CASE NAME: McCUAN? vs.? EPIC CARE
HEARING ON MOTION FOR SUMMARY JUDGMENT
FILED BY SEJAL JHATAKIA M.D.
* TENTATIVE RULING: *
Defendant Sejal Jhatakia, M.D.?s motion for summary judgment is denied. The party moving for summary judgment carries both the burden of persuasion and the burden of production of evidence.? Evid. Code ?500; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. ??[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.? Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Dr. Jhakatia has not met her burden of proof establishing there are no triable issues of material fact and that she is entitled to judgment as a matter of law.
Defendant Jhatakia has not met her burden of demonstrating that one or more elements of Plaintiffs? medical negligence cause of action ?cannot be established,? or that ?there is a complete defense? thereto.? Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.
In any medical malpractice action, the plaintiff must establish: “(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.”? Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.
Defendant moved for summary judgment on the ground that Plaintiffs cannot establish that the care and treatment she provided to Mr. McCuan fell below the applicable standard of care in breach of her duty of care to him.
?The standard of care in a?medical?negligence case requires that?medical?service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a?medical?practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice?action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen.??Alef v. Alta Bates Hospital?(1992) 5 Cal.App.4th 208, 215.
When a defendant moves for summary judgment and supports her motion with expert declarations that her conduct fell within the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.? Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 984-985.
To support her motion for summary judgment, Defendant Jhatakia submitted the declaration of Lara Davis, M.D.? Licensed in the state of Oregon, Dr. Davis is board-certified in Internal Medicine, Pediatrics, and Medical Oncology.? Dr. Davis testifies that??? Dr. Jhatakia?s care and treatment of Mr. McCuan in managing his anti-coagulation therapy during his visits to Sutter Delta on April 18 and 19, 2011, met the standard of care.? According to Davis, based on the clinical findings, it was appropriate for Dr. Jhatakia to pursue treatment of the diagnosis of deep vein thrombosis (?DVT?).
Moreover, it was Dr. Davis? opinion that it would not have been reasonable for Dr. Jhatakia to have pursued a workup for such a remote diagnosis as sarcoma. Undifferentiated spindle cell sarcomas are extremely rare.? Because of the rarity of the disease and the manner in which it develops, there is often a delay of months in making the diagnosis.
Defendant Jhatakia met her initial burden of production?a prima facie showing that there are no triable issues of material fact as to the breach of standard of care element. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850).? Defendant Jhatakia produced evidence showing her conduct fell within the community standard of care and that she is entitled to summary judgment. ?The burden then shifted to Plaintiffs to come forward with conflicting expert evidence.? Munro v. Regents of Univ. of Cal.?(1989) 215 Cal.App.3d 977, 985 and CCP ? 437c(p)(2).
To meet their burden of producing admissible evidence showing a triable issue of material fact exists, Plaintiffs submitted the declaration of Dr. Frederick R. MacKintosh, M.D., Ph.D., a physician board-certified in Internal Medicine and hematology/oncology.? He has treated hematology and oncology patients since 1978.? Dr. MacKintosh opines Dr. Jhatakia breached the standard of care in treating Mr. McCuan when she failed to further investigate the cause of his symptoms.? (MacKintosh Decl., ?12)? According to Dr. MacKintosh, the lack of DVT on the March 25, 2011 ultrasound is inconsistent with a DVT being the cause of the Mr. McCuan?s continued symptoms when he presented at that time. ?(Plaintiffs? SSUMF Nos. 2 and 3) The standard of care required that Dr. Jhatakia consider and evaluate other possible causes of the patient?s symptoms.? (MacKintosh Decl., ?14)
Dr. MacKintosh further opined that the differential diagnosis of Dr. Ganey, Plaintiff?s prior oncologist, included malignancy and Defendant failed to perform radiological testing to rule out cancer.
Plaintiffs have submitted evidence sufficient to raise a triable issue of fact as to whether Dr. Jhatakia?s treatment fell below the standard of care.? There is a question of fact as to whether Dr. Jhatakia, in the course of treatment, should have performed tests to rule out cancer, as a cause of the DVT or Plaintiff?s continued symptoms.
If there is a single issue of material fact, the motion for summary judgment must be denied. Versa Tech., Inc. v. Sup.Ct. (Motsinger)?(1978) 78 CA3d 237, 240.
Defendant?s Objection to Evidence
Objections to Portions of Plaintiff?s Expert Witness Declaration (MacKintosh Declaration)
Objection No. 1:? ?14 Overruled.? Dr. MacKintosh reviewed Plaintiff?s medical history, including the notes of Plaintiff?s oncologist, Dr. Ganey and Dr. Ganey?s deposition testimoy, which provided foundation for the opinion.??? Plaintiff?s medical history revealed that Plaintiff presented to the hospital a year earlier with symptoms, but no DVT was found.? Dr. MacKintosh is pointing out that the standard of care required an evaluation to determine other possible causes of Plaintiff?s symptoms.
Objection No. 2: ??15.? Sustained in part.? Plaintiff?s first oncologist testified that ?malignancy? was included in the diagnosis differential, which Dr. MacKintosh reviewed, which is noted in Dr. MacKintosh?s Declaration.? There was foundation for the opinion.? Sustained only to the reference to ?soft tissue tumor? and Dr. Ganey?s differential diagnosis did not specify the type of cancer.
Objection No. 3:? ?16. Overruled.?? In ??8-10, Dr. MacKintosh?s Declaration notes Plaintiff?s medical records included the notes of Plaintiff?s first oncologist, Dr. Ganey.? Dr. Ganey developed a differential diagnosis that included malignancy.? These notes provide a basis for Dr. MacKintosh?s opinion. According to Dr. MacKintosh, the standard of care required that Dr. Jhatakia? consider and evaluate the possible causes of the DVT.? In his opinion, this required a work up for possible tumor in the soft tissue.
Objection No. 4:? ?18. ?Sustained in part. ??Sustained only to the extent Dr. MacKinstosh?s opinion is based on the fact a large mass was found a year and half after Defendant treated Plaintiff.