This case was last updated from Los Angeles County Superior Courts on 03/17/2020 at 00:10:46 (UTC).

DANIELLA AFSHAR VS MICHAEL OBENG MD ET AL

Case Summary

On 04/11/2018 DANIELLA AFSHAR filed a Personal Injury - Medical Malpractice lawsuit against MICHAEL OBENG MD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1555

  • Filing Date:

    04/11/2018

  • 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 Judges

HOLLY E. KENDIG

THOMAS D. LONG

 

Party Details

Plaintiff and Petitioner

AFSHAR DANIELLA

Defendants and Respondents

OBENG MICHAEL MD

MIKO SURGERY CENTER

DOES 1 TO 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

NASMYTH PETER R. JR.

Defendant and Respondent Attorney

WEISS DAVID J. ESQ.

 

Court Documents

[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

8/2/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

Notice - NOTICE NOTICE OF CHANGE OF FIRM NAME

8/20/2019: Notice - NOTICE NOTICE OF CHANGE OF FIRM NAME

Separate Statement

12/20/2019: Separate Statement

Opposition - OPPOSITION OPPOSITION TO AND REQUEST FOR CONTINUANCE OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

2/24/2020: Opposition - OPPOSITION OPPOSITION TO AND REQUEST FOR CONTINUANCE OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Separate Statement

2/24/2020: Separate Statement

Motion in Limine - MOTION IN LIMINE PROHIBITING THE USE OF MEDICAL TEXTS ON DIRECT OR CROSS-EXAMINATION WITHOUT PROPER FOUNDATION (MIL NO. 6)

2/27/2020: Motion in Limine - MOTION IN LIMINE PROHIBITING THE USE OF MEDICAL TEXTS ON DIRECT OR CROSS-EXAMINATION WITHOUT PROPER FOUNDATION (MIL NO. 6)

Motion in Limine - MOTION IN LIMINE PROHIBIT PLAINTIFF FROM OFFERING EXPERT TESTIMONY NOT DISCLOSED DURING EXPERT DEPOSITIONS (MIL NO. 2)

2/27/2020: Motion in Limine - MOTION IN LIMINE PROHIBIT PLAINTIFF FROM OFFERING EXPERT TESTIMONY NOT DISCLOSED DURING EXPERT DEPOSITIONS (MIL NO. 2)

Motion in Limine - MOTION IN LIMINE PROHIBIT CROSS EXAMINATION RE AN EXPERT'S PERSONAL PRACTICES (MIL NO. 4)

2/27/2020: Motion in Limine - MOTION IN LIMINE PROHIBIT CROSS EXAMINATION RE AN EXPERT'S PERSONAL PRACTICES (MIL NO. 4)

Motion in Limine - MOTION IN LIMINE RE FUTURE DAMAGES AND STAY OF ENTRY OF JUDGMENT UNTIL PAYMENT SCHEDULE HAS BEEN ORDERED PURSUANT TO CCP 667 (MIL NO. 9)

2/27/2020: Motion in Limine - MOTION IN LIMINE RE FUTURE DAMAGES AND STAY OF ENTRY OF JUDGMENT UNTIL PAYMENT SCHEDULE HAS BEEN ORDERED PURSUANT TO CCP 667 (MIL NO. 9)

Motion in Limine - MOTION IN LIMINE PRECLUDE ANY REFERENCE TO CIVIL CODE 3333.2 OR CCP 667.7 (MIL NO. 8)

2/27/2020: Motion in Limine - MOTION IN LIMINE PRECLUDE ANY REFERENCE TO CIVIL CODE 3333.2 OR CCP 667.7 (MIL NO. 8)

Declaration - DECLARATION OF JAMI B. TENCATI, ESQ. RE MOTIONS IN LIMINE BROUGHT BY DEFENDANTS

2/27/2020: Declaration - DECLARATION OF JAMI B. TENCATI, ESQ. RE MOTIONS IN LIMINE BROUGHT BY DEFENDANTS

Motion in Limine - MOTION IN LIMINE EXCLUDE NON-PARTY WITNESSES FROM THE COURTROOM DURING TRIAL (MIL NO. 11)

2/27/2020: Motion in Limine - MOTION IN LIMINE EXCLUDE NON-PARTY WITNESSES FROM THE COURTROOM DURING TRIAL (MIL NO. 11)

Notice - NOTICE OF CONTINUANCE OF OBENG AND MIKO'S MSJ

2/28/2020: Notice - NOTICE OF CONTINUANCE OF OBENG AND MIKO'S MSJ

CIVIL DEPOSIT -

6/14/2018: CIVIL DEPOSIT -

DEFENDANTS MICHAEL OBENG, M.D. AND MIKO SURGERY CENTER'S ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL

5/25/2018: DEFENDANTS MICHAEL OBENG, M.D. AND MIKO SURGERY CENTER'S ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL

Proof of Service -

5/10/2018: Proof of Service -

Proof of Service -

5/10/2018: Proof of Service -

COMPLAINT FOR DAMAGES FOR: 1. MEDICAL MALPRACTICE 2. BREACH OF INFORMED CONSENT

4/11/2018: COMPLAINT FOR DAMAGES FOR: 1. MEDICAL MALPRACTICE 2. BREACH OF INFORMED CONSENT

15 More Documents Available

 

Docket Entries

  • 04/12/2021
  • Hearing04/12/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

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  • 04/10/2020
  • Hearing04/10/2020 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 03/25/2020
  • Hearing03/25/2020 at 10:00 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 03/18/2020
  • Hearing03/18/2020 at 13:30 PM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 03/09/2020
  • Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Court

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  • 03/03/2020
  • DocketReply (in Support of Motion for Summary Judgment); Filed by Michael MD Obeng (Defendant); Miko Surgery Center (Defendant)

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  • 02/28/2020
  • DocketNotice (of Continuance of Obeng and Miko's MSJ); Filed by Michael MD Obeng (Defendant); Miko Surgery Center (Defendant)

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  • 02/27/2020
  • DocketMotion in Limine (Preclude Any Reference of Prior or Future Claims Against Defendants (MIL No. 1)); Filed by Michael MD Obeng (Defendant); Miko Surgery Center (Defendant)

    Read MoreRead Less
  • 02/27/2020
  • DocketMotion in Limine (Preclude Public and/or Community Safety Arguments, i.e. Reptile Theory Tactics (MIL No. 12)); Filed by Michael MD Obeng (Defendant); Miko Surgery Center (Defendant)

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  • 02/27/2020
  • DocketMotion in Limine (Exclude Non-Party Witnesses from the Courtroom During Trial (MIL No. 11)); Filed by Michael MD Obeng (Defendant); Miko Surgery Center (Defendant)

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20 More Docket Entries
  • 06/14/2018
  • DocketReceipt; Filed by Michael MD Obeng (Defendant); Miko Surgery Center (Defendant)

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  • 05/25/2018
  • DocketDEFENDANTS MICHAEL OBENG, M.D. AND MIKO SURGERY CENTER'S ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL

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  • 05/25/2018
  • DocketAnswer; Filed by Michael MD Obeng (Defendant); Miko Surgery Center (Defendant)

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  • 05/10/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Daniella Afshar (Plaintiff)

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  • 05/10/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Daniella Afshar (Plaintiff)

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  • 05/10/2018
  • DocketProof of Service

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  • 05/10/2018
  • DocketProof of Service

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  • 04/11/2018
  • DocketComplaint; Filed by Daniella Afshar (Plaintiff)

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  • 04/11/2018
  • DocketSUMMONS

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  • 04/11/2018
  • DocketCOMPLAINT FOR DAMAGES FOR: 1. MEDICAL MALPRACTICE 2. BREACH OF INFORMED CONSENT

    Read MoreRead Less

Tentative Rulings

Case Number: BC701555    Hearing Date: July 10, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DANIELLA AFSHAR,

Plaintiff(s),

vs.

MICHAEL OBENG, M.D., et al.

Defendant(s).

)

)

)

)

)

)

)

)

)

)

Case No.: BC701555

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 31

2:30 p.m.

July 10, 2020

  1. Background Facts

    Plaintiff, Daniella Afshar filed this action against Defendants, Michael Obeng, M.D. and Miko Surgery Center for medical malpractice and breach of informed consent. Plaintiff alleges Defendants performed liposuction on her but did so negligently; she alleges the negligent performance of the procedure led to extensive scarring, pain, and disfigurement in the areas where the procedure was performed.

  2. Motion for Summary Judgment

  1. Moving Argument

    At this time, Defendants move for summary judgment, contending they complied with the standard of care at all times, and nothing they did caused or contributed to Plaintiff’s claimed damages. Defendants supports their motion with the expert declaration of Terry Dubrow, M.D. Dr. Dubrow opines Defendants complied with the standard of care at all times and nothing they did caused or contributed to Plaintiff’s claimed injuries or damages.

  2. Opposing Argument

    Plaintiff contends Defendants failed to comply with the standard of care, and the breach caused her damages. Plaintiff supports her opposition with the expert declaration of Elliot M. Hirsch, M.D., who opines that Defendants breached the standard of care, and the breach caused Plaintiff damages.

  3. Reply

    Defendants, in reply, contend (a) the Court should not consider the Hirsch declaration because it was not timely filed, and (b) the Hirsch declaration fails to provide facts in support of the position advanced.

  4. Law Governing 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.)

  5. Law Governing 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.

  6. Timeliness of Opposition

    Defendants originally filed their motion for summary judgment on 12/20/19, setting it for hearing on 3/09/20. The hearing was then continued from 3/09/20 to 3/18/20 because the Court was dark on 3/09/20. Prior to 3/18/20, the Court issued a tentative ruling continuing the hearing on the motion in light of Plaintiff’s opposition, which indicated Plaintiff had retained an expert to review her case but had not yet had time to prepare an expert declaration in support of the opposition. Unfortunately, the Court ultimately closed on 3/18/20 due to the covid-19 pandemic, and the hearing on the motion has been continued numerous times due to the ongoing pandemic.

    The Court was inclined to grant the prior request for a continuance, and therefore will consider Plaintiff’s second set of opposition papers, which she timely filed (per the new hearing date) on 6/22/20.

  7. Sufficiency of Declarations

    Defendants met their moving burden, through the Declaration of Dr. Dubrow, to show they complied with the standard of care at all times, and nothing they did caused or contributed to Plaintiff’s claimed injuries or damages; notably, Plaintiff does not argue to the contrary in her opposition papers. the burden therefore shifts to Plaintiff to raise a triable issue of material fact.

    As noted above, Defendants contend the Declaration of Dr. Hirsch, filed with the opposition papers, is insufficient to raise a triable issue of material fact. They so contend for a variety of reasons. First, they contend Dr. Hirsch failed to consider necessary evidence in rendering his opinion. Second, they contend Dr. Hirsch failed to provide copies of the documents upon which he did rely with his declaration. Third, they contend Dr. Hirsch failed to state the factual basis upon which he concludes Defendants breached the standard of care and/or contributed to Plaintiff’s claimed injuries and damages.

  1. Failure to Consider Necessary Evidence

    Defendants contend Dr. Hirsch failed to consider Plaintiff’s deposition testimony and Dr. Hirsch’s discovery responses in connection with his expert opinion. They contend this renders his opinion lacking in foundation, such that it must be disregarded. Notably, Defendants did not file formal evidentiary objections with their reply papers. The Court can, however, consider the arguments made in the reply papers in this regard.

    In Dr. Dubrow’s declaration in support of Defendants’ motion, Dr. Dubrow opines that he considered, among other documents, Plaintiff’s deposition testimony. At ¶5(h), Dr. Dubrow notes that Plaintiff was supposed to go to Defendants’ office for a follow-up appointment but failed to go because she was in too much pain. She did not, however, contact Defendants to cancel the appointment or notify them of her pain. Further in ¶5, Dr. Dubrow details various other appointments Plaintiff failed to attend, as well as appointments she did attend. At ¶6(e), Dr. Dubrow opines that the failure to show up at the first follow-up appointment allowed unmitigated pressure to develop from internal trauma and swelling; at ¶6(f), Dr. Dubrow opines that Defendants, in the next follow-up appointment, did their best to alleviate the pain and swelling at that time (and did so within the applicable standard of care), but it was impossible, due to the missed first follow-up appointment, to eliminate the ultimate scarring and other complaints Plaintiff now has. Similarly, at ¶7, Dr. Dubrow avers that Defendants’ conduct did not cause or contribute to Plaintiff’s claimed injuries or damages, as those injuries were caused by Plaintiff’s own failure to attend the necessary follow-up appointments.

    Dr. Hirsch, in his declaration in support of the opposition, fails to declare that he read or considered Plaintiff’s deposition transcript, wherein all of the missed appointments (especially the first missed appointment) are detailed. Dr. Hirsch also fails to mention in any way the missed appointment or Dr. Dubrow’s theory concerning the interplay between the missed appointments and Plaintiff’s ongoing complaints that form the basis of this action.

    The Court finds, as discussed further below, that there can be multiple causes of the same injury. The Court finds the Declaration of Hirsch, discussed more fully below, articulates an alternative cause of the injury, such that Dr. Hirsch’s failure to review or discuss the deposition testimony of Plaintiff is not fatal to the opposition.

    ii. Authentication of Records

    Defendants also argue Dr. Hirsch failed to authenticate the records upon which he basis his opinion. Pursuant to Shugart v. Regents (2011) 199 Cal.App.4th 499, 507, an expert declaration in support of the opposition to a summary judgment motion need not authenticate records relied upon so long as copies of those records were authenticated in connection with the moving papers. The Court has reviewed the Declaration of Hirsch, ¶4, and finds that each and every record upon which Hirsch relied was also submitted with the Declaration of Dubrow (and detailed in his declaration, also at ¶4). The Court therefore finds the records were authenticated, and failure to authenticate does not support denial of the motion.

    iii. Sufficiency of Hirsch Declaration

    Defendants’ final argument is that the Hirsch declaration does not adequately set forth the basis of his opinions concerning breach of the standard of care and causation. An expert opinion must be supported “by a reasoned explanation connecting the factual predicates to the ultimate conclusion” or it lacks evidentiary value. See, e.g., Sanchez v. Kern Emergency etc. (2017) 8 Cal.App.5th 146, 155.

    In Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123-124, the court of appeals considered the issue of an (arguably) insufficient plaintiff’s expert declaration in opposition to a summary judgment motion at length. It held:

    Simply because the defendant doctor provides an unopposed declaration by an expert does not necessarily mean the court should grant summary judgment. In Kelley v. Trunk (1998) 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 (Kelley), Division Seven of the Second District Court of Appeal held that “a defendant doctor is not entitled to obtain summary judgment based on a conclusory expert declaration which states the opinion that no malpractice has occurred, but does not explain the basis for the opinion.” (Id. at p. 521, 78 Cal.Rptr.2d 122.)

    The court of appeals went on to discuss a case where the plaintiff’s expert declaration was less than a model of clarify. It noted that the standard of review for the plaintiff’s opposing declaration was lower than the standard of review for the defendant’s moving declaration. Specifically, it held:

    We, however, can reconcile Kelley and Hanson. The court in Kelley was considering the sufficiency of the declaration of the defendant's expert in support of the defendant's motion for summary judgment. In such cases, the defendant “bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (See, e.g., Aguilar, supra, 25 Cal.4th at p. 845, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) Thus, the Kelley court was considering the burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. To meet such a burden, the Kelley court concluded the declaration of the defendant's expert had to be detailed and with foundation. (Kelley, supra, 66 Cal.App.4th at p. 524, 78 Cal.Rptr.2d 122.) In contrast, the court in Hanson was considering the sufficiency of the declaration of the plaintiff's expert in opposition to the defendant's summary judgment motion. In such a case, the declaration submitted by the plaintiff did not have to be detailed, was entitled to all favorable inferences and was deemed sufficient to defeat the summary judgment motion. (Hanson, supra, 76 Cal.App.4th at pp. 607–608, 90 Cal.Rptr.2d 396.)

    We conclude that both the Kelley and Hanson courts properly applied the rule that, when considering the declarations of the parties' experts, we liberally construe the declarations for the plaintiff's experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff. (See, e.g., Zavala v. Arce, supra, 58 Cal.App.4th at p. 935, 68 Cal.Rptr.2d 571.) Accordingly, we apply this well-settled rule of evidence when considering Powell's expert's declaration.

    In light of the above standard, the Court finds the Declaration of Dr. Hirsch is sufficient to raise a triable issue of material fact concerning breach of the standard of care and causation. At ¶7, Dr. Hirsch declares that it is currently recommended (standard of care) that a doctor performing liposuction do certain things. At ¶9, Dr. Hirsch declares that certain details are missing from Defendants’ operative report, and Dr. Hirsch implies that the missing information could potentially be a breach of the standard of care. While ¶9 is arguably deficient, the Court finds ¶¶10 and 11 are sufficient. At ¶¶10 and 11, Dr. Hirsch opines that Defendants performed bilateral flank harvesting, not once but twice, without regard to the aforementioned safety procedures. He goes on, at ¶12, to specifically opine that the foregoing is a breach of the standard of care, and at ¶13 to opine that the breach caused Plaintiff damages.

  1. Conclusion

    The Court finds Defendants met their moving burden to show they are entitled to judgment as a matter of law on the ground that they did not breach the standard of care and did not cause or contribute to Plaintiff’s claimed injuries or damages. Plaintiff, through the Declaration of Dr. Hirsch, raised a triable issue of material fact in each regard. The motion for summary judgment is therefore denied.

    Defendants are ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf 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. If the parties do not submit on the tentative, they should arrange to appear remotely.

    Dated this 10th day of July, 2020

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: BC701555    Hearing Date: July 09, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DANIELLA AFSHAR,

Plaintiff(s),

vs.

MICHAEL OBENG, M.D., et al.

Defendant(s).

)

)

)

)

)

)

)

)

)

)

Case No.: BC701555

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 31

2:30 p.m.

July 10, 2020

  1. Background Facts

    Plaintiff, Daniella Afshar filed this action against Defendants, Michael Obeng, M.D. and Miko Surgery Center for medical malpractice and breach of informed consent. Plaintiff alleges Defendants performed liposuction on her but did so negligently; she alleges the negligent performance of the procedure led to extensive scarring, pain, and disfigurement in the areas where the procedure was performed.

  2. Motion for Summary Judgment

  1. Moving Argument

    At this time, Defendants move for summary judgment, contending they complied with the standard of care at all times, and nothing they did caused or contributed to Plaintiff’s claimed damages. Defendants supports their motion with the expert declaration of Terry Dubrow, M.D. Dr. Dubrow opines Defendants complied with the standard of care at all times and nothing they did caused or contributed to Plaintiff’s claimed injuries or damages.

  2. Opposing Argument

    Plaintiff contends Defendants failed to comply with the standard of care, and the breach caused her damages. Plaintiff supports her opposition with the expert declaration of Elliot M. Hirsch, M.D., who opines that Defendants breached the standard of care, and the breach caused Plaintiff damages.

  3. Reply

    Defendants, in reply, contend (a) the Court should not consider the Hirsch declaration because it was not timely filed, and (b) the Hirsch declaration fails to provide facts in support of the position advanced.

  4. Law Governing 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.)

  5. Law Governing 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.

  6. Timeliness of Opposition

    Defendants originally filed their motion for summary judgment on 12/20/19, setting it for hearing on 3/09/20. The hearing was then continued from 3/09/20 to 3/18/20 because the Court was dark on 3/09/20. Prior to 3/18/20, the Court issued a tentative ruling continuing the hearing on the motion in light of Plaintiff’s opposition, which indicated Plaintiff had retained an expert to review her case but had not yet had time to prepare an expert declaration in support of the opposition. Unfortunately, the Court ultimately closed on 3/18/20 due to the covid-19 pandemic, and the hearing on the motion has been continued numerous times due to the ongoing pandemic.

    The Court was inclined to grant the prior request for a continuance, and therefore will consider Plaintiff’s second set of opposition papers, which she timely filed (per the new hearing date) on 6/22/20.

  7. Sufficiency of Declarations

    Defendants met their moving burden, through the Declaration of Dr. Dubrow, to show they complied with the standard of care at all times, and nothing they did caused or contributed to Plaintiff’s claimed injuries or damages; notably, Plaintiff does not argue to the contrary in her opposition papers. the burden therefore shifts to Plaintiff to raise a triable issue of material fact.

    As noted above, Defendants contend the Declaration of Dr. Hirsch, filed with the opposition papers, is insufficient to raise a triable issue of material fact. They so contend for a variety of reasons. First, they contend Dr. Hirsch failed to consider necessary evidence in rendering his opinion. Second, they contend Dr. Hirsch failed to provide copies of the documents upon which he did rely with his declaration. Third, they contend Dr. Hirsch failed to state the factual basis upon which he concludes Defendants breached the standard of care and/or contributed to Plaintiff’s claimed injuries and damages.

  1. Failure to Consider Necessary Evidence

    Defendants contend Dr. Hirsch failed to consider Plaintiff’s deposition testimony and Dr. Hirsch’s discovery responses in connection with his expert opinion. They contend this renders his opinion lacking in foundation, such that it must be disregarded. Notably, Defendants did not file formal evidentiary objections with their reply papers. The Court can, however, consider the arguments made in the reply papers in this regard.

    In Dr. Dubrow’s declaration in support of Defendants’ motion, Dr. Dubrow opines that he considered, among other documents, Plaintiff’s deposition testimony. At ¶5(h), Dr. Dubrow notes that Plaintiff was supposed to go to Defendants’ office for a follow-up appointment but failed to go because she was in too much pain. She did not, however, contact Defendants to cancel the appointment or notify them of her pain. Further in ¶5, Dr. Dubrow details various other appointments Plaintiff failed to attend, as well as appointments she did attend. At ¶6(e), Dr. Dubrow opines that the failure to show up at the first follow-up appointment allowed unmitigated pressure to develop from internal trauma and swelling; at ¶6(f), Dr. Dubrow opines that Defendants, in the next follow-up appointment, did their best to alleviate the pain and swelling at that time (and did so within the applicable standard of care), but it was impossible, due to the missed first follow-up appointment, to eliminate the ultimate scarring and other complaints Plaintiff now has. Similarly, at ¶7, Dr. Dubrow avers that Defendants’ conduct did not cause or contribute to Plaintiff’s claimed injuries or damages, as those injuries were caused by Plaintiff’s own failure to attend the necessary follow-up appointments.

    Dr. Hirsch, in his declaration in support of the opposition, fails to declare that he read or considered Plaintiff’s deposition transcript, wherein all of the missed appointments (especially the first missed appointment) are detailed. Dr. Hirsch also fails to mention in any way the missed appointment or Dr. Dubrow’s theory concerning the interplay between the missed appointments and Plaintiff’s ongoing complaints that form the basis of this action.

    The Court finds, as discussed further below, that there can be multiple causes of the same injury. The Court finds the Declaration of Hirsch, discussed more fully below, articulates an alternative cause of the injury, such that Dr. Hirsch’s failure to review or discuss the deposition testimony of Plaintiff is not fatal to the opposition.

    ii. Authentication of Records

    Defendants also argue Dr. Hirsch failed to authenticate the records upon which he basis his opinion. Pursuant to Shugart v. Regents (2011) 199 Cal.App.4th 499, 507, an expert declaration in support of the opposition to a summary judgment motion need not authenticate records relied upon so long as copies of those records were authenticated in connection with the moving papers. The Court has reviewed the Declaration of Hirsch, ¶4, and finds that each and every record upon which Hirsch relied was also submitted with the Declaration of Dubrow (and detailed in his declaration, also at ¶4). The Court therefore finds the records were authenticated, and failure to authenticate does not support denial of the motion.

    iii. Sufficiency of Hirsch Declaration

    Defendants’ final argument is that the Hirsch declaration does not adequately set forth the basis of his opinions concerning breach of the standard of care and causation. An expert opinion must be supported “by a reasoned explanation connecting the factual predicates to the ultimate conclusion” or it lacks evidentiary value. See, e.g., Sanchez v. Kern Emergency etc. (2017) 8 Cal.App.5th 146, 155.

    In Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123-124, the court of appeals considered the issue of an (arguably) insufficient plaintiff’s expert declaration in opposition to a summary judgment motion at length. It held:

    Simply because the defendant doctor provides an unopposed declaration by an expert does not necessarily mean the court should grant summary judgment. In Kelley v. Trunk (1998) 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 (Kelley), Division Seven of the Second District Court of Appeal held that “a defendant doctor is not entitled to obtain summary judgment based on a conclusory expert declaration which states the opinion that no malpractice has occurred, but does not explain the basis for the opinion.” (Id. at p. 521, 78 Cal.Rptr.2d 122.)

    The court of appeals went on to discuss a case where the plaintiff’s expert declaration was less than a model of clarify. It noted that the standard of review for the plaintiff’s opposing declaration was lower than the standard of review for the defendant’s moving declaration. Specifically, it held:

    We, however, can reconcile Kelley and Hanson. The court in Kelley was considering the sufficiency of the declaration of the defendant's expert in support of the defendant's motion for summary judgment. In such cases, the defendant “bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (See, e.g., Aguilar, supra, 25 Cal.4th at p. 845, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) Thus, the Kelley court was considering the burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. To meet such a burden, the Kelley court concluded the declaration of the defendant's expert had to be detailed and with foundation. (Kelley, supra, 66 Cal.App.4th at p. 524, 78 Cal.Rptr.2d 122.) In contrast, the court in Hanson was considering the sufficiency of the declaration of the plaintiff's expert in opposition to the defendant's summary judgment motion. In such a case, the declaration submitted by the plaintiff did not have to be detailed, was entitled to all favorable inferences and was deemed sufficient to defeat the summary judgment motion. (Hanson, supra, 76 Cal.App.4th at pp. 607–608, 90 Cal.Rptr.2d 396.)

    We conclude that both the Kelley and Hanson courts properly applied the rule that, when considering the declarations of the parties' experts, we liberally construe the declarations for the plaintiff's experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff. (See, e.g., Zavala v. Arce, supra, 58 Cal.App.4th at p. 935, 68 Cal.Rptr.2d 571.) Accordingly, we apply this well-settled rule of evidence when considering Powell's expert's declaration.

    In light of the above standard, the Court finds the Declaration of Dr. Hirsch is sufficient to raise a triable issue of material fact concerning breach of the standard of care and causation. At ¶7, Dr. Hirsch declares that it is currently recommended (standard of care) that a doctor performing liposuction do certain things. At ¶9, Dr. Hirsch declares that certain details are missing from Defendants’ operative report, and Dr. Hirsch implies that the missing information could potentially be a breach of the standard of care. While ¶9 is arguably deficient, the Court finds ¶¶10 and 11 are sufficient. At ¶¶10 and 11, Dr. Hirsch opines that Defendants performed bilateral flank harvesting, not once but twice, without regard to the aforementioned safety procedures. He goes on, at ¶12, to specifically opine that the foregoing is a breach of the standard of care, and at ¶13 to opine that the breach caused Plaintiff damages.

  1. Conclusion

    The Court finds Defendants met their moving burden to show they are entitled to judgment as a matter of law on the ground that they did not breach the standard of care and did not cause or contribute to Plaintiff’s claimed injuries or damages. Plaintiff, through the Declaration of Dr. Hirsch, raised a triable issue of material fact in each regard. The motion for summary judgment is therefore denied.

    Defendants are ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf 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. If the parties do not submit on the tentative, they should arrange to appear remotely.

    Dated this 10th day of July, 2020

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: BC701555    Hearing Date: July 07, 2020    Dept: 31

   

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DANIELLA AFSHAR,

Plaintiff(s),

vs.

MICHAEL OBENG, M.D., ET AL.,

Defendant(s).

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CASE NO: BC701555

[TENTATIVE] ORDER CONTINUING HEARING ON MOTION FOR SUMMARY JUDGMENT

Dept. 31

10:30 a.m.

July 7, 2020

Defendants, Michael Obeng, M.D. and Miko Surgery Center filed this motion for summary judgment on 12/20/19, setting it for hearing on 3/09/20. On 2/28/20, Defendants gave notice that the Court, on its own motion, continued the hearing from 3/09/20 to 3/18/20. Due to the ongoing pandemic, the hearing was continued multiple times thereafter, and is now set on 7/07/20.

Plaintiff timely filed opposition papers on 6/22/20. Any reply to the opposition is due on or before 7/02/20. Because of the 7/03/20 holiday, the Court will not have sufficient time to review any reply papers filed on 7/02/20 prior to the hearing on this matter. The Court wishes to review all papers filed in connection with the motion for summary judgment, and therefore continues the hearing date from 7/07/20 to 7/10/20 at 2:30 p.m. in Department 31 of the Spring Street Courthouse. The time for filing a reply is NOT extended as result of this ruling, and the reply papers remain due on 7/02/20.

If 7/10/20 is not an available date for the parties, they are ordered to meet and confer, choose a mutually agreeable date, and call the courtroom to reschedule the hearing on the motion to the next mutually available calendar date; the parties should have several date options available when they call, in case the date they choose is not available on the Court’s calendar. The concurrently scheduled Trial Setting Conference is also continued to 7/10/20 at 2:30 p.m. in Department 31; the Court will also continue the TSC to any mutually available date to which the parties continue the hearing on the summary judgment motion.

Moving Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf 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. If the parties do not submit on the tentative, they should arrange to appear remotely. The parties should appear remotely for the TSC in any event.

Dated this 7th day of July, 2020

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: BC701555    Hearing Date: March 18, 2020    Dept: 31

This matter is continued until April 20, 2020 at 1:30 p.m. in Dept. 31 of the Spring Street Courthouse, 312 N. Spring St. Los Angeles, CA 90012.  The moving party is ordered to give notice.

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