Case Number: BC643798 Hearing Date: August 07, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEEFENDANT WARREN LINE, M.D.’S MOTION FOR SUMMARY JUDGMENT; MOTION DENIED

. INTRODUCTION

On December 2, 2016, Plaintiff Samvel Tashchyan (“Plaintiff”) filed this action against Defendants Warren Line, M.D. (“Dr. Line”), William Walz, M.D., Providence St. Joseph Medical Center (“Providence”) (collectively, “Defendants”) for medical malpractice relating to the care and treatment rendered to him by Defendants during septoplasty surgery. Dr. Line moves for summary judgment on grounds he complied with the standard of care at all times.

II. FACTUAL BACKGROUND

In July 2015, Plaintiff presented to Dr. Line complaining of intermittent nasal congestion. Plaintiff was found to have a deviated nasal septum, swollen turbinates, swollen nasal membranes, and a growth on the right vocal cord.

On September 9, 2015, Plaintiff underwent a SMR inferior nasal turbinate, septoplasty, direct laryngoscopy and removal of the right vocal cord polyp performed by Dr. Line. Plaintiff alleges that during the course of surgery, too much tissue was removed, causing him to suffer empty nose syndrome and related injuries. Plaintiff also alleges Dr. Line never informed him that empty nose syndrome was a risk of the surgery.

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[T]he 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code of Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

“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.” (Code of Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

In a medical malpractice action, a plaintiff must establish the following elements: “(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. [citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “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.3d 977, 984-985.)

Dr. Line submits the declaration of James Bredenkamp, M.D. (“Dr. Bredenkamp”), who is board certified in otolaryngology and is familiar with the standard of care for physicians specializing in otolaryngology in the community. (Declaration of James Bredenkamp, M.D., ¶¶ 2-5.) Dr. Bredenkamp reviewed the complaint, Plaintiff’s responses to written discovery, and Plaintiff’s medical records. (Bredenkamp Decl., ¶ 6.) Dr. Bredenkamp opines that, based on his background, training, experience, and review of Plaintiff’s records, the care and treatment provided to Plaintiff by Dr. Line was within the standard of care. (Bredenkamp Decl., ¶ 10.)

Dr. Bredenkamp states that many of Plaintiff’s complaints were already present prior to the surgery, including sleep disturbances, nasal drainage, and nasal congestion. Further, the symptoms of empty nose syndrome are non-specific and subjective and were not relieved by diagnostic procedures, making the diagnosis unlikely. Nevertheless, empty nose syndrome is a rare, but inherent risk, of nasal airway surgery that can occur even in the absence of negligence. (Bredenkamp Decl., ¶ 11.) Dr. Bredenkamp also opines that the symptoms of empty nose syndrome were covered by the informed consent given by Dr. Line, which discussed the possibility that Plaintiff could be no better after surgery, that he could be worse, or that there may be a need for further surgeries. Dr. Bredenkamp states the consent was well within the standard of care. (Bredenkamp Decl., ¶ 13.)

Finally, Dr. Bredenkamp opines the surgery performed by Dr. Line was appropriate and within the standard of care because the specimens removed were two segments of turbinate fragments measuring 2.2 x 1.0 x 0.8 and 3.0 x 1.5 x 1.2 cm, which is not an excessive or substandard amount of turbinate to have been removed. (Bredenkamp Decl., ¶ 15.) Dr. Bredenkamp states that nothing Dr. Line did or did not do caused Pliantiff’s injuries. (Bredenkamp Decl., ¶ 16.)

Dr. Line has met his initial burden of showing he did not breach the standard of care or cause Plaintiff’s injuries. The burden shifts to Plaintiff to show, by contrary expert opinion, that a triable issue of material fact exists.

Plaintiff submits the declaration of Hamid Djalilian, M.D. (“Dr. Djalilian”), certified in otolaryngology – head and neck surgery. (Declaration of Hamid Djalilian, M.D., ¶ 2.) Dr. Djalilian declares he is familiar with the standard of care for otolaryngologists and is familiar with the causes and symptomatology of empty nose syndrome. Further, Dr. Djalilian is familiar with the relationship between turbinate surgery and the genesis of empty nose syndrome. (Djalilian Decl., ¶¶ 3, 4.) Dr. Djalilian reviewed Plaintiff’s medical records and imaging, the declaration of Dr. Bredenkamp, and personally examined Plaintiff. (Djalilian Decl., ¶ 6.)

Dr. Djalilian opines that it was below the standard of care and excessive for Dr. Line to resect nearly three centimeters of the front portion of inferior turbinate. (Djalilian Decl., ¶ 39a.) Dr. Djalilian opines Dr. Line breached the standard of care by failing to discuss empty nose syndrome with Plaintiff. (Djalilian Decl., ¶ 39b.) Empty nose syndrome is incurable and its effects can be severe. Therefore, Dr. Djalilian states the standard of care required Dr. Line to discuss the risks with Plaintiff when obtaining informed consent. (Djalilian Decl., ¶ 39b.) Dr. Djalilian opines that Plaintiff would not have developed empty nose syndrome had Dr. Line not performed an excessive resection of the inferior turbinates. (Djalilian Decl., ¶ 40a.)

Plaintiff has met his burden of showing, by contrary expert opinion, that there is a triable issue of material fact whether Dr. Line performed an excessive resection which led to developing empty nose syndrome and related injuries.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice.