Case Number: LC098679    Hearing Date: July 17, 2014    Dept: 92

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

SHAHROKH MIRESKANDARI,
Plaintiff(s),
vs.

ARNOLD BALBER, D.D.S., et al.,
Defendant(s).

Case No.: LC098679

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 92
July 17, 2014
1:30 p.m. — #19

Defendant’s Motion for Summary Judgment is Denied.

1. Facts
Plaintiff, Shahrokh Mireskandari filed this action against Defendant, Arnold Balber, DDS for damages arising out of alleged dental malpractice. Plaintiff alleges Defendant performed an implant surgery at tooth number 15, which surgery site became infected and ultimately caused serious complications, including ongoing cardiovascular problems.

2. Motion for Summary Judgment
Defendant, Balber moves for summary judgment, contending his care and treatment of Plaintiff complied with the standard of care, and nothing he did caused or contributed to Plaintiff’s claimed damages.

a. Summary Judgment in Dental Malpractice Cases
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
Defendant supports his motion with the Declaration of Thomas Chess, DDS. Chess details the care and treatment of Plaintiff, indicates that infection of the implant area is a known and unavoidable consequence of some dental implant surgeries, and concludes that the infection from which Plaintiff suffered was not caused or contributed to by Defendant, whose care and treatment of Plaintiff complied with the standard of care at all times.

Plaintiff argues the Declaration of Chess is not sufficient to meet the moving burden because (a) Chess did not attach his CV, and (b) Chess did not declare that he is familiar with the standard of care for dentists practicing in the area. Reflecting the “cautious” judicial attitude about granting summary judgment, the declarations and evidence offered in opposition to the motion must be liberally construed, while the moving party’s evidence must be construed strictly, in determining the existence of a “triable issue” of fact. D’Amico v. Board of Medical Examiners (1974) 11 C3d 1, 21.

Defendant, in reply, provides a copy of Chess’s CV. Chess, in his reply declaration, declares that he is familiar with the standard of care for dentistry in the area where Defendant practices. The moving party generally may not rely on additional evidence filed with its reply papers. San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 CA4th 308, 316. Notwithstanding the above, the court has discretion to consider new evidence in reply papers in ruling on a summary judgment motion, provided the other party had notice and an opportunity to respond. Plenger v. Alza Corp. (1992) 11 CA4th 349, 362.

The Court is inclined to consider the CV and statement made in the reply. Notably, the fact of Dr. Chess’s qualification as an expert does not appear to be truly in dispute. If Plaintiff wishes, the Court will continue the hearing to permit Plaintiff to attack Dr. Chess’s expert qualifications. Assuming Plaintiff does not wish to do so, the Court finds Defendant met his initial burden to show he is entitled to judgment as a matter of law.

c. Opposing burden
Plaintiff presents the Declaration of Harold Nemetz, DDS in support of his opposition to the motion for summary judgment. Nemetz sets forth his expert qualifications and attached his CV, then indicates he reviewed Defendant’s chart for Plaintiff, as well as the Chess Declaration and the CT scans prepared for Defendant. Nemetz opines that the care and treatment of Plaintiff was below the standard of care because:
• Tooth 14 was severely compromised prior to the surgery, including an infection;
• The surrounding bone where the implant for tooth 15 was placed was not sufficient, and either a sinus lift or a bone graft should have been done before the implant surgery;
• The implant was not in the correct position;
• The abscess at tooth 14 and the penetration of the maxillary sinus by the tooth 15 implant substantially increased the risk of post-operating infection.

Defendant argues that the entire Declaration of Nemetz is not proper, because Nemetz relied only on Defendant’s treatment chart for Plaintiff, but Nemetz did not consider any of Plaintiff’s other medical charts and history. Only the care and treatment of Defendant is at issue. Defendant failed to show why the expert would be obligated to look at the other charts, or how those other charts would change the expert’s opinion.

Defendant next argues that the Declaration of Nemetz improperly concludes that a surgery of tooth 14 fell below the standard of care, and there actually was no surgery at tooth 14. It is true that Nemetz’s discussion of tooth 14 is a bit unclear. It is not clear, in ¶¶5 and 6, if Nemetz is trying to opine that there was surgery on tooth 14 that fell below the standard of care, or if there was surgery on tooth 15 and the condition of tooth 14 rendered the surgery on tooth 15 below the standard of care. To the extent Nemetz is opining that surgery on tooth 14 was below the standard of care, it does not appear there was any such surgery, so this would not raise a triable issue of material fact. See undisputed fact 7.

Defendant also argues Nemetz’s conclusions concerning the sufficiency of the bone surrounding tooth 15 are not adequately supported by evidence. At ¶¶7 and 8 of his Declaration, Nemetz opines:
7. The surrounding bone at the point where the implant for tooth no. 15 was
placed was not sufficient. The standard of care required that either a sinus lift or a bone
graft or both before the implant was placed, which was not done.
8. Contrary to the Declaration of Thomas Chess, the implant was not in the correct
position, but appears not to have located totally in the bone. The post-operative x-ray
shows that the apex of the implant appears to be approximating on in the maxillary sinus.
The post-operative x-ray is not clinically significant.

Again, as noted above, declarations in opposition to a motion for summary judgment must be liberally construed, while declarations in support of the motion must be strictly construed. While Nemetz’s discussion of the post-operative x-ray is a bit confusing, the declaration remains sufficient to raise a triable issue of material fact concerning whether the bone was sufficient to allow the implant. Notably, Defendant provides the reply declaration of Chess in an attempt to refute this conclusion; the Court will not consider the reply declaration of Chess in this regard, and even if it did, the declaration of Chess merely offers a conflicting opinion, meaning there are triable issues of material fact.

Importantly, at ¶10 of his declaration, Nemetz opines that the pre-existing infection at tooth 14 increased the risk of complications from a surgery at tooth 15. Defendant’s reply is entirely silent as to this conclusion. Thus, even if the other aspects of the Nemetz declaration are insufficiently supported, ¶10 is sufficient to raise a triable issue of material fact. The motion for summary judgment is therefore denied.

Dated this 17th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court