Case Number: BC641159 Hearing Date: July 24, 2018 Dept: 3

ZIBA HADIZADEHRAISSI,

Plaintiff(s),

vs.

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

Defendant(s).

Case No.: BC641159

[TENATATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

July 24, 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. Prior Hearing

The Court was originally scheduled to hear this motion on 6/13/18. Prior to the hearing, the Court issued a tentative ruling granting the motion on two grounds: first, that Plaintiff’s expert was not an expert in the same field Moving Defendant practices in, and second, that Plaintiff failed to raise a triable issue of material fact concerning causation. At the conclusion of the hearing, the Court continued the matter to permit the parties to further brief the matter.

The Court overrules the foundation objection to the entirety of Plaintiff’s expert’s declaration. Despite the fact that Dr. Alpert does not practice in the same specialty as Dr. Jogani. Dr. Alpert declares that he refers patients to GI doctors for colonoscopies and he is therefore familiar wtih the standard of care concerning how a GI doctor should report his findings to the plaintiff’s primary care doctor. The objections to specific paragraphs are overruled as not being compliant with CRC 3.1354(b).

The more difficult issue is causation. Plaintiff testified, in her deposition, that she provided a copy of her results to her primary care physician, Dr. Shirazi, for review. Dr. Jogani also testified, in deposition, that he provided the results, both by phone and also by having a hard copy sent to Dr. Shirazi’s office. However, Dr. Shirazi testified, at deposition, that Plaintiff did not provide him with the records (page 41, lines 11-14), and also that Dr. Jogani never provided him with the records (pages 37-40).

Dr. Jogani’s position, in connection with the summary judgment motion, is that Plaintiff is bound by her own admissions in the summary judgment context. Dr. Jogani fails, however, to provide authority for this position. In the supplemental reply, Dr. Jogani relies on CCP §2025.620(b), which permits an adverse party to use the deposition of any party to the action. The section does not, however, provide that such testimony is a judicial admission and binds the party. Dr. Jogani also relies on Fuentes v. Tucker (1947) 31 Cal.2d 1, 5; Fuentes, however, was concerned with admissions made in pleadings (specifically, the complaint and answer), and was not concerned with admissions made during the course of the action in discovery.

Plaintiff’s testimony that she gave the report to Dr. Shirazi and Dr. Jogani’s testimony that he called and mailed the report to Dr. Shirazi are contradicted by Dr. Shirazi’s testimony that Plaintiff did not give him the report and that Dr. Jogani neither called him nor provided him a copy of the report. In light of Dr. Alpert’s testimony that failure to provide a copy of the report via phone or certified mail falls below the standard of care, there are triable issues of material fact concerning compliance with the standard of care. Because Dr. Shirazi denies having received the report through any method, there are also triable issues of material fact concerning causation. The motion for summary judgment is therefore denied.

Defendant is ordered to give notice.