2016-00204836-CU-MM

Karen Rebossio vs. Mahmoud Khattab, M.D.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Fierro, Lauren D.

The motion of Defendants Mahmoud Khattab, M.D. (Dr. Khattab) and Elk Grove Medical Spa (Spa) (collectively “Defendants”) for summary judgment or, in the alternative, summary adjudication of issues is DENIED.

This is a case for medical malpractice and loss of consortium. The plaintiffs are Karen Rebossio (Rebossio) and her husband Ben Magur (Magur) (collectively “Plaintiffs”). According to Plaintiffs, Rebossio suffered scarring and other injuries to her face and back when she received laser treatment. Plaintiffs allege that Defendants “negligently treated, cared for, diagnosed, obtained informed consent, failed to obtain informed consent, prescribed and or failed to prescribe and/or monitor proper medication and/or treatment, advised, examined, made and/or failed to make disclosure of relevant information, performed surgery upon, battered and/or otherwise acted negligently toward Plaintiff, KAREN REBOSSIO.” (Compl., ¶ 5.) Dr. Khattab, who works at the Spa, treated Rebossio in January 2015. Rebossio had undergone laser treatment at Kaiser in December 2014.

Defendants now move for summary judgment. First, they argue it is undisputed that the treatment and care Rebossio received was within the professional standard of care. (See Undisputed Material Fact (UMF) 37; Khattab Decl., ¶ 15.) In opposition, however, Plaintiffs tender the Declaration of Terry Zimmerman, M.D., which contains an opinion that Dr. Khattab’s treatment for the post-inflammatory hyperpigmentation (PIH) Rebossio exhibited was not within the standard of care. (See Zimmerman Decl.,

¶ 8.) Thus, whether Defendants abided by the standard of care involves a triable issue.

Defendants next argue that both causes of action in the complaint fail because it is undisputed Defendants did not cause Rebossio’s injuries. Again, however, there is a battle of experts demonstrating the existence of a triable issue. (See Opp. Sep. Stmt., UMF 43 [citing Khattab Decl., ¶ 16 and Zimmerman Decl., ¶ 9].)

In the alternative, Defendants argue it is undisputed that the causes of action are time-barred. Defendants argue that Plaintiffs’ causes of action arose no later than 1/13/15, by which time she had suffered PIH on her face, back and underarms. (See UMF 47; see also UMF 44 [Rebossio’s injuries were all present as of January 13, 2015, and no additional injuries arose after [that]”].) Noting that Plaintiffs commenced this action on 12/14/16, Defendants reason the complaint is barred under the one-year statute in CCP § 340.5. Subdivision (a) of that section provides, in relevant part: “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.” (Emphasis added.)

In opposition, Plaintiffs once again cite the Zimmerman Declaration, which contains an opinion that each time Dr. Khattab treated Rebossio between January 2015 and November 2016, he caused additional inflammation and worsened her PIH. (See Zimmerman Decl., ¶ 9.) This evidence supports an inference that Dr. Khattab caused new injuries within the limitations period. (Cf. Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110, 1116-1118.) Although Defendants argue in reply that the evidence can only be construed to establish aggravation of the same injury, the court disagrees. Hence, even if a portion of the causes of action are outside the limitations period, at least a part of the causes of action must be tried, and summary judgment is unavailable. (See CCP § 437c(f)(1) [summary adjudication denotes disposition of entire cause of action].)

Finally, Defendants ask the court to summarily adjudicate Magur’s loss of consortium cause of action on grounds he and Rebossio were not married in January 2015, when her PIH first appeared. (UMF 46-47.) It is undisputed that Plaintiffs were not married until 12/15/15. (UMF 46.)

For reasons discussed above, Defendants’ argument lacks merit. The evidence supports an inference Rebossio suffered a series of distinct injuries ending in November 2016–after Plaintiffs were married. On the other hand, the evidence does not establish which of these injuries caused Magur’s loss of consortium. Consequently, the evidence does not bar an inference that an injury within the limitations period caused Magur’s loss of consortium, and summary adjudication is denied.

Disposition

The motion is denied.

The notice of motion does not provide notice of the court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the court’s tentative ruling procedure. If counsel for moving party is unable to contact counsel for opposing party prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).