PLAINTIFFS NOTICE OF MOTIONFOR SUMMARY JUDGMENT

DAVID ALOMATSI

P. O. Box 27014

Los Angeles, California 90027

Phone Number (323) 523 4112

Fax Number

Email Address

In Pro Per

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES, VAN NUYS COURTHOUSE EAST

PLAINTIFF’S NOTICE OF MOTION

FOR SUMMARY JUDGMENT

PLEASE TAKE NOTICE that on __________________ at __________ or as soon thereafter as the matter may be heard in the Superior Court of the State of California for the County of Los Angeles, located at 6230 Sylmar Ave, Van Nuys, CA 91401, Plaintiff  David Alomatsi will, and hereby does, move pursuant to California Code of Civil Procedure Section 437c, for an order granting summary judgment or, in the alternative summary adjudication in its favor.

The Plaintiff makes this motion because there are no disputed issues on any of the material facts.

PLEASE TAKE FURTHER NOTICE that pursuant to this Court’s order, opposition to Plaintiff’s motion, if any, shall be filed and served on the Plaintiff, and plaintiff’s reply shall be filed and served on counsel for Defendants.

DATED:                                     Respectfully Submitted

BY:   /S/ DAVID ALOMATSI

         DAVID ALOMATSI

                                                                                (PRO SE LITIGANT)

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This is a case of medical malpractice that occurred on May 19, 2017 when the Plaintiff was admitted to the Defendant hospital, an acute care medical facility in Panorama City in California, for treatment due to general weakness. The Undisputed facts stated below clearly establish that this is a case where the Defendant simply failed to exercise duty of care towards the Plaintiff, thereby exposing the Plaintiff to unnecessary strife and potential health related consequences. The Plaintiff is entitled to judgment as a matter of law based upon the undisputed material facts of this case.

STATEMENT OF FACTS

According to records, Around May 19, 2017 Plaintiff was admitted to Defendant’s medical facility, Mission Community Hospital, Panorama City (Mission) in California for treatment due to general weakness. He received some treatments, briefly.

A few days later, he was informed by Defendants’ staff that he had an infection and that he would be given intravenous (I.V.) treatment with antibiotic drug for it.

Defendants’ nurse, at the time, informed Plaintiff about the seizure side effect that was to be expected from the drug. Plaint requested extra precaution and also requested to be closely monitored during the time the drug was to be given to him since he was familiar with the drug.

Plaintiff requested an anti-seizure drug to be given to him, in order to control the expected side effect of seizure. Defendants’ nurses informed Plaintiff that everyone has seizure side effects from this drug.

Defendants nurse did not give the drug to Plaintiff at the time that the nurse had said the drug was scheduled to be given to Plaintiff. When Plaintiff asked the nurse, she said she would give it later. When asked again later, she said, “Now that you mentioned your experience with the drug, all the other nurses are not comfortable giving it to you”.

Plaintiff recalls that, upon arrival at Mission, he had to sign a consent for treatment and had to provide health insurance information for billing purposes and that it was only after complying with Mission’s consent and insurance requirement, that Plaintiff was admitted for treatments.

Defendants nurses did not give Plaintiff his I.V. antibiotic treatment as prescribed. About a few days of not receiving one of the prescribed treatment, Plaintiff continued to feel weaker, uncertain of the exact cause. This was still Plaintiff’s first hospitalization at Mission in 2017.

Plaintiff had a trusting relationship with the clinicians caring for him, since they frequently evaluated Plaintiff and asked Plaintiff how he was doing. Plaintiff informed clinicians how he was feeling, including the weakness. Plaintiff expected to recover and go home.

Plaintiff was ignorant about whether the particular I.V. antibiotic, which Mission nurse told Plaintiff about, was still needed. Plaintiff reasonably assumed that the medical professionals had decided the I.V. antibiotic was no longer needed. This was still Plaintiff’s first hospitalization at Mission in 2017.

Plaintiff reasonably assumed that clinical staff had determined that he did not need the I.V. antibiotic and subsequently discharged Plaintiff to Maclay. Plaintiff was unclear about the kind of care he was supposed to be getting upon being admitted at Maclay. Plaintiff did not question anything because he trusted Defendants’ professional judgment and expected to return home soon to his apartment and to resume his normal life. This was still Plaintiff’s first hospitalization at Mission in 2017.

According to records obtained, Plaintiff”s conditioned started to worsen even prior to the time Plaintiff was transferred from Mission to Maclay. Plaintiff’s condition still continued to worsen after he was transferred from Mission to a Maclay.

One day, while at Maclay, Plaintiff was accompanied by Maclay staff to an out-patient appointment. During the appointment, the doctor advised Plaintiff that upon Plaintiff arrival at Maclay, Plaintiff should request a transfer to the nearest Emergency Room at an acute care hospital. All this time, Plaintiff believed the symptoms were a natural course of disease process. Plaintiff made the request and Maclay transferred Plaintiff back to Mission, where Plaintiff was admitted for the second time.  At this point, as indicated by medical records, medical evaluation of Plaintiff from the first admission at Mission compared to the second admission at Mission show that Mission did not administer the I.V. treatment Mission prescribed for his infection during Plaintiff’s first admission, prior to transferring Plaintiff to Maclay

Plaintiff is informed and believes that as a result of Mission not giving the prescribed treatment during the first admission, Plaintiff’s condition gradually worsened each passing hour from the time the treatment was delayed, causing the infection to worsen.

Plaintiff is informed and believes that, even for a few days of not getting the necessary treatments, Plaintiff’s infection became more severe to such a level that made his recovery more difficult and required a more prolonged recovery time.

Medical records show that the Mission’s clinicians knew that Plaintiff needed that particular I.V. drug that they had prescribed for Plaintiff’s infection which Mission clinicians had diagnosed but did not give to Plaintiff during Plaintiff’s first admission at Mission. Records show that Plaintiff was in a much worse condition than before, which should not have happened had Plaintiff been given the I.V. drug that was necessary.

After the second time of being admitted at Mission for intensive care, Plaintiff was transferred to Kindred Hospital (Kindred) in Gardena, California for physical therapy.

From Kindred, Plaintiff was transferred to Las Flores Convalescent hospital to continue physical therapy. When Plaintiff recovered enough and regained enough strength at Las Flores, he was eventually medically permitted to walk about 100 to 200 feet without direct supervision of hospital staff.

Some incidents occurred at some point at Las Flores that led Plaintiff to complain, by telephone, to the Gardena Police Department. Las Flores administrator lied to the police about the incident. Other incidents occurred at Las Flores that led Plaintiff to complain to California Department of Public Health (CDPH) as well when CDPH officials arrived for annual survey at Las Flores.  During Plaintiff’s follow-up contact with the police, Plaintiff was informed that his complaints were a CDPH issue and that he could take a civil action against Las Flores if he wanted to. With that information, Plaintiff contacted attorneys and they asked him why he was in the hospital in the first place. Plaintiff explained his reason for being in the hospital. The attorney’s instructed Plaintiff to obtain medical record and telephone them again.

During the time of Plaintiff’s review of records from multiple hospitals, with help of the attorneys, Plaintiff began to suspect that his lengthy hospitalization was not due only to a disease process as staff from all other hospitals had led him to believe but rather due to negligence.

When Plaintiff discovered that he has been wronged, Plaintiff properly notified all hospitals where he was treated, including Mission, about his intention to bring a lawsuit against them. Plaintiff waited 90 days, as required by law, for a response from them, including Defendant Deanco Healthcare, LLC aka Mission Community Hospital. Plaintiff received no response from defendant.

Plaintiff was still an inpatient, receiving treatments at Las Flores when he suspected Mission’s negligence around February 13, 2019. His discharge from Las Flores on March 11, 2019 came shortly after he started sending notices of intent to sue to all suspected parties in February, 2019.

Plaintiff is informed and believes that the period of hospitalization was continuous from the date of being transferred from Mission, up until he was finally discharged from Las Flores March 11, 2019.

Plaintiff is informed and believes that Mission knew or should have known that he had signed a consent for treatment and that he deserved all the necessary treatments prescribed by his doctor during his first admission at their hospital.

Plaintiff is informed and believes that Mission knew or should have known that it was necessary for them to tell Plaintiff that all the I.V. treatments prescribed for him were important to speed up his recovery and to tell him if the doctor had specifically discontinued them while he was still under their care during his first admission at their hospital.

Plaintiff is informed and believes that Mission knew or should have known that it was necessary for them to tell Plaintiff that the I.V. treatments prescribed for him were discontinued by the doctor who prescribed it during his first admission at their hospital and the reasons why.

DAVID ALOMATSI

P. O. Box 27014

Los Angeles, California 90027

Phone Number (323) 523 4112

Fax Number

Email Address

In Pro Per

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES, VAN NUYS COURTHOUSE EAST

Pursuant to California Code of Civil Procedure § 437c(b) and California Rules of Court, Rule 342, Plaintiff submits this Separate Statement of Undisputed Facts together with reference to supporting evidence, in support of its Motion for Summary Judgment or in the Alternative Motion for Summary Adjudication against Defendant.

ARGUMENT

I MEDICAL NEGLIGENCE/MALPRACTICE

The undisputed facts of this case make it clear that the Defendant simply failed to exercise a duty of care prior to releasing and transferring the Plaintiff, whose health was yet to stabilize. There are certain general principles to be noted in relation to malpractice cases. [1] The “law has never held a physician or surgeon liable for every untoward result which may occur in medical practice” (Engelking v. Carlson, 13 Cal. 2d 216, 220 [88 P.2d 695]; Lashley v. Koerber, supra, 26 Cal. 2d 83, 88-89) but it “demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient” (Lawless v. Calaway, supra, 24 Cal. 2d 81, 86). [2] No different or “higher degree of responsibility” is imposed “in making a diagnosis than in prescribing treatment.” (Patterson v. Marcus, 203 Cal. 550, 552 [265 P. 222]; see, also, Ries v. Reinard, 47 Cal. App. 2d 116, 119 [117 P.2d 386].) [3] A doctor’s failure to possess or exercise the requisite learning or skill “in a particular case is generally a question for experts and can be established only by their testimony” (Trindle v. Wheeler, 23 Cal. 2d 330, 333 [143 P.2d 932]; also Church v. Bloch, 80 Cal. App. 2d 542, 547 [182 P.2d 241]), which “expert evidence is conclusive” where it appears that the “matter in issue is one within the knowledge of experts only and is not within the common knowledge of laymen” (Engelking v. Carlson, supra, 13 Cal. 2d 216, 221). Application of these principles in this case sustains Plaintiff’s position that charge of malpractice is supported by the record.

The definitive criteria in guidance of the trial court’s determination of the qualifications of an expert witness are recognized in Sinz v. Owens, supra, 33 Cal. 2d 749, to rest primarily on “occupational experience,” as stated at page 753: “The proof of that standard (the reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances) is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wigmore has classified as ‘occupational experience–the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood.’ (2 Wigmore on Evidence [3d ed.] § 556, p. 635.). He must have had basic educational and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the defendant charged with malpractice that is of controlling importance in determining competency of the expert to testify to the degree of care against which the treatment given is to be measured.”

In this case, Dr. Andres Maldonado, M.D. is a Primary care physician, Occupational health and Medical Researcher. He submitted an expert opinion [Exh. 8] to guide and assist the court to a just and fair determination of this dispute. In his expert opinion, Dr. Maldonado has reviewed and internalized the contents of the Plaintiff’s records from Mission Community Hospital.

According to Dr. Maldonado’s expert opinion, the Plaintiff was indeed admitted at Mission Community Hospital on May 19, 2017 and remained there until May 25, 2017 when he was discharged and transferred to Maclay Healthcare Center (“Maclay”). While at Mission, the Plaintiff was subjected to several Complete Blood Count (CBC) tests, all of which concluded that the Plaintiff’s white blood cell count was severely low requiring constant medical attention. As at May 24, 2017, it is Dr. Maldonado’s opinion that the Plaintiff’s was nowhere close to recovered, as the Plaintiff recorded white blood cell count of 1.400 mcL as opposed to the normal required range of 5.000 mcL – 10.000 mcL.

On the very same day, Amphotericin B was ordered by Dr. Carmalt, the infectious disease doctor, to be administered to the Plaintiff. The Plaintiff had on previous unrelated occasions received Amphotericin B to treat his deteriorating condition and improve his white blood cell count. However, the Plaintiff was also aware of the potential seizures as a side effect of Amphotericin B. Nevertheless, the Plaintiff was ready and willing to receive Amphotericin B, and requested that anti-seizure measures be put in place.

Eventually, by and on May 24, 2017, the Plaintiff received no Amphotericin B. Furthermore, the Plaintiff was prematurely discharged and transferred to Maclay Healthcare Center.

It is Dr. Maldonado’s opinion that the prescribed medication (Amphotericin B) ought and should have been administered to the Plaintiff. It is highly probable that Mission’s delay in the Plaintiff’s antifungal treatment and failure to monitor his ICP may be the cause of the worsening of the condition. Mission could have ensured faster recovery by ensuring that they had fully treated the Plaintiff until he had reached laboratory fungal levels that indicate that he would not suffer sepsis. However, the appropriates tests, including spinal tap were not even done to determine the extent of the infection in his cerebrospinal fluid. Mr. Alomatsi would not have needed to be re-admitted for the second time had Mission Community Hospital met the appropriate treatment standard.

II DEFENDANTS ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

The Plaintiff submits that the Defendant’s Answer to the First Amended Complaint is baseless and without merit whatsoever[Exh. 9].  The Defendant attempts to deny liability as follows:

1. The Defendant alleges that the Plaintiff is time barred from pursuing this suit by virtue of Section 340.5 of the California Code of Civil Procedure. Section 340.5 provides that any personal injury claim against a medical institution must be filed within a period of three years from the date of the cause of action. Contrary to the Defendant’s allegations, the Plaintiff lodged his First Amended Complaint on June 21, 2019, little over two years from the date of the incident which occurred between May 19, 2017 and May 25, 2017.
2. The Defendant vaguely alleges that the Plaintiff is liable wholly or partially for the negligence. The Plaintiff contends that the Defendant has failed to provide substance to this allegation. The Plaintiff avers the Defendant is solely liable for their acts of negligence. The Plaintiff, knowing he was unwell, took personal responsibility and drove himself to the Defendant hospital. At the hospital, the Plaintiff was admitted and subjected to a cell blood count test. The test determined the Plaintiff’s immunity to be at a shockingly low level of 1.800 mcL compared to the normal range of 5.000mcL – 10.000 mcL. The hospital recommended administration of Amphotericin B to treat the Plaintiff, unfortunately the same was never administered for the six days that the Plaintiff was admitted.
3. The Defendants allege the Plaintiff’s First Amended Complaint [Exh. 1] to be defective for lack of cause of action. The Plaintiff contends the allegation as baseless for reason that the First Amended Complaint clearly implicates the Defendant as it lays out all the facts leading to the incident and draws the cause of action against the Defendant with remedies for relief.
4. The Defendant alleges protection under Sections 2395 & 2396 of the California Business & Professions Code. However, as demonstrated above, such protection fails for reason that the Defendant did not act in good faith by denying the Plaintiff medication for the six days the Plaintiff was admitted.
5. The Defendant alleges the Plaintiff did not have an insurance policy to cover the treatment. The Plaintiff contends this allegation as the Plaintiff had provided and satisfied all insurance requirements prior to being admitted to the Defendant’s medical facility.

III INTERROGATORIES AND DISCOVERIES

Pursuant to Section 2030.010 and 2031.010 of the California Code of Civil Procedure, Plaintiff delivered to the Defendant Demand for Production and Interrogatories. [Exh. 2,3,4,6,7]. The Defendant obliged and responded to the Plaintiffs Interrogatories and demand for production. Unfortunately, the responses by the Defendant did not elicit answers to the question put to them by the Plaintiff. The responses only provided information considered public, while questions pertaining to private information was denied by reiterated objections. The Responses did not attempt to supply any substantive information to the Plaintiff’s questions but rather proceeded to rely on various provisions of the law with particular emphasis on the California Evidence Code § 1157, which provides in pertinent part: “Neither the proceedings nor the records of organized committees of medical … staffs in hospitals, or of a peer review body … having the responsibility of evaluation and improvement of the quality of care rendered in the hospital, … shall be subject to discovery.” The immunity described in the statute “extends to, first, the proceedings, and second, the records of the described staff committees.” (Matchett v. Superior Court (1974) 40 Cal. App. 3d 623, 628 [115 Cal. Rptr. 317].).

The Plaintiff contends that his questions were not in any manner intended for the committee, its records, or its members. The questions sought to obtain information with respect to the hospital staff and evidence that were in close proximity to the incident alleged.

CONLCLUSION

Plaintiff is entitled to judgment as a matter of law. The undisputed facts show that Plaintiff was the was admitted at Mission Community Hospital, was subjected to CBC tests indicating low white blood cell count resulting in the Plaintiff’s weakness and deteriorating health, and that Defendant had a duty of care to provide the Plaintiff with the much-needed medical attention including administration of Amphotericin B, which Mission failed to administer. Defendant was negligent as a matter of law. Accordingly, Plaintiff respectfully requests that this honorable Court enter judgment in favor of Plaintiff and against Defendant, and that this matter be set for trial on the issue of damages only.

DATED:                                     Respectfully Submitted

BY:   /S/ DAVID ALOMATSI

         DAVID ALOMATSI

                                                                                (PRO SE LITIGANT)  

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