Case Number: BC534548??? Hearing Date: December 06, 2016??? Dept: 98
JAMES BURR, et al.,
Plaintiffs,
vs.
JOHN REGAN, M.D., et al.,
Defendants.
CASE NO: BC534548
[TENTATIVE] ORDER RE: DEFEDANT HOOMAN MELAMED, M.D.?S MOTION FOR SUMMARY JUDGMENTDept. 98
1:30 p.m.
December 6, 2016
On May 22, 2015, Plaintiffs James Burr (?Mr. Burr?) and Cheryl Burr (?Ms. Burr?) (collectively, ?Plaintiffs?) filed this medical malpractice action for alleged damages arising out of an April 26, 2014 spinal surgery performed on Mr. Burr. Plaintiffs allege that Mr. Burr developed a severe infection after the surgery which necessitated further subsequent surgeries. The initial surgery was performed by Defendant John Regan, M.D. (?Dr. Regan?) and Hooman Melamed, M.D. (?Dr. Melamed?). Plaintiffs allege causes of action for: 1) medical malpractice; and 2) loss of consortium. Dr. Melamed now moves for summary judgment.
In analyzing motions for summary judgment, courts must apply a three-step analysis: ?(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent?s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.? Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Generally, ?the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.? Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.
A moving defendant in a medical malpractice action must submit a qualified expert declaration in support of his or her motion. Johnson v. Superior Court (2006) 143 Cal. App. 4th 297, 305. An expert?s opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. Kastner v. Los Angeles Metro. Transit Auth. (1965) 63 Cal.2d 52, 58.
?[W]here the conduct required of a medical professional is not within the common knowledge of laymen, a plaintiff must present expert witness testimony to prove a breach of the standard of care.? Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509. ?Plaintiff also must show that defendants? breach of the standard of care was the cause, within a reasonable medical probability, of his injury.? Id. ?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, 984-85 (citing Hutchinson v. United States (1988) 838 F.2d 390, 392).
Dr. Melamed moves for summary judgment on the grounds that all care and treatment provided to Mr. Burr by him complied with the applicable standard of care and in no way caused or contributed to Plaintiffs? alleged damages. In support of his Motion, Dr. Melamed submits the declaration of Nitin Bhatia, M.D., a licensed physician. Dr. Bhatia asserts that she is familiar with the standard of care for spine surgeons practicing in Southern California in the relevant time period. Declaration of Nitin Bhatia, M.D., ? 3. Dr. Bhatia has reviewed Mr. Burr?s medical records and the depositions of Plaintiffs, Dr. Melamed, Dr. Regan, and John Pack, M.D. (?Dr. Pack?) Id., ? 2. Based upon his review, he states that on April 26, 2014, Mr. Burr was admitted to Marina del Rey Hospital for revision of a previous spinal fusion surgery. Id., ? 5. Prior to closing, the wound was thoroughly irrigated and vancomycin powder was placed for further infection prophylaxis. Id., ? 7. On April 28, 2016, Dr. Pack rounded Mr. Burr and Mr. Burr had an elevated white count, but his MRI did not show any sign of abscess. Id., ? 9. On April 30, 2014, Dr. Melamed?s physician assistant, Michael Olschansky (?Mr. Olschansky?), examined Mr. Burr and the incision was clean, dry, and intact with no signs of erythema or infection. Id., ? 11. It was noted that Mr. Burr had significant left quad weakness. Id. On May 2, 2014, Mr. Olschansky saw Mr. Burr again and noted that the incision was clean, dry, and intact with no signs of infection. Id., ? 14. Mr. Olschansky noted that there were two areas around the drain sites that were raised up but not erythematous. Id.
On May 14, 2014, Mr. Burr developed a low-grade fever and tachycardia and on May 15, 2014, he became lethargic and nauseous. Id., ?? 18-19. He was examined and his wound was found to be erythematous. Id., ? 19. Dr. Melamed saw Mr. Burr on May 16, 2014 and recommended an immediate incision and drainage surgery, which he conducted later that evening. Id., ?? 21-22. Dr. Regan performed a second incision and drainage surgery and an additional washout procedure on May 19, 2014. Id., ? 23. Dr. Melamed also performed a washout procedure on June 18, 2014, which was the last day he was involved in Mr. Burr?s care and treatment. Id., ?? 24-25.
Dr. Bhatia states that the April 26, 2014 surgery was performed within the standard of care, Dr. Melamed?s role was limited to that of the assistant surgeon, and Dr. Melamed did not perform any substantive aspect of the surgery. Id., ? 26. He further states that Mr. Olschansky performed thorough assessments of Mr. Burr by taking a history, assessing his vital signs and lab values, and performing a comprehensive physical and neurological examination. Id., ? 27. Following the April 26, 2014 surgery, Mr. Burr did not exhibit any signs of infection and his quadriceps weakness was not reasonably attributable to infection. Id., ? 28. He concludes that the standard of care did not require further workup for potential infection. Id. He further concludes that Dr. Melamed?s care and treatment complied with the standard of care at all relevant times and that it was not a substantial factor in causing any injury or damage to Mr. Burr. Id., ?? 26, 31.
In opposition, Plaintiffs submit the declaration of Jason Lifshutz, M.D., a doctor of medicine specializing in the area of neurosurgery. Dr. Lifshutz has reviewed Mr. Burr?s medical records, the depositions that have been conducted in this matter, and photographs of Mr. Burr?s incision. Declaration of Jason Lifshutz, M.D., ? 5. He asserts that Dr. Melamed performed a significant portion of the April 26, 2014 surgery, including removal and implanting of hardware in Mr. Burr?s spine and the use of BMP. Id., ? 7. He further asserts that Dr. Melamed was asked by Dr. Regan to round on the Plaintiff and agreed to do so, but sent his physician assistant instead. Id., ? 8. Dr. Lifshutz concludes that this was a violation of the standard of care, due to the exceptionally complex nature of the surgery and Mr. Burr?s onset of neurologic complaints of weakness in his legs, the cause of which were unknown. Id. The failure to examine the patient and evaluate him for diagnoses, in Dr. Lifshutz? opinion, substantially contributed to Mr. Burr?s injuries. Id. Dr. Lifshutz further avers that Mr. Burr?s postsurgical pain was most likely caused by infection and that it was below the standard of care to fail to provide an infectious disease consultation. Id., ?? 24-25. He states that an infectious disease specialist more likely than not would have diagnosed and treated Mr. Burr?s infection, preventing him from becoming septic and suffering the resulting permanent injuries. Id., ? 25.
In light of the competing expert declarations, the Court finds that there remain triable issues of material facts related to the care and treatment provided to Mr. Burr by Dr. Melamed and whether any act or omission on Dr. Melamed?s part caused or substantially contributed to Plaintiffs? claimed injuries. Accordingly, Dr. Melamed?s Motion for Summary Judgment is DENIED.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 6th day of December, 2016
Hon. Holly J. Fujie
Judge of the Superior Court