagreement with Dr. Ostroff’s conclusion that Dr. Trivedi had no role or responsibility to diagnose Dee Ann Abelar’s post-surgical infection simply because Dr. Trivedi was a gastroenterologist. [Rand-Luby Decl. ¶ 16.] Rather, according to Dr. Rand-Luby, Dr. Trivedi was not permitted to “ignore” whether Dee Ann Abelar had a surgical complication, would have been required to take a complete history, and should have conducted an overall assessment to diagnose the cause of her symptoms, including obtaining tests to diagnose her infection and ruling out infection as an underlying cause of her problems. [Rand-Luby Decl. ¶ 16.] Further, to the extent Dr. Trivedi lacked the skill set to do so as a gastroenterologist, Dr. Rand-Luby opines that he should have obtained a specialist consultation in infectious disease as needed. [Rand-Luby Decl. ¶ 16.] Dr. Rand-Luby thus concludes that Dr. Trivedi’s failure to diagnose or treat Dee Ann Abelar’s infection or obtain specialist care fell below the standard of care and was a substantial factor in causing her injury. [Rand-Luby Decl. ¶¶ 19-20.]

The declaration of Dr. Rand-Luby sufficiently sets forth specific factual breaches of duty to raise triable issues of fact with respect to whether the conduct of Dr. Trivedi fell within the standard of care. Accordingly, the motion for summary judgment must be denied.

Plaintiffs’ Objections to Defendant Mayur Trivedi, M.D.’s Evidence Submitted in Support of Defendant’s Motion for Summary Judgment are OVERRULED.

Case Number: BC641637    Hearing Date: November 22, 2019    Dept: E

MOTIONS FOR SUMMARY JUDGMENT (2)

[CCP § 437c; CRC 3.1350 et seq.]

Date: 11/22/19

Case: Abelar, et al. v. Dinglian, M.D., et al. (BC 641637)

 

TENTATIVE RULING:

Defendants Wayneinder S. Anand, M.D. and Babak Hakimisefat, D.O. have each moved for summary judgment as to the two remaining causes of action against them, namely, the second cause of action for professional negligence and seventh cause of action for loss of consortium. Although the parties’ motion papers, declarations, and evidence with respect to both motions are largely similar (indeed, identical with respect to plaintiffs’ filings), the Court will address each motion separately, as the declarations of Andrew S. Wachtel, M.D. submitted in support of each defendant’s motion are tailored to each such motion.

I. SUMMARY JUDGMENT MOTION OF DEFENDANT ANAND

 

In support of his motion, Dr. Anand has submitted the declaration of Dr. Wachtel, which adequately establishes Dr. Wachtel’s qualifications to testify as an expert. Dr. Wachtel is a licensed physician with the appropriate education, training and professional experience. He is board certified in pulmonology, critical care, and internal medicine, and has been in private practice in Los Angeles as a pulmonologist, critical care physician, internist and hospitalist for over 25 years. [Wachtel Decl. ¶¶ 1, 4, Ex. 1.] Dr. Wachtel is familiar with the standard of care for physicians serving as hospitalists, such as Dr. Anand. [Wachtel Decl. ¶ 4.] Dr. Wachtel’s CV is attached as Exhibit 1. The declaration also establishes that Dr. Wachtel has reviewed the complaint in this matter, as well as appropriate patient medical records, including the records from Simi Valley Hospital, Providence St. Joseph Medical Center, and Valley Neurosurgical Institute. [Wachtel Decl. ¶ 5.] Copies of the medical records relied on are attached to the Notice of Lodging of Exhibits. The records include declarations from the custodians of records. [Exs. D-Q].

Dr. Wachtel’s declaration also provides substantial testimony setting forth an understanding of the facts and the reasons for Dr. Wachtel’s opinions. Specifically, Dr. Wachtel states that the care and treatment provided to plaintiff Dee Ann Abelar by Dr. Anand met the standard of care and that, to a reasonable degree of medical certainty, nothing Dr. Anand did or did not do caused any of the injuries alleged by plaintiffs. [Wachtel Decl. ¶¶ 24, 25, 27-29]. Dr. Wachtel explains that Dr. Anand saw plaintiff Dee Ann Abelar on October 6, 2015, who performed a history and physical, with the physical examination being normal, and that since he saw plaintiff post-surgery, he had no obligation to obtain appropriate consent to the surgery performed by Dr. Lee after the fact. [Wachtel Decl. ¶¶12, 25.] Dr. Wachtel also explains that Dr. Anand appropriately noted plaintiff Dee Ann Abelar’s condition and vital signs, reviewed available laboratory data and imaging studies, ordered SCD’s for secondary bleeding risk, and formulated an appropriate assessment and plan for a patient who had just undergone neurosurgery. [Wachtel Decl. ¶ 26.] Dr. Wachtel states: that Dee Ann Abelar suffered no obvious signs of symptoms of meningitis or infection following the surgery on October 6, 2015, such as fever, chills, fatigue, lethargy, loss of appetite, malaise or shivering; that such symptoms would not have in any case appeared in the first 24-48 hours postoperatively; and that Dee Ann Abelar presented to Dr. Lee a full ten days later with no signs or symptoms of infection of meningitis. [Wachtel Decl. ¶ 28.] Dr. Wachtel indicates that at the time of Dee Ann Abelar’s care by Dr. Anand, there were no signs or symptoms for Dr. Anand to appreciate. Thus, there were no negligent acts or omissions to act on the part of Dr. Anand that caused or contributed to plaintiffs’ claimed injuries or damages. [Wachtel Decl. ¶¶ 28, 29.]

“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. App.3d 977, 985.) Here, the declaration of Dr. Wachtel sufficiently establishes that the conduct of Dr. Anand fell within the applicable standard of care and did not cause or contribute to plaintiffs’ harm, thereby shifting the burden to plaintiffs to raise a triable issue of material fact. (See Hanson v. Grode (1999) 76 Cal.App.4th 601, 607 [if plaintiff’s expert declaration in opposing summary judgment in medical malpractice case sets forth specific factual breaches of duty, the defendant doctor’s motion for summary judgment should be denied].

Here, in opposition, plaintiffs submit the declaration of Dr. Leslie Rand-Luby, M.D. Dr. Rand-Luby’s declaration indicates that Dr. Rand-Luby is a medical doctor and general surgeon, with a practice in treating problems such as those presented by plaintiff and her care and treatment. Dr. Rand-Luby states she is familiar with the standard of care for physicians, hospitalists, surgeons, and hospitals in the care and treatment of patients with the conditions presented by plaintiff, including surgical site infections. [Rand-Luby Decl. ¶¶ 2, 3.]

Dr. Rand-Luby also states she has reviewed the pertinent medical records, as well as deposition testimony and discovery responses, thereby forming the opinion that Dr. Anand breached the standard of care by not diagnosing or treating plaintiff Dee Ann Abelar’s infection. Notably, Dr. Rand-Luby states that, when Dr. Anand examined plaintiff on October 6, 2015, he “did not diagnose or treat Plaintiff’s infection, even though the medical records show objective signs of infection in lab results and imaging results.” [Rand-Luby Decl. ¶ 10.] In furtherance of that conclusion, Dr. Rand-Luby notes that the medical records “showed an elevated whit [sic] blood count” and “imaging showing infection.” [Rand-Luby Decl. ¶ 10.] Dr. Rand-Luby further opines that Dr. Anand did not obtain the appropriate and necessary specialist care. [Rand-Luby Decl. ¶ 10.] Dr. Rand-Luby also claims “defendants” could and should have treated plaintiff Dee Ann Abelar when she “presented with a post surgical infection” because, in addition to her medical records and imaging reports, Dee Ann Abelar “reported decreased vision, fever, vomiting and pain.” [Rand-Luby Decl. ¶ 13.] While it is unclear from Dr. Rand-Luby’s declaration whether Dr. Anand is among the “defendants” to whom Dee Ann Abelar reported such purported symptoms of a post-surgical infection, plaintiff Dee Ann Abelar states in her declaration that she told Dr. Anand “of my pain, decreased vision and double vision, fever and nausea with vomiting.” [Dee Ann Abelar Decl. ¶ 3.] In sum, Dr. Rand-Luby concludes that on the dates Dr. Anand had contact with plaintiff Dee Ann Abelar, there were lab reports, CT, and MRI reports which were not normal, and indicated the presence of post-surgical infection and that the standard of care required treating this infectious disease process and obtaining specialist treatment. [Rand-Luby Decl. ¶ 16].

On their face, the declarations submitted by plaintiffs appear to sufficiently raise triable issues of fact with respect to whether the conduct of Dr. Anand fell within the standard of care and was the medical cause of plaintiffs’ claimed injuries and damages. The problem, however, is that neither declaration is signed. Both the declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar merely contain a typed “/s/” where the declarant’s signature should be. While an electronic signature for a declarant may be permissible (see Cal. Rules of Court, rule 2.257), the Court cannot find under the circumstances that the electronic signature should be attributable to the purported declarant. (See Civ. Code § 1633.9.) As such, the Court finds that the declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar are not valid. (See CCP §§ 98, 2015.5.)

Accordingly, the Court is inclined to SUSTAIN moving defendants’ Objections Nos. 1 and 26 to the declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar in their entirety. For the same reason, the Court would SUSTAIN Objection No. 37 to plaintiff Brian Abelar’s declaration in its entirety. All other objections by the parties’ are OVERRULED.

If the declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar are found invalid, the Court must grant Dr. Anand’s motion for summary judgment, as plaintiffs will not have presented any evidence to meet their shifted burden to raise a triable issue of material fact. If, however, the submitted declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar were made under penalty of perjury by the declarants and properly brought before this Court for consideration, then the Court would deny the motion for the reasons set forth above.

For the reasons the Court found above with respect to the motion by Dr. Anand, the declaration of Dr. Wachtel submitted in support of Dr. Hakimisefat’s motion for summary judgment sufficiently sets forth his qualifications to provide expert testimony in this matter, as well as the basis for his conclusions. [See Wachtel Decl. ¶¶ 1, 4, 5 & Ex. 1; Ex. D-Q.]

As for the conclusions concerning Dr. Hakimisefat’s conduct, Dr. Wachtel states that the care and treatment provided to plaintiff Dee Ann Abelar by Dr. Hakimisefat met the standard of care and that, to a reasonable degree of medical certainty, nothing Dr. Hakimisefat did or did not do caused any of the injuries alleged by plaintiffs. [Wachtel Decl. ¶¶ 24, 25, 27-29.] Dr. Wachtel explains that Dr. Hakimisefat saw plaintiff Dee Ann Abelar on October 7 and 8, 2015, and examined her, with the physical examination being normal, and that since he saw plaintiff post-surgery, he had no obligation to obtain appropriate consent to the surgery performed by Dr. Lee after the fact. [Wachtel Decl. ¶¶13, 16, 26.] Dr. Wachtel also explains that Dr. Hakimisefat appropriately examined Dee Ann Abelar following her surgical procedure, that she had pain which was being controlled by medications, that her vital signs were within normal limits, that there was no indication of any ongoing infection, and that Dr. Hakimisefat appropriately discharged plaintiff and gave appropriate discharge instructions. [Wachtel Decl. ¶ 27, 28.] In addition, Dr. Wachtel states: that Dee Ann Abelar suffered no obvious signs of symptoms of meningitis or infection following the surgery on October 6, 2015, such as fever, chills, fatigue, lethargy, loss of appetite, malaise or shivering; that such symptoms were not present at the time of discharge; and that Dee Ann Abelar presented to Dr. Lee a full ten days later with no signs or symptoms of infection of meningitis. [Wachtel Decl. ¶ 30.] Dr. Wachtel indicates that, at the time of Dee Ann Abelar’s care by Dr. Hakimisefat, there were no signs or symptoms for him to appreciate. Accordingly, there were no negligent acts or omissions to act on the part of Dr. Hakimisefat that caused or contributed to plaintiffs’ claimed injuries or damages. [Wachtel Decl. ¶¶ 30, 31].

The declaration of Dr. Wachtel is sufficient to shift the burden to plaintiffs to raise a triable issue of fact. (Munro, 215 Cal.App.3d at 985.) For the reasons discussed above with respect to Dr. Anand’s motion for summary judgment, the Court finds that the declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar might meet that burden. (See Hanson, 76 Cal.App.4th at 607.) As is also discussed above, however, those declarations are invalid, such that Dr. Hakimisefat’s motion should be granted for plaintiffs’ failure to submit any evidence to raise a triable issue of material fact. If, however, the submitted declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar were made under penalty of perjury by the declarants and properly brought before this Court for consideration, then the Court would deny Dr. Hakimiseafat’s motion for the reasons already stated herein.