On 09/10/2018 ROBERT GOLD filed a Personal Injury - Medical Malpractice lawsuit against ATLANTIS EYE CARE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Other.
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHEN I. GOORVITCH
ATLANTIS EYE CARE
SALEHI-HAD HANI M.D.
CARE ATLANTIS EYE
CREASON JAMES ANTHONY
7/8/2020: Request for Dismissal
7/23/2020: Notice of Entry of Dismissal and Proof of Service
6/11/2020: Notice - NOTICE OF CONTINUED HEARING DATE ON DEFENDANTS' MOTION TO BIFURCATE
4/15/2020: Minute Order - MINUTE ORDER (COURT ORDER)
4/15/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/15/2020
4/1/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: MAY 04, 2020)
2/26/2020: Notice - NOTICE OF NEW HEARING DATE FOR MOTION TO BIFURCATE
2/14/2020: Declaration in Support of Ex Parte Application
2/19/2020: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO CONTINUE THE TRIAL DATE
2/19/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER TO CONTINUE THE ...)
11/6/2019: Declaration - DECLARATION OF EXPERT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
11/6/2019: Declaration - DECLARATION RE EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
6/21/2019: Notice - NOTICE OF INTENT TO INTRODUCE COLLATERAL SOURCE PAYMENTS
6/21/2019: Supplemental Declaration - SUPPLEMENTAL DECLARATION DESIGNATION OF TRIAL COUNSEL
6/21/2019: Demand for Jury Trial
9/10/2018: COMPLAINT FOR DAMAGES FOR PROFESSIONAL NEGLIGENCE
9/10/2018: NOTICE OF CASE ASSIGNMENT
9/10/2018: SUMMONS -
Docketat 08:30 AM in Department 32, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
DocketNotice of Entry of Dismissal and Proof of Service; Filed by Atlantis Eye Care (Defendant); Hani M.D. Salehi-Had (Defendant)Read MoreRead Less
Docketat 10:00 AM in Department 32, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
Docketat 08:30 AM in Department 32, Stephen I. Goorvitch, Presiding; Hearing on Motion to Bifurcate - Not Held - Continued - StipulationRead MoreRead Less
DocketRequest for Dismissal; Filed by Robert Gold (Plaintiff)Read MoreRead Less
DocketNotice (of Continued Hearing Date on Defendants' Motion to Bifurcate); Filed by Atlantis Eye Care (Defendant); Hani M.D. Salehi-Had (Defendant)Read MoreRead Less
DocketStipulation and Order (Continuing Hearing Date on Defendants' Motion to Bifurcate); Filed by Atlantis Eye Care (Defendant); Hani M.D. Salehi-Had (Defendant)Read MoreRead Less
Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Atlantis Eye Care (Defendant); Hani M.D. Salehi-Had (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 32, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - Court's MotionRead MoreRead Less
Docketat 1:30 PM in Department 32, Stephen I. Goorvitch, Presiding; Hearing on Motion to Bifurcate - Not Held - Continued - Court's MotionRead MoreRead Less
DocketDeclaration (of Expert in Support of Motion for Summary Judgment); Filed by Atlantis Eye Care (Defendant); Hani M.D. Salehi-Had (Defendant)Read MoreRead Less
DocketDemand for Jury Trial; Filed by Atlantis Eye Care (Defendant); Hani M.D. Salehi-Had (Defendant)Read MoreRead Less
DocketNotice of Posting of Jury Fees; Filed by Atlantis Eye Care (Defendant); Hani M.D. Salehi-Had (Defendant)Read MoreRead Less
DocketSupplemental Declaration (Designation of Trial Counsel); Filed by Atlantis Eye Care (Defendant); Hani M.D. Salehi-Had (Defendant)Read MoreRead Less
DocketAnswer; Filed by Atlantis Eye Care (Defendant); Hani M.D. Salehi-Had (Defendant)Read MoreRead Less
DocketNotice (of Intent to Introduce Collateral Source Payments); Filed by Atlantis Eye Care (Defendant); Hani M.D. Salehi-Had (Defendant)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES FOR PROFESSIONAL NEGLIGENCERead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Robert Gold (Plaintiff)Read MoreRead Less
DocketNOTICE OF CASE ASSIGNMENTRead MoreRead Less
Case Number: BC720703 Hearing Date: January 30, 2020 Dept: 32
atlantis eye care, et al.,
Case No.: BC720703
Hearing Date: January 30, 2020
[TENTATIVE] order RE:
MOTION FOR SUMMARY JUDGMENT, or, in the alternative, summary adjudication
Plaintiff Robert Gold (“Plaintiff”) filed this medical malpractice action against Defendants Hani Salehi-Had, M.D., (“Dr. Salehi-Had”) and Eyecare Specialists Medical Group, which does business as Atlantis Eyecare (“Atlantis”) (collectively, “Defendants”). Specifically, Plaintiff alleges that Salehi-Had performed surgery on his retinas at Atlantis, resulting in a loss of vision. Plaintiff asserts a single cause of action for professional negligence. Now, Defendants move for summary judgment on three grounds: (1) Dr. Salehi-Had’s treatment complied with the appropriate standard of care; (2) Any negligence by Dr. Salehi-Had did not cause or contribute to Plaintiff’s injuries; and (3) The complaint is barred by the applicable statute of limitations. Plaintiff opposes the motion, which is denied.
“[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.)
A. Standard of Care
Defendants argue that Salehi-Had satisfied the appropriate standard of care in his treatment of Plaintiff. 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.)
Defendants rely on the declaration of David Boyer, M.D., who is an ophthalmologist. Dr. Boyer reviewed Plaintiff’s medical records, as well as Plaintiff’s complaint and Dr. Salehi-Had’s declaration. Dr. Boyer states that the treatment Dr. Salehi-Had provided to Plaintiff complied with the standard of care at all times and explains the basis for his opinion. (Declaration of David Boyer, ¶ 7.) This is sufficient to satisfy Defendants’ burden, shifting the burden to Plaintiff.
Plaintiff proffers a declaration from Duane M. Bryant, M.D., an ophthalmologist. Dr. Bryant interviewed Plaintiff, and reviewed his medical records. As an initial matter, Defendants object to this declaration because it provides no foundation for certain facts on which Dr. Bryant relied in formulating his opinion. Specifically, Defendants object to the following factual assertions: (1) Plaintiff contacted the office requesting an appointment on December 29, 2016 and received only voicemail; and (2) Dr. Salehi-Had was not available to assess emergency symptoms presented over the telephone. The Court need not rule on these objections because Dr. Bryant opines that Defendants breached the appropriate standard of care because Dr. Salehi-Had authorized an unqualified individual to handle post-operative inquiries by telephone, and she provided incorrect information. (Declaration of Duane Bryant, ¶ III.E.) Specifically, Dr. Bryant states that Plaintiff called Atlantis and was transferred to Dr. Salehi-Had’s assistant on December 29, 2016. (Id., ¶ II.B.) She said his symptoms were normal. (Ibid.) Specifically, she said that Plaintiff’s symptoms were “completely normal” and that a follow-up visit was not required because she “hears this stuff all the time” and “the distortion and snowy images . . . were typical for gas-bubble retina post surgery once the gas bubble started breaking up.” (Plaintiff’s Declaration in Opposition to Motion for Summary Judgment, ¶ 14.) She “repeatedly” assured Plaintiff that he had “nothing to worry about” and stated emphatically that he did not need “to bother the doctor for this.” (Ibid.) Dr. Bryant opines that this was negligent because:
A non-qualified health professional fielded [Plaintiff’s] post surgery call . . . . She gave [Plaintiff] incorrect information and incorrect instructions concerning his new symptoms. She did not tell [Plaintiff] that he needed to come into the office immediately. Moreover, she told him that nothing was wrong; there was no need to see Dr. Salehi-Had for this and there was no need to “bother” the surgeon with these new symptoms.
(Declaration of Duane Bryant, ¶ III.E) Plaintiff did not see Dr. Salehi-Had until January 25, 2017, which is a delay of approximately four weeks. (Id., ¶ II.C.) This gives rise to a triable issue, precluding summary judgment.
Defendants did not object to Dr. Bryant relying on Plaintiff’s interview, per People v. Sanchez (2016) 63 Cal.4th 665, so that objection is waived for purposes of this motion. Regardless, Plaintiff proffers a declaration in support of his opposition to this motion, which contains the same information as his interview, as cited above. Therefore, any error is harmless and would not change the outcome of this motion, as the Court simply would continue the hearing on this motion, and Dr. Bryant would change the basis of his opinion from Plaintiff’s interview to Plaintiff’s declaration.
B. Cause of Injuries
In the alternative, Defendants argue that this delay did not cause or contribute to Plaintiff’s injuries. It is unclear whether Defendants satisfied their burden because Dr. Boyer’s declaration does not specifically opine that any delay in treating Plaintiff did not cause or contribute to this injuries. Dr. Boyer states only that retinal detachment is not uncommon and was not attributable to negligence, but he does not state that the delay in treating Plaintiff did not aggravate Plaintiff’s injuries or cause any additional damage. (Declaration of David Boyer, ¶ 8.) Indeed, he opines that “[a]bsent being informed of a decrease in vision or problems associated with a recurrence of the retinal detachment, no further action by Dr. Salehi-Had during this period was required by the standard of care.” (Id., ¶ 7.) But this does not address the gravamen of Plaintiff’s claim, viz., that Dr. Salehi-Had was not informed of Plaintiff’s symptoms because he improperly delegated his responsibilities to someone who was not qualified and did not give Plaintiff appropriate instructions to come to the office immediately. Regardless, Plaintiff creates a triable issue on this point because Dr. Bryant opines that “the longer there is a macula off retinal detachment, the poorer the prognosis becomes for recovery of useful vision.” (Declaration of Duane Bryant, ¶ II.C.) This gives rise to a triable issue whether the delay in treating Plaintiff, caused by Dr. Salehi-Had’s assistant, contributed to his injury and made it less likely to repair the damage.
C. Statute of Limitations
Finally, Defendants argue Plaintiffs’ claims are barred by the applicable statute of limitations. Per Code of Civil Procedure section 340.5, “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.) Under Code of Civil Procedure section 364, “No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” (Code Civ. Proc., § 364, subd. (a).) “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” (Code Civ. Proc., § 364, subd. (d).)
Defendants proffer evidence that Defendants last treated Plaintiff on January 25, 2017, when Salehi-Had diagnosed Plaintiff with a total retinal detachment. (Declaration of Rocco J. Alexander, Exhibit C, ¶ 5.) Plaintiff filed his complaint on September 10, 2018. Defendants have satisfied their burden, as Plaintiff knew of his vision loss over one year before filing this action, shifting the burden to Plaintiff.
Plaintiff relies upon his own declaration, suggesting that he learned of the permanent damage and Defendants’ negligence only on his last appointment with Dr. Brent Norman, a subsequent medical provider, on June 23, 2017. (Plaintiff’s Supplemental Declaration in Opposition to Motion for Summary Judgment, ¶¶ 19-26.) According to Defendants’ evidence, Plaintiff gave 90 days’ notice of his intent to sue on June 12, 2018. (Declaration of Rocco J. Alexander, Exh. B.) This notice was served by mail within 90 days of the arguable statute of limitations date (June 23, 2018). Therefore, “the time for the commencement of the action shall be extended 90 days from the service of the notice.” (Code Civ. Proc. § 364(d).) In other words, the notice extended the statute from June 12, 2018, to September 10, 2018 (even assuming the Court does not add five days for the notice having been mailed). Because there is a triable issue when Plaintiff learned of Defendants’ negligence, the Court cannot grant summary judgment on statute of limitations grounds.
CONCLUSION AND ORDER
The motion for summary judgment is denied. Defendants shall provide notice and file proof of such with the Court.
DATED: January 30, 2020 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court
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