On 11/09/2016 MATTHEW A BRILL filed a Personal Injury - Medical Malpractice lawsuit against ALI KHOYNEZHAD MD PHD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
BRILL MATTHEW A.
BRILL AMY E.
DOES 1 TO 100
JAVANZADEH KARMEN PA
SULLIVAN DANIEL JOHN M.D.
CARDIOTECK MEDICAL SERVICES INC.
KHOYNEZHAD ALI M.D. PHD
AL-ATASSI TALAL M.D.
ANTON EMILY MARIE M.D.
DRAGOMER DOUG MS
CEDARS SINAI MEDICAL CENTER
SALDO LAW GROUP
HEIMBERG STEVEN ANDREW
BARR-FERNANDEZ MARSHA ELENA
LYNCH GREGORY GORDON
KIEFER MARK LEROY
MOORE RAYMOND ROBERT
1/4/2018: STIPULATION TO CONTINUE TRIAL AND TRIAL-RELATED DATES
1/24/2018: NOTICE RE: CONTINUANCE OF HEARING
5/25/2018: REQUEST FOR DISMISSAL
7/25/2018: Minute Order
7/25/2018: STIPULATED EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; ETC
3/6/2019: Minute Order
3/6/2019: Ex Parte Application
4/20/2017: DECLARATION BY TRIAL ATTORNEY [FORMERLY PURSUANT TO SECTION 9 OF THE COURT RULES OF COURT JUDICIAL ADMINISTRATION STANDARDS]
4/20/2017: ANSWER TO COMPLAINT BY DEFENDANT, DANIEL JOHN SULLIVAN, M.D.
4/25/2017: ANSWER OF DEFENDANT CEDARS-SINAI MEDICAL CENTER
4/26/2017: NOTICE AND ACKNOWLEDGMENT OF RECEIPT - CIVIL
5/9/2017: PROOF OF SERVICE SUMMONS
6/22/2017: ANSWER OF DEFENDANT KARMEN JAVANIZADEH, PA, TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DAMAGES
7/20/2017: DEFENDANTS, CARDIOTEK PERFUSION SERVICES, INC. AND DOUG DRAGOMER, M.S.'S DEMAND FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES
7/20/2017: ANSWER OF DEFENDANTS CARDIOTEK PERFUSION SERVICES, INC. AND DOUG DRAGOMER, M.S. TO PLAINTIFFS FIRST AMENDED COMPLAINT
10/6/2017: NOTICE OF POSTING JURY FEES BY DEFENDANT, DANIEL JOHN SULLIVAN, M.D.
10/16/2017: ANSWER OF DEFENDANT EMILY MARIE ANTON, M.D. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DAMAGES
at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Ex Parte Application (to Continue Trial and All Related Dates;) - Held - Motion GrantedRead MoreRead Less
Minute Order ( (Plaintiff's Ex Parte Application to Continue Trial and All Re...)); Filed by ClerkRead MoreRead Less
Ex Parte Application (to Continue Trial and All Related Dates;); Filed by Matthew A. Brill (Plaintiff); Amy E. Brill (Plaintiff)Read MoreRead Less
Notice of Ruling; Filed by Matthew A. Brill (Plaintiff); Amy E. Brill (Plaintiff)Read MoreRead Less
Notice ( of Ruling Re Plaintiffs' Motion to Compel); Filed by Matthew A. Brill (Plaintiff); Amy E. Brill (Plaintiff)Read MoreRead Less
at 5:00 PM in Department 4A, Christopher K. Lui, Presiding; Ruling on Submitted MatterRead MoreRead Less
Certificate of Mailing for (Minute Order (Ruling on Submitted Matter) of 01/17/2019); Filed by ClerkRead MoreRead Less
Minute Order ( (Ruling on Submitted Matter)); Filed by ClerkRead MoreRead Less
at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Compel (Further Responses to Request for Production of Documents, Set Three (Amended)) - Held - Taken under SubmissionRead MoreRead Less
Order Appointing Court Approved Reporter as Official Reporter Pro TemporeRead MoreRead Less
Proof-Service/Summons; Filed by Matthew A. Brill (Plaintiff); Amy E. Brill (Plaintiff)Read MoreRead Less
NOTICE OF POSTING JURY FEESRead MoreRead Less
ASSOCIATION OF ATTORNEYSRead MoreRead Less
Notice; Filed by Matthew A. Brill (Plaintiff); Amy E. Brill (Plaintiff)Read MoreRead Less
Association of Attorney; Filed by Plaintiff/PetitionerRead MoreRead Less
Receipt; Filed by Matthew A. Brill (Plaintiff)Read MoreRead Less
CIVIL DEPOSITRead MoreRead Less
COMPLAINT FOR DAMAGES 1. MEDICAL NE1IGENCE ;ETCRead MoreRead Less
Complaint; Filed by Matthew A. Brill (Plaintiff); Amy E. Brill (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC640253 Hearing Date: October 05, 2020 Dept: 28
Motion to Continue Trial
Case Number: BC640253 Hearing Date: January 09, 2020 Dept: 4A
Motion for Summary Judgment
Having considered the moving, opposing, and reply papers, the Court rules as follows.
On November 9, 2016, Plaintiffs Matthew A. Brill and Amy E. Brill (“Plaintiffs”) filed a complaint against Defendants Ali Khoynezhad, M.D., PHD; Doug Dragomer, M.S.; Talal Al-Atassi, M.D.; Karmen Javanzadeh, PA; Daniel John Sullivan, M.D.; Emily Marie Anton, M.D.; Cardiotek Medical Services, Inc. (erroneously sued and served as Cardiotek Medical Services, Inc.); Cedars Siani Medical Center. The complaint alleges medical negligence and loss of consortium for deficient medical treatment administered on October 12, 2015.
On June 27, 2017, Plaintiffs filed a first amended complaint.
On May 1, 2018, the Court dismissed Defendant Daniel John Sullivan M.D. without prejudice.
On May 25, 2018, the Court dismissed Defendant Emily Marie Anton, M.D. without prejudice.
On October 23, 2019, Defendants Cardiotek Perfusion Services, Inc. and Doug Dragomer, M.S. filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.
Trial is set for August 28, 2020.
Defendants Cardiotek Perfusion Services, Inc. and Doug Dragomer, M.S. (“Moving Defendants”) asks the Court to enter summary judgment against Plaintiff because there is no triable issue of material fact and Moving Defendants are entitled to summary judgment. More specifically, Moving Defendants lodged an expert declaration opining that Moving Defendants complied with the applicable standard of care in treating Plaintiff Matthew A. Brill.
Plaintiff objects to portions of paragraphs 4i, 4j, and 4k, and to paragraph 5d, in its entirety, of Clinton Jones’ declaration on the grounds that they lack foundation and they are hearsay, vague, ambiguous, and conclusory.
The objected to portion of paragraph 4i states as follows: “The first dose of del Nido cardioplegia, 1,000 ml, was given at 09:46 antegrade, injected directly into the root of the aorta by Dr. Khoynezhad. The location and timing were appropriate.”
The objected to portion of paragraph 4j states as follows: “The next dose of del Nido cardioplegia, 250 ml, was given at 11:17, injected into the left coronary ostium by Dr. Khoynezhad. The location and timing were appropriate.”
The objected to portion of paragraph 4k states as follows: “The next dose of del Nido cardioplegia, 250 ml, was given at 11:19 injected into the right coronary ostium by Dr. Khoynezhad. The location and timing were appropriate.”
Paragraph 5d states as follows: “Mr. Dragomer appropriately followed the directions of Dr. Khoynezhad with regard to the dosing, timing and delivery of the cardioplegia solution. The flows, pressures and volumes were appropriate.”
The Court finds Mr. Jones has laid a foundation to make these statements because Mr. Jones is a certified clinical perfusionist and reviewed Plaintiff Mathew A. Brill’s medical records from Cedars-Siani and Defendant Dragomer’s deposition testimony. The Court also finds these statements to not be ambiguous or vague. The Court further finds there to be no out-of-court statement here. Thus, the objections on foundation, hearsay, vague, and ambiguous grounds are OVERRULED.
However, the Court finds Mr. Jones’ statement that the location, timing, pressures, and volumes were appropriate is conclusory. There is no articulation as to why the these metrics were appropriate. For example, Mr. Jones does not declare as to a list of locations that are appropriate, or that certain ranges of timing, pressures, or volumes that are proper in this context. As such, Mr. Jones’ statements here are conclusory. As such, the Court SUSTAINS the objection to the statement that the location, timing, pressures, and volumes were appropriate as these statements are conclusory.
The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“On a motion for summary judgment, the 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 “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.” (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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)
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, 701-702 (citations omitted).) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at p. 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, 984-985 (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.)
Moving Defendants submit the declaration of clinical perfusionist Clinton Jones in support of Moving Defendants’ motion for summary judgment. Mr. Jones provided his credentials. (Jones Decl., ¶¶ 1-2, Exh. A.) Mr. Jones stated he reviewed Plaintiff Mathew Brill’s medical records from Cedars-Siani Medical Center and the deposition testimony of Defendant Dragomer. (Jones Decl., ¶ 3.) Mr. Jones then listed relevant facts. (Jones Decl., ¶¶ 4a-4p.) Finally, Mr. Jones declared to a variety of opinions explained in further detail below.
Mr. Jones opined that Moving Defendants’ met the applicable standard of care. (Jones Decl., ¶ 5a.) Defendant Dragomer appropriately followed Dr. Khoynezhad’s directions to cool and warm the Plaintiff Mathew Brill because the recorded temperatures were appropriate. (Jones Decl., ¶¶ 5b-5c.) Defendant Dragomer informed Dr. Khoynezhad at appropriate intervals (60, 75, and 90 minutes) as to how much time had passed since the last dose of cardioplegia, allowing the surgeon to decide if/when another dose of cardioplegia was needed. (Jones Decl., ¶ 5e.)
The Court finds Moving Defendants have submitted a sufficient expert declaration. This declaration shows that Defendant Dragomer complied with the applicable standard of care in treating Plaintiff. Defendant Dragomer acted only upon Dr. Khoynezhad’s directions with the exception of providing Dr. Khoynezhad with reoccurring alarms as to how much time has passed since the last dose of cardioplegia had been administered. There is no evidence showing Defendant Dragomer breached his duties as a perfusionist. As such, Mr. Jones’ declaration shows Defendant Dragomer complied with his standard of care in treating Plaintiff Mathew Brill.
Further, Defendant Cardiotek Perfusion Services, Inc. is alleged to have injured Plaintiff Mathew Brill through providing perfusion services. (See FAC, ¶ 7.) There is no allegation that there was another perfusionist who treated Plaintiff Mathew Brill other than Defendant Dragomer. It therefore follows that Mr. Jones’ declaration demonstrates Defendant Cardiotek Perfusion Services, Inc. complied with its standard of care in furnishing proper perfusion treatment through Defendant Dragomer.
The burden shifts to Plaintiff Mathew Brill. Plaintiff Mathew Brill has not submitted a contradicting expert declaration. As such, summary judgment is properly granted against Plaintiff Mathew Brill in regards to his sole cause of action for medical malpractice. Amy Brill’s loss of consortium cause of action fails because it is derived from a medical malpractice cause of action that fails. Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1526.
Summary judgment is GRANTED.
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