Case Number: BC622137 Hearing Date: March 13, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Marty N. Rich,

Plaintiff,

v.

Naghmeh Khodai, m.d., et al.,

Defendants.

Case No.: BC622137

Hearing Date: March 13, 2018

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT BY DEFENDANT Naghmeh Khodai

BACKGROUND

Plaintiff Marty N. Rich commenced[1] this action against Defendants Naghmeh Khodai, M.D., Steven Freedman, M.D., Women’s Health Specialists, West Hills, and West Hills Hospital and Medical Center (“Defendants”) based on allegations of medical negligence. She alleges that beginning in March of 2015, she placed herself under the care of Defendants, but that they negligently provided care and treatment to her, causing her injury. Plaintiff is pursuing a claim of professional negligence against all defendants.

Defendant Naghmeh Khodai, M.D. (“Dr. Khodai”) moves for summary judgment against Plaintiff and her complaint. Plaintiff has filed an opposition.

LEGAL STANDARD

In a medical malpractice action, the elements are: “(1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) 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 negligence (citations omitted).” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612, emphasis in original.) The standard of care against which doctors are measured is a matter within the knowledge of experts. Breach of the standard of care may only be proven by expert testimony. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

A defendant moving for summary judgment has the burden of proving that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action.

Discussion

Plaintiff presented to Dr. Khodai on February 18, 2015 with complaints of pain and menstrual issues. (Serden Decl., at ¶ 6.) Plaintiff had previously undergone a procedure with a urologist other than Dr. Khodai. (Ibid.) Dr. Khodai performed a pelvic ultrasound, which revealed an enlarged ureter, two fibroids, and an IUD in place. (Ibid.) Dr. Khodai discussed treatment options with Plaintiff, which included surgical management. (Ibid.) On March 18, 2015, Plaintiff returned to discuss surgery, specifically the benefits of an open hysterectomy. (Ibid.) Dr. Khodai went over the surgical risks, and Plaintiff signed two consent forms discussing the risks of the surgery. (Fact 7.)

On April 15, 2015, Dr. Khodai performed several procedures which involved a total abdominal hysterectomy. (Serden Decl., at ¶ 6.D.) During the surgery, Plaintiff’s bladder was injured and repaired by Dr. Khodai. (Ibid.) Plaintiff was seen after the operation on April 21, 2015 where it was discovered that she had a temperature of 100.5 degrees. (Id. at ¶ 6.E.) The next day she underwent a CT scan which revealed a remaining injury to her left ureter. (Id. at ¶ 6.F.) Plaintiff underwent surgery, by other physicians not party to this lawsuit, to treat the injury. (Id. at ¶ 6.H.)

In support of the motion, Dr. Khodai provides the declaration of Scott Serden, M.D. (“Dr. Serden”), who is a specialist in the field of Obstetrics and Gynecology. Dr. Serden opines that to a reasonable degree of medical probability, Dr. Khodai’s care and treatment of Plaintiff was not negligent and did not breach the standard of care. (Fact 6.) Dr. Serden states that Dr. Khodai discussed treatment options besides surgical hysterectomy, which included continuing with the Mirena IUD. (Serden Decl., at ¶ 6.A.) However, Dr. Khodai noted that medical management had failed and discussed the benefits of an open hysterectomy versus a laparoscopic procedure with the Plaintiff on March 18, 2015. (Id. at 6.B.) Dr. Serden opines that the April 15, 2015 surgeries performed by Dr. Khodai met the standard of care. (Serden Decl., at ¶¶ 8-9.) He states no act or omission to act on the part of Dr. Khodai caused injury to Plaintiff. (Id. at ¶ 10.) The Court finds that this offer of evidence satisfies Defendant’s burden of proof, and thus, the burden shifts to the Plaintiff to show a triable issue of material fact.

In opposition, Plaintiffs argue that the April 15, 2015 surgery was unnecessary and performed in violation of the standard of care. Plaintiff states in her declaration that Dr. Khodai did not offer any other option of treatment besides surgery at any time before the April 15, 2015 surgery. (Rich Decl., at ¶ 3.) Plaintiff asserts that Dr. Khodai only recommended that Plaintiff undergo a hysterectomy. (Ibid.) Plaintiff also offers the declaration of Howard C. Mandel, M.D. (“Dr. Mandel”) to support her opposition. Dr. Mandel opines that Plaintiff was not a candidate for the open hysterectomy surgery that was performed. (Mandel Decl., at ¶ 18.) Dr. Mandel states that Dr. Khodai breached the standard of care by failing to appropriately recommend other conservative options which would have been successful in treating Plaintiff’s gynecological issues to a reasonable degree of medical probability. (Ibid.) Dr. Mandel also lists a number of different options that he opines were more conservative and could have been used instead of the surgery. (Ibid.) Dr. Mandel concludes that the unnecessary hysterectomy was a substantial factor in causing Plaintiff’s subsequent hospitalizations, procedures, and surgeries. (Id. at ¶ 21.)

Plaintiff’s evidence raises a triable fact regarding whether Dr. Khodai correctly diagnosed and provided the proper treatment and care to Plaintiff in connection with the April 15, 2015 surgery. There is also a triable issue of fact as to whether Dr. Khodai informed Plaintiff of the alternative treatments to the open hysterectomy. The Court finds that Plaintiff has met her burden and shown that a triable issue of material fact exists as to the claim of professional negligence. Accordingly, the motion for summary judgment is denied.

CONCLUSION AND ORDER

Dr. Khodai’s motion for summary judgment is denied.

Dr. Khodai is ordered to give notice of this order.

DATED: March 13, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Another Plaintiff, Robin DiMaggio, was a part of the litigation at the beginning of the case, but all claims related to DiMaggio were voluntarily dismissed on August 25, 2016.