This case was last updated from Los Angeles County Superior Courts on 07/21/2019 at 02:36:07 (UTC).

MANAL ANIS ET AL VS KAMRAN MALEK M D ET AL

Case Summary

On 04/20/2018 a Personal Injury - Medical Malpractice case was filed by MANAL ANIS against KAMRAN MALEK M D in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3589

  • Filing Date:

    04/20/2018

  • 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

 

Party Details

Petitioners and Plaintiffs

ANIS MANAL

CHEHADE AHMAD

Defendants and Respondents

PAI RAJIV M.D.

MALEK KAMRAN M.D.

DOES 1-50

 

Court Documents

PROOF OF SERVICE SUMMONS

5/31/2018: PROOF OF SERVICE SUMMONS

ANSWER TO COMPLAINT

6/8/2018: ANSWER TO COMPLAINT

DEMAND FOR JURY TRIAL

6/8/2018: DEMAND FOR JURY TRIAL

NOTICE OF POSTING JURY FEES

9/12/2018: NOTICE OF POSTING JURY FEES

CIVIL DEPOSIT

9/12/2018: CIVIL DEPOSIT

Amendment to Complaint (Fictitious/Incorrect Name)

6/19/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Declaration

6/25/2019: Declaration

Separate Statement

6/25/2019: Separate Statement

Motion for Summary Judgment

6/25/2019: Motion for Summary Judgment

Declaration

7/3/2019: Declaration

Declaration

7/3/2019: Declaration

Motion for Summary Judgment

7/3/2019: Motion for Summary Judgment

Notice of Lodging

7/3/2019: Notice of Lodging

Separate Statement

7/3/2019: Separate Statement

Proof of Service by Substituted Service

7/18/2019: Proof of Service by Substituted Service

PROOF OF SERVICE SUMMONS

5/11/2018: PROOF OF SERVICE SUMMONS

SUMMONS

4/20/2018: SUMMONS

COMPLAINT FOR 1. PROFESSIONAL NEGLIGENCE [MEDICAL MALPRACTICE];ETC

4/20/2018: COMPLAINT FOR 1. PROFESSIONAL NEGLIGENCE [MEDICAL MALPRACTICE];ETC

9 More Documents Available

 

Docket Entries

  • 07/18/2019
  • Proof of Service by Substituted Service; Filed by Manal Anis (Plaintiff)

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  • 07/03/2019
  • Notice of Lodging (SEPARATE VOLUME OF DOCUMENTARY EVIDENCE IN SUPPORT OF DEFENDANTS ADEL F. JABOUR, M. D . AND ADEL F. JABOUR, M.D., A PROFESSIONAL CORPORATION'S AMENDED MOTION FOR SUMMARY JUDGMENT (CRC, RULE 3.1350(g))); Filed by Kamran M.D. Malek (Defendant)

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  • 07/03/2019
  • Declaration (OF VICTORIA L. GUNTHER IN SUPPORT OF DEFENDANT KAMRAN MALEK, M.D.'S MOTION FOR SUMMARY JUDGMENT); Filed by Kamran M.D. Malek (Defendant)

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  • 07/03/2019
  • Declaration (OF JOEL KESSLER, M.D. IN SUPPORT OF DEFENDANT KAMRAN MALEK, M.D.'S MOTION FOR SUMMARY JUDGMENT); Filed by Kamran M.D. Malek (Defendant)

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  • 07/03/2019
  • Separate Statement; Filed by Kamran M.D. Malek (Defendant)

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  • 07/03/2019
  • Motion for Summary Judgment; Filed by Kamran M.D. Malek (Defendant)

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  • 06/25/2019
  • Declaration (Declaration of Barbara S. Kilroy In Support of Motion for Summary Judgment); Filed by Rajiv M.D. Pai (Defendant)

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  • 06/25/2019
  • Declaration (Declaration of Lawrence P. Harter, M.D. In Support of Motion for Summary Judgment); Filed by Rajiv M.D. Pai (Defendant)

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  • 06/25/2019
  • Motion for Summary Judgment; Filed by Rajiv M.D. Pai (Defendant)

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  • 06/25/2019
  • Separate Statement; Filed by Rajiv M.D. Pai (Defendant)

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12 More Docket Entries
  • 06/08/2018
  • DEMAND FOR JURY TRIAL

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  • 06/08/2018
  • Demand for Jury Trial; Filed by Kamran M.D. Malek (Defendant)

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  • 06/08/2018
  • ANSWER TO COMPLAINT

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  • 06/08/2018
  • DEMAND THAT DEFENSE OF STATUTE OF LIMITATIONS BE TRIED SEPARATELY CODE OF CIVIL PROCEDURE 597.5

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  • 05/31/2018
  • PROOF OF SERVICE SUMMONS

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  • 05/31/2018
  • Proof-Service/Summons; Filed by Manal Anis (Plaintiff)

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  • 05/11/2018
  • PROOF OF SERVICE SUMMONS

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  • 04/20/2018
  • SUMMONS

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  • 04/20/2018
  • Complaint; Filed by Manal Anis (Plaintiff); Ahmad Chehade (Plaintiff)

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  • 04/20/2018
  • COMPLAINT FOR 1. PROFESSIONAL NEGLIGENCE [MEDICAL MALPRACTICE];ETC

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Tentative Rulings

Case Number: BC703589    Hearing Date: March 12, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 32

manal anis, et al.,

Plaintiffs,

v.

kamran malek, m.d., et al.,

Defendants.

Case No.: BC703589

Hearing Date: March 12, 2020

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Plaintiffs Manal Anis (“Plaintiff Anis”) and her husband, Ahmad Chehade (“Plaintiff Chehade”) (collectively, “Plaintiffs”), filed this medical malpractice action against Defendant Valley Presbyterian Hospital (“Defendant”). Specifically, Plaintiffs allege that co-Defendant Kamran Malek, M.D. (“Dr. Malek”), an obstetrician and gynecologist, performed a Cesarean section at Defendant’s hospital, following which “a foreign body” was left inside Plaintiff Anis’s body. Plaintiff Anis asserts a claim for medical negligence, and Plaintiff Chehade asserts a claim for loss of consortium. Plaintiffs allege that Anis was treated at Defendant’s hospital between July 12, 2013 and July 17, 2013. (Plaintiffs’ Complaint, ¶ 13.) Plaintiffs allege that they first learned about the foreign body on May 11, 2017. (Id., ¶ 14.) Plaintiffs filed this action on April 20, 2018, and they named Defendant via Doe amendment on June 19, 2019. Now, Defendant moves for summary judgment based upon the applicable statute of limitations, and Plaintiffs oppose the motion.

As an initial matter, the Court provides notice to the parties that it may rely on the motion for summary judgment, and all evidence in support thereof, filed by Dr. Malek in determining at what point Plaintiffs learned of Defendant’s alleged culpability in this incident. The Court shall provide the parties an opportunity to be heard on this issue at the hearing on the motion.

The Court does not have a tentative decision on this motion. In attempting to establish that they were not aware of Defendant’s culpability, Plaintiffs rely on a declaration from their attorney, Eric H. Godoy (“Counsel”). Counsel states that he spoke with counsel for Malek on or about June 6, 2019, who indicated that he would be filing a motion for summary judgment and represented that Defendant, and not Malek, was responsible for the issue. (Declaration of Eric H. Godoy, ¶ 4.) In fact, Malek filed such a motion on July 3, 2019, and the motion was supported by a declaration from Dr. Joel Kessler stating that Defendant’s hospital staff was responsible for preparing the laparotomy pads and counting them before surgery to ensure that the surgeon did not leave any inside a patient. At the same time, the Court is not convinced that this provides a sufficient basis to rule in Plaintiffs’ favor, as Plaintiffs were aware that Anis was treated at Defendant’s hospital and that Defendant’s staff played a role in the procedure. Therefore, the Court has no tentative on the motion. Any party who does not appear at the hearing (in-person or via court call) shall waive their right to be heard and shall submit to any decision the Court makes on this motion.

DATED: March 12, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC703589    Hearing Date: October 24, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 5

manal anis, et al.,

Plaintiffs,

v.

kamran malek, m.d., et al.,

Defendants.

Case No.: BC703589

Hearing Date: October 24, 2019

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Background

Plaintiffs Manal Anis (“Plaintiff Anis”) and her husband, Ahmad Chehade (“Plaintiff Chehade”) (collectively, “Plaintiffs”), filed this action against Defendant Kamran Malek, M.D. (“Defendant”), an obstetrician and gynecologist, for medical malpractice. Specifically, Plaintiffs allege that Defendant performed a Cesarean section, following which “a foreign body” was left inside Plaintiff Anis’s body. Plaintiff Anis asserts a claim for medical negligence, alleging that Defendant was negligent in leaving the foreign body and failing to diagnose the problem, and Plaintiff Chehade asserts a claim for loss of consortium. Now, Defendant moves for summary judgment, which Plaintiffs oppose. The motion is denied.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . .  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.”  (Id. at 856.)  However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.”  (Ibid., emphasis original.)  

DISCUSSION

To prevail on a claim for professional negligence against a medical professional, a plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.) Expert testimony is the only admissible evidence on breach of the standard of care. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

Defendant has advanced a declaration from Joel Kessler, M.D. (“Kessler”), an obstetrician and gynecologist. Kessler states that when an obstetrician and gynecologist uses laparotomy pads for a C-section, it is the responsibility of the hospital nurses and surgical technicians to count the laparotomy pads before and after surgery. (Declaration of Joel Kessler, M.D., ¶ 32.) Kessler opines that Defendant complied with the standard of care in relying on the hospital nurses and surgical technicians when they informed Defendant that all laparotomy pads were accounted for after Anis’s surgery. (Ibid.) Kessler further states that Defendant’s care of Anis after surgery met the standard of care. (Declaration of Joel Kessler, M.D., ¶¶ 33-38.) Kessler’s declaration is sufficient to satisfy Defendant’s burden, shifting the burden to Plaintiff.

In opposition, Plaintiffs proffer a declaration from Howard C. Mandel, M.D. (“Mandel”), an obstetrician and gynecologist. Mandel reviewed “medical records of [Plaintiff] Anis from Valley Presbyterian Hospital, White Memorial Medical Center, as well as the expert declaration of Dr. Joel Kessler inclusive of his exhibits.” (Declaration of Howard C. Mandel, M.D., ¶ 10.) Mandel opines that Defendant should have diagnosed the foreign retained body. (Id., ¶ 26.) Specifically, Mandel states that after the X-ray report (on July 15, 2013) reflected a finding of a “radiopaque material over the left pelvis,” Defendant should have performed a physical examination of Plaintiff Anis. (Ibid.) Mandel also opines that Defendant should have ordered a “repeat KUB with lateral abdominal X-Ray to determine the existence of a retained surgical item.” (Ibid.) Mandel concludes that “[t]he standard of care required both the nurses as well as [Defendant] to properly work up the clinical situation as well as the July 15, 2013 KUB that suggested the possibility of a retained surgical item. [Defendant’s] failures to have [Plaintiff] Anis physically examined and have a repeat KUB with lateral abdominal X-Ray fell below the standard of care required of [Defendant] thereby causing a surgical item to be retained in [Plaintiff] Anis’ pelvis.” (Ibid.)

Defendant objects to Mandel’s declaration, arguing that Mandel did not review sufficient materials to render an opinion. Mandel’s declaration makes clear that he reviewed Plaintiff Anis’s medical records, as well as Kessler’s declaration and exhibits, and he states that these materials are sufficient for him to render an opinion. (Id., ¶ 10.) The Court cannot conclude that Mandel’s opinion necessarily lacks foundation, and any disagreement over whether Mandel should have reviewed additional records goes to weight, not admissibility, which is the role of the trier of fact to evaluate.

Defendant also argues that Plaintiff Anis did not return to see Defendant after the post-surgery visit on July 19, 2013, so Defendant “had no way of knowing that Plaintiff was complaining of ongoing abdominal pain for the next four years.” (Defendant’s Reply Brief, at 5.) Mandel opines that Defendant should have diagnosed the foreign body based on examinations between July 12 and July 19, 2013. The issue raised by Defendant goes to mitigation and contributory negligence, which must be resolved by the trier of fact.

Finally, Defendant argues that Mandel’s declaration does not create a triable issue. Defendant is incorrect. Defendant’s objections to Mandel’s declaration similarly lack merit. Therefore, Defendant’s motion is denied.

CONCLUSION AND ORDER

The motion for summary judgment is denied. Defendant shall provide notice and file proof of such with the Court.

DATED: October 24, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court