This case was last updated from Los Angeles County Superior Courts on 11/17/2021 at 23:44:42 (UTC).

AFSA KHOU ET AL VS MARTIN MORTAZAVI ET AL

Case Summary

On 05/03/2017 AFSA KHOU filed a Personal Injury - Medical Malpractice lawsuit against MARTIN MORTAZAVI. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are MICHAEL J. CONVEY, VALERIE SALKIN, JAMES A. KADDO, AMY D. HOGUE, BERNIE C. LAFORTEZA, HUEY P. COTTON and SHIRLEY K. WATKINS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8140

  • Filing Date:

    05/03/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MICHAEL J. CONVEY

VALERIE SALKIN

JAMES A. KADDO

AMY D. HOGUE

BERNIE C. LAFORTEZA

HUEY P. COTTON

SHIRLEY K. WATKINS

 

Party Details

Petitioners and Plaintiffs

KHOU NICOLE

KHOU MICHELLE

KHOU AFSA

Defendants and Respondents

DOES 1 TO 10

LEIBZON ROMAN MD

MORTAZAVI MARTIN MD

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

SADEGHI HARRY

SADEGHI HARRY HAMID R

Defendant Attorneys

SACCOMANO JENNIFER

BUTTS MELANIE COLLETTE

SACCOMANO JENNIFER BICKNELL

SCHAEFFER JAMES CRAIG

TAYLOR NINA DENISE

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [ORDER VACATING 9/21/20 MSC]

8/28/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [ORDER VACATING 9/21/20 MSC]

FIRST AMENDED COMPLAINT

9/10/2018: FIRST AMENDED COMPLAINT

Witness List

3/4/2021: Witness List

Brief - BRIEF DEFENDANT MARTIN MORTAZAVI, M.D.'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT

3/5/2021: Brief - BRIEF DEFENDANT MARTIN MORTAZAVI, M.D.'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT

Minute Order - MINUTE ORDER (COURT ORDER (RE: APPLICATION FOR GOOD FAITH SETTLEMENT BY DR....)

10/14/2021: Minute Order - MINUTE ORDER (COURT ORDER (RE: APPLICATION FOR GOOD FAITH SETTLEMENT BY DR....)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER (RE: APPLICATION FOR GOOD FAITH SETTLEMENT BY DR....) OF 10/14/2021

10/14/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER (RE: APPLICATION FOR GOOD FAITH SETTLEMENT BY DR....) OF 10/14/2021

Order - ORDER DETERMINING SETTLEMENT BETWEEN ROMAN LEIBZON, M.D. AND PLAINTIFFS IS IN GOOD FAITH

10/15/2021: Order - ORDER DETERMINING SETTLEMENT BETWEEN ROMAN LEIBZON, M.D. AND PLAINTIFFS IS IN GOOD FAITH

Stipulation - No Order - STIPULATION - NO ORDER TO AGREE TO THE AUTHENTICITY OF MEDICAL RECORDS AND IMAGING STUDIES FROM LOS ROBLES MEDICAL CENTER AND UCLA HEALTH AT TRIAL

9/24/2021: Stipulation - No Order - STIPULATION - NO ORDER TO AGREE TO THE AUTHENTICITY OF MEDICAL RECORDS AND IMAGING STUDIES FROM LOS ROBLES MEDICAL CENTER AND UCLA HEALTH AT TRIAL

Reply - REPLY REPLY OF DEFENDANT MARTIN MORTAZAVI, MD TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION IN LIMINE #3

9/24/2021: Reply - REPLY REPLY OF DEFENDANT MARTIN MORTAZAVI, MD TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION IN LIMINE #3

Exhibit List

9/24/2021: Exhibit List

Statement of the Case

9/24/2021: Statement of the Case

Witness List

9/24/2021: Witness List

Declaration - DECLARATION OF JAMES C. SCHAEFFER, ESQ. RE ATTEMPTS TO MEET AND CONFER WITH PLAINTIFF COUNSEL TO PREPARE JOINT TRIAL DOCUMENTS

9/24/2021: Declaration - DECLARATION OF JAMES C. SCHAEFFER, ESQ. RE ATTEMPTS TO MEET AND CONFER WITH PLAINTIFF COUNSEL TO PREPARE JOINT TRIAL DOCUMENTS

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE PAM MYERS, CSR #12940

9/27/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE PAM MYERS, CSR #12940

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

9/27/2021: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Application for Determination of Good Faith Settlement

9/15/2021: Application for Determination of Good Faith Settlement

Opposition - OPPOSITION OPPOSITION TO DR. MORTAZAVI'S MOTION IN LIMINE NO. 3

9/15/2021: Opposition - OPPOSITION OPPOSITION TO DR. MORTAZAVI'S MOTION IN LIMINE NO. 3

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE JAMIE ONUKI, CSR#13904

9/10/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE JAMIE ONUKI, CSR#13904

257 More Documents Available

 

Docket Entries

  • 01/24/2022
  • Hearing01/24/2022 at 09:30 AM in Department T at 6230 Sylmar Ave., Van Nuys, CA 91401; Final Status Conference

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  • 01/24/2022
  • Hearing01/24/2022 at 09:30 AM in Department T at 6230 Sylmar Ave., Van Nuys, CA 91401; Jury Trial

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  • 10/15/2021
  • DocketOrder (Determining Settlement Between Roman Leibzon, M.D. and Plaintiffs Is In Good Faith); Filed by Roman Leibzon, MD (Defendant)

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  • 10/14/2021
  • Docketat 2:32 PM in Department T, Shirley K. Watkins, Presiding; Court Order

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  • 10/14/2021
  • DocketCertificate of Mailing for ((Court Order (Re: Application for Good Faith Settlement by Dr....) of 10/14/2021); Filed by Clerk

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  • 10/14/2021
  • DocketMinute Order ( (Court Order (Re: Application for Good Faith Settlement by Dr....)); Filed by Clerk

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  • 09/27/2021
  • Docketat 09:30 AM in Department T, Shirley K. Watkins, Presiding; Jury Trial ((10 day estimate)) - Not Held - Advanced and Vacated

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  • 09/27/2021
  • Docketat 08:30 AM in Department T, Shirley K. Watkins, Presiding; Final Status Conference - Held - Continued

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  • 09/27/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore (PAM MYERS, CSR #12940); Filed by Martin Mortazavi, MD (Defendant)

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  • 09/27/2021
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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346 More Docket Entries
  • 09/28/2018
  • DocketEx-Parte Application; Filed by Plaintiff/Petitioner

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  • 09/28/2018
  • DocketMinute order entered: 2018-09-28 00:00:00; Filed by Clerk

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  • 09/28/2018
  • DocketProof of Personal Service; Filed by Afsa Khou (Plaintiff); Nicole Khou (Plaintiff); Michelle Khou (Plaintiff)

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  • 09/28/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 09/10/2018
  • DocketFIRST AMENDED COMPLAINT

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  • 09/10/2018
  • DocketSummons; Filed by Afsa Khou (Plaintiff); Nicole Khou (Plaintiff); Michelle Khou (Plaintiff)

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  • 09/10/2018
  • DocketFirst Amended Complaint; Filed by Afsa Khou (Plaintiff)

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  • 09/10/2018
  • DocketSUMMONS

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  • 05/03/2017
  • DocketCOMPLAINT FOR: 1) DAMAMGES (MEDICAL MALPRACTICE)

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  • 05/03/2017
  • DocketComplaint; Filed by Afsa Khou (Plaintiff); Nicole Khou (Plaintiff); Michelle Khou (Plaintiff)

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Tentative Rulings

b'

Case Number: BC668140 Hearing Date: September 10, 2021 Dept: T

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Tentative\r\nrulings

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Motions in\r\nLimine

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All rulings\r\nare applicable to all parties, their counsel and any witnesses called by the\r\nparties.

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Dr. L 1 - Denied\r\nwithout prejudice. There is no reference\r\nto specific discovery and responses.

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Dr. L 2 -\r\nDenied without prejudice. Individual\r\nobjections may be made at the time of questioning.

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Dr. L 3 - Denied.

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Dr. L 4 - Depends\r\non what aspect of cardiology care. 402 hearing.

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Dr. L 5 -\r\nDenied without prejudice. Individual objections\r\nmay be made at the time of questioning.

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Dr. M 1 -\r\nGrant.

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Dr. M 2 - Grant.

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Dr. M 3 - It\r\ndepends on what was asked.

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Dr. M 4 - Grant.

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Dr. M. 5 - It\r\ndepends.

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Dr. M 6 - Why\r\nwouldn\'t loss of the house as a result of lack of financial support be a damage?

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Dr. M 7 - Deny\r\nwithout prejudice. What if it true that it\r\nis a small community hospital?

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Dr. M 8 -\r\nDiscuss.

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Dr. M 9 - Why\r\nisn\'t taking out loans and those attendant costs related to loss of income or\r\ngifts or support?

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Dr. M 10 - Grant\r\nexcept as to use of relevant sworn testimony as admission or for impeachment.

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Dr. M 11 -\r\nIf plaintiff has a legal obligation to pay the bills, why would this\r\ninformation be excluded?

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Dr. M 12 - Discuss.

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Dr. M 13 -\r\nGrant as to all experts.

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Dr. M 14 - Denied\r\nwithout prejudice. Individual objections\r\nmay be made at the time of questioning.

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Dr. M 15 - The\r\ncourt will restrict the use of the word "lying" but otherwise denied. Discuss.

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Dr. M 16 -\r\nGrant. Dr. Vahedian may not testify as a\r\nretained expert witness for plaintiffs at trial.

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Dr. M 17 - Denied. Evidence of Dr. M\'s board certification or\r\nnon-Board certification is relevant to his knowledge, education and\r\ntraining. Alternatively, the term\r\n"Board certification" and any evidence of board certification or lack\r\nof board certification may not be mentioned by anyone during the trial for any\r\npurpose.

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Dr. M 18 - Denied\r\nwithout prejudice. There is no context\r\nto this motion. Have any "Board"\r\nmembers been identified as witnesses?

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Dr. M 19 -\r\n402 hearing or offer of proof

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Case Number: BC668140 Hearing Date: July 9, 2021 Dept: T

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\r\n \r\n \r\n \r\n \r\n \r\n
\r\n

AFSA KHOU; et.\r\n al.,

\r\n

\r\n

Plaintiffs,

\r\n

\r\n

vs.

\r\n

\r\n

MARTIN\r\n MORTAZAVI, MD; et. al.

\r\n

\r\n

Defendants.

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\r\n

\r\n
\r\n

CASE NO: BC668140

\r\n

\r\n

[TENTATIVE]\r\n ORDER RE:

\r\n

\r\n

DEFENDANT\r\n MARTIN MORTAZAVI’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY\r\n ADJUDICATION

\r\n

\r\n

DEFENDANT\r\n ROMAN LEIBZON’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY\r\n ADJUDICATION

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\r\n

Dept. T

\r\n

8:30 a.m.

\r\n

July 9, 2021

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[TENTATIVE] ORDER: Both Defendants’ Motions for Summary Judgment\r\nare DENIED, the Motions for Summary Adjudication is DENIED as to Issue 1\r\n(wrongful death) and GRANTED as to Issue 2 (survival action).

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INTRODUCTION\r\n

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This is a case in which an inartfully pleaded initial complaint states\r\nfacts sufficient to establish a cause of action for wrongful death thereby\r\ncreating a triable issue of fact to defeat a summary judgment motion on the\r\nstatute of limitation. Both Defendants\r\nMartin Mortazavi MD (“Mortazavi”) and Roman Leibzon, MD (“Leibzon”)\r\n(collectively “Defendants”) moved separately for summary judgment (“MSJ”) and\r\nalternatively a motion for summary adjudication (“MSA.”) The Court notes that the two motions filed by\r\nDefendants assert the same arguments and issues and the Court will address the\r\narguments/issues presented by both motions in a single analysis. Defendants place into issue the defense of\r\nstatute of limitations (“SOL”) against the single cause of action (“COA”) for\r\n“wrongful death” alleged in the Second Amended Complaint (“SAC.”) Defendants further place into issue, as a\r\nsecond issue to be adjudicated, whether the filing of the SAC has dismissed any\r\npotential survivor claim.

\r\n\r\n

DISCUSSION

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Defendants’ first issue asserts that\r\nthe wrongful death COA alleged in the SAC is barred by the one year SOL. CCP sec. 340.5. Plaintiffs Afsa, Nicole and Michelle Khou\r\n(collectively “Plaintiffs”) filed the original Complaint on 5/3/2017 and\r\nalleged that their husband/father, Fariborz Khou (“Decedent”) died on 5/8/2016. (Leibzon’s Material Fact (“LMF”) 2 & 5;\r\nMortazavi’s Material Fact (“MMF”) 2 & 3.) \r\nStrictly as to the timing of the Complaint’s filing, it was filed within\r\none year. However, Defendants assert\r\nthat the Complaint did not include a Wrongful Death COA and only alleged a\r\nMedical Malpractice Survivor Action (“Survivor Action.”) Defendants assert that it was not until the\r\nFirst Amended Complaint (“FAC,”) which was filed on 9/10/2018, that a Wrongful\r\nDeath COA was first alleged. (LMF 7, MMF\r\n5.) The filing of the FAC was over a\r\nyear after Decedent’s death and thus Defendants’ assert that the FAC was filed\r\nin violation of the SOL. Defendants’\r\nargue that without a Wrongful Death COA in the original Complaint, the Wrongful\r\nDeath COA allegedly first made in the FAC cannot relate back. The\r\ncourt disagrees and finds that the allegations of wrongful death in the FAC and\r\nthe SAC relate back to the claim for wrongful death in the initial complaint.

\r\n\r\n

The following facts are not in\r\ndispute: The date of Mr. Khou’s death\r\nwas 5/8/2016. A CCP 364 notice was\r\nserved asserting a claim for wrongful death and survivor claims. A complaint was filed on 5/3/2017, within one\r\nyear from the date of death. The complaint seeks “compensatory damages.” Compensatory damages are not recoverable in a\r\nsurvivor claim. The Complaint is not\r\ncalled a survivor claim nor is it called a wrongful death claim. Instead, it is called a claim for medical\r\nnegligence which resulted in the death of Mr. Khou and damages to the\r\nplaintiffs.

\r\n\r\n

Are the allegations in the initial Complaint\r\nand the CCP 364 notice sufficient to place defendant on notice that from the\r\noutset, a claim was being made for the wrongful death of Mr. Khou? The court finds the answer to be yes and\r\ndenies the motion for summary judgment. Notably,\r\nthe allegations of the Complaint were not tested by demurrer. This motion is akin to a motion for judgment\r\non the pleadings because if the Complaint can be found to assert a claim for\r\nwrongful death, there is no statute of limitations issue as the Complaint was filed\r\nwithin 1 year of the date of death.

\r\n\r\n

The allegations in the original\r\nComplaint provide facts to show that Decedent’s death was caused by Defendants’\r\nnegligence. (Complaint par. 13.) The Complaint further alleged both general\r\nand special damages. The Complaint\r\nalleged that Plaintiffs were specially damaged by incurring “expenses for\r\nmedical treatment and related expenses.” \r\n(Complaint par. 14.) Further,\r\ngeneral damages were requested in the Prayer, par. 2. Because the prayer includes a request for\r\ngeneral damages and general damages cannot be claimed in a survival action, the\r\naction has the appearance of a wrongful death action. These allegations show\r\nthat the Complaint contains facts to support a Wrongful Death COA. It is noted that the introductory paragraph\r\nof the Complaint expressly alleges that Plaintiffs were bringing the action in\r\ntheir representative capacity with the use of the phrase “on behalf of.” (Complaint pg. 1:18-19.) “On behalf of” is not a recognized method of\r\nsuing on a survivorship claim. The claim\r\nis made by the estate or personal representative of the decedent, neither of\r\nwhich is alleged in the Complaint for either economic damages and/or punitive\r\ndamages. Facts alleged in the body of the Complaint as well as the request for general\r\ndamages indicates an intent to sue for damages to the plaintiffs and wrongful\r\ndeath.

\r\n\r\n

The Court also notes that the FAC\r\nspecifically states that the plaintiffs “bring this First Amended Complaint (FAC)\r\nto allege intentional and negligent misrepresentation as additional causes\r\nof action to the first cause of action constituting wrongful death resulted\r\nfrom Medical Malpractice in the complaint.” \r\n(Emphasis added.) This adds\r\nfurther evidence that the complaint was intended to be a complaint for wrongful\r\ndeath.

\r\n\r\n

Also, the Court finds that the\r\nComplaint sufficiently alleged a Wrongful Death COA and the Wrongful Death COA\r\nalleged in the FAC and SAC relate back to the original Complaint. The Court also notes that the evidence of the\r\nCCP 364 letter specifically refers to wrongful death, indicating plaintiffs’\r\nintention to sue for wrongful death. Defendants’\r\nMSJ on this ground and MSA Issue 1 are not persuasive and are denied.

\r\n\r\n

As to MSA Issue 2, Defendants argue\r\nthat the Survivor Action was abandoned/dismissed with the filing of the FAC and\r\nthe SAC. The court agrees. The survivor action, if there was any, was\r\nextinguished by the filing of the FAC and was not renewed in the SAC. The motion on Issue 2 is granted.

\r\n\r\n

Plaintiffs’ arguments as to waiver of\r\nthe SOL is not considered in that the argument lacks any legal authority. Defendants’ could not have waived the SOL\r\nobjection since it is alleged in their Answers. \r\n(Leibzon’s Answer to SAC: Eighth Affirmative Defense; Mortazavi’s Answer\r\nto SAC: Sixth Affirmative Defense.)

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\r\n\r\n\r\n\r\n

IT IS SO ORDERED, CLERK TO GIVE\r\nNOTICE.

\r\n\r\n'

Case Number: BC668140    Hearing Date: August 27, 2020    Dept: T

AFSA KHOU; et. al.,

Plaintiff,

vs.

MARTIN MORTAZAVI, MD; et. al.

Defendants.

CASE NO: BC668140

[TENTATIVE] ORDER RE:

MOTION FOR SUMMARY JUDGMENT

Dept. T

New time: 1:30 p.m.

New date: August 27, 2020

[TENTATIVE] ORDER: Defendant Dr. Mortazavi’s Motion for Summary Judgment is DENIED.

Summary judgment must be denied if an opposing expert declaration raises a triable issue as to whether a physician deviated from the standard of care, thereby causing an injury and actual loss or damage. Tortorella v. Castro (2006) 140 Cal.App.4th 1, 12-13.

There are multiple triable issues of fact which arise from the declarations of plaintiff’s medical experts Dr. Robert Collins, Dr. Ramin Ashtiani and Dr. Todd Lempert. All of the plaintiff’s experts set forth facts from which it can be determined that they have knowledge and experience to render their professional opinions as to Dr. Mortazavi.

Dr. Collins (neurologist and internist) testified that there was no urgency in removing the patient’s tumor and that should have been delayed at least three weeks until a more definitive diagnosis of the patient's coronary artery disease could be made and sufficient treatment of his non-STEM myocardial infarction could have been accomplished. He also stated that the risks and benefit of the surgery were not properly documented and given, no risk of heart attack or sigmoid injury is documented. Alternatives to surgery were not given. Informed consent within the standard of case was not obtained. Dr. Collins opines that Dr. Mortazavi should have done a CT angiogram or MRA of the brain before surgery to determine the exact nature of the lesion and he would have found there was no hemorrhage at all and therefore there no urgency for neurosurgery.

Dr. Collins also testified that it should have been obvious to both the cardiologist Dr. Leibzon and neurosurgeon Dr. Mortazavi that a craniotomy was much more likely to cause further thrombosis of the coronary arteries than a coronary balloon angioplasty or stent placement because there would be significantly more release of tissue thromboplastins and also there was loss of blood due to nicking of the sigmoid sinus. This exposed the patient to more myocardial ischemia and, of course, ultimately, resulted in a myocardial infarction. In other words, the risk of worsening of the patient's myocardial infarction was far greater with a craniotomy than it would have been by percutaneous coronary artery intervention with angiography and balloon angioplasty or stent placement. Dr. Collins also declared that on top of that, the patient required Decadron which is a corticosteroid in large doses postoperatively which is well known to cause increased coagulability of the blood increasing the risk of a myocardial infarction. Based on Dr. Collins’ review of the all medical records explained above and deposition of defendants, it was his expert opinion with a reasonable medical probability that it was below the standard of care for the neurosurgeon, Dr. Mortazavi to conduct unnecessary neurosurgery on the patient who was diagnosed with infarction days before. It was further his expert opinion with reasonable medical certainty that the neurosurgery done on the deceased Khou by Dr. Mortazavi was a substantial factor or the cause of further coronary occlusion and subsequent myocardial infarction, ultimately his death.

Dr. Ashtiani (cardiologist and electrophysiologist) declared that Dr. Mortazavi indicated to the wife that the patient needed urgent brain surgery during this hospital admission. In his deposition, Dr. Mortazavi indicated that the surgery was emergent. However, the neurologist, Dr. Taqi documented in his first consultation report that the patient has the option of coming back for a repeat MRI in a few weeks. That shows the surgery was not emergent. In addition, Dr. Leibzon in his deposition admits that he did not communicate with the neurologist, Dr. Taqi. Had he communicated with the neurologist, he would have learned that the brain surgery was not emergent. There is no evidence in the medical records, that Dr. Taqi indicated that the brain surgery was emergent. The patient died in the hospital from a massive myocardial infection. An autopsy demonstrated severe blockage of the coronary arteries. According to Dr. Ashtiani, a simple judicious preoperative workup predicated on the patient’s chief complaint of chest pain would have determined that he was harboring severe coronary disease.

Plaintiff also submitted the declaration of Dr. Lempert (interventional neuroradiology). He declared that the patient was brought to surgery precipitously, without a judicious workup for suspected coronary artery disease. He states that a careful comprehensive evaluation of his cardiac disease would have revealed severe coronary artery stenosis; which was suspected on his initial EKG.

Dr. Lempert also opined that a careful assessment of his brain studies would have also revealed that his brain surgery could easily have been deferred until a comprehensive solution for his coronary disease had been made: likely a coronary angiogram and coronary stents. The brain studies were indicative of a probable benign slow growing process that did not require urgent or emergent treatment. Moreover, Dr. Lempert stated that any small symptoms could have been treated with steroids to buy time until the patient’s cardiac status was stabilized and the patient would then be a candidate for a difficult and complex neurosurgery case. Additionally this waiting period would have afforded the patient and his family the time to seek a second opinion; possibly from a neurosurgeon specializing in posterior fossa lesions; likely at university neurosurgery department. In a rush to judgment; a benign brain lesion and its subsequent treatment distracted defendants, who failed to properly evaluate; test and treat his underlying severe cardiac disease.

Dr. Lempert declared that the patient needed a comprehensive workup for the chest pain and suspicious EKG and a number of simple studies such as a CT coronary angiogram, nuclear cardiac stress test, coronary angiogram, or cardiac stress echo would have accurately determined if he was a candidate for surgery and whether or not the chest pain was a symptom of coronary artery disease. He states that the assertions made that the lesion was compressing the lesion was hemorrhagic, that the lesion was malignant, that surgery needed to be done urgently or emergently at a small community hospital at Los Robles are refuted upon careful examination of-the imaging studies and pathology report. Dr. Lempert declares that Drs. Mortazavi and Dr. Leibzon fell below the standard of care for this patient by bringing this patient precipitously to surgery without the necessary and indicated simple intermediary preoperative evaluative studies that would have forestalled surgery by unequivocally demonstrating the high risk nature of the patient's underlying coronary disease.

Based on his review of the information, it was Dr. Lempert’s opinion with reasonable medical probability that the conduct of Dr. Mortazavi fell below the standard of care in several aspects. Such acts or omissions include but are not limited to making "independent assessment", and diagnosis of Mr. Khou's brain tumor in reviewing of images and contending that the tumor was pressing on the brain stem, and brain surgery was emergent. It was below the standard of care for Dr. Mortazavi to conduct emergent brain surgery under the circumstances. It was below the standard of care for Dr. Mortazavi not to properly communicate with Dr. Leibzon and to ensure proper cardiac clearance was given. It was below the standard of care for Dr. Mortazavi not to do risk benefit analysis for the brain surgery and to not communicate about the risk of heart attack to the patient and his wife and or to state that the risk of not performing brain surgery was more that the risk of heart attack. He further declares that it was below the standard of care not to give other alternatives to the patient such as radiation therapy, and or doing the brain surgery after the patient had stabilized from the recent cardiac event. It was below the standard of care for Dr. Mortazavi to injure the sigmoid sinus during the injury causing massive blood loss during the surgery and exerting more stress on the patient's heart. Dr. Lempert also states that it was below the standard of care for Dr. Mortazavi not to coordinate the need for brain surgery with the Neurologist Dr. Taqi and to follow Dr. Taqi's recommendation that patient could wait 4-6 weeks and come back for another MRI. It was below the standard of care for Dr. Mortazavi to state that he removed the tumor in its entirety in his operative report, but the fact is that he did not remove the tumor and part of the tumor was left in the patient's brain after the surgery. Based on his review of pertinent documents and evidence, it was Dr. Lempert’s opinion with reasonable medical probability that the conduct of Dr. Mortazavi in diagnosis, care, and management of the patient (Mr. Khou) was the cause or a substantial factor in his death.

This evidence presented by plaintiff is sufficient to create triable issues of fact as to negligence, causation and damages. Any arguments about certain insufficiencies of the opinions go solely to the weight or credibility of the evidence which this court does not consider on MSJ.

Evidentiary objections are separately ruled upon.

The motion is DENIED.

CLERK OF THE COURT TO GIVE NOTICE. IT IS SO ORDERED.

Case Number: BC668140    Hearing Date: August 25, 2020    Dept: T

THERE ARE TWO TENTATIVE RULINGS, ONE ON THE MSJ AND ONE ON THE EXPARTE APPLICATION:

AFSA KHOU; et. al.,

Plaintiff,

vs.

MARTIN MORTAZAVI, MD; et. al.

Defendants.

CASE NO: BC668140

[TENTATIVE] ORDER RE:

MOTION FOR SUMMARY JUDGMENT

Dept. T

8:30 a.m.

August 25, 2020

[TENTATIVE] ORDER: The Motion for Summary Judgment is DENIED.

  1. Introduction

    Defendant Roman Leibzon, MD (“Defendant”) moves for summary judgment against the Second Amended Complaint (“SAC”) filed by Plaintiffs Afsa Khou, Michelle Khou and Nicole Khou (“Plaintiffs”). The SAC alleges wrongful death (medical malpractice) for the death of Fariborz Khou (“Decedent”). Decedent passed away on May 8, 2017.

  2. Discussion

Summary judgment must be denied if an opposing expert declaration raises a triable issue as to whether a physician deviated from the standard of care, thereby causing an injury and actual loss or damage. Tortorella v. Castro (2006) 140 Cal.App.4th 1, 12-13.

Defendant, a cardiologist, argues that there is no triable issue of material fact on the elements of breach and causation. In support of the argument, Defendant submits the expert testimony of Dr. Babak Azarbal, a cardiologist. Dr. Azarbal testifies that Defendant’s treatment and care did not fall below the standard of care and did not cause or contribute to Decedent’s death. With the expert testimony submitted, Defendant has met his burden to show that no triable issue of material fact exists as to breach and causation. The burden shifts to Plaintiffs.

Plaintiffs argue that there is a triable issue of material fact as to breach and causation. In support, Plaintiffs submit the expert testimony of Dr. Douglas Collins (neurologist), Dr. Ramin Ashtani (cardiologist) and Dr. Todd Lempert (radiologist.) Plaintiffs’ expert attest to the fact that Defendant’s care and treatment fell below the standard of care and that such breach caused Decedent’s death because the brain surgery was not urgent and that Decedent’s cardiac issues should have been addressed prior to brain surgery. Plaintiffs have met their burden of proof to show a triable issue of material fact as to breach and causation.

AFSA KHOU; et. al.,

Plaintiff,

vs.

MARTIN MORTAZAVI, MD; et. al.

Defendants.

CASE NO: BC668140

[TENTATIVE] ORDER GRANTING EX PARTE APPLICATION TO CONTINUE DISCOVERY/EXPERT DISCOVERY CUT-OFF DATES

Dept. T

8:30 a.m.

8/25/20

The court is GRANTING this application for a simple reason: It was the intent of Presiding Judge Kevin Brazile by his General Orders that all pre-trial cutoff dates for trials being vacated because of the COVID crisis would remain open until the statutory time before the new trial dates. This case is entitled to the same treatment that other, similarly situated cases, received by the General Orders.

This case was set for trial on 6/15/20. The COVID crisis in March caused changes to the court’s schedule and procedures.

On 3/23/20, Judge Brazile issued a general order suspending all trials until further notice. This court then issued an order on 3/30/20 vacating the trial and FSC dates and set this case for a Trial Setting Conference on 7/14/20. This order was directly as a result of the COVID crisis. Department T’s 3/30/20 order also stated that the discovery cutoff would not be continued. At that time, no one could have known that the court shutdown would last months.

On 4/14/20, Judge Brazile issued a General Order that trials and FSCs would be vacated, and TSC’s would be scheduled and that all cutoff dates will be continued to the new trial dates.

On 5/13/20, Judge Brazile issued another General Order that trials and FSCs would be vacated, and TSC’s would be scheduled and that all cutoff dates will be continued to the new trial dates.

On 6/11/20, Judge Brazile issued another General Order that trials and FSCs would be vacated, and TSC’s would be scheduled and that all cutoff dates will be continued to the new trial dates.

On 7/10/20, Judge Brazile issued another General Order that trials and FSCs would be vacated, and TSC’s would be scheduled and that all cutoff dates will be continued to the new trial dates.

On 8/10/20, Judge Brazile issued another General Order that trials and FSCs would be vacated, and TSC’s would be scheduled and that all cutoff dates will be continued to the new trial dates.

Clearly, given the ongoing COVID crisis, the fact that so many business and offices (including law offices and doctor’s offices) have been closed for months, the fact that litigants, attorneys and their families have been sick, and statewide stay and home orders, the court has been expected to work to afford everyone the same access to justice.

It was only by happenstance that this court issued the 3/30/20 order restricting the discovery cutoff, not knowing that the Presiding Judge would ultimately extend the time. Also, this court precipitously vacated the trial date on 3/30/20 when all the Presiding Judge did was to suspend the trial dates. In fact, this case was set for trial on 6/15/20 and had this court not precipitously vacated the date on 3/30/20, this case have been covered by the 5/13/20 General Order which states:

All civil jury or non-jury trials, including unlawful detainer trials, probate trials, and family law trials, will be continued until a date after June 22, 2020. The parties shall be notified of the continued trial date by the Court. The parties shall receive notice of the date on which the trial shall be set. All pre-trial dates for trials that are continued pursuant to this paragraph are also continued consistent with the new trial date.

Therefore, this court unintentionally put this case into a worse position than other cases set for trial on the same date.

While it is laudable that there was a stipulation to extend the time to 8/25/20, such a stipulation would not have been necessary if the deadline had been extended in this case, as it was by the General Order, to all other similarly situated cases.

Finding no reason why this case should be treated any differently from other similarly situated cases, the court now vacates that portion of the 3/30/20 order restricting discovery cutoffs and adopts the General Orders of 4/14/20, 5/13/20, 6/11/20, 7/10/20 and 8/10/20 and orders for this case that “[a]ll pre-trial dates for trials that are continued pursuant to this paragraph are also continued consistent with the new trial date.”

Having reached the decision that the court should rule in keeping with the General Orders, it need not take into consideration a further showing of good cause. However, even if it were to do so, the facts justify the continuance and no prejudice would result (as the need to conduct additional discovery is not “prejudice” under the law).

Finally, counsel are reminded: These are not normal times. They are extraordinary, unprecedented times...not just for the legal profession but for all of us.

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