Case Number: BC630769 Hearing Date: January 17, 2018 Dept: 97

29

erin kaplan,

Plaintiff,

v.

eiman firoozmand, m.d., et al.,

Defendants.

Case No.: BC630769

Hearing Date: January 17, 2018

[TENTATIVE] order RE:

Defendant Dr. Eiman Firoozmand’s motion for summary judgment

BACKGROUND

Plaintiff Erin Kaplan (“Plaintiff”) commenced this medical malpractice action on August 25, 2016, against Defendants Eiman Firoozmand, M.D., Michael P. Choi, M.D., Shahriar Pirouz, M.D., and Cedars Sinai Medical Center. Plaintiff was the wife of Decedent Alan Kaplan (“Decedent”). She alleges that Decedent’s wrongful death as a result of Defendants’ negligent care of Decedent.

Dr. Firoozmand moves for summary judgment on the ground that Plaintiff’s complaint is without merit and fails to raise a triable issue of material fact on the standard of care and causation. On January 3, 2018, Plaintiff filed a notice of non-opposition to the motion for summary judgment.

LEGAL STANDARD

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. 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.) Additionally, 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.)

Discussion

The facts are undisputed. Decedent first presented to Cedars Sinai on June 30, 2015 with complaints of diffuse abdominal pain, nausea, and constipation. (Fact 2.) The emergency medicine physician did not note any alarming issues, but ordered an abdominal x-ray and a surgical consultation was performed. (Fact 3-6.) Decedent was monitored and another x-ray taken on July 1, 2015. (Fact 8.) On July 1, 2015, Dr. Firoozmand saw Decedent and Decedent reported he was feeling 100% better; thus, he was discharged. (Fact 9-10.) Decedent returned to Cedars Sinai on July 3, 2015, with complaints of abdominal pain and vomiting. (Fact 11.) The emergency medicine physician’s assessment was small bowel obstruction and ventral hernia. (Fact 12.)

Dr. Firoozmand, his resident, and Decedent consulted extensively about surgery, including its risks. (Fact 13-20.) On July 4, 2015, Decedent signed the Acknowledgement of Informed Consent and Authorization for Procedure. (Fact 21.) That same day, Decedent underwent exploratory laparotomy with repair of incarcerated ventral hernia with placement of Sepramesh, by Dr. Firoozmand, Dr. Choi, and Dr. Pirouz. (Fact 22-23.) The surgical notes reported that the procedure was complicated by a difficult intubation with aspiration, which caused Decedent to develop an asthma attack during the procedure. (Fact 25.) Nevertheless, Dr. Firoozmand was able to stabilize Decedent. (Fact 25.) Following the surgery, Decedent remained intubated and transferred to the ICU on the night of July 4, 2015 for ventilatory support and continuous cardiac monitoring. (Fact 26, 30, 31.) Thereafter, Dr. Firoozmand saw Decedent on a daily basis. (Fact 32.)

On July 15, 2015, Decedent was seen by a cardiothoracic surgeon for elevated ventilatory support to maintain oxygenation. (Fact 33.) A tracheostomy was performed on July 17, 2015. (Fact 34.) On August 7, 2015, Decedent started chronic renal replacement therapy. (Fact 35.) However, on August 29, 2015, he was pronounced dead as a result of an incarcerated ventral hernia complicated by aspiration pneumonia complicated by severe Adult Respiratory Distress Syndrome. (Fact 36.)

Dr. Firoozmand provides the declaration of Alan Wittgrove in support of his motion. Dr. Wittgrove opines that the care and treatment provided to Decedent by Dr. Firoozmand was appropriate and complied with the standard of care. (Fact 37.) Specifically, Dr. Wittgrove states that prior to the surgery, conservative management had been tried and symptoms recurred, such that surgery was warranted. (Fact 38.) He states that Dr. Firoozmand properly obtained Decedent’s informed consent regarding the surgery and that Dr. Firoozmand competently performed the surgery within the applicable standard of care. (Fact 38.) Dr. Wittgrove opines that Dr. Firoozmand’s treatment of Decedent in 2015 was appropriate and complied with the standard of care and that, to a reasonable degree of medical probability, no act or omission by Dr. Firoozmand caused or contributed to the death of Decedent.

The Court finds that based on this declaration, Dr. Firoozmand has upheld his initial burden. As the motion is unopposed, Plaintiff has not raised a triable issue of material fact.

CONCLUSION AND ORDER

Dr. Firoozmand’s motion for summary judgment is granted. Dr. Firoozmand is ordered to lodge with the Court and serve on Plaintiff a proposed judgment within twenty days.

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