Case Number: BC682730 Hearing Date: January 21, 2020 Dept: 29

Karuna v. Valentine et al.

Motion for Summary Judgment by Defendant Joshua Yadegar, D.D.S., is DENIED. Defendant has not established that he is entitled to judgment in his favor based on the material facts proffered, which remain in dispute. Cal. Code Civil Procedure § 437c(p)(2).

In the complaint, Plaintiff alleges that Defendant Joshua Yadegar, D.D.S negligently provided dental care, causing Plaintiff to suffer permanent nerve damage.

Dr. Yadegar moves for summary judgment, claiming that the undisputed evidence establishes that his treatment complied with the applicable standard of care and that no negligent act or omission by Dr. Yadegar caused or contributed to Plaintiff’s injuries. Plaintiff opposes the motion.

To make out a claim for professional negligence, a plaintiff must establish the following elements: “’(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a 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’s negligence.’” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607.

The required standard of care owed by a medical or dental professional is a matter peculiarly within the knowledge of experts. Hanson, 76 Cal. App. 4th at 606–607; Willard v. Hagemeister (1981) 121 Cal. App. 3d 406, 414. The element of causation must also be proven with expert testimony. Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402.

Here, Dr. Yadegar presented evidence sufficient to meet his initial burden that he complied with the applicable standard of care and that no negligent act or omission of Dr. Yadegar caused or contributed to Plaintiff’s injuries. Specifically, Dr. Yadegar presented the declaration of Thomas Jovacich, D.M.D. Dr. Jovacich is a certified endodontic specialist. Dr. Jovacich reviewed the dental records and other relevant documents and opined that the decision to perform the October 19, 2016 surgery was appropriate, the preoperative diagnosis was appropriate, and the intraoperative surgery undertaken was appropriate and conformed to the standard of care. Dr. Jovacich also opined that the postoperative care conformed to the applicable standard of care and that to a reasonable degree of medical probability, no act or omission by Dr. Yadegar caused or contributed to Plaintiff’s injuries.

The burden thus shifted to Plaintiff to present controverting evidence. In opposition, Plaintiff presents the declaration of Barry Vilkin, D.M.D., M.Sc.D., a specialist in endodontics. Dr. Vilkin reviewed the records and x-rays of Dr. Joshua Yadegar and Dr. Julie Valentine regarding their care and treatment of Mr. Karuna. Dr. Vilkin opined that Dr. Yadegar’s care and treatment fell below the applicable standard of care because he failed to order a Cone Beam CT scan of the subject tooth. According to Dr. Vilkin, ‘[t]he Cone Beam CT would have provided the necessary information regarding whether the tooth was fractured and if the tooth was perforated” and would have provided the specific location of the perforation. This information was necessary to determine whether the apicoectomy that Plaintiff underwent was the proper course of treatment. It is Dr. Vilkin’s opinion, that absent a Cone Beam CT scan, the apicoectomy should not have been performed. He also opines that “[h]ad the Cone Beam CT scan been taken and the procedure not performed, any injury to the nerve currently being claimed by the Plaintiff in this case would have been avoided.”

Dr. Yadegar objects to Dr. Vilkin’s declaration as lacking in foundation and based on speculation. The objection is overruled. The opinions are sufficiently supported by reasoned explanation connecting the facts to the ultimate opinions. Fernandez v. Alexander (2019) 31 Cal. App. 5th 770, 781.

Moving party is ordered to give notice.