This case was last updated from Los Angeles County Superior Courts on 01/14/2022 at 16:04:03 (UTC).

MARIA DEL ROSARIO SOTO VS DIVYA THAI, M.D., ET AL.

Case Summary

On 06/24/2019 MARIA DEL ROSARIO SOTO filed a Personal Injury - Medical Malpractice lawsuit against DIVYA THAI, M D . This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are STEPHEN I. GOORVITCH and MICHAEL E. WHITAKER. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2060

  • Filing Date:

    06/24/2019

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

STEPHEN I. GOORVITCH

MICHAEL E. WHITAKER

 

Party Details

Plaintiff

SOTO MARIA DEL ROSARIO

Defendants

HEALTHCARE PARTNERS AFFILIATES

ADVANCED IMAGING OF SOUTH BAY INC.

SULLIVAN RICHARD M.D.

THAI DIVYA M.D.

SUTHERLAND RANDAL M.D.

Attorney/Law Firm Details

Plaintiff Attorneys

GLICKMAN STEVEN C.

CHOU JOHN

Defendant Attorneys

FRANZEN MARK

BUNCH GREGORY REYNA

FRANZEN MARK VICTOR

LAW YUK

 

Court Documents

Request for Dismissal

3/30/2021: Request for Dismissal

Notice - NOTICE NOTICE OF OSC RE DISMISSAL

2/23/2021: Notice - NOTICE NOTICE OF OSC RE DISMISSAL

Minute Order - MINUTE ORDER (JURY TRIAL)

2/16/2021: Minute Order - MINUTE ORDER (JURY TRIAL)

Minute Order - MINUTE ORDER (HEARING - OTHER TRIAL PROCEDURES CONFERENCE)

2/11/2021: Minute Order - MINUTE ORDER (HEARING - OTHER TRIAL PROCEDURES CONFERENCE)

Statement of the Case

2/10/2021: Statement of the Case

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

2/8/2021: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Witness List

2/9/2021: Witness List

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

1/27/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGING TRIAL READINESS BINDER AND VOLUME I OF THE EXHIBITS BINDERS

2/4/2021: Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGING TRIAL READINESS BINDER AND VOLUME I OF THE EXHIBITS BINDERS

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION FOR...) OF 01/27/2021

1/27/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION FOR...) OF 01/27/2021

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION FOR...)

1/27/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION FOR...)

Witness List

2/1/2021: Witness List

Stipulation - No Order - STIPULATION - NO ORDER STIPULATION RE JOINT EXHIBITS SUBMITTED FOR USE AT TRIAL

2/1/2021: Stipulation - No Order - STIPULATION - NO ORDER STIPULATION RE JOINT EXHIBITS SUBMITTED FOR USE AT TRIAL

Trial Brief

2/1/2021: Trial Brief

Statement of the Case

2/1/2021: Statement of the Case

Reply - REPLY DEFENDANTS' REPLY TO PLAINTIFF'S OBJECTIONS TO DEFENDANTS' EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

1/22/2021: Reply - REPLY DEFENDANTS' REPLY TO PLAINTIFF'S OBJECTIONS TO DEFENDANTS' EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Objection - OBJECTION DEFENDANTS DIVYA THAI, M.D. AND HEALTHCARE PARTNERS AFFILIATES MEDICAL GROUP'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF STEVEN M. SIMONS, M.D. IN SUPPORT OF PLAINTIFF'S OPPOS

1/22/2021: Objection - OBJECTION DEFENDANTS DIVYA THAI, M.D. AND HEALTHCARE PARTNERS AFFILIATES MEDICAL GROUP'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF STEVEN M. SIMONS, M.D. IN SUPPORT OF PLAINTIFF'S OPPOS

Reply - REPLY DEFENDANTS DIVYA THAI, M.D. AND HEALTHCARE PARTNERS AFFFILIATES MEDICAL GROUP'S REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

1/22/2021: Reply - REPLY DEFENDANTS DIVYA THAI, M.D. AND HEALTHCARE PARTNERS AFFFILIATES MEDICAL GROUP'S REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

59 More Documents Available

 

Docket Entries

  • 04/19/2021
  • Docketat 08:30 AM in Department B; Order to Show Cause Re: Dismissal (Settlement) ((Non-Appearance)) - Not Held - Vacated by Court

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  • 03/30/2021
  • DocketRequest for Dismissal; Filed by Maria Del Rosario Soto (Plaintiff)

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  • 03/30/2021
  • DocketRequest for Dismissal; Filed by Maria Del Rosario Soto (Plaintiff)

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  • 02/23/2021
  • DocketNotice (Notice of OSC Re Dismissal); Filed by Maria Del Rosario Soto (Plaintiff)

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  • 02/19/2021
  • Docketat 08:30 AM in Department B; Jury Trial - Not Held - Advanced and Vacated

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  • 02/19/2021
  • Docketat 08:30 AM in Department 32, Michael E. Whitaker, Presiding; Hearing on Motion for Trial Preference - Not Held - Continued - Party's Motion

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  • 02/16/2021
  • Docketat 08:30 AM in Department B; Jury Trial - Held - Continued

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  • 02/16/2021
  • DocketMinute Order ( (Jury Trial)); Filed by Clerk

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  • 02/11/2021
  • Docketat 11:30 AM in Department B; Hearing - Other (Trial Procedures Conference) - Held

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  • 02/11/2021
  • DocketMinute Order ( (Hearing - Other Trial Procedures Conference)); Filed by Clerk

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75 More Docket Entries
  • 07/25/2019
  • DocketProof of Personal Service; Filed by Maria Del Rosario Soto (Plaintiff)

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  • 07/23/2019
  • DocketDemand for Jury Trial; Filed by Divya Thai, M.D. (Defendant); HealthCare Partners Affiliates Medical Group Erroneously Sued As Healthcare Partners Affiliates (Defendant)

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  • 07/23/2019
  • DocketAnswer; Filed by Divya Thai, M.D. (Defendant); HealthCare Partners Affiliates Medical Group Erroneously Sued As Healthcare Partners Affiliates (Defendant)

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  • 07/23/2019
  • DocketNotice of Posting of Jury Fees; Filed by Divya Thai, M.D. (Defendant); HealthCare Partners Affiliates Medical Group Erroneously Sued As Healthcare Partners Affiliates (Defendant)

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  • 07/01/2019
  • DocketCertificate of Mailing for ([PI General Order] and Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 07/01/2019
  • DocketPI General Order; Filed by Clerk

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  • 06/24/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 06/24/2019
  • DocketSummons (on Complaint); Filed by Maria Del Rosario Soto (Plaintiff)

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  • 06/24/2019
  • DocketComplaint; Filed by Maria Del Rosario Soto (Plaintiff)

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  • 06/24/2019
  • DocketCivil Case Cover Sheet; Filed by Maria Del Rosario Soto (Plaintiff)

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Tentative Rulings

Case Number: *******2060    Hearing Date: July 29, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

maria del rosario soto,

Plaintiff,

v.

divya thai, m.d., et al.,

Defendants.

Case No.: *******2060

Hearing Date: July 29, 2020

[TENTATIVE] order RE:

motion for Trial PREFERENCE

BACKGROUND

Plaintiff Maria Del Rosario Soto (“Plaintiff”) initiated this medical malpractice action. Plaintiff moves the Court for an order granting trial preference per Code of Civil Procedure section 36, subdivision (a). Defendants Divya Thai, M.D., Healthcare Partners Affiliates Medical Group, Richard Sullivan, M.D., Randal Sutherland, M.D., and Advanced Imaging of South Bay, Inc. (“Defendants”) oppose the motion. The motion is denied without prejudice.

LEGAL STANDARD

Per Code of Civil Procedure section 36, subdivision (d), the Court may grant a motion for preference “that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (Code Civ. Proc., ; 36, subd. (d).) If the court grants the motion for trial preference, the court must set the matter for trial not more than 120 days from the date of the hearing on the motion for preference. (Code Civ. Proc., ; 36, subd. (f).)

DISCUSSION

Plaintiff relies on a declaration of Michael B. Van-Scoy Mosher, M.D. (“Mosher”), a medical oncologist who has not treated Plaintiff. Instead, he has reviewed medical records from Plaintiff’s treating medical oncologist and radiation oncologist. (Declaration of Michael B. Van-Scoy Mosher, ¶ 1.) Based upon those records, Mosher states that Plaintiff has late stage lung cancer with metastasis, and there is substantial doubt whether she will survive another six months. (Id., ¶ 2.)

Were it not for the evidentiary issues with this declaration, the Court would grant this motion. However, as Defendants note in their opposition, it would be improper for the Court to grant this motion. Mosher has no personal knowledge, because he is not Plaintiff’s treating physician, and Mosher does not include authenticated copies of the medical records on which he relies in forming his opinion. Instead, Mosher advances only an unauthenticated “clinical impression” in Plaintiff’s chart from Jugo Hool, M.D. Accordingly, Mosher’s testimony regarding Plaintiff’s prognosis lacks evidentiary foundation and is therefore inadmissible. (People v. Sanchez (2016) 63 Cal.4th 665, 676-677.)

CONCLUSION AND ORDER

The Court denies Plaintiff’s motion for preference without prejudice. The Court believes that Plaintiff can remedy these defects, and Plaintiff may re-file this motion. However, the Court orders the parties to meet-and-confer to permit Defendants to examine the medical records referenced in Mosher’s declaration and to determine whether the parties will stipulate to preference in this case. If so, the Court orders the parties to discuss potential trial dates in 2021, given the Presiding Judge’s order of July 10, 2020, stating that no civil jury trials will occur this year. The Court’s clerk shall provide notice.

DATED: July 29, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court


Case Number: *******2060    Hearing Date: November 02, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday, November 2, 2020

Department B Calendar No. 16

PROCEEDINGS

Maria Del Rosario Soto v. Divya Thai, M.D., et al.

*******2060

  1. Maria Del Rosario Soto’s Motion for Trial Preference

    TENTATIVE RULING

    Maria Del Rosario Soto’s Motion for Trial Preference is granted.

    Background

    In this action for medical malpractice, Plaintiff Maria Soto alleges Defendants Divya Thai, M.D. and Health Care Partners Affiliates Medical Group failed to timely and properly diagnose and treat her lung cancer over a period of more than two years, resulting in a diagnosis of late stage lung cancer with metastasis in November 2018. Plaintiff presented to Defendants in May 2016 for an abnormal shaped opacity and was referred for a chest CT scan. The CT scan was performed in June 2016. The radiologist who interpreted the scan observed the opacity had increased in size from a previous scan and recommended a PET scan. Plaintiff followed up with Defendants and another CT scan was performed in December 2016. The radiologist’s recommendation to obtain a PET scan was allegedly ignored by Defendants.

    In June 2017 another chest CT scan was performed on Plaintiff. The scan was interpreted by another radiologist who also recommended a PET scan, as well as tissue sampling with navigational bronchoscopy. In July 2017 Plaintiff followed up with Defendants who, allegedly, ignored the recommendations of the radiologist again. Finally, in October 2018, a biopsy was performed on the lung opacity. In November 2018 Plaintiff was diagnosed with late stage lung cancer with metastasis, Stage IIIB. Plaintiff contends her lung cancer progressed from an early curative stage, to an advanced terminal stage. On June 24, 2019 Plaintiff filed her operative Complaint against Defendants alleging a claim of medical malpractice.

    Plaintiff now moves for a trial preference pursuant to CCP ; 36(d) and (e) based on her diagnosis of late state cancer.

Motion for Preference

Code of Civil Procedure Section 36 states, in relevant part:

“(d) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.

(e) Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.”

CCP ; 36(d): Clear and Convincing Medical Documents Raising Substantial Medical Doubt of Survival Beyond Six Months, and the Interests of Justice

Under CCP ; 36(d), Plaintiff must establish by clear and convincing medical documentation that she is suffering from an illness or condition that raises substantial medical doubt she will survive beyond six months. Second, that such a showing satisfies the court that the interests of justice will be served by granting preference.

Plaintiff supports her motion with the Declaration of Michael B. Van-Scoy Mosher, M.D., board certified in both internal medicine and medical oncology. In opposition, Defendants submit the Declaration of Edwin L. Jacobs, M.D., board certified in internal medicine, medical oncology, and hematology. Both physicians acknowledge Plaintiff was diagnosed with Stage IIIB lung cancer with metastasis in November 2018.

Dr. Van-Scoy Mosher opines that, based upon his review of the medical records, patients with the same diagnosis as Plaintiff usually have approximately a two-year survival rate from the time of diagnosis. (Decl., Michael B. Van-Scov Mosher, ¶ 1.) According to Dr. Van-Scoy Mosher, Plaintiff has terminal malignancy and is receiving treatments to relieve suffering and prolong her life. (Decl., Michael B. Van-Scoy Mosher, ¶ 1.) She also has significant respiratory problems. (Decl., Michael B. Van-Scoy Mosher, ¶ 1.) From the standpoint of Plaintiff’s advanced lung cancer, and the Covid-19 pandemic, Dr. Van-Scoy Mosher opines there is a substantial doubt that Plaintiff can survive another six months. He further states that should she develop Covid-19 infection, there is a very high risk of mortality due to her underlying conditions. (Decl., Michael B. Van-Scoy Mosher, ¶ 2.)

Dr. Jacobs disagrees, based upon his review of the medical records, and opines there is no medical evidence to support the belief that there is a high probability Plaintiff will pass away in the next six months. (Decl., Edwin L. Jacobs, ¶¶ 4, 6.) Dr. Jacobs opines there is not a substantial doubt she can survive another six months because her disease is stable. (Decl., Edwin L. Jacobs, ¶ 6) According to Plaintiff’s most recent medical records dated August 20, 2020, Dr. Jacobs opines recent imaging does not suggest evidence of progressive disease, and agrees with Plaintiff’s treating oncologist, Hugo Hool, M.D., that Plaintiff’s prognosis is guarded. (Decl., Edwin L. Jacobs, ¶¶ 4-5, Ex. A.) Lastly, Dr. Jacobs concludes it is speculative to opine how Plaintiff would respond to Covid-19, as each patient responds to the disease differently. (Decl., Edwin L. Jacobs, ¶ 7.)

I. Clear and Convincing Evidence

Clear and convincing evidence carries a higher burden of proof. It requires a party to establish that there is a high probability that a fact is true. See, CACI 201; See, also, In re Angelia P. (1981) 28 Cal.3d 908, 919 (“‘Clear and convincing’ evidence requires a finding of high probability.”) To satisfy this burden, Dr. Van-Scoy Mosher’s declaration provides a generalized opinion regarding the survival rate of cancer patients with a similar diagnosis, indicating an approximate “two-year” survival rate from the date of diagnosis. (Decl., Michael B. Van-Scov Mosher, ¶ 1.) Importantly, the Court notes Dr. Jacobs does not dispute this. The Court also notes the parties do not dispute Plaintiff’s diagnosis was made in November 2018. Next, Dr. Van-Scoy Mosher described Plaintiff’s condition as “terminal malignancy,” a description Dr. Jacobs does not dispute. (Decl., Michael B. Van-Scoy Mosher, ¶ 1.) Third, Dr. Van-Scoy Mosher notes Plaintiff is receiving treatments to “relieve suffering” and to “prolong her life.” (Decl., Michael B. Van-Scoy Mosher, ¶ 1.) While Dr. Jacobs does not dispute this, he opines there is no medical evidence to support there is a high probability Plaintiff will pass away in the next six months, and as of August 20, 2020 her disease was stable. (Decl., Edwin L. Jacobs, ¶ 6.) Fourth, Dr. Van-Scoy Mosher notes Plaintiff has “significant respiratory problems.” (Decl., Michael B. Van-Scoy Mosher, ¶ 1.) This too is not disputed. Dr. Jacobs points out that Plaintiff’s oncologist, Dr. Hool, opined that Plaintiff had “good control” as of August 20, 2020. It is unclear to the Court what “good control” means. He further observes that recent imaging “does not suggest evidence of progressive disease,” that there is “no evidence of new disease,” and that he agrees with Plaintiff’s oncologist that her prognosis is “guarded.” (Decl., Edwin L. Jacobs, ¶ 5.)

The Court notes that Dr. Van-Scoy Mosher does not unequivocally state in his declaration, based on Plaintiff’s medical condition alone, there is a substantial medical doubt she will be able to survive the next six months. Instead, he qualifies his opinion by adding the current pandemic in combination with Plaintiff’s medical condition, opining that, from the standpoint of her advanced lung cancer “and” the current Covid-19 pandemic, it is his opinion that there is a substantial doubt she can survive another six months. (Decl., Michael B. Van-Scov Mosher, ¶ 2.) Dr. Jacobs disputes this, concluding it is speculative to opine how Plaintiff would respond to a Covid-19 infection, as each patient responds differently. (Decl., Edwin L. Jacobs, ¶ 5.) On this point, the Court agrees that to adopt such an evidentiary interpretation would require the Court to engage in endless speculation.

However, the Court further notes that Defendants’ expert did not address Dr. Van-Scoy Mosher’s opinion that the general survival rate of cancer patients similarly diagnosed with advanced Stage IIIB lung cancer is two years. This clearly carries significant weight in the Court’s viewpoint, when weighed with the totality of the evidence presented, raising a substantial medical doubt whether Plaintiff will indeed survive the next six months. Plaintiff was diagnosed with Stage IIIB lung cancer in November 2018. The opinion of an approximate two-year survival period is no longer a mere projection of time, it is here. As such, the Court cannot analytically ignore this evidence or arbitrarily choose to give less weight to Dr. Van-Scoy Mosher’s medical opinion of survival rate where, as here, that opinion is unchallenged and undisputed. “[T]he decision to grant or deny a preferential trial setting rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.

For these reasons, the Court finds, based upon the medical evidence presented, Plaintiff has met her burden she suffers from an illness or condition that raises substantial medical doubt about her survivability beyond the next six months.

II. Interests of Justice

As discussed above, Plaintiff has been diagnosed with a terminal malignancy and is receiving treatments to “relieve suffering” and to “prolong her life.” Patients with Plaintiff’s advanced condition usually have approximately a two-year survival rate from the time of diagnosis. (Decl., Michael B. Van-Scoy Mosher, ¶ 1.) Plaintiff was diagnosed in November 2018 with advanced Stage IIIB lung cancer. Anticipating the future two years from now, after being diagnosed with advanced cancer, is one thing. It is quite another when that two-year period arrives. For Plaintiff, that two-year period has now arrived.

The Court is satisfied that the interests of justice will be served by granting preference. Accordingly, Plaintiff’s Motion for Preference pursuant to CCP ; 36(d) is granted.

CCP ; 36(e): Interests of Justice

Plaintiff also moves for preference under CCP ; 36(e). Under CCP ; 36(e), the court may, in its discretion, grant a motion for preference when supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.

The entire discussion above, applies equally here. The Court is satisfied the evidence presented has sufficiently demonstrated to the Court’s satisfaction, the interests of justice will be served by granting preference.

Defendants argue that they will prejudiced if the motion is granted, as there are numerous aspects of discovery remaining, including expert witness depositions. Defendants further argue that given the practical limitations of the Covid-19 pandemic, a March 2021 trial date is not practical. However, as the defense properly pointed out in responding to Plaintiff’s declaration, speculating on Covid-19 is just that, speculation. Here, the Complaint was filed on June 24, 2019. The Court received no evidence demonstrating why numerous aspects of any outstanding discovery, including expert witness depositions, cannot be completed in a timely manner. For all the reasons stated herein, the Court finds that the interests of justice will be served by granting Plaintiff’s motion for reference pursuant to CCP ; 36(e).

Plaintiff is ordered to give notice of this ruling.


Case Number: *******2060    Hearing Date: January 27, 2021    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Wednesday, January 27, 2021

Department B Calendar No. 10

PROCEEDINGS

Maria Del Rosario Soto v. Divya Thai, M.D., et al.

*******2060

  1. Divya Thai, M.D., et al.’s Motion for Summary Judgment

    TENTATIVE RULING

    Divya Thai, M.D., et al.’s Motion for Summary Judgment is denied.

    Objections

    The Court makes the following ruling to Plaintiff’s objections. Objections 1 and 2 are overruled.

    The Court makes the following ruling to Defendants’ objections. Objections 1 to 17 are overruled.

    Background

    Plaintiff Maria Del Rosario Soto filed her Complaint on June 24, 2019. Plaintiff alleges that Defendants Divya Thai, M.D. and Healthcare Partners Affiliates failed to timely and properly diagnose and treat her lung cancer over a period of more than two years resulting in her advanced lung cancer. Defendants allegedly failed to perform diagnostic tests for lung cancer when a chest CT scan showed a growing mass in her right lung in April of 2016 and failed to warn her about a neoplastic process.

    Defendants move for summary judgment on the ground that no triable issue exists as to any material fact for the following reasons: (1) Defendant Divya Thai, M.D. complied with the applicable standard of care at all times during his care of Plaintiff; (2) Defendant Divya Thai, M.D. treatment of Plaintiff did not cause or contribute to Plaintiff’s injuries; (3) Defendant HealthCare Partners Affiliates Medical Group cannot be held vicariously liable for torts that Dr. Thai did not commit.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the 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.” CCP ; 437c(p)(2). “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.” CCP ; 437c(p)(2). “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.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; CCP ; 437c(c).)

Defendants have met their initial burden to show that Plaintiff’s cause of action has no merit by showing that one or more element of the causes of action cannot be established. (Defendants’ Separate Statement of Facts and Supporting Evidence, 1-15.) However, Plaintiff has met her burden to provide specific facts to show that a triable issue of material fact exists as to their cause of action. (Plaintiff’s Separate Statement of Facts and Supporting Evidence, 13-32.) CCP ; 437c(p)(2).

The standard of care with respect to acts of medical professionals is exclusively within the knowledge of experts, and, thus, whether the medical professional met or breached the standard of care can only be established by expert testimony. See, Landeros v. Flood (1976) 17 Cal.3d 399, 410. Here, Defendants submitted the expert testimony of William P. Klein, M.D. Dr. Klein opines that Defendants complied with the applicable standard of care. Dr. Klein also states that no act or omission of Defendants caused or contributed to Plaintiff’s injuries. Dr. Klein states that Defendants properly evaluated Plaintiff and provided her with the appropriate treatments and recommendations following each visit. (Decl., William P. Klein, ¶¶ 7-19.)

Plaintiff has met her burden to provide expert testimony to controvert the opinions of Defendants’ expert. See, Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412. Steven M. Simons, M.D. opines that Defendants failed to comply with the applicable standard of care and that Defendants’ breach of the standard of care was a substantial factor in causing or contributing to decedent’s death. (Decl., Steven M. Simons, M.D., ¶¶ 3-5.) Specifically, Dr. Simons opines that Defendants failed to make the proper recommendations and orders after each visit such as ordering a PET scan, biopsy, or resection earlier. Dr. Simons states that these orders would have confirmed the cancer diagnosis earlier. (Id.) Dr. Simons opined that these failures were a breach of the standard of care and the cause of Plaintiff’s injuries. (Id.)

In the Reply, Defendants counter that the deposition testimony of Dr. Thai showed that he did discuss certain options with Plaintiff, such as a PET scan, during each visit. Defendants state that ultimately it was Plaintiff’s decision not to undergo the tests that would have revealed the cancer diagnosis earlier. Essentially, Dr. Thai states that it was the decisions of Plaintiff herself not to take these tests that led to the delayed diagnosis. However, in Dr. Simons’ declaration, he stated definitively that he reviewed Dr. Thai’s deposition testimony, as well as the medical records, in forming his opinions. Yet, Dr. Simons still concluded that Dr. Thai breached the standard of care. Thus, Dr. Simons’ conclusions were founded upon a sufficient evidentiary foundation, and he testified competently as to his understanding the applicable standard of care. Whether Dr. Thai’s actions constituted a breach of the standard of care is now disputed by two competent experts. Therefore, the Court finds that Plaintiff has adequately demonstrated the existence of a triable issue of material fact. Whether Dr. Simons or Dr. Klein have a better understanding of what acts may or may not constitute a breach of the standard of care - for example, whether Dr. Thai should have simply made the orders recommended by Dr. Simons despite the purported reluctance of Plaintiff - and whether one or the other expert make more compelling or believable witnesses are for the trier of fact to determine.

Thus, for the foregoing reasons, Defendants’ motion for summary judgment is denied.

Plaintiff is ordered to give notice of this ruling.


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