1.MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION
- MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION
- The Motion for Summary Judgment filed by Defendant Pagiel Shechter MD is Denied.
Plaintiff has presented evidence sufficient to demonstrate that triable issues of material fact exist as to both the standard of care and causation elements. (See UF 2-4.)
The motion also fails to comport with the evidentiary requirements articulated in?Garibay v. Hemmat?(2008) 161 Cal.App.4th 735, 741-742 [on MSJ, where medical expert declaration is offered based upon a review of records, such evidence must be before the Court], as some of the evidence which Dr. Klein considered in forming his opinions is not before the Court. Nor is it clear that the records upon which Dr. Klein relied were all submitted, as the Klein Decl. draws no such distinction, and instead refers generally to ?the medical records? he identified as the basis for his opinions. (See e.g. Klein Decl. at ?? 5, 34, and 36.)
Moving party also argues that the entire Nazarian Decl. is defective as it does not state that the opinions were based on personal knowledge of the underlying facts. But his opinions are offered as an expert, and are based in substantial part on evidence presented and authenticated by moving party, including Dr. Shecter?s records, and Plaintiff?s deposition testimony. (See e.g. Nazarian Decl. at p. 8, ?? 32-37.) The facts here are thus unlike those in?Bozzi v. Nordstrom, Inc.(2010) 186 Cal.App.4th 755, 762-763 [expert had ?relied on nothing more than syllogistic reasoning to conclude that if an escalator stops abruptly, it must have been defectively designed or maintained? without stating any facts to support his opinion] and?Witchell v. De Korne?(1986) 179 Cal.App.3d 965, 974-975 [multiple defects in declaration including lack of signature].)
The Evidentiary Objections submitted with the Reply are Sustained on Obj. Nos. 1 and 2 [foundation; authentication] but otherwise Overruled. The additional objection presented at the hearing, as to Ex. D to the Nazarian Decl. (Dr. Martin?s records) is also Sustained [foundation; authentication].
Moving party to give notice.
- The Motion for Summary Judgment filed by Defendant Pagiel Shechter MD, Inc. (?MP?) is Denied.
Plaintiff has presented evidence sufficient to demonstrate that triable issues of material fact exist as to both the standard of care and causation elements. (See UF 2-4.)
The motion also fails to comport with the evidentiary requirements articulated in?Garibay v. Hemmat?(2008) 161 Cal.App.4th 735, 741-742 [on MSJ, where medical expert declaration is offered based upon a review of records, such evidence must be before the Court], as some of the evidence which Dr. Klein considered in forming his opinions is not before the Court. Nor is it clear that the records upon which Dr. Klein relied were all submitted, as the Klein Decl. draws no such distinction, and instead refers generally to ?the medical records? he identified as the basis for his opinions. (See e.g. Klein Decl. at ?? 5, 34, and 36.)
MP argues that the Nazarian Decl. is defective as it does not state that the opinions therein are based on personal knowledge of the underlying facts. But Dr. Nazarian?s opinions are offered as an expert, and are based in substantial part on evidence presented and authenticated by MP, including Dr. Shecter?s records, and Plaintiff?s deposition testimony. (See Nazarian Decl. at p. 8, ?? 32-37, and depo at pp. 58 and 61.) Nor is his declaration deficient because he is not a nephrologist, as he has stated that he has expertise in the standard of care for ?medical doctors who diagnose and treat patients with HIV infection.? (Nazarian Decl. ? 9.) MP has not shown that such standards do not also apply to a nephrologist.
The Nazarian Decl. states at ? 12 that he was asked to opine on whether the care provided ?was within the applicable standard of care,? that he concluded that if blood work was not requested on the first visit (a factual issue not resolved in this motion) then Dr. Shechter?s conduct fell ?below the standard of care,? that ?nothing done? by Drs. Shechter or Lin after the first visit ?followed the standard of care in diagnosing and treating HIV patients,? that they failed to note lab results in 2015 that should have alerted them to the need to ?re-test? for HIV but instead continued to prescribe HIV medications, and that the ?negligence? of Drs. El-Nachef, Shechter and Lin caused harm to Plaintiff.? (See Nazarian Decl. at ?? 18(6)-(14).) That is sufficient to present triable issues on standard of care and causation.
Finally, MP argues on reply that because Plaintiff failed to present evidence here to demonstrate that Drs. Shechter and Lin are employees of MP, no basis for potential liability on the part of MP has been shown.? But as the moving defendant, MP bears the initial burden of producing admissible evidence sufficient to show that the plaintiff?s action has no merit.? (C.C.P. ? 437c (a), and (p)(2).)? The burden only then shifts to the plaintiff to produce admissible evidence showing the existence of a triable issue as to the cause of action or defense.? (Id.;?Hawkins v. Wilton?(2006) 144 Cal.App.4th 936, 940.)? Here, the FAC asserts that MP is liable based on?respondeat superior. (FAC ? 34.) If MP meant to seek summary judgment on that claim, MP needed to address that in its motion.
For all of these reasons, the Motion is Denied.
MP?s Evidentiary Objections are Sustained on Obj. Nos. 2-4 [foundation; authentication]; otherwise Overruled.
Moving party to give notice.