Case Number: BC681125 Hearing Date: March 25, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

SAMVEL ALOYAN, et al.,

Plaintiffs,

v.

HERMOZ B. AYVAZYAN, D.P.M.,

Defendants.

Case No.: BC681125

Hearing Date: March 25, 2019

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION BY DEFENDANT HERMOZ B. AYVAZYAN

BACKGROUND

Plaintiff Samvel Aloyan (“Plaintiff”) alleges that his feet were hurt during a fall in Armenia, and he began receiving medical treatment from Defendant Hermoz B. Ayvazyan, D.P.M. (“Defendant”) upon his return to the United States. Plaintiff alleges that Defendant was negligent in providing care and treatment, specifically not advising surgery, which aggravated Plaintiff’s injuries. Plaintiff asserts causes of action for professional negligence, negligent infliction of emotional distress, lack of informed consent, and breach of a fiduciary duty. Plaintiff’s wife, co-plaintiff Mariam Galstyan, asserts a cause of action for loss of consortium. Defendant now moves for summary judgment or, in the alternative, summary adjudication of each cause of action on two independent grounds: (1) There is no triable issue whether Defendant breached the appropriate standard of care; and (2) Any breach did not cause the injuries at issue. Plaintiff opposes the motion.

Initially, the Court held the hearing on this motion on February 27, 2019. The Court issued a tentative in advance granting summary judgment. At the hearing, Plaintiff’s counsel represented that he had not been able to take Defendant’s deposition and an expert witness’s deposition due to defense counsel’s unavailability, and he requested a continuance of the motions hearing date to do so. Plaintiff’s counsel represented that the remaining depositions may develop evidence that Defendant’s alleged breach of the standard of care caused or aggravated the injuries at issue. The Court granted the continuance and permitted each side to file a supplemental brief concerning any new arguments or evidence. Plaintiff has not filed a supplemental brief in this case or proffered any additional evidence. Therefore, the Court now grants summary judgment.

LEGAL STANDARD

In deciding a motion for summary judgment, the Court must determine whether there is sufficient evidence to create a triable issue. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c(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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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 that cause of action or a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

DISCUSSION

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.)

Defendant first argues that there is insufficient evidence to create a triable issue whether he breached the appropriate standard of care. Defendant proffers the declaration of Dr. Stephen C. Wan, D.P.M., F.A.C.F.A.S. (“Dr. Wan”), a specialist in the podiatric surgery. (Wan Decl. ¶ 3.) Dr. Wan opines that Defendant’s care and treatment of Plaintiff was not negligent and did not breach the standard of care. (Wan Decl. ¶¶ 7-16.) Dr. Wan opines that Defendant was monitoring the progress of the injury properly, and that he reasonably recognized that numerous factors militated against surgery in this case. (Wan Decl. ¶ 11.) This evidence satisfies Defendant’s burden of proof, shifting the burden to Plaintiff.

Plaintiff proffers a declaration from Dr. Tye J. Ouzounian, M.D. (“Dr. Ouzounian”), an orthopedic surgeon who specializes in foot and ankle disorders. (Ouzounian Decl., p. 1:17-19.) Dr. Ouzounian opines that “[t]here weeks after the injury, when he first saw [Defendant] . . . surgery would have been an appropriate treatment option.” (Ouzounian Decl., p. 5:17-20.) Dr. Ouzounian states that: “The standard of care requires that the patient be offered the options of conservative treatment, or surgery to repair the fracture.” (Ouzounian Decl., p. 5:16-17.) Dr. Ouzounian further states: “[Plaintiff] states in his declaration that he was not given the option for surgery. To a reasonable medical probability, [Defendant] failed to comply with the standard of care and treatment of [Plaintiff], because he failed to discuss and offer an option for surgical treatment of the calcaneus fracture.” (Ouzounian Decl., p. 5:22-27.)

Plaintiff’s evidence is not sufficient because he relies on case-specific hearsay, viz., Plaintiff’s statement that Defendant never advised him of the option of surgery. Per People v. Sanchez (2016) 63 Cal.4th 665, an expert may properly assume the truth of facts otherwise admitted into evidence in forming an opinion, but cannot assume facts for which no admissible evidence is before the Court. (People v. Sanchez (2016) 63 Cal.4th 665, 676-677.) In this case, Dr. Ouzounian relies exclusively on Plaintiff’s statement that Defendant never advised him of the option of surgery. This statement is hearsay when offered by Plaintiff (as opposed to being an admission of a party-opponent when offered by Defendant).[1]

Regardless, even if Dr. Ouzounian’s declaration creates a triable issue that Defendant breached the standard of care, there is no triable issue that any breach caused or aggravated Plaintiff’s injuries. The declaration of Dr. Wan, proffered by Defendant, opines that no act or omission to act on the part of Defendant caused or contributed to Plaintiff’s injury. (Wan Decl. ¶ 18.) Dr. Wan opines that Plaintiff’s injuries stemmed from his fall rather than Defendant’s care: “It is my opinion, to a reasonable medical probability, that the fractures sustained by [Plaintiff] in August of 2016 were severe and would have caused longstanding complaints regardless of care.” (Wan Decl., ¶ 7.) But to the extent Plaintiff’s injuries were caused or aggravated by someone, Defendant proffers evidence that Plaintiff rather than Defendant was responsible: “It is my opinion that, to a reasonable medical probability, that continued smoking, the overuse of the right lower extremity and the failure of the patient to follow-up timely after the visit of September 22, 2016 contributed to the poor alignment and poor healing of the factures.” (Wan Decl., ¶ 13.) This evidence satisfies Defendant’s prima facie burden.

Plaintiff proffers no evidence in response to this evidence on causation. Dr. Ouzounian’s declaration focuses exclusively on whether Defendant breached the appropriate standard of care by not recommending surgery, but the declaration does not address whether that breach caused or aggravated Plaintiff’s injuries. Dr. Ouzounian states only that surgery was an “appropriate treatment option,” and asserts that Defendant’s care fell below the standard of care by not informing Plaintiff of that option. This is fatal because “a physician is liable [for lack of informed consent] only where the failure to disclose causes the injury.” (Spann v. Irwin Memorial Blood Centers (1995) 34 Cal.App.4th 644, 657.) Even if the declaration could be read as making that link, “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. . . . [T]he plaintiff must offer expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 [emphasis in original].)

This case is identical to one recently decided by the Second District. In Fernandez v. Alexander (2019) 31 Cal.App.5th 770, the plaintiff fractured her wrist, and her doctor allegedly “failed to recommend, encourage [or] perform surgery . . . instead ordering a cast.” (Id. at *1.)[2] The doctor’s expert declared that the doctor had engaged in medical treatment within the standard of care by ordering a cast. (Id. at *2.) The plaintiff’s expert declared that the “failure to discuss surgical treatment options was a breach of the standard of care” and that to “a reasonable degree of medical probability” the care provided to plaintiff breached the standard of care. The Second District concluded plaintiff’s expert’s testimony failed to address the issue of causation. His declaration did not “explain[], for example, . . . how the failure to discuss surgery at the initial consultation caused” plaintiff’s injury. Nor did the declaration “opine that surgery would have produced a better outcome” or “challenge or even address [the defendant’s expert’s] opinion that what happened to plaintiff’s hand . . . was a potential outcome of both treatments [i.e., surgery or casting].” (Id. at *6.) The Second District therefore affirmed the decision of the trial court to grant summary judgment.

At the initial hearing on this motion, Plaintiff’s counsel argues that Dr. Wan’s declaration addressed on the fractures and not the ulcers in Plaintiff’s foot, and the ulcers are what Defendant did not treat properly due to infection. Plaintiff is not correct. Dr. Wan’s declaration states specifically that Defendant acted within the standard of care “including excision of the ulcerous tissue and taking a culture of the wound to confirm lack of infection.” (Wan Decl., ¶ 12.) Plaintiff cites the deposition of Dr. Armen Hagopjanian, who testified that he treated Plaintiff’s foot after Defendant and immediately sent him to the hospital for immediate surgery. (Hagopjanian Depo. at p.39-40.) However, Dr. Hagopjanian does not attribute this need for immediate surgery to Defendant’s negligence. Nor does Dr. Hagopjanian contradict Dr. Wan’s opinion that Plaintiff rather than Defendant was responsible for the issue.

In sum, the evidence proffered by Defendant establishes that Plaintiff’s injuries were caused by his fall, and that any aggravation of those injuries stemmed from Plaintiff’s—and not Defendant’s—conduct, which defeats his professional negligence claim. Plaintiff’s claims for negligent infliction of emotional distress, lack of informed consent, and breach of a fiduciary duty fail for the same reasons, as all of these claims rely on the same legal theory, one of professional negligence. If the medical malpractice claim fails, so, too, does the loss of consortium claim. (See Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1067.) Therefore, the Court grants summary judgment.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is granted. Defendant shall give notice and file proof of such with the Court.

DATED: March 25, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

[1] According to Plaintiff, medical records establish that Defendant “gave [Plaintiff] a choice of conservative care or surgical repair of the calcaneal fracture.” (Ouzounian Decl., p.3:5-6.) This evidence likely is admissible, and would support the Court’s grant of summary judgment, because the medical records likely are business records or because Plaintiff proffered this fact, constituting an admission of a party-opponent. However, the Court does not rely on these medical records or Plaintiff’s description of their contents in granting summary judgment.

[2] Though certified for publication, this case not yet been page-numbered.