Case Number: 18STCV02715 Hearing Date: February 14, 2020 Dept: 28

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On October 29, 2019, Plaintiff Aleksandr Avetisyan (“Plaintiff”) filed a complaint against Defendant Edgar Mehdikhani (erroneously sued and served as Edgar Mehdikhani) (“Defendant”). The complaint alleges medical battery, intentional infliction of emotional distress, assault, professional negligence, breach of fiduciary duty, and lack of informed consent. The complaint also alleges Defendant deficiently performed a colonoscopy on August 12, 2017.

On February 14, 2019, Plaintiff filed a first amended complaint alleging professional negligence, breach of fiduciary duty, and lack of informed consent.

On October 22, 2019, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication pursuant to California Code of Civil Procedure section 437c.

Trial is set for April 27, 2020.

PARTY’S REQUEST

Defendant asks the Court to enter summary judgment, or in the alternative, summary adjudication against Plaintiff based on the expert declaration of gastroenterologist Richard F. Corlin, M.D.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Medical Malpractice

The elements of medical malpractice 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) 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.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 (citations omitted).) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at p. 467.)

Thus, in a medical malpractice case, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985 (citations omitted).) An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)

The elements of a cause of action for a failure to obtain informed consent are: (1) the defendant performed a medical procedure on a patient, (2) the patient did not give informed consent for the procedure, (3) a reasonable person in the patient’s position would not have given informed consent, and (4) the patient was harmed by either a risk that should have been explained or a breach of the standard of care. (See Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1133-1139.)

“The elements of a cause of action for a breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach. [Citation.] ‘[A] physician has a fiduciary duty to disclose all information material to the patient’s decision,’ when soliciting a patient’s consent to a medical procedure.” (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1165 (citations omitted).)

Defendant has submitted the declaration of gastroenterologist Richard F. Corlin, M.D. in support of Defendant’s motion for summary judgment. Dr. Corlin provided his qualifications. (Corlin Decl., ¶ 1, Exh. A.) Dr. Corlin then stated he reviewed Plaintiff’s first amended complaint and Plaintiff’s records from Defendant, Chevy Chase Ambulatory Center, GlenPath Diagnostics, and Memorial Hospital. (Corlin Decl., ¶ 5.) Dr. Corlin next listed the relevant medical facts. (Corlin Decl., ¶¶ 6-26.) Dr. Corin provided a number of opinions in concluding that Defendant complied with the applicable standard of care.

At Plaintiff’s May 26, 2017 appointment, Defendant performed a good examination, took a history, performed a thorough assessment, and diagnosed abdominal distension, constipation, epigastric pain, functional dyspepsia, gastro-esophageal reflux disease without esophagitis, and hemorrhage of the anus and rectum. (Corlin Decl., ¶ 28.) This complied with the applicable standard of care. (Ibid.)

On August 12, 2017, Defendant performed a colonoscopy and EGD. (Corlin Decl., ¶ 29.) Defendant obtained Plaintiff’s informed consent before preforming the procedures. (Ibid.) Defendant gave an opportunity for Plaintiff to ask questions. (Ibid.) Plaintiff signed a form stating he was aware of the risks of the procedures. (Ibid.) The form stated the operations and procedures may all involve risks, unsuccessful results, complications, injury or even death from known and unforeseen causes and no warranty or guaranty is made as to the result or cure. (Ibid.) The form also stated Plaintiff may be admitted to the hospital even though the admission was not planned. (Ibid.)

The August 12, 2017 colonoscopy and EGD was performed within the applicable standard of care. (Corlin Decl., ¶ 31.) In the transverse colon, a .4-centameter polyp was found and a polypectomy was done. (Ibid.) After the August 12, 2017 procedures, Plaintiff was taken to a recovery room and monitored. (Corlin Decl., ¶ 33.) Defendant provided appropriate post-procedure orders. (Ibid.) Post-sedation and post-procedure evaluations showed vital signs to be stable, there was no anesthesia complications, and airway reflexes were present. (Ibid.) Plaintiff did well and there were no complications. (Ibid.) Plaintiff was then discharged after not presenting any complaints. (Corlin Decl., ¶ 34.) The August 12, 2017 procedures, post-procedure monitoring, and discharge were within the applicable standard of care. (Corlin Decl., ¶¶ 31-34.)

Plaintiff was taken to Huntington Memorial Hospital after experiencing rectal bleeding following the colonoscopy and EGD. (Corlin Decl., ¶ 35.) Plaintiff was found to have bleeding where a polyp was removed, which is a known complication of the procedures. (Ibid.) No perforations were found. (Ibid.) In sum, Defendant complied with the applicable standard of care in treating Plaintiff and Defendant did not cause Plaintiff’s harm. (Corlin Decl., ¶¶ 40-41.)

The Court finds Dr. Corlin’s declaration shows Defendant complied with his applicable standard of care and did not cause an injury to Plaintiff. Defendant had advised Plaintiff of the risks of the procedure and gave Plaintiff an opportunity to ask questions. Plaintiff signed a document given consent to the operation, which states the operation of procedure has been adequately explained to Plaintiff. (Guther Decl., ¶ 8, Exh. F.) Plaintiff’s bleeding was a result of a known complication of the procedures. Plaintiff acknowledged that Plaintiff had been apprised of all relevant information regarding Plaintiff’s procedures including the risk of bleeding from a polyp removal, Plaintiff nevertheless agreed to the procedures, and Plaintiff was subsequently harmed. Defendant has met his burden. Plaintiff has not opposed this motion. As such, the motion is properly granted.

CONCLUSION

The motion for summary judgment is GRANTED.

Defendant is ordered to give notice of this ruling.