Pending - Other Pending
Personal Injury - Medical Malpractice
JON R. TAKASUGI
BATAH JIHAD M.D.
DOES 1-20 INCLUSIVE
SHEBBY MARVIN S. ESQ.
SHEBBY MARVIN STEWART ESQ.
LAW YUK KWONG
12/21/2018: Notice of Ruling
12/13/2018: Minute Order
12/11/2018: Proof of Service by Substituted Service
12/10/2018: Demand for Jury Trial
11/19/2018: Minute Order
10/31/2018: Minute Order
5/17/2017: COMPLAINT FOR DAMAGES PROFESSIONAL MALPRACTICE
DocketNotice of Ruling; Filed by Jihad Batah, M.D. (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: Dismissal (for Failure of Plaintiff to Serve/Prosecute) - Not Held - Taken Off Calendar by Court[+] Read More [-] Read Less
Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Trial Setting Conference ((if the Defendant(s) is/are successfully served)) - Held[+] Read More [-] Read Less
DocketMinute Order ((Order to Show Cause Re: Dismissal for Failure of Plaintiff to...)); Filed by Clerk[+] Read More [-] Read Less
DocketProof of Service by Substituted Service; Filed by Angela Neal (Plaintiff)[+] Read More [-] Read Less
DocketDemand for Jury Trial; Filed by Jihad Batah, M.D. (Defendant)[+] Read More [-] Read Less
DocketAnswer; Filed by Jihad Batah, M.D. (Defendant)[+] Read More [-] Read Less
DocketProof of Service - No Service; Filed by Angela Neal (Plaintiff)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Non-Jury Trial - Not Held - Taken Off Calendar by Court[+] Read More [-] Read Less
DocketMinute Order ((Non-Jury Trial)); Filed by Clerk[+] Read More [-] Read Less
Docketat 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court[+] Read More [-] Read Less
DocketMinute Order ((Final Status Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketCOMPLAINT FOR DAMAGES PROFESSIONAL MALPRACTICE[+] Read More [-] Read Less
DocketSummons; Filed by Angela Neal (Plaintiff)[+] Read More [-] Read Less
DocketComplaint; Filed by Angela Neal (Plaintiff)[+] Read More [-] Read Less
Case Number: ****1834 Hearing Date: November 07, 2019 Dept: 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
JIHAD BATAH, M.D., ET AL.,
Case No.: ****1834
November 7, 2019
1. Background Facts
Plaintiff, Angela Neal filed this action against Defendant, Jihad Batah, M.D. for damages arising out of Defendant’s allege failure to adequately sedate her during an upper endoscopy. Plaintiff alleges she was awake during the procedure, which caused her pain and emotional distress.
2. Motion for Summary Judgment
a. Parties’ Positions
Defendant moves for summary judgment on the complaint, contending he complied with the standard of care and nothing he did caused or contributed to Plaintiff’s damages. Specifically, Defendant provides the expert declaration of Jonathan Ellis, M.D., who opines that the amount of sedation Defendant gave Plaintiff was appropriate, especially because Plaintiff presented wearing a Fentanyl patch.
Plaintiff opposes the motion, contending the sedation was insufficient. Plaintiff relies on the expert declaration of Thomas Bohlmann, M.D. to support her position.
In reply, Defendant contends the Court cannot consider Bohlmann’s declaration because he is an anesthesiologist, not a GI doctor. Additionally, Defendant contends Bohlmann failed to consider the fact that Plaintiff was wearing a Fentanyl patch at the time of the procedure, such that she was receiving additional sedation in addition to that given to her by Defendant.
b. Standard of Care
The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id.
A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.
Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘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, 984-985.)
In order to establish that defendant's negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm. “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical 'possibility' needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.
d. Moving Burden
The Expert Declaration of Dr. Ellis is sufficient to meet Defendant’s moving burden to establish he is entitled to judgment as a matter of law; notably, Plaintiff does not contend Defendant failed to meet the moving burden. The burden therefore shifts to Plaintiff to raise a triable issue of material fact in this regard.
e. Opposing Burden
Plaintiff relies on the Declaration of Dr. Bohlmann to support her opposition. As noted above, Defendant contends the Declaration of Bohlmann does not raise a triable issue of material fact because (a) he is an anesthesiologist and is not competent to opine on the standard of care that applies to Defendant, and (b) he did not consider the Fentanyl patch Plaintiff was wearing at the time of the procedure and the additional sedation the patch provided.
i. Competence of Anesthesiologist to Opine on Standard of Care
Defendant relies on Landeros v. Flood (1976) 17 Cal.3d 399 to support his position that an anesthesiologist cannot opine on the standard of care concerning gastroenterology and internal medicine. Defendant does not provide a pinpoint citation to Landeros, which is a 16-page decision. Landeros was decided on demurrer, and the Supreme Court held that the trial court erred in determining, as a matter of law, that the defendant doctors did not have a duty to diagnose and treat the plaintiff’s battered child syndrome.
While not cited by the parties, the Court finds that, pursuant to Evans v. Ohanesian (1974) 39 Cal.App.3d 121, 128, an expert must have the professional knowledge, learning, and skill sufficient to render him qualified to speak with authority on the subject, and must be familiar with the standard required of a physician under similar circumstances. Additionally, pursuant to Ammon v. Superior Court (1988) 205 Cal.App.3d 783, 790-791, a doctor in one field may testify as to the standard of care in another field so long as that doctor sets forth facts showing he has learned the standard of care pertaining to the other field through education, experience, observation, or association with that other field.
Dr. Bohlmann declares, at ¶2 of his declaration, that he is familiar with the standard of care for anesthesia for endoscopic procedures including by gastroenterologist physicians in the context of upper endoscopy procedures under the circumstances pertinent to the present case. This is sufficient, at the summary judgment, to permit Bohlmann to opine on the issue presented, and Defendant’s evidentiary objections to the Bolhmann declaration in this regard are overruled.
ii. Consideration of Fentanyl Patch
Defendant’s second argument is that his own expert specifically opined that, because Plaintiff was wearing a Fentanyl patch, it was appropriate to reduce the total amount of sedation given to her, because the patch was providing additional sedation. Defendant contends Bohlmann failed to address or consider the patch.
Dr. Bohlmann specifically opines that, because Plaintiff was a chronic opioid user, moderate sedation was not appropriate and Defendant should have used MAC anesthesia with Propofol instead of the sedation chosen. This opinion takes into consideration the fact that Plaintiff was a chronic opioid user, and, at a minimum, tacitly acknowledges that Plaintiff was on opioids at the time of the procedure. The objections to Bohlmann in this regard are therefore also overruled.
Defendant met his moving burden to show he is entitled to judgment as a matter of law, but Plaintiff adequately raised a triable issue of material fact. The motion for summary judgment is therefore denied.
Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.