Case Number: LC099101 Hearing Date: June 16, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CHRISTINE HERNANDEZ-KRANAWETTER,
Plaintiff(s),
vs.

LEILA ZAFARANCHI, M.D., et al.,

Defendant(s).

CASE NO.: LC099101

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #42
June 16, 2014

Defendants, Roger Amerian and Roger Amerian, M.D., Inc.’s Motion for Summary Judgment is Denied.

1. Facts
Plaintiff, Christine Hernandez-Kranawetter filed this action against Defendants, Leila Zafaranchi, M.D., et al. for medical malpractice/wrongful death arising out of the care and treatment of her mother, Decedent, Susan Delgado.

2. Motion for Summary Judgment
Defendants, Roger Amerian and Roger Amerian, M.D., Inc. (collectively “Amerian”) move for summary judgment, contending their care and treatment of Decedent at all times complied with the standard of care, and nothing they did caused or contributed to Decedent’s injuries or resulting death. Notably, Amerian was the pulmonologist called in for a consult after Decedent’s surgery.

a. Standard on Summary Judgment
The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id. A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘When 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.)

b. Moving Burden
Defendants support their motion with the Expert Declaration of James Leo, M.D. Leo sets forth his expert qualifications, which explains that he is familiar with the standard of care for physicians practicing in the field of pulmonology and/or critical care medicine.he indicates he has reviewed Decedent’s medical records, as well as transcripts of the depositions of Plaintiff, Amerian, and Co-Defendants Zafaranchi and Poukens. Leo explains that Decedent presented to Zafaranchi with various complaints on 11/30/11; Zafaranchi elected to proceed with an elective laparoscopic supracervical hysterectomy as a result of those complaints. Decedent was admitted to West Hills Hospital and Medical Center on 12/05/11 for the planned procedure. The procedure went forward that day with no apparent complications. On 12/06/11, Zafaranchi examined Decedent, who complained of moderate tachycardia and shortness of breath with ambulation. Zarafanchi requested a pulmonary consult with Moving Defendant, Amerian. Amerian examined Decedent later that day, ordered various tests, and determined that Decedent was not suffering from a pulmonary embolism. Amerian therefore ordered other tests that day and the next day to rule out other causes of the symptoms, but the tests were negative; Amerian ordered a cardiac consultation. Later on the 7th, Decedent had an elevated heart rate and therefore was transferred to the ICU. It was in the ICU that a bowel perforation, likely from Zafaranchi’s 12/05/11 surgery, was discovered. Treatment attempts were not successful, and Decedent ultimately passed away on 12/08/11. Leo ultimately concludes that Amerian’s care and treatment of Decedent complied with the standard of care.

Notably, Defendant’s moving papers discuss both compliance with the standard of care and also lack of causation. Leo’s declaration, however, is silent on the issue of causation. The separate statement is also silent on the issue of causation. The Court therefore finds Defendant met his initial burden to show he is entitled to judgment as a matter of law, but only on the issue of compliance with the standard of care. The burden therefore shifts to Plaintiff to raise a triable issue of material fact on the issue of compliance with the standard of care ONLY.

c. Shifted Burden
As noted above, because Defendants met their initial burden to show they are entitled to judgment as a matter of law, the burden shifts to Plaintiff to raise a triable issue of material fact. Plaintiff is required to submit an expert declaration detailing how Defendants’ care and treatment of Decedent fell below the standard of care.

Plaintiff attempts to do this via the Expert Declaration of Charles F. Landers, M.D. Notably, Defendants submitted evidentiary objections to Landers’ declaration; the Court must rule on those objections in order to evaluate the issue of whether Plaintiff met the shifted burden.

Defendants’ objections 1, 2, 4, 5, 6, and 7 are overruled. Objection 3 is sustained.

The Court finds the Declaration of Landers is sufficient to raise a triable issue of material fact. Landers explains his expert qualifications, which include a pulmonary medicine fellowship and twenty years as the medical director of critical care at a hospital. Landers details the care and treatment of Decedent, and the details are substantially similar to those set forth by Dr. Leo, above. Notably, the Court has sustained an objection to ¶9(D) of the declaration, wherein Dr. Landers concludes that Dr. Amerian was “only concerned about possible pulmonary embolism and deep vein thrombosis.” Dr. Landers cannot know what Dr. Amerian was concerned about; the Court does, however, note that the record reflects that Dr. Amerian was running tests concerning pulmonary embolism and deep vein thrombosis. Dr. Landers concludes that Dr. Amerian should have promptly evaluated and treated the infectious process ongoing in Decedent’s abdomen. Dr. Landers notes that Dr. Amerian knew, as of 12/06/11 at 6 p.m., that pulmonary embolism was unlikely, but failed to appreciate the fact that bowel perforation was a likely cause of the symptoms. Dr. Landers indicates, “The standard of care for any physician is to be alert to signs of intra-abdominal post-operative complication including, perforation, peritonitis, sepsis, and bowel ischemia.” Emphasis in original.

Defendants make much of the fact that Dr. Landers’ declaration “lumps together” all of the defendants in this action. That is largely true. Dr. Landers does, however, specifically conclude that Dr. Amerian should have been alert for the subject bowel perforation. Defendants also argue that the standard of care for a physician is different from the standard of care for a pulmonologist, and therefore argue that the quoted statement above is insufficient to raise a triable issue of material fact. When read in context, it is clear that Dr. Landers is declaring that ANY physician, including a pulmonologist, must be aware of the possibility of bowel perforation after surgery. Notably, Defendants do not contend that a pulmonologist is not a type of physician.

Defendants also argue that Dr. Landers’ opinion lacks foundation, as he fails to cite to specific portions of the medical records to support his testimony. Dr. Landers states what records he reviewed, and the Court is not aware of any authority requiring him to set forth specific portions of those records in connection with his detailing of the care and treatment of Decedent and/or opinions on same. Similarly, Defendants argue that the separate statement was required to set forth the evidence upon which Plaintiff relies. Plaintiff did so; she set forth the portion of the Declaration of Dr. Landers upon which she relies. Again, the Court is not aware of a requirement that Plaintiff set forth the portion of the records upon which Dr. Landers relied in addition to setting forth the portion of the declaration upon which she relies.

Finally, Defendants argue Plaintiff failed to set forth which actions Defendants failed to take or which actions Defendants wrongfully took. This is incorrect. The declaration clearly opines that Defendants wrongfully failed to appreciate the possibility of a bowel perforation, and failed to take steps to ensure such possibility was investigated.

Notably, Defendants also argue Plaintiff failed to raise a triable issue of material fact concerning causation. As noted above, Defendants failed to shift the burden on this issue. The Court therefore need not consider whether Plaintiff raised a triable issue of material fact in this regard.

Dated this 16th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court