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This case was last updated from Los Angeles County Superior Courts on 06/20/2019 at 02:00:26 (UTC).

BECKY LEVEQUE ET AL VS CSJ PROVIDENCE ST JOSEPH MEDICAL

Case Summary

On 08/25/2017 BECKY LEVEQUE filed a Personal Injury - Medical Malpractice lawsuit against CSJ PROVIDENCE ST JOSEPH MEDICAL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3885

  • Filing Date:

    08/25/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiffs and Petitioners

LEVEQUE TIMOTHY

LEVEQUE CHRISTOPHER

LEVEQUE BECKY

LEVEQUE MICHAEL

Defendants and Respondents

BACK NICHOLAS N. M.D.

CSJ PROVIDENCE ST. JOSEPH MEDICAL CENTER

KURAISHI MANZAR S. M.D.

BURBANK EMERGENCY MEDICAL GROUP INC.

BUENA VISTA ANESTHESIA MEDICAL GROUP

RAFIDI FAUD FARAH M.D.

TEITELBAUM GEORGE P. M.D.

LIEBMAN WAYNE P. M.D.

SINGHAL ANU M.D.

NASSOURA ZAHI ELIAS M.D.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

BUNCH BRUCE M. ESQ.

Defendant Attorneys

CARROLL RICHARD DOUGLAS

OZERAN DAVID J.

REBACK ROBERT C

SCHAFER TERRENCE J.

WEND CHRISTOPHER P

LAW YUK

 

Court Documents

Proof of Personal Service

2/26/2019: Proof of Personal Service

Declaration

3/7/2019: Declaration

Declaration

3/14/2019: Declaration

Answer

3/25/2019: Answer

Case Management Statement

3/25/2019: Case Management Statement

Answer

4/10/2019: Answer

Unknown

4/10/2019: Unknown

Notice of Ruling

4/29/2019: Notice of Ruling

Order

5/15/2019: Order

Declaration

6/7/2019: Declaration

Notice

6/12/2019: Notice

Answer

6/12/2019: Answer

Motion to Compel Discovery

6/17/2019: Motion to Compel Discovery

Motion to Compel Discovery

6/17/2019: Motion to Compel Discovery

Motion to Compel Discovery

6/17/2019: Motion to Compel Discovery

Motion to Compel Discovery

6/17/2019: Motion to Compel Discovery

Motion to Compel Discovery

6/17/2019: Motion to Compel Discovery

SUMMONS

8/25/2017: SUMMONS

41 More Documents Available

 

Docket Entries

  • 06/18/2019
  • Answer (to First Amended Complaint); Filed by George P. Teitelbaum, M.D. (Defendant)

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  • 06/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA dba PROVIDENCE SAINT JOSEPH MEDICAL CENTER Erroneously Sued As CSJ Providence St. Joseph Medical Center (Defendant)

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  • 06/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA dba PROVIDENCE SAINT JOSEPH MEDICAL CENTER Erroneously Sued As CSJ Providence St. Joseph Medical Center (Defendant)

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  • 06/17/2019
  • Motion to Compel (Amended); Filed by PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA dba PROVIDENCE SAINT JOSEPH MEDICAL CENTER Erroneously Sued As CSJ Providence St. Joseph Medical Center (Defendant)

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  • 06/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA dba PROVIDENCE SAINT JOSEPH MEDICAL CENTER Erroneously Sued As CSJ Providence St. Joseph Medical Center (Defendant)

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  • 06/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA dba PROVIDENCE SAINT JOSEPH MEDICAL CENTER Erroneously Sued As CSJ Providence St. Joseph Medical Center (Defendant)

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  • 06/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA dba PROVIDENCE SAINT JOSEPH MEDICAL CENTER Erroneously Sued As CSJ Providence St. Joseph Medical Center (Defendant)

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  • 06/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA dba PROVIDENCE SAINT JOSEPH MEDICAL CENTER Erroneously Sued As CSJ Providence St. Joseph Medical Center (Defendant)

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  • 06/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA dba PROVIDENCE SAINT JOSEPH MEDICAL CENTER Erroneously Sued As CSJ Providence St. Joseph Medical Center (Defendant)

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  • 06/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA dba PROVIDENCE SAINT JOSEPH MEDICAL CENTER Erroneously Sued As CSJ Providence St. Joseph Medical Center (Defendant)

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40 More Docket Entries
  • 02/28/2019
  • Proof of Personal Service; Filed by Becky Leveque (Plaintiff); Christopher Leveque (Plaintiff); Michael Leveque (Plaintiff) et al.

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  • 02/28/2019
  • Proof of Service by Substituted Service; Filed by Becky Leveque (Plaintiff); Christopher Leveque (Plaintiff); Michael Leveque (Plaintiff) et al.

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  • 02/26/2019
  • Proof of Personal Service; Filed by Becky Leveque (Plaintiff)

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  • 02/25/2019
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 02/25/2019
  • Proof of Personal Service; Filed by Becky Leveque (Plaintiff); Christopher Leveque (Plaintiff); Michael Leveque (Plaintiff) et al.

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  • 02/08/2019
  • at 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court

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  • 02/08/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 08/25/2017
  • Complaint; Filed by Becky Leveque (Plaintiff); Christopher Leveque (Plaintiff); Michael Leveque (Plaintiff) et al.

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  • 08/25/2017
  • COMPLAINT FOR MEDICAL MALPRACTICE (WRONGFUL DEATH)

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  • 08/25/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC673885    Hearing Date: July 31, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

becky leveque, et al.,

Plaintiffs,

v.

csj providence st. joseph medical center, et al.,

Defendants.

Case No.: BC673885

Hearing Date: July 31, 2020

[TENTATIVE] order RE:

(1) Dr. Nassoura’s motion for summary judgment;

(2) Providence’s motion for summary judgment or summary adjudication; and

(3) dr. liebman’s motion for summary judgment

BACKGROUND

A. Allegations of the Operative Complaint

Plaintiffs Becky, Christopher, Timothy, and Michael Leveque (“Plaintiffs”) are the adult spouse and children of decedent David Leveque (“Decedent”). Plaintiffs allege that Decedent consulted, retained, and/or employed Defendants as healthcare providers, doctors, specialists, surgeons, etc. to examine, diagnose, advise, care, treat, and administer Decedent’s medical needs.

Plaintiffs allege that Defendant Zahi Elias Nassoura, M.D. (“Dr. Nassoura”) breached his duty of care to Decedent by recommending that he undergo a left carotid endarterectomy even though Decedent did not meet the criteria for the procedure. During or as a result of the January

12, 2016 procedure, the plaque in Decedent’s artery dislodged and formed a clot, causing Decedent to suffer a stroke, which put him at a higher risk for another stroke. Decedent was then diagnosed with another stroke when he was hospitalized in May 24, 2016. He suffered a massive cerebral infarction and ultimately died after an unsuccessful thrombectomy and endovascular stenting performed to treat the stroke and its consequences. Plaintiffs allege that Decedent would not have suffered either the first or second stroke and thus would not have died on May 28, 2016, had Dr. Nassoura not negligently recommended and performed the January 12, 2016 procedure. (FAC, ¶9.)

The first amended complaint (“FAC”), filed June 4, 2019, alleges a single cause of action for medical malpractice/wrongful death.

B. Three Motions for Summary Judgment/Adjudication

On December 10, 2019, Dr. Nassoura filed a motion for summary judgment on the FAC, arguing that: (1) there are no triable issues of material fact in this action in that the care and treatment rendered by Dr. Nassoura to Decedent complied, at all times, with the applicable standard of care; and (2) the care and treatment by Dr. Nassoura met the applicable standard of care and in no way caused, or contributed to, Decedent’s death or Plaintiffs’ alleged injuries and damages. The Court is not in receipt of an opposition to Dr. Nassoura’s motion. On July 23, 2020, Dr. Nassoura filed a Notice of Non-Receipt of Opposition to his motion.

On February 28, 2020, Defendant Providence Health System-Southern California dba Providence Saint Joseph Medical Center (erroneously sued as CSJ Providence St. Joseph Medical Center; hereinafter “Providence”) filed a motion for summary judgment/adjudication. Providence moves on the grounds that it complied with the standard of care in in the community at all times, and no act or omission of Providence, to a reasonable degree of medical probability, caused or contributed to Plaintiffs' alleged injuries. In the alternative, Providence moves for summary adjudication on the following grounds:

The Court is not in receipt of an opposition brief to Providence’s motion.

On April 28, 2020, Defendant Wayne P. Liebman, M.D., filed a motion for summary judgment against Plaintiffs’ FAC, on the ground that the medical malpractice/wrongful death cause of action is without merit and fails as a matter of law because it does not raise a triable issue of material fact with respect to the standard of care and Dr. Liebman complied with the standard of care under the circumstances and was not negligent. On July 21, 2020, Dr. Liebman filed a notice of non-opposition to the motion, stating that Plaintiff did not timely file or serve an opposition to his motion.

LEGAL STANDARD

A defendant moving for summary judgment has the burden of proving that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. In a medical malpractice action, the elements 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) 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 negligence (citations omitted).” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612, emphasis in original.) Additionally, the standard of care against which doctors are measured is a matter within the knowledge of experts. Breach of the standard of care may only be proven by expert testimony. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

DISCUSSION RE DR. NASSOURA’S MSJ

In support of his motion for summary judgment, Dr. Nassoura provides the following facts. On February 20, 2001, Decedent had a stroke and was admitted to Providence with sudden onset of slurred speech and right arm weakness. (Nassoura Fact 3.) He was noted to have an undifferentiated platelet disorder and his family history was positive for stroke and vascular disease. (Id.) On September 30, 2015, Decedent presented to West Hills Hospital emergency department (“WHH”) and Ali Varzgah, M.D. examined him and it was reported that Decedent had persistent hiccups and associated pain. (Id. at 4.) Decedent’s neck CT scan revealed moderate to severe stenosis of the proximal left internal carotid artery and a carotid duplex examination by Richard Alberts, M.D. revealed plaque right and left carotid bifurcation and antegrade flow vertebral arteries. (Id. at 5.) On October 6, 2015, Decedent presented to his primary care physician Manzar Kuraishi for a post-hospitalization follow up. (Id. at 6.)

On October 30, 2015, Decedent presented to Dr. Nassoura at San Fernando Valley Vascular Group, per Dr. Kuraishi’s order. (Id. at 7.) The assessment and plan were of occlusion and stenosis of the left carotid artery and medication. (Id.) It was also noted that Decedent may require a right carotid endarterectomy and that the procedure, alternatives, risks, benefits, and complications were explained to Decedent and his family. (Id.) On November 30, 2015, Dr. Kuraishi cleared Decedent for surgery. (Id. at 8.) On December 4, 2015, Decedent presented to Dr. Nassoura with a diagnosis of carotid stenosis and was to undergo a carotid arch angiogram, and Decedent signed a consent form for the procedure, which stated that the risks, benefits, and alternatives had been discussed. (Id. at 9-10.) The operation to be performed was arch angiogram, bilateral selective carotid angiogram, selection innominate angiogram, and selective left subclavian angiogram. (Id. at 11.) On January 7, 2016, Decedent presented to Dr. Kuraishi for surgical clearance, where it was noted that he had an abnormal ECG, but that there was no significant changes from September 30, 2015. (Id. at 12-13.) On January 11, 2016, Decedent presented to Dr. Nassoura again and the alternatives, risks, benefits, and complications of the procedure were explained to Decedent and his family. (Id. at 14.)

On January 12, 2016, Dr. Nassoura performed surgery, with Dr. Kuraishi assisting. (Id. at 15-16.) Gene L. Tran, DO entered a Telestroke consultation note and Dr. Teitelbaum was noted to have discussed the case with Dr. Nassoura. (Id. at 17.) Dr. Nassoura then noted that Decedent had developed weakness in his right hand and had become partially aphasic, and that he discussed re-exploration and a possible redo of the left carotid endarterectomy with Decedent and his family. (Id. at 18.) Thereafter, Dr. Nassoura, with Dr. Rafidi assisting performed a left carotid endarterectomy and patch angioplasty. (Id. at 19.) Dr. Kuraishi examined Decedent after the procedure. (Id. at 20.)

On January 13, 2016, Dr. Nassoura examined Decedent where he was noted to be hemodynamically stable, responsive, and improving. (Id. at 21.) On January 14, 2016, Dr. Kuraishi noted Decedent was improving. (Id. at 22.) On January 15, 2016, Decedent was discharged to a rehabilitation center until January 25, 2016. (Id. at 23-24.) On February 8, 2016, Decedent saw Dr. Nassoura for the last time during a follow-up, where he was noted to be doing better after sustaining a mild stroke. (Id. at 25.)

On May 23, 2016, Decedent presented to Dr. Kuraishi complaining of difficulty forming sentences. (Id. at 27.) On May 25, 2016, Dr. Teitelbaum took Decedent to surgery for angiography, angioplasty and endovascular stenting. (Id. at 29.) On May 28, 2016, Decedent’s condition deteriorated and Decedent expired. (Id. at 30.) Dr. Kuraishi completed the certificate of death listing the immediate cause of death as cardiorespiratory arrest with massive left brain CVA and cerebral vascular disease as conditions leading to the cause of death/underlying injury, as well as platelet coagulation abnormality. (Id.)

Dr. Nassoura provides the expert declaration of Vincent L. Rowe, M.D., to opine on the standard of care and causation. Dr. Rowe makes the following opinions:

Based on the expert opinions of Dr. Rowe, the Court finds that Dr. Nassoura has upheld his initial burden in summary judgment on the sole cause of action for medical malpractice/wrongful death.

The burden shifts to Plaintiffs to raise a triable issue of material fact with an opposing expert declaration. However, the Court is not in receipt of an opposition from Plaintiffs. As such, Plaintiffs have not raised a triable issue of material fact on the medical malpractice claim.

Accordingly, Dr. Nassoura’s motion for summary judgment is granted.

DISCUSSION RE PROVIDENCE’S MSJ/MSA

A. Medical Malpractice

In support of its motion for summary judgment, Providence provides the following facts. On January 12, 2016 at 10:28, Decedent presented to Providence to undergo a left carotid endarterectomy and patch angioplasty with Dr. Nassoura. (Providence Fact 1.) Prior to his admission, Decedent had been diagnosed with an occlusion and stenosis of the left carotid artery, and also had a history of type 2 diabetes and cerebral vascular accident (CVA) in 2000. (Id.) Following his admission, Decedent underwent the procedures with Dr. Nassoura from 13:31 to 14:33 and no complications were noted. (Id. at 2.) Decedent was taken to the Post-Anesthesia Care Unit (PACU) in stable condition, where he was continuously monitored by nursing staff. (Id.) Two hours after surgery (16:06), a code stroke was called as Decedent was noted to have neurologic symptoms including expressive aphasia and right upper extremity weakness, and nursing staff timely called a code stroke and notified Dr. Nassoura. (Id.) While in the ICU, Decedent was noted to have acute onset of right hemiparesis with decreased right hand grip, right facial droop, and expressive aphasia. (Id. at 3.) At 16:10, the rapid response team and the stroke team arrived to Decedent’s room. (Id. at 4.) At 16:15, a CT angiogram (CTA) of the head and neck were performed, revealing a possible irregularity over the left internal endpoint. (Id. at 5.) Nursing noted that Dr. Nassoura was notified of the code stroke and result of the CTA. (Id. at 6.) Following several consults, the plan was to take Decedent back to the O.R. for a possible redo of the left carotid endarterectomy with Dr. Nassoura, and the procedure and its alternatives, potential risks, benefits, and complications (i.e., bleeding, infection, nerve injury, myocardial infarction, stroke and even death) were explained to Decedent and his family prior to proceeding with the second surgery. (Id. at 7.) The second surgery took place from 17:35 to 19:14, no complications were noted during the procedure, and Decedent was taken to the PACU in stable condition where he was continuously monitored by nursing staff. (Id. at 8.) Sometime thereafter, Decedent was transferred to ICU for continued monitoring where nursing assessed him throughout the day, documented changes to his condition, notified physicians about his condition, implemented physicians' orders, and administered medications per physicians' orders. (Id. at 9.) Decedent began improving slowly until his dysarthria completely resolved, and his upper right extremity also improved. (Id.) Decedent was evaluated and seen by multiple physicians on a daily basis during his January 2016 admission at Providence. (Id. at 10.) On January 15, 2016, Decedent was transferred to the acute rehabilitation unit at Providence and was noted to be in stable condition at the time of his discharge. (Id. at 11.)

On May 24, 2016 around 19:19, Decedent presented to Providence with complaints of worsening aphasia and confusion because he was having increased difficulty with speech, and was thus admitted for further evaluation and work up of his symptoms. (Id. at 12.) A head CT scan at the time of admission revealed a left frontal stroke with petechial hemorrhage and narrowing of the middle cerebral artery. (Id. at 13.) On May 25, 2016 around 06:25, Decedent was seen by a neurologist, who noted that an MRA of Decedent’s head and neck showed left carotid stenosis, and an MRI of the brain showed acute left frontal stroke with petechial hemorrhage, and subarachnoid hemorrhage. The neurologist’s plan was to consult interventional radiologist Dr. George Teitelbaum. (Id. at 14.) Dr. Teitelbaum noted the plan was to perform a left carotid angioplasty and stenting with left middle cerebral artery (MCA) intracranial thrombectomy or stent placement. (Id. at 15.) Around 18:55, Decedent underwent a left internal carotid artery (ICA) stenting and attempted thrombectomy of the left MCA, without success, and then stenting of the left MCA, with Dr. Teitelbaum. (Id. at 16.) Decedent was taken to the ICU around 21:09, where his vital signs were noted to be stable, he remained intubated, and nursing staff monitored him. (Id. at 17.) On May 26, 2016 at 15:23, a physician issued an order for extubation, and he was extubated at 15:30. (Id. at 18-19.) Nursing monitored his oxygen saturations. (Id. at 19-20.) Decedent was given 100% oxygen via face mask and nursing continued suction, but Dr. Kuraishi and the emergency department were called for further orders and reintubation. (Id. at 21-22.) At 16:00-16:10, the ED physician successfully reintubated Decedent and placed him on ventilation support. Dr. Kuraishi noted that following the stenting procedure, a brain MRI showed extension of the CVA with probable clot in the left MCA; Decedent was doing poorly overall; and that interventional radiology had a long conversation with the family about possible palliative care. (Id. at 25.) Ultimately, Decedent was placed on comfort care according to the family's wishes and was extubated at the family's request, such that he expired on May 28, 2016. (Id. at 26.)

Providence provides the expert declaration of Constance Paine, RN, CCRN, LLNC, to opine on the standard of care and causation. Ms. Paine makes the following opinions:

Based on these facts and the evidence presented, the Court finds that Providence has upheld its initial burden in summary judgment and/or summary adjudication on the medical negligence cause of action asserted against it.

The burden shifts to Plaintiffs to raise a triable issue of material fact with an opposing expert declaration. However, the Court is not in receipt of an opposition from Plaintiffs with regard to Providence’s motion. As such, Plaintiffs have not raised a triable issue of material fact on the medical malpractice claim.

B. Vicarious Liability

A hospital, as an entity that is not a natural person, cannot practice medicine. (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501 [citing Bus. & Profs. Code, §§2032, 2022].) Thus, its liability for medical malpractice must be based upon a theory of vicarious liability. (Id.) Whether a physician is an agent of the hospital for purposes of vicarious liability is a question of fact. (Id. at 502.) Actual agency exists when the agent is really employed by the principal (i.e., contract between hospital and physician). (Id.) Ostensible agency may be implied from the facts of a particular case, and if a principal by his acts has led others to believe that he has conferred authority upon an agent, he cannot be heard to assert, as against third parties who have relied thereon in good faith, that he did not intend to confer such power. (Id.)

Providence argues that it cannot be held vicariously liable for the actions of any Defendant physicians because they were not employees of Providence. Further, Providence argues that the physicians involved with Decedent’s care were independent contracts and not employees or agents. According to the facts and evidence submitted with the moving papers, Decedent signed Providence’s Conditions of Admissions Form on January 12, 2016 and May 24, 2016, which gave Decedent notice that the physicians he was seen by (including Dr. Kuraishi and Dr. Nassoura at their respective offices) were independent contractors and not employees or agents of the hospital. (Providence Fact 32-34; Cooney Decl., Exs. DD-EE.)

Based on these facts and the evidence presented, the Court finds that Providence has upheld its initial burden in summary judgment and/or summary adjudication that it cannot be held vicariously liable for the physicians’ care and treatment of Decedent.

Thus, the burden shifts to Plaintiffs to raise a triable issue of material fact. As the motion is not opposed, no triable issues of material fact have been raised on this issue.

Providence’s motion for summary judgment/adjudication is granted.

DISCUSSION RE DR. LIEBMAN’S MSJ

A. Request for Judicial Notice

Dr. Liebman requests judicial notice of the complaint and FAC filed by Plaintiffs. The request is granted. (Evid. Code, §452(d).)

B. Merits of Motion

In support of his motion for summary judgment, Dr. Liebman provides the following facts. Decedent was 65 when he underwent the carotid endarterectomy with patch angioplasty at Providence. (Liebman Fact 1.) The procedure was performed by Dr. Nassoura and the anesthesiologist was Dr. Liebman. (Id. at 2.) According to the pre-anesthesiology evaluation, Decedent reported that he had no prior history of anesthetic complications and the physical examination classified his airway as Mallampati Class I. (Id. at 3.) Decedent’s medical history at that time was significant for cardiovascular disease, diabetes and high blood pressure, and for that reason he was categorized as an ASA 3. (Id. at 4.) Dr. Liebman reviewed the preoperative lab studies, which showed no abnormalities that would have made the surgery or anesthesia contraindicated for Decedent. (Id. at 5.) Prior to the January 12, 2016 procedure, Dr. Liebman reviewed the History & Physical prepared by Dr. Kuraishi and noted Decedent’s history of a prior platelet abnormality with a previous TIA or possible small CVA. Given that history, Dr. Liebman confirmed that Decedent had a normal platelet count in the available pre-operative lab studies. (Id. at 6.) Anesthesia was inducted at 1:12 p.m. and the procedure was conducted from 1:31 p.m. to 2:33 p.m. without any known complication or difficulty. (Id. at 7.) Dr. Liebman did not encounter any difficulty or anesthetic complications during the procedure, monitored Decedent’s vital signs throughout the procedure, and adjusted medications as necessary. (Id. at 8-9, 19.) Decedent tolerated the procedure well and Dr. Liebman transferred Decedent to the recovery room in stable condition. (Id. at 10.) Dr. Liebman confirmed Decedent was awake and doing well at 2:58 p.m., completed his post-anesthesia evaluation at 3:01 p.m., and by 3:08 p.m. his interaction with Decedent was complete. (Id. at 11-12.) After 3:08 p.m. on January 12, 2016, Dr. Liebman did not interact with or provide any further medical care to Decedent. (Id. at 12, 20.) Dr. Liebman states that it is his custom and practice to make further notes to his patients’ medical charts within 24 hours after providing anesthesia and that he did so for Decedent by 10:31 p.m. on January 12, 2016. (Id. at 17.) He states he did not return to the hospital at any time and entered the notes from home. (Id. at 18.)

Two hours after the procedure, Decedent developed neurological symptoms and was returned to surgery for a second procedure that day. (Id. at 13.) The left carotid artery was reopened and the artery was patched again. (Id. at 14.) Dr. Liebman was not the anesthesiologist for the second surgery. (Id. at 16.) Decedent subsequently suffered a stroke on January 12, 2016. (Id. at 15.) On January 15, 2016, Decedent was discharged to a rehabilitation unit. (Id. at 21.) On May 24, 2016, Decedent presented to Providence with complaints of worsening aphasia and confusion where he was intubated and placed on ventilation support, but his condition deteriorated and he expired on May 28, 2016. (Id. at 22-24.)

Dr. Leibman provides the expert declaration of William Mazzei, M.D., an anesthesiologist, to opine on the standard of care. Dr. Mazzei makes the following opinions based on his education, training, and experience (Liebman Fact 25-30):

Based on these facts and the evidence presented, the Court finds that Dr. Liebman has upheld his initial burden in summary judgment on the medical negligence cause of action asserted against him.

Dr. Liebman filed a notice of non-opposition stating that Plaintiffs did not timely file or serve an opposition brief. He also states that Plaintiffs’ counsel informed defense counsel that Plaintiffs will not oppose Dr. Liebman’s motion.

As Dr. Liebman has upheld his initial burden in summary judgment and there is no opposing expert declaration to raise a triable issue of material fact, Dr. Liebman’s motion for summary judgment is granted.

CONCLUSION AND ORDER

Dr. Nassoura’s motion for summary judgment is granted.

Providence’s motion for summary judgment or, in the alternative, summary adjudication is granted.

Dr. Liebman’s motion for summary judgment is granted.

Defendants shall each provide notice of their respective order.

Case Number: BC673885    Hearing Date: January 09, 2020    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BECKY LEVEQUE, ET AL.,

Plaintiff(s),

vs.

CSJ PROVIDENCE ST. JOSEPH MEDICAL CENTER, ET AL.,

Defendant(s).

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CASE NO: BC673885

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

January 9, 2020

1. Background Facts

Plaintiffs, Becky, Christopher, Timothy, and Michael Leveque  filed this action against Defendants, CSJ Providence St. Joseph Medical Center, et al. for medical malpractice.  Plaintiffs allege Defendants were negligent in connection with the care and treatment of Decedent, David Leveque. 

2. Motion for Summary Judgment

a. Moving Argument

At this time, Dr. George P. Teitelbaum, M.D. moves for summary judgment, contending he complied with the standard of care at all times, and nothing he did caused or contributed to Decedent’s death.  Defendant supports his motion with the expert declaration of William Mack, M.D.  Dr. Mack sets forth his expert credentials, states what records he reviewed, detail Defendant’s care and treatment of Decedent, and ultimately conclude that Defendant’s care and treatment of Decedent complied with the standard of care and did not cause or contribute to Decedent’s death.

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.)

c. Causation

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. Mack is sufficient to meet Defendant’s moving burden to establish he is entitled to judgment as a matter of law.  The burden therefore shifts to Plaintiffs to raise a triable issue of material fact in this regard. 

e. Opposing Burden

Any opposition to the motion was due on or before 12/26/19.  The Court has not received any opposition to the motion.  On the contrary, on 12/30/19, Plaintiffs filed a notice of non-opposition to the motion.  Plaintiffs therefore necessarily failed to meet the shifted burden, and the motion is granted.

f. Notice

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.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. 

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