Case Number: BC641159 Hearing Date: June 13, 2018 Dept: 3

ZIBA HADIZADEHRAISSI,

Plaintiff(s),

vs.

KEYVAN SHIRAZI, M.D., ET AL.,

Defendant(s).

Case No.: BC641159

[TENATATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

June 13, 2018

1. Facts

Plaintiff, Ziba Hadizadehraissi filed this action against Defendants, Keyvan Shirazi, M.D. And Shiraz Medical Group for medical malpractice. Plaintiff subsequently added Moving Defendant, Piyush Jogani, M.D. as Doe 1. Plaintiff alleges Jogani was negligent in failing to inform her primary care physician, Shirazi, of the results of her colonoscopy; she alleges this failure resulted in her condition going untreated and ultimately becoming cancerous.

2. Motion for Summary Judgment

a. Moving Burden

At this time, Dr. Jogani moves for summary judgment on the complaint against him. He contends his care and treatment of Plaintiff complied with the standard of care at all times. He also contends nothing he did caused or contributed to Plaintiff’s claimed damages.

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.)

In order to establish that defendant’s negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm. “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.

Defendant provides the expert declaration of David J. Chapman, M.D. in support of his motion. Chapman sets forth his expert qualifications, indicates he has reviewed Plaintiff’s medical records, details the care and treatment of Plaintiff, and concludes that Defendant complied with the standard of care at all times in connection with the care and treatment of Plaintiff and nothing he did caused or contributed to Plaintiff’s claimed damages. Specifically, Chapman declares that Dr. Jogani’s post-colonoscopy report indicates Plaintiff needs a surgical consult, and indicates Dr. Shirazi (Plaintiff’s primary care physician) was CC’d on the report. Chapman also declares Dr. Jogani advised Plaintiff, while still in the hospital, that she needed to follow up to have her polyp removed. He declares the report was faxed to Dr. Shirazi. He also notes that Plaintiff, in deposition, indicated that she provided a copy of the report to Dr. Shirazi.

The declaration of Dr. Chapman is sufficient to meet the moving burden on summary judgment. Of note, Plaintiff does not argue Defendant failed to meet the moving burden in her opposition papers. The burden therefore shifts to Plaintiff to raise a triable issue of material fact concerning breach of the standard of care and causation.

b. Opposing Burden

In opposition to the motion, Plaintiff presents the expert declaration of Dr. Martin Alpert, M.D. Alpert sets forth his expert qualifications, indicates he has reviewed Plaintiff’s relevant medical records, details the care and treatment of Plaintiff, and concludes Defendant’s care and treatment fell below the standard of care, and also concludes the negligence caused or contributed to Plaintiff’s development of cancer. Specifically, Dr. Alpert notes that there is a conflict in testimony between Dr. Jogani and Dr. Shirazi concerning whether or not Dr. Jogani “called” Dr. Shirazi. Dr. Alpert opines Dr. Jogani could comply with the standard of care only by either calling Dr. Shirazi or providing the report via certified mail.

Defendant, in reply, filed evidentiary objections. Defendant objects to consideration of the Declaration of Alpert on the ground that Alpert is a family physician, and not a gastroenterologist. Defendant therefore contends Alpert is not familiar with the standard of care for gastroenterologists, and is not qualified to render an expert opinion in connection with Defendant’s treatment of Plaintiff.

Evidence Code §720(a) provides, “(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.”

Defendant does not cite a case directly on point concerning whether a physician in one practice area can opine concerning the standard of care applicable to a physician in another practice area. Defendant instead cites general law concerning expert testimony. The Court conducted its own research on this issue, and found the law to be as follows: a doctor in one field may testify as to the standard of care in another field so long as that doctor sets forth facts showing he has learned the standard of care pertaining to the other field through education, experience, observation, or association with that other field. See Ammon v. Superior Court (1988) 205 Cal.App.3d 783, 790-791.

Dr. Alpert’s declaration is insufficient to meet this standard. The objection to the entire declaration of Dr. Alpert is therefore sustained. Plaintiff failed to raise a triable issue of material fact, and the motion for summary judgment is granted.

As an additional note, even if the Court were to consider Dr. Alpert’s declaration, it is insufficient to raise a triable issue of material fact regarding causation. Dr. Alpert disputes, at most, whether Dr. Jogari CALLED Dr. Shirazi to tell him about the results of the colonoscopy. Dr. Alpert does not dispute, however, the facts that (a) the report was faxed to Dr. Shirazi, and (b) Plaintiff provided, per her own deposition testimony, a copy of the report to Dr. Shirazi after her visit. Thus, even if the standard of care required Dr. Jogani to call Dr. Shirazi or send the report via certified mail, and even if Dr. Jogani failed to do so, there is no triable issue of material fact concerning whether Dr. Shirazi had the records, and therefore no triable issue of material fact concerning whether Dr. Jogani’s failure to submit the records caused Plaintiff to go untreated and ultimately develop cancer. The motion for summary judgment is therefore also granted on the additional ground that Defendant adequately showed lack of causation, and Plaintiff failed to raise triable issues of material fact concerning causation.

Defendant is ordered to give notice.