This case was last updated from Los Angeles County Superior Courts on 04/19/2022 at 08:55:10 (UTC).

MASON MENDEZ VS DOWNEY REGIONAL MEDICAL CENTER, ET AL.

Case Summary

On 11/30/2018 MASON MENDEZ filed a Personal Injury - Medical Malpractice lawsuit against DOWNEY REGIONAL MEDICAL CENTER. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARK A. BORENSTEIN, KRISTIN S. ESCALANTE, SERENA R. MURILLO and BRIAN F. GASDIA. The case status is Disposed - Dismissed.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6710

  • Filing Date:

    11/30/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARK A. BORENSTEIN

KRISTIN S. ESCALANTE

SERENA R. MURILLO

BRIAN F. GASDIA

 

Party Details

Plaintiff

BLANCO LIZETTE

Defendants

DOWNEY REGIONAL MEDICAL CENTER

ALLADAWI M.D. AYMAN

ALLSAFE MEDICAL GROUP FOUNDATION

BARRETT M.D. IVAN

PIH HEALTH HOSPITAL-DOWNEY FORMERLY DOING BUSINESS AS DOWNEY 8 REGIONAL MEDICAL CENTER

AYMAN ALLADAWI M.D. INC.

MARTINSON M.D. MARSHA

SEIF M.D. MEDHAT

MEDHAT SEIF M.D. INC.

DOWNEY RADIOLOGY ASSOCIATES DBA DOWRAD MEDICAL GROUP

DOWNEY RADIOLOGY ASSOCIATES DBA

AYMAN ALLADAWI M.D. INC. DBA ALL SAFE MEDICAL GROUP

Attorney/Law Firm Details

Plaintiff Attorneys

MICHELS PHILIP

MICHELS PHILIP ESQ.

COMI DIANE MARIE

Defendant Attorneys

DOBSON MITZIE LEGREID

DE COSTER MICHAEL E.

LEE TINA

PEABODY THOMAS M.

HASKINS ANGELA

LUDEMAN PATRICK STEVEN

DOBSON MITZIE LEGREID ESQ.

HASKINS ANGELA SUE ESQ.

LEE TINA E. ESQ.

LUDEMAN PATRICK STEVEN ESQ.

PEABODY THOMAS MICHAEL ESQ.

 

Court Documents

Acknowledgment of Satisfaction of Judgment

9/29/2021: Acknowledgment of Satisfaction of Judgment

Request for Dismissal - REQUEST FOR DISMISSAL WITH PREJUDICE AS TO IVAN BARRETT, M.D.; DOWRAD MEDICAL GROUP; ALLSAFE MEDICAL GROUP FOUNDATION AND DOES 1-30, FROM COMPLAINT ON 11/30/18

10/22/2021: Request for Dismissal - REQUEST FOR DISMISSAL WITH PREJUDICE AS TO IVAN BARRETT, M.D.; DOWRAD MEDICAL GROUP; ALLSAFE MEDICAL GROUP FOUNDATION AND DOES 1-30, FROM COMPLAINT ON 11/30/18

Notice of Entry of Dismissal and Proof of Service

10/27/2021: Notice of Entry of Dismissal and Proof of Service

Minute Order - MINUTE ORDER (FURTHER STATUS CONFERENCE RE: PROOF OF DEPOSIT INTO TRUST)

11/17/2021: Minute Order - MINUTE ORDER (FURTHER STATUS CONFERENCE RE: PROOF OF DEPOSIT INTO TRUST)

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

11/22/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

Notice - NOTICE NOTICE OF COMMENCEMENT OF PROCEEDS FOR A COURT SUPERVISED TRUST

8/2/2021: Notice - NOTICE NOTICE OF COMMENCEMENT OF PROCEEDS FOR A COURT SUPERVISED TRUST

Notice of Ruling

7/12/2021: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON PETITION TO CONFIRM MINOR'S COMPROMISE)

7/8/2021: Minute Order - MINUTE ORDER (HEARING ON PETITION TO CONFIRM MINOR'S COMPROMISE)

Order Approving Compromise of Disputed Claim or Pending Action or Disposition of Proceeds of Judgme - ORDER APPROVING COMPROMISE OF DISPUTED CLAIM OR PENDING ACTION OR DISPOSITION OF PROCEEDS OF JUDGM

7/8/2021: Order Approving Compromise of Disputed Claim or Pending Action or Disposition of Proceeds of Judgme - ORDER APPROVING COMPROMISE OF DISPUTED CLAIM OR PENDING ACTION OR DISPOSITION OF PROCEEDS OF JUDGM

Separate Statement - SEPARATE STATEMENT IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, PIH HEALTH HOSPITAL-DOWNEY

1/28/2021: Separate Statement - SEPARATE STATEMENT IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, PIH HEALTH HOSPITAL-DOWNEY

Notice of Lodging - NOTICE OF LODGING IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, PIH HEALTH HOSPITAL - DOWNEY

1/28/2021: Notice of Lodging - NOTICE OF LODGING IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, PIH HEALTH HOSPITAL - DOWNEY

Motion for Summary Judgment - MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, PIH HEALTH HOSPITAL-DOWNEY

1/28/2021: Motion for Summary Judgment - MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, PIH HEALTH HOSPITAL-DOWNEY

Declaration - DECLARATION OF CAROL BENSON, M.D. IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, PIH HEALTH HOSPITAL - DOWNEY

1/28/2021: Declaration - DECLARATION OF CAROL BENSON, M.D. IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, PIH HEALTH HOSPITAL - DOWNEY

Declaration - DECLARATION OF MICHAEL K. LIU, ESQ. SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, PIH HEALTH HOSPITAL - DOWNEY

1/28/2021: Declaration - DECLARATION OF MICHAEL K. LIU, ESQ. SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, PIH HEALTH HOSPITAL - DOWNEY

Declaration - DECLARATION OF KARIE MCMURRAY, M.D. IN SUPPORT OF AYMAN ALLADAWI, M.D., MARSHA MARTINSON, M.D. AND AYMAN ALLADAWI, M.D., INC. DBA ALLSAFE MEDICAL GROUPS MOTION FOR SUMMARY JUDGMENT/SUMM

2/5/2021: Declaration - DECLARATION OF KARIE MCMURRAY, M.D. IN SUPPORT OF AYMAN ALLADAWI, M.D., MARSHA MARTINSON, M.D. AND AYMAN ALLADAWI, M.D., INC. DBA ALLSAFE MEDICAL GROUPS MOTION FOR SUMMARY JUDGMENT/SUMM

Notice - NOTICE OF EXHIBITS IN SUPPORT OF DEFENDANTS AYMAN ALLADAWI, M.D., MARSHA MARTINSON, M.D. AND AYMAN ALLADAWI, M.D., INC.S MOTION FOR SUMMARY JUDGMENT

2/5/2021: Notice - NOTICE OF EXHIBITS IN SUPPORT OF DEFENDANTS AYMAN ALLADAWI, M.D., MARSHA MARTINSON, M.D. AND AYMAN ALLADAWI, M.D., INC.S MOTION FOR SUMMARY JUDGMENT

Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT

2/5/2021: Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Motion for Summary Judgment - MOTION FOR SUMMARY JUDGMENT /SUMMARY ADJUDICATION

2/5/2021: Motion for Summary Judgment - MOTION FOR SUMMARY JUDGMENT /SUMMARY ADJUDICATION

103 More Documents Available

 

Docket Entries

  • 11/29/2021
  • Docketat 08:30 AM in Department 29, Serena R. Murillo, Presiding; Order to Show Cause Re: Dismissal - Not Held - Advanced and Vacated

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  • 11/22/2021
  • Docketat 08:30 AM in Department F; Order to Show Cause Re: Dismissal (Settlement) - Held

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  • 11/22/2021
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by Clerk

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  • 11/17/2021
  • Docketat 09:30 AM in Department R, Brian F. Gasdia, Presiding; Further Status Conference (reproof of deposit into Trust) - Held

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  • 11/17/2021
  • DocketMinute Order ( (Further Status Conference re: proof of deposit into Trust)); Filed by Clerk

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  • 10/27/2021
  • DocketNotice of Entry of Dismissal and Proof of Service; Filed by Mason Mendez (Plaintiff)

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  • 10/22/2021
  • DocketRequest for Dismissal (With Prejudice as to Ivan Barrett, M.D.; Dowrad Medical Group; Allsafe Medical Group Foundation and Does 1-30, from Complaint on 11/30/18); Filed by Mason Mendez (Plaintiff)

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  • 09/29/2021
  • DocketAcknowledgment of Satisfaction of Judgment; Filed by Mason Mendez (Plaintiff)

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  • 08/02/2021
  • DocketNotice (Notice of commencement of proceeds for a court supervised trust); Filed by Mason Mendez (Plaintiff); Lizette Blanco (Plaintiff)

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  • 07/26/2021
  • Docketat 09:30 AM in Department F; Jury Trial (, with a time estimate of 10 to 15 days,) - Not Held - Advanced and Vacated

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130 More Docket Entries
  • 01/29/2019
  • DocketAnswer; Filed by PIH HEALTH HOSPITAL-DOWNEY Formerly Doing Business As Downey 8 Regional Medical Center) (Defendant)

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  • 01/29/2019
  • DocketNotice of Deposit - Jury; Filed by Downey Regional Medical Center (Defendant)

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  • 01/22/2019
  • DocketProof of Service by Substituted Service; Filed by Mason Mendez (Plaintiff); Lizette Blanco (Plaintiff)

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  • 01/18/2019
  • DocketProof of Service by Substituted Service; Filed by Mason Mendez (Plaintiff); Lizette Blanco (Plaintiff)

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  • 01/18/2019
  • DocketProof of Service by Substituted Service; Filed by Mason Mendez (Plaintiff); Lizette Blanco (Plaintiff)

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  • 12/27/2018
  • DocketSummons (on Complaint)

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  • 12/17/2018
  • DocketApplication And Order For Appointment of Guardian Ad Litem; Filed by Lizette Blanco (Plaintiff)

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  • 11/30/2018
  • DocketCivil Case Cover Sheet; Filed by Mason Mendez (Plaintiff)

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  • 11/30/2018
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 11/30/2018
  • DocketComplaint; Filed by Mason Mendez (Plaintiff)

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Tentative Rulings

Case Number: *******6710    Hearing Date: March 11, 2020    Dept: 29

*******6710 Mason Mendez v. Downey Regional Medical Center

Court Order Re: Transfer and Reassignment of Complicated Personal Injury (“PI”) Case to An Independent Calendar ("IC") Courtroom from Department 29, a PI Hub Court.

The Court's order Re: Transfer of Complicated Personal Injury Case to an Independent Calendar Court, is posted on the Court's website.

AFTER REVIEW OF THE FILE, THE COURT MAKES THE FOLLOWING ORDER:

Department 29 of the Personal Injury Court has determined that the above-entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

At the direction of Department 1, this case is hereby ordered reassigned and transferred to the Southeast District, Norwalk, the Honorable MARGARET M. BERNAL, Judge presiding in Department F, for further assignment. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

Hearing on the above motion and any pending motions or hearings, including trial or status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar Court. (NOTE: All hearings currently set in Department 29 of the Spring Street Courthouse are taken off calendar subject to being reset and notified by the receiving court Re: New hearing dates.)

Judicial Assistant is directed to give notice to Plaintiff, who upon receipt of this notice, is ordered to give notice to all Parties of record.


Case Number: *******6710    Hearing Date: April 15, 2021    Dept: C

MENDEZ v. DOWNEY REGIONAL MEDICAL CENTER, et al.

CASE NO.: *******6710

HEARING: 04/15/21

#5

TENTATIVE ORDER

Defendant PIH HEALTH HOSPITAL – DOWNEY’s Motion for Summary Judgment is GRANTED. CCP ; 437c.

Moving Party to give notice.

This action for medical malpractice was filed by Plaintiff MASON MENDEZ, a Minor by and through his GAL, LIZETTE BLANCO (“Plaintiff”) on November 30, 2018. Plaintiff alleges, in pertinent part, “Defendants…failed to use reasonable care to perform timely and appropriate prenatal tests and evaluations and advise LIZETTE BLANCO of the fact that MASON MENDEZ would be born with genetic impairments or disabilities. [¶] Plaintiff MASON MENDEZ was born with genetic impairments and disabilities. [¶] If LIZETTE BLANCO had known of the risk of the genetic impairments and disabilities, she would not have carried the fetus to term.” (Complaint ¶¶14-16.)

Plaintiff’s Complaint asserts one sole cause of action for Negligence.

Defendant PIH HEALTH HOSPITAL – DOWNEY (“PIH”) moves for summary judgment pursuant to CCP ;437c, on the grounds that: (1) Plaintiff’s cause of action for negligence has no merit because, at all relevant times, PIH and its employees complied with the standard of care and no negligent act or omission by PIH or its employees substantially caused Mason Mendez’s injuries; and (2) Plaintiff’s theory of liability based on vicarious liability through the agency principle against PIH must also fail because the doctors are not agents or employees of PIH, and therefore, the hospital cannot be held liable for any of the doctors’ actions.

In Opposition, Plaintiff argues that PIH’s Motion should be denied for the following reasons: (1) PIH does not dispute that Co-Defendant Barrett (the Radiologist) was negligent; and (2) PIH fails to conclusively show that Barrett is not PIH’s ostensible agent.

Standard of Care

“[I]n any medical malpractice action, the plaintiff must establish: ‘(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.’ [Citation Omitted.]” (Gami v. Mullikin Medical Center (1993) Cal.App.4th 870, 877.)

The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. (Mann. v. Cracchiolo (1985) 38 Cal.3d 18, 36.) “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.’ [Citations.]” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) Therefore, when a defendant moves for summary judgment/adjudication of a medical malpractice cause of action, and supports the motion with expert declarations that the defendant’s conduct fell within the community standard of care, that defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of California (1989) 215 Cal.App.3d 977, 984-985.)

Here, PIH proffers the declaration of Carol Benson, M.D. in support of the instant motion for summary judgment. Dr. Benson is board-certified in Diagnostic Radiology and licensed to practice medicine. (Benson Decl., ¶¶1-2). Dr. Benson states: “It is my opinion…that Downey Regional Medical Center…complied with the standard of care in scheduling this ultrasound. Further it is my opinion, based upon my education, training, experience and review of the imaging from the April 9, 2013 ultrasound as well as the records, that the imaging obtained by the ultrasound technician employed by Downey Regional Medical Center…complied with the standard of care at all times. The images confirm that the ultrasound technician attempted to obtain adequate imaging of the fetal anatomy, including the heard and outflow tracts. [¶] It is my further opinion, to a reasonable medical probability, that no negligent acts or omissions by the employees/agents of Downey Regional Medical Center…, including the sonographer, led to the damages alleged in this action.” (Benson Decl., ¶¶15-16.)

Plaintiff has not submitted an expert declaration to refute Dr. Benson’s opinion in Opposition. Therefore, based on the evidence presented, the Court finds that there are no triable issues of material fact as to whether Defendant PIH breached the standard of care.

Ostensible Agency

In Opposition, Plaintiff effectively concedes that nothing PIH’s employees did fell below the standard of care. Instead, Plaintiff argues, that PIH’s independent contractor Radiologist— Dr. Ivan Barrett, M.D.— fell below the standard of care in connection with his review of the ultrasound at issue, and ultimately caused Mason’s Mendez’s injuries.

In Reply, and relying heavily on Wicks v. Antelope Valley Healthcare District (2020) 49 Cal.App.5th 866 (“Wicks”), PIH argues that it should not be held liable based on the theory of ostensible agency for the following reasons: PIH provided Ms. Blanco with a Consent of Admission which explicitly states that the physicians were independent contractors; and no evidence has been presented to show that Ms. Blanco was incapable of understanding the Consent at the time it was presented to her.

There are two elements for the doctrine of ostensible agency to apply: (1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital; and (2) reliance on that apparent agency relationship by the plaintiff. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.) “When this standard is applied to the case law governing ostensible agency in the hospital context, it appears difficult, if not impossible, for a hospital to ever obtain a nonsuit based on the lack of ostensible agency. Effectively, all a patient needs to show is that he or she sought treatment at the hospital…. Unless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital’s agent, such as when the patient is treated by his or her personal physician, the issue of ostensible agency must be left to the trier of fact.” (Id. at 1458.) Wicks holds that a hospital may be liable for the negligence of independent contractor doctors’ on an ostensible agency theory, “unless: (1) the hospital gave the patient actual notice that the treating physicians are not hospital employees, and (2) there is no reason to believe the patient was unable to understand or act on the information, or (3) the patient was treated by his or her personal physician and knew or should have known the true relationship between the hospital and physician.” (Wicks at 884.)

Here, prior to the ultrasound at issue, PIH gave Ms. Blanco explicit written notice that the “PHYSICIANS ARE INDEPENDENT CONTRACTORS”— paragraph 8 of the Conditions of Services form expressly states that the physicians and surgeons providing services at the hospital are independent contractors. (Lui Decl, Ex. C.) Plaintiff argues that Ms. Blanco initialed and signed the Conditions of Services form without reading the document, and merely did as she was told by an employee of PIH in order for her to get her ultrasound. (PSSMF. No. 10.) Plaintiff indicates that “[n]o one told Ms. Blanco before she had the ultrasound, or before she signed and initialed the papers, that the ultrasound images would be reviewed by a radiologist.” (PSSMF No. 11.)

Importantly, Plaintiff does not refute the evidence submitted by PIH which shows that, upon her arrival at PIH for ultrasound imaging, Ms. Blanco was given written notice, via the Conditions of Services form (which she signed and initialed) that the staff physicians were not employees or agents of PIH. Further, Ms. Blanco does not argue that she was not “alert, oriented, and cooperative” at the time she signed the Conditions of Services form and initialed paragraph 8 of the Conditions of Services form. Notwithstanding Plaintiff’s arguments in Opposition, the facts of this case are analogous to Wicks, and PIH has proffered undisputed evidence to show that Ms. Blanco had actual knowledge of the staff physicians’—including Dr. Bartlett’s—status as an independent contractor. Consequently, ostensible agency does not apply.

The Motion for Summary Judgment is GRANTED.

Plaintiff’s Evidentiary Objections:

1. Overruled

2. Overruled

PIH’s Evidentiary Objections:

1. Overruled

2. Overruled


Case Number: *******6710    Hearing Date: April 22, 2021    Dept: C

MENDEZ v. DOWNEY REGIONAL MEDICAL CENTER, et al.

CASE NO.:  *******6710

HEARING:  04/22/21

JUDGE:  RAUL A. SAHAGUN

#5

TENTATIVE ORDER 

Defendants AYMAN ALLADAWI, M.D.; MARSHA MARTINSON, M.D.; and AYMAN ALLADAWI, M.D., INC.’s Motion for Summary Judgment is DENIED. 

Opposing Party to give notice. 

In Reply, Defendants attach and refer to new evidence not originally submitted in their Moving Papers—portions of Dr. Alladawi and Dr. Martinson’s deposition transcripts. Additional evidence submitted for the first time in Reply papers will normally be allowed only in exceptional circumstances. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) In its discretion, the Court will not consider the new evidence submitted by Defendants in their Reply brief where doing so would result in a deprivation of Plaintiff’s right to due process. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) 

This action for medical malpractice was filed by Plaintiff MASON MENDEZ, a Minor by and through his GAL, LIZETTE BLANCO (“Plaintiff”) on November 30, 2018.  Plaintiff alleges, in pertinent part, “Defendants…failed to use reasonable care to perform timely and appropriate prenatal tests and evaluations and advise LIZETTE BLANCO of the fact that MASON MENDEZ would be born with genetic impairments or disabilities. [¶] Plaintiff MASON MENDEZ was born with genetic impairments and disabilities. [¶] If LIZETTE BLANCO had known of the risk of the genetic impairments and disabilities, she would not have carried the fetus to term.” (Complaint ¶¶14-16.) 

Plaintiff’s Complaint asserts one sole cause of action for Negligence. 

Defendants AYMAN ALLADAWI, M.D.; MARSHA MARTINSON, M.D.; and AYMAN ALLADAWI, M.D., INC. (collectively “Defendants”) move for summary judgment pursuant to CCP ;437c on the basis that Defendants complied with the standard of care in the community at all times relative to the care and treatment provided to Lizette Blanco, and no alleged negligent act or omission by Defendants caused or was a substantial factor in causing Plaintiff’s injuries. 

In Opposition, Plaintiff argues that Defendants’ Motion should be denied for the following reasons: (1) Defendants Motion rely upon an expert’s inadmissible hearsay narrative; (2) There is no evidence that Lizette Blanco was referred to Downey Regional Medical Center in early March 2013 for a second trimester ultrasound; (3) Defendants were responsible for ordering a second trimester ultrasound but failed to do so, thus breaching the standard of care; and (4) Defendants breach of the standard of care was a substantial factor in causing or contributing to Plaintiff’s birth with severe birth defects. 

“[I]n any medical malpractice action, the plaintiff must establish: ‘(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.’ [Citation Omitted.]” (Gami v. Mullikin Medical Center (1993) Cal.App.4th 870, 877.) 

The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. (Mann. v. Cracchiolo (1985) 38 Cal.3d 18, 36.) “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.’ [Citations.]” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) Therefore, when a defendant moves for summary judgment/adjudication of a medical malpractice cause of action, and supports the motion with expert declarations that the defendant’s conduct fell within the community standard of care, that defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of California (1989) 215 Cal.App.3d 977, 984-985.) 

Further, in a medical malpractice action, a plaintiff must prove the defendant’s negligence was a cause-in-fact of injury. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1502.) “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based [on] competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. 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 [that] 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. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.) Thus, proffering an expert opinion that there is some theoretical possibility the negligent act could have been a cause-in-fact of a particular injury is insufficient to establish causation. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775-776.) “[W]hen the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to determine the issue in favor of the defendant as a matter of law.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 485.) 

In support of their Motion, Defendants proffer the declaration of Dr. Karie McMurray, M.D. Dr. McMurray is board-certified in obstetrics and gynecology, and is licensed to practice medicine in the State of California. (McMurray Decl., ¶1.) Dr. McMurray states:  “Based upon my review of the records, as well as my education, training and experience, it is my opinion that Dr. Alladawi, Dr. Martinson and Allsafe Medical Group complied at all times with the standard of care in the community and did not cause Plaintiff’s alleged injuries.[¶] Dr. Alladawi’s care and treatment of Ms. Blanco was within the standard of care. Dr. Martinson’s care and treatment of Ms. Blanco, as well as the delivery of Mason Mendez, was within the standard of care. Ms. Blanco was appropriately examined by Dr. Alladawi and Dr. Martinson during her prenatal course…. Ms. Blanco was appropriately given second trimester screenings. Ms. Blanco’s California Prenatal Screening Results calculated a risk for Down’s Syndrome of 1 in 470, which is well above the 1 out of 150 cutoff. This was a negative screening and did not require further workup. Prenatal screening does not guarantee 100% diagnosis of congenital anomalies and despite appropriate blood testing and ultrasound evaluation, the diagnostic ability is in the range or 85% to 90%.” (McMurray Decl., ¶¶17-18.) “Nothing Dr. Alladawi did or did not do caused or was a substantial factor in causing Plaintiff’s alleged injuries. [¶] Nothing Dr. Martinson did or did not do caused or was a substantial factor in causing Plaintiff’s alleged injuries.” (McMurray Decl., ¶¶20-21.) 

In Opposition, Plaintiff submits the declaration of Dr. Stephen C. Rabin, M.D.. Dr. Rabin is board certified in obstetrics and gynecology, and is licensed to practice medicine in the State of California. (Rabin Decl., ¶1.) Dr. Rabin states: “The failure to make arrangements to schedule the fetal survey ultrasound right after the March 5, 2013 office [sic] by either Dr. Martinson, Dr. Alladawi, or Allsafe Medical Group was below the acceptable standard of care for an obstetrician and an obstetrics/gynecology practice group…. [¶] Dr. Martinson claims that she ordered the second trimester fetal survey ultrasound for Ms. Blanco at the March 5, 2013, office visit when Ms. Blanco was 18 weeks 2 days, but I have not seen anything to indicate that Allsafe or Dr. Martinson ever scheduled the ultrasound then…. The order that exists for this study was created only after the April 2, 2013, office visit with Dr. Alladawi when Ms. Blanco was 22 weeks. The fetal survey ultrasound took place on April 9, 2013. [¶] Either Dr. Martinson did not actually place the order as she claimed, or Allsafe staff neglected to schedule the ultrasound. Either way, the study was never scheduled, and it was below the standard of care for either Dr. Martinson, Dr. Alladawi, and Allsafe staff to have failed to take the necessary steps to timely schedule and confirm the ultrasound. [¶] Had the ultrasound been done with Ms. Blanco was gestational age 19 or 20 weeks, properly interpreted and reported, Ms. Blanco would have had the choice to terminate her pregnancy…. The failure of the Allsafe physicians and Allsafe Medical Group to have had the fetal scan preformed earlier was a substantial factor in preventing Ms. Blanco to have a legal termination to her pregnancy.” (Rabin Decl., ¶8.) Plaintiff also proffers the expert declaration of Dr. Anthony L. Filly, M.D.. Dr. Filly is board-certified in diagnostic radiology and is licensed to practice medicine in the State of California. Dr. Filly states, in pertinent part, “Based on my clinical experience interpreting thousands of second trimester fetal survey studies, to a reasonable degree of medical probability, I can say that the anomalies that I perceived in the April 9, 2013 study would have been apparent if the study had been performed between 18 and 20 weeks.” (Filly Decl., ¶7.) 

Although the Court declines to overrule all of Plaintiff’s objections to the declaration of Dr. McMurry— for reasons stated below, the Court finds that there is inadequate evidentiary support for Defendants’ assertion that Dr. Martinson/Allsafe Medical Group ordered an ultrasound to occur when Ms. Blanco was at the gestational age of 19 or 20 weeks. Moreover, Plaintiff has made a sufficient showing based on the declarations of their experts, Dr. Rabin and Dr. Filly, that there is a triable issue of material fact regarding whether Defendants were within the standard of care by failing to order an ultrasound between 18 and 20 weeks, and whether Defendants were a proximate cause of Plaintiff’s injuries. Dr. Rabin’s declaration explicitly states that Defendants fell below the standard of care. (Rabin Decl., ¶8.) Plaintiff’s experts’ opinions are supported by reasons and explanations. The Court may not weigh the evidence or conflicting inferences. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) 

Accordingly, the Motion for Summary Judgment is DENIED.  

Plaintiff’s Evidentiary Objections: 

1. Overruled 

2. Sustained. Here, Plaintiff objects to portions of Dr. McMurray’s declaration wherein Dr. McMurray states that Dr. Martinson referred Ms. Blanco for an ultrasound on March 5, 2013. (SSMF No. 6.) Plaintiff argues that there is no admissible evidence to support the assertion that Ms. Blanco was referred by Dr. Martinson to undergo an ultrasound immediately after March 5, 2013. The Court agrees. Generally speaking, the foundational requirements for the admission of expert opinion are set forth in Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743 (all records relied upon by the expert in reaching his opinions and conclusions must be attached and properly authenticated.) For the reasons stated in Garibay, there is inadequate evidentiary support for Defendants’ assertion that Ms. Blanco received a referral to undergo an ultrasound immediately after her March 5, 2013 appointment with Dr. Martinson. “Only after the facts were properly before the trial court could the expert form an opinion, and could the defendant moving for summary judgment meet his burden of production.” (Id. at 735.) In support of the Motion, Defendants submit Ms. Blanco’s medical records from Allsafe Medical Group, PIH Health Hospital -Downey, and Long Beach Memorial Medical Center. (Defendants. Exs., A-C.) No deposition transcripts have been proffered as evidence to support the Motion. None of the exhibits attached to Defendants’ Motion indicate that Dr. Martinson referred Ms. Blanco for an ultrasound on March 5, 2013.  Indeed, Dr. Martinson’s deposition testimony (attached as Plaintiff’s Exhibit 3 to the Declaration of Martin P. Weniz) confirms that no such referral is included in Ms. Blanco’s patient chart. (Weniz Decl., Ex. 3, pp. 58:19-59:4.) 

3. Sustained. Here, Plaintiff objects to portions of Dr. McMurray’s declaration wherein Dr. McMurray states that Dr. Alladawi again referred Ms. Blanco for an ultrasound on April 2, 2013 because Ms. Blanco had failed to undergo an ultrasound as previously ordered by Dr. Martinson. (SSMF No. 8.) Plaintiff argues that there is no admissible evidence to support the assertion that Ms. Blanco was referred by Dr. Martinson to undergo an ultrasound immediately after March 5, 2013. The Court agrees. Generally speaking, the foundational requirements for the admission of expert opinion are set forth in Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743 (all records relied upon by the expert in reaching his opinions and conclusions must be attached and properly authenticated.) For the reasons stated in Garibay, there is inadequate evidentiary support for Defendants’ assertion that Ms. Blanco received a referral to undergo an ultrasound immediately after her March 5, 2013 appointment with Dr. Martinson. “Only after the facts were properly before the trial court could the expert form an opinion, and could the defendant moving for summary judgment meet his burden of production.” (Id. at 735.) In support of the Motion, Defendants submit Ms. Blanco’s medical records from Allsafe Medical Group, PIH Health Hospital -Downey, and Long Beach Memorial Medical Center. (Defendants. Exs., A-C.) No deposition transcripts have been proffered as evidence to support the Motion. None of the exhibits attached to Defendants’ Motion indicate that Dr. Martinson referred Ms. Blanco for an ultrasound on March 5, 2013.  Indeed, Dr. Martinson’s deposition testimony (attached as Plaintiff’s Exhibit 3 to the Declaration of Martin P. Weniz) confirms that no such referral is included in Ms. Blanco’s patient chart. (Weniz Decl., Ex. 3, pp. 58:19-59:4.) 

4. Overruled

5. Overruled

6. Overruled


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