JANICE CHRISTIAN, ET AL. VS MOHAMMED NAJI, MD, ET AL.

Tentative Rulings

Case Number: *******0861 Hearing Date: March 18, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I. INTRODUCTION

On March 17, 2020, plaintiffs Janice Christian (“Plaintiff”) and Thomas Christian (“Christian”) filed this action against defendants Richard Williams, M.D. (“Defendant”), Mohammed Naji, M.D. (“Dr. Naji”), and Prime Healthcare Services-San Dimas, LLC dba San Dimas Community Hospital (“Prime”) (erroneously sued as “San Dimas Community Hospital”). Plaintiff asserts a cause of action for medical negligence arising from treatment on or about March 20, 2020.

On February 22, 2021, the Complaint was dismissed with prejudice as to Christian only. The dismissal was entered the same day.

On September 28, 2021, Plaintiff filed a request to dismiss Prime from the action with prejudice. The dismissal was entered on October 18, 2021.

On December 29, 2021, Defendant filed this motion for summary judgment. On March 8. 2022, Plaintiff filed a notice of non-opposition in exchange for a waiver of costs and any potential claim for malicious prosecution.

II. FACTUAL BACKGROUND

On March 18, 2019, Defendant performed Plaintiff’s pre-operative examination before her robotic-assisted Laparoscopic Assisted Vaginal Hysterectomy and Bilateral Salpingo-Oophorectomy (LAVH BSO) with the daVinci Surgical System. (Defendant’s Undisputed Material Fact (“UMF”) No. 2.) He noted that the patient had irregular periods, a uterine mass and was at a high risk for ovarian cancer. (UMF No. 2.) On March 20, 2019, Plaintiff was admitted to San Dimas Community Hospital by Defendant for the LAVH BSO, vaginal suspension, and cystoscopy. (UMF No. 3.) Defendant performed the surgery, which began at 8:21 a.m. and ended at 10:00 a.m. (UMF No. 4.) Anesthesia was provided by Dr. Naji and began at 7:40 a.m. and ended at 10:30 a.m. (UMF No. 4.) There were no surgical or anesthesia complications. (UMF No. 4.)

At about 10:01 a.m., Dr. Naji gave Plaintiff a TAP Block to both sides of the abdomen, providing analgesia to the parietal peritoneum as well as to the skin and muscles of the anterior abdominal wall. (UMF No. 5.) Plaintiff was in the Post Anesthesia Care Unit (PACU) at 10:20 a.m. Her vital signs were stable and she was arousable to verbal stimuli but drowsy. (UMF No. 6.) At 10:21 a.m., the rhythm strip showed “HR 70, BP 109/75, O2 sat 99%, pulse 64.” (UMF No. 7.) At 10:30 a.m., Plaintiff had facial itchiness and itchiness to the left leg. (UMF No. 8.) She had no visible rashes. (UMF No. 8.) Dr. Naji advised Plaintiff that the itchiness was due to the Fentanyl and that it is a normal reaction. (UMF No. 8.) An entry at 10:31 a.m. notes the patient got the TAP Block. (UMF No. 9.) At 10:56 a.m. the rhythm strip showed a pulse of 118-136, B/P 146/129, O2 sat 100%. (UMF No. 10.) At 10:58 a.m., 25 milligrams of Benadryl was given IV per Dr. Naji and Dr. Williams agreement. (UMF No. 11.) Plaintiff was reassured and her vital signs were stable. (UMF No. 11.)

At 11:02 a.m., Plaintiff started to get anxious, restless and was using gestures to show that she was “getting more itchy”. (UMF No. 12.) She had tried to talk but had a rigid mouth. (UMF No. 12.) HR went up to 136 and B/P 146/129. (UMF No. 12.) O2 saturation decreased to 92%. (UMF No. 12.) Her airway was kept open and “O2 admin by mask at 10 liters per min.” (UMF No. 12.) Dr. Williams was at the bedside and gave 2 milligrams of Versed. (UMF No. 12.) By 11:05 a.m., Plaintiff had calmed down and dozed off. (UMF No. 13.) Dr. Williams was still at bedside. (UMF No. 13.) Her vital signs were better and rashes to the chest were noted. (UMF No. 13.)

At 11:30 a.m., Plaintiff was awake and denied pain; she spoke clearly. (UMF No. 14.) At 11:40 a.m., Dr. Naji saw her. (UMF No. 14.) She reacted normally and answered the doctor’s questions. (UMF No. 14.) She was still drowsy but coherent and “oriented times 4.” (UMF No. 14.)

At 11:50 a.m., Plaintiff complained of abdominal pain 4-5/10 when asked by Dr. Naji and was reassured.. (UMF No. 15.) At 12:19 p.m., Plaintiff was awake and alert. (UMF No. 16.) The rashes to her chest had resolved and “Toradol 30 mg IV” was given as ordered. (UMF No. 16.) She was reassured. (UMF No. 16.)

At 12:25 p.m., Plaintiff was seen by Dr. Williams. (UMF No. 17.) Her abdominal pain was still 4-5/10. (UMF No. 17.) “Demerol 50 mg slow IV” was given as ordered. (UMF No. 17.) Her vital signs were stable. At 12:35 p.m., Plaintiff was easily arousable and coherent and her vital signs were stable. (UMF No. 18.) Pain level had decreased to 2/10 after the Demerol was given. (UMF No. 18.) Dr. Williams was at the bedside and advised that Plaintiff was cleared for discharge to outpatient surgery (OPS). (UMF No. 18.)

At 12:40 p.m., Plaintiff left the PACU and was received in OPS. (UMF No. 19.) She was arousable to verbal commands, reoriented to time and place, and her vital signs were stable. (UMF No. 19.) Pain was 2/10. (UMF No. 19.)

At 1:10 p.m., Plaintiff was resting quietly with her eyes closed, but was easily arousable. (UMF No. 20.) Her vital signs were stable and her pain had decreased to 1/10. (UMF No. 20.) At 1:40 p.m., she was resting quietly with her eyes closed and was easily arousable. Her vital signs were stable and she denied pain. (UMF No. 21.)

At 1:58 p.m. Plaintiff had increased pain to the abdomen. (UMF No. 22.) 1 tablet of Percocet was given and she was able to swallow without difficulty. (UMF No. 22.) At 2:10 p.m. the Foley Catheter was removed without difficulty; her pain was 1/10 and vital signs were stable. (UMF No. 23.)

At 2:20 p.m., Dr. Naji was at the bedside speaking with Plaintiff. (UMF No. 24.) At 3:15 p.m., Plaintiff was assisted to the bathroom without difficulty. (UMF No. 25.) Discharge instructions were given and Plaintiff was discharged in a wheelchair with her husband to her car. (UMF No. 26.)

Plaintiff’s first post-operative visit with Dr. Williams took place on April 2, 2019. (UMF No. 27.) Her only complaint was abdominal wall and incisional pain. (UMF No. 7.) Postmenopausal hormone replacement therapy was started. (UMF No. 27.)

On April 17, 2019, Plaintiff returned to Dr. Williams. (UMF No. 28.) She complained of pelvic pain and was prescribed Percocet, 10-325 mg, 1 tablet every 4-6 hours for pain for 10 days. (UMF No. 28.) Plaintiff returned to see Dr. Williams on April 22, 2019 and advised him that her pain was improving but she was still having difficulty status post vaginal suspension. (UMF No. 29.)

On May 1, 2019, the patient returned to see Dr. Williams because she “needs Percocet refill, discuss disability extension and lower pelvic pain and sciatica”. (UMF No. 30.) The assessment included left leg sciatica pain, pelvic pain and stress incontinence. (UMF No. 30.) Percocet, 10-325 mg, 1 tablet every 4-6 hours for pain for 10 days and Motrin, 800 mg, 1 tablet, 3 times per day for 30 days, was prescribed. (UMF No. 30.) Exercise and PT were discussed regarding the sciatic and pelvic pain. (UMF No. 30.)

On May 2, 2019, the patient’s disability was extended by Dr. Williams to June 4, 2019. (UMF No. 31.) The reasons for the extension included pelvic pain, sciatic leg pain and urinary incontinence. (UMF No. 31.)

Plaintiff returned to see Dr. Williams on May 28, 2019. She was complaining of severe left pelvic and hip pain, radiating down left upper thigh. (UMF No. 32.) She was taking Motrin and Percocet. (UMF No. 32.) An orthopedic consultation was requested for the sciatic pain. (UMF No. 32.) The consultant approved was with Richard Malinick, M.D. (“Dr. Malinick”) (UMF No. 32.)

On June 18, 2019, Plaintiff returned to see Dr. Williams for a sixth post-operative visit following the March 20, 2019 LAVH BSO surgery. (UMF No. 33.) At this time, Plaintiff first complained of pain and weakness in her left arm and the 4th and 5th fingers “that starts at the elbow”. (UMF No. 33.) She was referred to orthopedist Richard Malinick, M.D. (UMF No. 33.) Her disability was extended to July 4, 2019 and she was to return to see Dr. Williams as needed. (UMF No. 33.)

Plaintiff never returned to see Dr. Williams. (UMF No. 33.)

Dr. Malinick saw Mrs. Christian in orthopedic consultation on July 11, 2019, for (1) left dominant elbow pain, onset 3/20/19, and paresthesia, left fourth and fifth fingers and (2) joint pain in hands, knees and ankles, onset 3/2019. (UMF No. 34.) The injuries allegedly occurred “after a grand mal seizure” “. . . on 3/20/19, when [Plaintiff] suffered a seizure after IV Benadryl, and subsequently multiple joint pain with apparent low estrogen levels.” (UMF No. 34.) July 11, 2019 elbow x-rays showed no evidence of fracture, dislocation, tumor, loose bodies or avascular necrosis. (UMF No. 34.) Dr. Malinick noted that Plaintiff had an unusual combination of left lateral epicondylitis (tennis elbow), left cubital tunnel syndrome (a problem with the ulnar nerve which passes through the inside of the elbow), left elbow pain, paresthesia (an abnormal sensation) in the left fourth and fifth fingers and severe muscle contractions. (UMF No. 34.) The assessment was that the symptoms may be secondary to a blunt injury at the medial elbow during the seizure as well as from severe muscle contraction. (UMF No. 34.) Plaintiffwas to continue with Ibuprofen and rest and return in four weeks. (UMF No. 34.)

Plaintiff returned to see Dr. Malinick on August 20, 2019. She was diagnosed with medial and lateral elbow epicondylitis and ulnar nerve entrapment/neuropathy and he notes that it is difficult to explain this triad of diagnoses. (UMF No. 35.) Dr. Malinick recommended that Plaintiff see a neurologist and obtain electrodiagnostic testing. (UMF No. 35.) Plaintiff was to be started on physical therapy for her diagnosis of medial and lateral epicondylitis. (UMF No. 35.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. EVIDENTIARY OBJECTIONS

Plaintiff did not oppose this motion or submit any evidentiary objections.

V. DISCUSSION

In a medical malpractice action, a plaintiff must establish the following elements: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. [citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “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.3d 977, 984-985.)

In Plaintiff’s discovery responses, Plaintiff claims that Defendant’s treatment and care of Plaintiff on March 20, 2019 fell below the standard of care and was a substantial factor in causing a toxic clonic grand mal seizure and subsequent injury to her left arm. (Def.’s Ex. E, response no. 12.) Plaintiff also claims Defendant administered a higher dose of lidocaine than was safe for her, which was below the standard of care . (Ibid.)

Defendant argues that there is no evidence that he breached the standard of care. In support of his motion, he submits the declaration of Joel Kessler, M.D. (“Dr. Kessler”), a board-certified OB/GYN. (Kessler Decl., 4.) He states that based on his education, training, and experience, he is familiar with the professional standard of care for physicians specializing in Obstetrics and Gyencology in Southern California with surgical patients who experience tonic clonic grand mal seizures. (Kessler Decl., 6.)

Kessler states he has reviewed Plaintiff’s medical record from San Dimas Community Hospital and Defendant’s office, Plaintiff’s complaint, as well as Plaintiff’s notice of errata, and Plaintiff’s responses to Defendant’s special interrogatories. (Kessler Decl., 7.) Based on his review of the materials, as well as his background, training, and experience, it is his opinion that Defendant’s recommendation of the LAVH BSO procedure was within the standard of care based on Plaintiff’s irregular periods, uterine mass, and high risk of ovarian cancer. (Kessler Decl., 10.) He also opines that Defendant’s perofrmance of the procedure was proper and that a request for a TAP Block for control of post-operation pain is within the standard of care. (Kessler Decl., 12.) Kessler states that the records do not show that Defendant ordered or administered Lidocaine and that Defendant gave Plaintiff 2 milligrams of Versed to reverse the effects of the seizure, which was within the standard of care. (Ibid.) Kessler additionally opines that it was within the standard of care to give Plaintiff a Benadryl IV because it blocks histamine release which causes urticaria. (Kessler Decl., 13.) Demerol was also appropriately given at 12:25 p.m. because Plaintiff’s pain level decreased after. (Kessler Decl., 14.) Kessler concludes that Plaintiff was appropriately discharged because she spoke clearly and was coherent and oriented with stable vital signs. (Kessler Decl., 15-16.) Kessler states that it was not until June 18, 2019 when Plaintiff began complaining of pain and weakness in her left arm and 4th and 5th fingers "that starts at the elbow", and Defendant appropriately referred Plaintiff to an orthopedist. (Kessler Decl., 17.) Kessler also specifically notes that the medical records do not show that Defendant ordered or adinistered lidocaine to Plainitff as claimed. Therefore, Kessler states, there is nothing Defendant did or failed to do that cause dor contributed to Plaintiff’s injuries.

Defendant has met his movign burden to show no traible issue of fact exists by submitting an expert declaration. The burden now shifts to Plaintiff to produce evidence showing a triable issue of fact. As Plaintiff did not oppose this motion or submit a competing expert declaration, Plaintiff fails to meet her burden to show a triable issue of material fact exists.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.