Case Number: EC058874    Hearing Date: September 15, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

GAGIK ASLANYAN,

Plaintiff(s),
v.

KEVIN W. BERGER, M.D., et al.,

Defendant(s). Case No.: EC058874

Hearing Date: September 15, 2014

[TENTATIVE] ORDER RE:

DEFENDANT KEVIN W. BERGER, M.D.’S MOTION FOR SUMMARY JUDGMENT

Defendant Kevin W. Berger, M.D.’s Motion for Summary Judgment is GRANTED.

Discussion

Plaintiff Gagik Aslanyan’s Complaint alleges a single claim for medical malpractice for treatment he received at Glendale Memorial Hospital from March 12, 2012 to May 8, 2012 upon presenting with severe chest pain. (Complaint ¶¶13-19.) (UMFs 1 and 10, Motion, Exh. A (“Salberg Decl.”) ¶¶9, 27; Exhs. C and D.) Defendant Kevin W. Berger moves for summary judgment on the grounds that he did not breach any duty of care, or cause or contribute to Plaintiff’s injury.

Professional Negligence

Whenever the plaintiff claims negligence in the medical context, the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977.) “‘California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. 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.’” (Id. at pp. 984-85.)

(Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.)

Here, Defendant Berger presents the expert declaration of Jeffrey Salberg, M.D. (“Dr. Salberg”), regarding the treatment he provided Plaintiff during the relevant time period. Dr. Salberg is board-certified in internal medicine and is qualified to opine regarding the appropriate standard of care for internists and hospitalists in Southern California. (See Salberg Decl. ¶¶1-4.) Dr. Salberg reviewed Plaintiff’s medical records from Glendale Memorial Hospital and Health Center. (Salberg Decl. ¶6.) Dr. Salberg opines that Defendant Berger’s treatment of Plaintiff, which ran from March 17, 2014 through May 8, 2014, at all times complied with the standard of care. (UMFs 17, 21; Salberg Decl. ¶¶ 265-29.)

Defendant Berger first examined Plaintiff after he began to suffer leg weakness following his coronary artery bypass graft surgery. (UMFs 9-15; Salberg Decl. ¶¶17-23.) According to Dr. Salberg, Defendant Berger saw Plaintiff with appropriate frequency—almost every day—from March 17, 2014 through May 8, 2014. (UMFs 15, 19; Salberg Decl. ¶¶23, 27.) Dr. Salberg opines that during this time Defendant Berger gave the appropriate orders for Plaintiff’s care at the appropriate time and coordinated Plaintiff’s care, including specialty consultations. (UMF 19; Salberg Decl. ¶27.) Plaintiff was ultimately diagnosed with Guillain-Barre Syndrome as the most likely cause of his lower extremity weakness. (UMFs 15, 20; Salberg Decl. ¶¶23, 28.) The treatment for Guillain-Barre Syndrome was a decision for the specialty physicians treating Plaintiff, not Defendant Berger. (UMF 21; Salberg Decl. ¶29.) Therefore, Dr. Salberg opines that to a reasonable degree of medical probability, Defendant Berger did not cause or contribute to Plaintiff’s injuries. (UMF 21; Salberg Decl. ¶29.)

Dr. Salberg’s declaration carries Defendant Berger’s initial burden of proof regarding his compliance with the standard of care and the cause of Plaintiff’s injuries. The burden now shifts to Plaintiff to create a triable issue of fact regarding compliance with the standard of care and causation. As the motion is unopposed, however, no such triable issue of fact exists and Defendant Berger is entitled to summary judgment.

Defendant Berger is ordered to give notice.

DATED: September 15, 2014
_________________________
Hon. Gail Ruderman Feuer
Los Angeles Superior Court