Case Number: 18STCV05137 Hearing Date: March 09, 2020 Dept: 32

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 32

Ayad alanizi,

Plaintiff,

v.

akira ishiyama, m.d., et al.,

Defendants.

Case No.: 18STCV05137

Hearing Date: March 9, 2020

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff Ayad Alazizi (“Plaintiff”) filed this medical malpractice action against Defendant Regents of the University of California (“Defendant”). Plaintiff alleges that he sought treatment for a gradual decline of hearing in his right ear, as well as dizziness and tinnitus, on January 31, 2017. Plaintiff alleges that he received an MRI on February 7, 2017, and had surgery on February 15, 2017. Plaintiff alleges that Defendant’s two doctors, Akira Ishiyama, M.D. (“Ishiyama”) and Stellios Karnezis, M.D. (“Karnezis”), failed to properly diagnose the cause of his tinnitus, which lead to Plaintiff’s undergoing an unnecessary surgery. Defendant moves for summary judgment on Plaintiffs’ complaint, or, in the alternative, summary adjudication, arguing that its doctors complied with the standard of care or, in the alternative, nothing Defendants’ doctors did, or failed to do, caused or contributed to the injuries in this case. Plaintiff opposes the motion, which is denied.

LEGAL STANDARD

“[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.)

EVIDENTIARY OBJECTIONS

The Court sustains Defendant’s objection to the Declaration of Stephen P. Grifka, M.D., with respect to the opinion: “I hold to a reasonable degree of medical certainty that Plaintiff would have opted against surgery and opted for a hearing aid had he known about the lesion.” The Court overrules Defendant’s remaining objections or elects not to rule on them, per Code of Civil Procedure section 437c(q). The Court elects not to rule on Plaintiff’s objections, per Code of Civil Procedure section 437c(q).

DISCUSSION

Defendant argues that its employees met the standard of care in their 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.)

Defendant first argues that its doctors satisfied the appropriate standard of care. Defendant relies on the declaration of Lawrence R. Lustig, M.D. (“Lustig”), a medical doctor who specializes in otolaryngology and neurotology. Lustig states that the treatment Defendant’s employees provided to Plaintiff, specifically the treatment by Ishiyama, complied with the standard of care at all times. (Declaration of Lawrence R. Lustig, M.D., ¶ 8.) Lustig opines that Plaintiff “met the clinical criteria for otosclerosis,” and that diagnosis was not a breach of the standard of care, given the symptoms. (Id., ¶ 8(b).) Lustig opines that Ishiyama ordered an MRI to rule out endolymphatic hydrops, but the appropriate standard of care did not require any additional imaging studies. (Id., ¶ 8(d).) Lustig opines that the failure to diagnose the lesion was not a breach of the standard of care because “[i]t is very rare to have a schwannoma on the same side as ostoclerosis, which Plaintiff ultimate did have” and because “[t]his was also a very small lesion and would not cause the symptoms Plaintiff complained of.” (Id., ¶ 8(i).)

Defendant also relies on a declaration from Ali R. Sepahdari, M.D. (“Sepahdari”), a radiologist. Sepahdari states that the treatment Defendant provided to Plaintiff, particularly the treatment that Karnezis provided, met the standard of care. (Declaration of Ali R. Sepahdari, ¶ 8.) Sepahdari further states that the type of MRI Plaintiff underwent was intended only to rule out endolymphatic hydrops, and that Karnezis correctly concluded that endolymphatic hydrops were not present. (Declaration of Ali R. Sepahdari, ¶¶ 7(d), 8(a).) Sepahdari opines that the failure to detect the “tiny lesion” when initially reviewing the MRI results was not a breach of the appropriate standard of care because “[t]his is a very subtle finding in an area of the auditory canal where lesions are extremely rare” and “[t]he purpose of the study was not to rule in or rule out the presence of any vestibular schwannomas or lesions.” (Id., ¶ 8(c).) In other words, Sepahdari states that because the purpose of the MRI was not to search for lesions, Defendant’s doctors would not have appreciated the existence or significance of the lesion. This evidence is sufficient to satisfy Defendant’s burden to show that its employees complied with the standard of care in their treatment of Plaintiff.

In opposition, Plaintiff proffers the declaration of Stephen P. Grifka, M.D. (“Grifka”), an otolaryngologist. Grifka states that Karnezis and Ishiyama should have informed Plaintiff about the nodule on the cochlear nerve prior to surgery. (Declaration of Stephen P. Grifka, M.D., ¶ 6.) However, Grifka does not state that Karnezis and Ishiyama knew or should have known of the nodule prior to surgery, such that Karnezis and Ishiyama could have informed Plaintiff of the nodule. Although his declaration states that the MRI evidenced “a 2.5 mm nodule along the course of the cochlear nerve,” Grifka does not state that either doctor necessarily would have seen the nodule or appreciated its significance. Indeed, Defendant’s expert, Sepahdari, notes that the MRI was conducted for the purpose of ruling out endolymphatic hydrops, and Defendant’s doctors were not looking for the nodule. (Declaration of Ali Sepahdari, ¶ 8(a).) Sepahdari also notes that while the MRI “does reveal a small, eccentric low signal focus which could be interpreted as a bone projection, a prominent vascular structure, a meningioma, or a schwannoma of the cochlear nerve, all of which are benign conditions. (Id., ¶ 8(b).) In the absence of an opinion from Grifka that any doctor looking at this MRI for endolymphatic hydrops necessarily would have seen the nodule and understood its significance, Grifka’s declaration does not give rise to a triable issue.

Plaintiff also proffers the declaration of Leonard V. Petrus, M.D. (“Petrus”), who reviewed the imaging studies of Plaintiff. Petrus opines that “there is a 2.0-2.5 mm nodule along the course of the cochlear nerve nearing the fundus of the anterior/inferior intra-auditory canal which was concerning for a small cochlear schwannoma.” (Declaration of Leonard V. Petrus, M.D., ¶ 7.) Based upon this, Petrus states that “[i]t is a radiologist’s duty to interpret the results of an MRI and report any and all inconsistencies and abnormalities regardless of severity.” (Declaration of Leonard V. Petrus, M.D., ¶ 7.) However, as discussed above, this declaration does not state that Defendant’s doctors necessarily would have seen the nodule in an MRI conducted solely for the purpose of ruling out endolymphatic hydrops. Nor does Petrus state that any doctor reviewing this MRI would have interpreted this image as an “inconsistency” or “abnormality.” Therefore, Petrus’s declaration does not give rise to a triable issue whether Defendants’ doctors breached the appropriate standard of care.

The Court initially heard this motion on February 4, 2020, and indicated that its tentative order was to grant the motion based upon the shortcomings in these declarations. Plaintiff’s counsel requested a continuance and indicated that his expert witnesses could, in fact, testify that Defendant’s doctors should have identified the issue. Therefore, the Court granted Plaintiff’s request for a continuance.

Plaintiff has proffered supplemental declarations of Grifka and Petrus. In his supplemental declaration, Grifka states that the nodule was “quite visible . . .” on the MRI. (Supplemental Declaration of Stepehn P. Grifka, M.D., ¶ 1.) Grifka further states that “any doctor trained to interpret MRI films” should have seen and reported the nodule. (Supplemental Declaration of Stepehn P. Grifka, M.D., ¶ 2.) This testimony is sufficient to create a triable issue.

CONCLUSION AND ORDER

The motion for summary judgment is denied. Defendant shall provide notice and file proof of such with the Court.

DATED: March 9, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court