Simonyans v. Torbati CA2/2 ( 2024 )

Filed 1/22/24 Simonyans v. Torbati CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
RITA SIMONYANS, B314013
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV46544)
KARMAN TORBATI,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Edward B. Moreton, Judge. Affirmed.
SLC Law Group and Louis F. Teran for Plaintiff and
Appellant.
Schmid & Voiles, Denise H. Greer and Patrick W. Mayer
for Defendant and Respondent.
_______________________________________________
One week after giving birth, appellant Rita Simonyans
suffered a coronary artery dissection and heart attack. She sued
her obstetrician, respondent Kamran Torbati, M.D., for medical
malpractice. Torbati moved for summary judgment, arguing that
he did not cause her injury. The trial court granted the motion
and entered judgment for Torbati.
After independently reviewing the record, we conclude that
there are no triable issues of material fact. Torbati showed with
expert opinion supported by authenticated medical records that a
sudden, spontaneous coronary dissection is not predictable or
preventable, and is asymptomatic until it occurs. Simonyans did
not refute this evidence, but attempted to present an expert
opinion based on unauthenticated hospital records. The opinion
based on hearsay has no evidentiary value, lacks foundation, and
is speculative. We affirm.
FACTS AND PROCEDURAL HISTORY
Simonyans Gives Birth
The genesis of the case is undisputed. Simonyans first saw
Torbati in 2017, when she sought fertility treatment at his clinic.
After she became pregnant in 2018, she saw Torbati regularly.1
At visits, her blood pressure and heart rate were measured.
It is undisputed that when Simonyans came to the hospital
to give birth, she had a regular heart rate. At admission on
October 6, her blood pressure was 113/61, with a heart rate of 68.
The baby was born on October 7. Measurements taken that day
show blood pressure of 91/46, 106/55, and 124/57, and a heart
rate of 71, 64, and 62. On October 8, her blood pressure was
90/52, with a heart rate of 88. On October 11, she went to an
1 All further date references are to the year 2018.
2
emergency room complaining of severe rectal pain; when
released, her blood pressure was 139/78, with a heart rate of 97.
Simonyans Suffers a Coronary Artery Dissection
It is undisputed that on October 15, Simonyans went to the
hospital complaining of “acute onset of chest pain and shortness
of breath.” Cardiac surgery was performed to repair an “acute
left main dissection.” A discharge summary describes a
“spontaneous coronary artery dissection”; myocardial infarction;
acute pulmonary edema; acute ischemic cardiomyopathy; and
acute respiratory failure.
Simonyans Files Her Lawsuit
Simonyans filed suit for malpractice arising from Torbati’s
prenatal medical care. She alleges that during the final months
of her pregnancy, and after giving birth, he failed to properly
evaluate her complaints of elevated heart rate, chest pains,
shortness of breath, fatigue, and other symptoms, informing her
that the symptoms were normal and would go away after she
gave birth. Simonyans claims she suffered a heart attack
because his medical treatment fell below the standard of care.
Torbati answered and denied the claims.
Torbati’s Motion for Summary Judgment
In a motion for summary judgment, Torbati argued that
there is no triable issue of material fact whether his treatment of
Simonyans caused her injury. Her discovery responses claim he
“failed to diagnose and treat [her] health and physical condition
during her pregnancy,” which “could have avoided a heart
attacked [sic] and open heart surgery she endured around one
week after giving birth.” However, the evidence shows she had a
sudden and spontaneous arterial dissection that was not caused
by Torbati’s obstetric care during her pregnancy.
3
Cardiology expert Michael L. Chaikin submitted a
declaration for Torbati. Dr. Chaikin reviewed Simonyans’s
medical records, which showed normal blood pressure
measurements throughout her pregnancy, including when she
gave birth on October 7 and upon discharge from the hospital the
next day. None of the symptoms claimed in her pleading indicate
an impending coronary artery dissection.
Dr. Chaikin wrote that Simonyans went to the emergency
room on October 15. Authenticated medical records show she
“was in her usual state of good health” when “she had sudden
onset of severe chest pain and shortness of breath” after a
pediatric appointment. Tests “showed a significant dissection in
the left main coronary artery.” Immediate surgery was
performed, revealing an acute dissection of the artery. Hospital
records describe a “spontaneous coronary artery dissection,”
myocardial infarction, acute ischemic cardiomyopathy,
pulmonary edema, and hypoxic respiratory failure.
Dr. Chaikin declared, “[A] spontaneous coronary artery
dissection is neither predictable nor preventable” and “there are
no symptoms a patient would experience before the coronary
artery dissection occurs. There is no testing of any type that
could have been done that would have disclosed any issue or
problem with the plaintiff’s coronary arteries with respect to an
upcoming spontaneous coronary dissection” that suddenly
occurred on October 15. He opined that Torbati “did not cause or
contribute” to Simonyans’s injury or damage.
Simonyans Opposes Torbati’s Motion
In opposition to Torbati’s motion, Simonyans declared that
she first experienced a sudden onset of chest pain and shortness
of breath on September 9, a month before giving birth. She was
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evaluated at the hospital obstetrics unit. Afterward, Torbati
“assured me that I was fine and that my symptoms were very
normal.” She was discharged without being evaluated or treated
by a cardiologist.
Cardiologist Uri Elkayam submitted an expert declaration
in support of Simonyans. He reviewed her medical records,
including her hospital visit on September 9 when she had
“sudden onset of shortness of breath that was worse when she
tries to lie down.” Torbati discharged her from the hospital
without ordering X-rays, an EKG, or a CT scan, and without
having her consult a cardiologist. Dr. Elkayam stated that when
Simonyans went to the hospital on October 15 “with sudden onset
of severe chest pain and shortness of breath,” she had a
significant dissection requiring surgical repair.
Dr. Elkayam concluded that it is reasonably probable
Simonyans “suffered a coronary dissection for the first time on
September 9.” If Torbati had referred her to a cardiologist that
day, “her coronary dissection could have been identified and
treated,” which “could have reduced the chance of a reoccurring
coronary dissection, such as the one she suffered on October 15.”
Dr. Elkayam opined that the treatment she received from Torbati
on September 9 was below the standard of care.
Simonyans’s medical records for September 9 show she was
seen at the hospital by a gynecologist. She complained of
shortness of breath, especially while lying down, and heartburn.
Her blood pressure was 115/80; pulse was 79. She had no fever
and denied a history of cardiovascular issues. The doctor opined
that her shortness of breath was “air hunger” arising from
pregnancy. He discussed her case with Torbati and sent her
home with emergency room warnings.
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Based on Dr. Elkayam’s declaration, Simonyans argued
that her coronary dissection “was spontaneous but not entirely
unpredictable nor unpreventable.” Torbati failed to diagnose her
first coronary dissection on September 9. Had he sent her to a
cardiologist, her condition could have been identified and treated
before it recurred on October 15. Simonyans argues that this
raises a triable issue as to whether Torbati negligently failed to
refer her to a cardiologist.
Torbati’s Rebuttal
Torbati argued that Dr. Elkayam did not show that he
caused Simonyans’s October 2018 coronary dissection or heart
attack. Instead, Dr. Elkayam offered only the possibility that
some unidentified treatment might have “reduced the chance” of
it, without acknowledging that Simonyans was diagnosed with an
acute (sudden and spontaneous) coronary dissection in October,
with no support for his conclusion that she suffered one in
September. Dr. Elkayam does not describe what tests or
treatment might have reduced the risk of a dissection.
Dr. Elkayam did not refute Dr. Chaikin’s opinion that an
acute coronary dissection cannot be predicted or prevented:
Simonyans had no symptoms because there are no symptoms. No
tests would have disclosed an upcoming spontaneous dissection.
Simonyans created no triable issue that Torbati negligently
caused her to suffer a coronary dissection. Absent a showing that
Torbati was the legal cause of the injury, to a reasonable medical
probability, a medical malpractice case cannot be established; a
mere “possibility” is insufficient to establish a prima facie case.
The Trial Court’s Ruling
The court granted summary judgment. Focusing on the
causation element, the court credited the opinion of Dr. Chaikin,
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who explained that Simonyans’s heart attack on October 15
resulted from an acute, significant, sudden dissection of the
coronary artery. A spontaneous dissection is not predictable or
preventable, has no symptoms, and cannot be tested for before it
occurs. The court cited Dr. Chaikin’s opinion that nothing
Torbati did or failed to do caused Simonyans’s injury.
The court rejected the opinion of Dr. Elkayam, who
“assumes Plaintiff suffered a coronary dissection on September 9,
2018, without any evidence to support it, rendering his opinion
without evidentiary value.” The court wrote, “None of Dr.
Elkayam’s opinions are supported by a description of the facts on
which they are based on or the reasoning that leads to his
conclusion.” Further, he “resorts to speculation to argue that
Defendant’s delay in referring Plaintiff to a cardiologist caused
her October coronary dissection.” Dr. Elkayam did not create a
triable issue as to whether Torbati caused Simonyans’s injuries.
The court entered judgment for Torbati.
Simonyans’s Motion for Reconsideration
Simonyans sought reconsideration, arguing that the court
did not liberally construe Dr. Elkayam’s declaration. His opinion,
based on his experience and reading of Simonyans’s medical
history and symptoms on September 9, was not speculative.
In support of her argument, Simonyans offered a new
declaration from Dr. Elkayam, who offered further explanations
why her shortness of breath on September 9 signified heart
failure, when followed five weeks later by a coronary dissection.
Dr. Elkayam opined that an evaluation would have defined the
cause of Simonyans’s shortness of breath, “which was reasonably
probable to have been a myocardial ischemia due to spontaneous
coronary dissection.” Though Torbati believed that Simonyans’s
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symptoms were associated with pregnancy, a cardiac event
should have been excluded before she was discharged from the
hospital on September 9, because it could have been treated with
medication or implantation of a stent.
In opposition, Torbati argued that neither Simonyans’s
criticism of the court’s reasoning nor Dr. Elkayam’s supplemental
declaration are grounds for reconsideration: It is not new law or
new evidence. (Code Civ. Proc., § 1008.) He still does not offer
facts showing that a delay arising from the September incident
caused Simonyans’s October heart attack.
The court denied the motion for reconsideration. First, it
rejected Simonyans’s argument that it misinterpreted the law.
Second, it rejected the supplemental declaration from Dr.
Elkayam: There is no explanation for Simonyans’s failure to
produce this evidence earlier and an expert cannot offer new
opinions based on evidence that was previously available.
DISCUSSION
1. Appeal and Review
Summary judgment “shall be granted if all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” The judgment is appealable. (Code Civ. Proc.,
§§ 437c, subds. (c), (m), 904.1., subd. (a)(1).)
We independently examine the record to determine if
triable issues of fact exist. (Johnson v. American Standard, Inc.
(2008) 43 Cal.4th 56, 64.) Evidence presented in opposition to
summary judgment is liberally construed. (Regents of University
of California v. Superior Court (2018) 4 Cal.5th 607, 618.)
Declarations supporting or opposing summary judgment must be
based on admissible evidence. (Code Civ. Proc., § 437c, subd. (d);
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Larsen v. Johannes (1970) 7 Cal.App.3d 491, 501 [a motion
“cannot be defeated by statements of inadmissible evidence in the
opposing affidavits”].)2
2. Ruling on Torbati’s Written Objections
The trial court overruled Torbati’s written objection that
Dr. Elkayam relied upon unauthenticated hearsay. Torbati
renews his objection on appeal. We review evidentiary rulings for
an abuse of discretion. (Shugart v. Regents of University of
California (2011) 199 Cal.App.4th 499, 505.)
Hospital and medical records are hearsay. They may
qualify under the business records exception to the hearsay rule
if properly authenticated. (Garibay v. Hemmat (2008) 161
Cal.App.4th 735, 742.) “[W]ithout testimony providing for
authentication of such records, [a doctor’s] declaration had no
evidentiary basis. Consequently his expert medical opinion . . .
had no evidentiary value” when offered in support of summary
judgment. (Ibid.)
Torbati is correct that Simonyans’s September 9 records
are hearsay. Dr. Elkayam has no personal knowledge of
Simonyans’s medical treatment but must rely on her hospital
2 In her reply brief, Simonyans argues, for the first time,
that Torbati failed to present evidence related to the standard of
care. Arguments cannot be raised for the first time in a reply
brief. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36
Cal.App.5th 142, 157–158.) In any event, the trial court
sustained Torbati’s objection that the standard of care is
“irrelevant” because the only issue is causation. Simonyans’s
failure to challenge the court’s relevancy ruling forfeits the claim.
(Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534 [a party who
wishes to challenge a trial court evidentiary ruling on summary
judgment must assert it in the appellate court].)
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records. However, no custodian of records attested that the
purported evidence was made in the regular course of business,
at or near the time of the event, to its identity and mode of
preparation, or its trustworthiness. (Evid. Code, § 1271.) As a
result, Dr. Elkayam’s opinion, based on hospital records not
properly before the court, has no evidentiary support. (Garibay v.
Hemmat, supra, 161 Cal.App.4th at p. 743.)
3. Ruling on Motion for Reconsideration
In her motion for reconsideration after the trial court
granted Torbati’s motion for summary judgment, Simonyans
presented another declaration from Dr. Elkayam. In it, he
embroidered upon his opinion that her shortness of breath on
September 9 “is characteristic of heart failure.” For the first
time, he suggested that she could have been treated with
medication or implantation of a stent.
The trial court denied reconsideration. It rejected the new
declaration, finding it inadmissible because Simonyans gave no
explanation why the evidence was not produced at the original
hearing. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331,
1339; New York Times Co. v. Superior Court (2005) 135
Cal.App.4th 206, 212.) An expert declaration purporting to reach
opinions based on evidence that was previously available is not
“new” evidence. (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th
246, 254–256.) The standard for reviewing a denial of
reconsideration is abuse of discretion. (Id. at p. 255.)3
3 An order denying reconsideration is not separately
appealable; however, if the underlying order is subject to review,
denial of reconsideration may also be reviewed. (Code Civ. Proc.,
§ 1008, subd. (g).)
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Although the ruling on reconsideration may be reviewed on
appeal from the summary judgment ruling, Simonyans offers no
argument or case authority showing that the trial court abused
its discretion, thereby forfeiting any claim that it should have
permitted Dr. Elkayam’s new declaration. Because the trial
court rejected the new declaration and Simonyans has not shown
abuse of discretion, we cannot deem it admissible on appeal.
Further, the new declaration lacks evidentiary value because it is
based upon hearsay—the unauthenticated September 9 hospital
records—as discussed in part 2 of this opinion, ante.
4. Causation in a Medical Malpractice Claim
“[I]n 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.) Summary judgment is
appropriate if the defendant “has conclusively negated a
necessary element of the plaintiff’s case.” (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 334.)
At issue here is the element of causation, which “ ‘must be
proven within a reasonable medical probability based upon
competent expert testimony. Mere possibility alone is
insufficient to establish a prima facie case. [Citations.] . . .
There can be many possible “causes,” indeed, an indefinite
number of circumstances which can produce an injury or disease.
A possible cause only becomes “probable” when, in the absence of
other reasonable causation explanations, it becomes more likely
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than not that the injury was a result of its action. This is the
outer limit of inference upon which an issue may be submitted to
the jury.’ ” (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603
(Dumas).)
When a plaintiff complains of failure to diagnose, causation
requires “ ‘expert testimony that if proper treatment had been
given, better results would have followed.’ ” (Dumas, supra, 235
Cal.App.3d at p. 1603; see, e.g., Burford v. Baker (1942) 53
Cal.App.2d 301, 305–306 [failure to diagnose a hip injury caused
a bone deformity that could have been avoided with prompt
treatment]; Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 281
[plaintiff showed a negligent X-ray reading caused more residual
disability than would have occurred with proper diagnosis].)
A plaintiff must present evidence that further medical
workup or tests would have produced a different result. “Absent
such evidence, there is no causal link between any negligence by
[the doctor] and any injury to plaintiff.” (Flores v. Liu (2021) 60
Cal.App.5th 278, 301.) Sufficient evidence must allow an
inference that in the absence of the defendant’s negligence there
is a reasonable medical probability that plaintiff would have
obtained a better result. An expert opinion that tests might have
helped is speculation, not substantial evidence. (Ibid.)
5. Causation in this Case
Torbati carried his burden on summary judgment by
making an initial showing that he did not do anything to cause
injury to Simonyans. Simonyans does not dispute that her heart
attack on October 15 was “the result of an acute, significant
sudden dissection of the left main coronary artery and circumflex
coronary artery.” It is undisputed that an emergency room
physician noted “acute onset of chest pain and shortness of
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breath” after Simonyans “suddenly started having left-sided
severe chest pain . . . shortness of breath and altered mental
status, being drowsy and lethargic.” It is undisputed that a
cardiologist wrote that Simonyans “was in her usual state of good
health on October 15, 2018 when she had a ‘sudden onset of
severe chest pain and shortness of breath.’ ” It is undisputed that
a surgeon wrote that Simonyans “experienced an acute left main
dissection extending into the circumflex and left anterior
descending (artery).” Finally, it is undisputed that Simonyans
“experienced a spontaneous coronary artery dissection.”
Torbati’s expert Dr. Chaikin opined that the obstetrician
could not prevent a “sudden” and “spontaneous” coronary artery
dissection, which is asymptomatic until it actually occurs. No
tests that Torbati could have ordered would disclose an upcoming
spontaneous dissection. This evidence met Torbati’s burden of
showing that he did not cause injury: Nothing he could have
done would have produced a better result for Simonyans.
The burden shifted to Simonyans to present admissible
expert testimony that Torbati failed to diagnose her coronary
ailment or refer her to a cardiologist for evaluation, and had he
done so, a better result would have followed. Simonyans failed to
make an adequate showing in this case.
Simonyans’s expert did not refute Dr. Chaikin’s statement
that a spontaneous coronary artery dissection is not predictable
or preventable. Instead, Dr. Elkayam opined that Simonyans
suffered two coronary artery dissections, one on September 9
(when she had shortness of breath in her eighth month of
pregnancy) and one on October 15 (a week after she gave birth).
Dr. Elkayam suggested that a cardiologist could have treated
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Simonyans on September 9 if, in fact, a coronary dissection
occurred on that date.
As discussed above in part 2, Dr. Elkayam’s opinion relies
on Simonyans’s unauthenticated hospital records from
September 9. His opinion is based on hearsay and has no
evidentiary value.
In any event, the unauthenticated records do not bear out
Dr. Elkayam’s hypothesis of a September coronary artery
dissection. His opinion that shortness of breath showed a
coronary artery dissection is speculative. Simonyans was
released on September 9 and did not return with heart problems
until October 15, after giving birth. Her blood pressure and heart
rate throughout her pregnancy, including at delivery, gave no
indication that a coronary event was underway. She gave birth
and was discharged from the hospital without complications.
Dr. Elkayam offers no “reasoned explanation” how
Simonyans could survive a coronary artery dissection in
September and thrive in “her usual state of good health” for
another five weeks—despite the stress of labor and delivery—
with no symptoms of heart failure or coronary disease. A medical
expert opposing summary judgment must provide a reasoned
explanation illuminating facts making it more probable than not
that a negligent act was cause-in-fact of plaintiff’s injury.
(Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 781.) Dr.
Elkayam’s initial declaration offers no explanation of what kind
of treatment in September could have prevented Simonyans’s
spontaneous coronary dissection in October.
Simonyans ignores the deficiencies in Dr. Elkayam’s initial
declaration; she relies on his later declaration from her motion
for reconsideration. As discussed in part 3, ante, we cannot
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consider Dr. Elkayam’s second declaration after the trial court
rejected it under Code of Civil Procedure section 1008. Moreover,
the new declaration continues to rely on unauthenticated hospital
records. Simonyans did not establish the existence of a triable
issue of fact with admissible evidence.
DISPOSITION
The judgment is affirmed. Torbati is entitled to his costs on
appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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