Superior Court of California
County of Los Angeles
Department 97

Marty N. Rich,

Plaintiff,

v.

Naghmeh Khodai, m.d., et al.,

Defendants.

Case No.: BC622137

Hearing Date: March 13, 2018

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT BY DEFENDANT Steven Freedman

BACKGROUND

Plaintiff Marty N. Rich commenced[1] this action against Defendants Naghmeh Khodai, M.D., Steven Freedman, M.D., Women’s Health Specialists, West Hills, and West Hills Hospital and Medical Center (“Defendants”) based on allegations of medical negligence. She alleges that beginning in March of 2015, she placed herself under the care of Defendants, but that they negligently provided care and treatment to her, causing her injury. Plaintiff is pursuing a claim of professional negligence against all defendants.

Defendant Steven Freedman, M.D. (“Dr. Freedman”) moves for summary judgment against Plaintiff and their complaint. Plaintiff filed a notice of non-opposition to Dr. Freedman’s motion for summary judgment.

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LEGAL STANDARD

In a medical malpractice action, the elements are: “(1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) 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 negligence (citations omitted).” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612, emphasis in original.) The standard of care against which doctors are measured is a matter within the knowledge of experts. Breach of the standard of care may only be proven by expert testimony. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

A defendant moving for summary judgment has the burden of proving that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action.

Discussion

Plaintiff presented to Dr. Khodai on February 18, 2015 with complaints of pain and menstrual issues. (Serden Decl., at ¶ 6.) Plaintiff had previously undergone a procedure with a urologist other than Dr. Khodai. (Ibid.) Dr. Khodai performed a pelvic ultrasound, which revealed an enlarged ureter, two fibroids, and an IUD in place. (Ibid.) Dr. Khodai discussed treatment options with Plaintiff, which included surgical management. (Ibid.) On March 18, 2015, Plaintiff returned to discuss surgery, specifically the benefits of an open hysterectomy. (Ibid.) Dr. Khodai went over the surgical risks, and Plaintiff signed two consent forms discussing the risks of the surgery. (Ibid.)

On April 15, 2015, Dr. Khodai performed several procedures which involved a total abdominal hysterectomy. (Id. at ¶ 6.D.) Dr. Freedman was the assisting surgeon for the procedure. (Id. at ¶ 6.D.) During the surgery, Plaintiff’s bladder was injured and repaired by Dr. Khodai. (Ibid.) Plaintiff was seen after the operation on April 21, 2015 where it was discovered that she had a temperature of 100.5 degrees. (Id. at ¶ 6.E.) The next day she underwent a CT scan which revealed a remaining injury to her left ureter. (Id. at ¶ 6.F.) Plaintiff underwent surgery, by other physicians not party to this lawsuit, to treat the injury. (Id. at ¶ 6.H.)

In support of the motion, Dr. Freedman provides the declaration of Scott Serden, M.D. (“Dr. Serden”), who is a specialist in the field of Obstetrics and Gynecology. Dr. Serden opines that to a reasonable degree of medical probability, Dr. Freedman’s care and treatment of Plaintiff was not negligent and did not breach the standard of care. (Fact 6.) Dr. Serden states that Dr. Freedman did not perform the surgery and did not make the diagnosis of Plaintiff. (Serden Decl., at ¶ 9.) Dr. Serden concludes that Dr. Freedman’s actions did not fall below the standard of care, and that no act or omission of Dr. Freedman contributed to the injuries and harm alleged by Plaintiff. (Id. at ¶¶ 8, 10.)

The Court finds that this offer of evidence satisfies Defendant’s burden of proof, and thus the burden shifts to the Plaintiff to show a triable issue of material fact. As Plaintiff has filed a notice of non-opposition and has not produced any evidence, Plaintiff has failed to meet her burden to show a triable issue of material fact.

Accordingly, the motion for summary judgment is granted.

CONCLUSION AND ORDER

Dr. Freedman’s motion for summary judgment is granted. Dr. Freedman is ordered to lodge with the Court and serve on Plaintiff a proposed judgment within twenty (20) days of this order.

Dr. Freedman is ordered to give notice of this order.

DATED: March 13, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Another Plaintiff, Robin DiMaggio, was a part of the litigation at the beginning of the case, but all claims related to DiMaggio were voluntarily dismissed on August 25, 2016.