Defendant Dr. Roshan’s Motion for Summary Judgment, or in the Alternative Summary Adjudication
(03) Tentative Ruling
Re: Aguilar v. Saint Agnes Medical Center Case No. 23CECG02274
Hearing Date: June 25, 2026 (Dept. 503)
Motion: Defendant Dr. Roshan’s Motion for Summary Judgment, or in the Alternative Summary Adjudication
Tentative Ruling:
To deny Dr. Roshan’s motion for summary judgment, and the alternative motion for summary adjudication.
Explanation:
“‘The standard of care against which the acts of a physician 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 the layman.’” (Landeros v. Flood (1976) 17 Cal.3d 399, 410, citations omitted.)
“ ‘California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. 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, 984–985, citations omitted.)
“[W]hen considering the declarations of the parties' experts, we liberally construe the declarations for the plaintiff's experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125–126, citation omitted.)
Thus, a plaintiff’s expert declaration in opposition to defendant’s summary judgment motion “did not have to be detailed, was entitled to all favorable inferences and was deemed sufficient to defeat the summary judgment motion.” (Id. at p. 125, citing Hanson v. Grode (1999) 76 Cal.App.4th 601, 607-608
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Furthermore, the plaintiff does not have to prove that the defendant’s acts or omissions were the sole cause of the plaintiff’s injuries. Plaintiff only has to present admissible expert testimony that the defendant was a substantial cause of the injuries. (CACI No. 430; Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.)
Here, defendant Dr. Roshan has met his burden of showing that he is entitled to summary judgment, as he has submitted the declaration of his expert, Dr. Posalski, who opines that nothing Dr. Roshan did or failed to do fell below the standard of care or caused decedent’s death. (Posalski decl., ¶ 7.) Dr. Posalski also discusses his reasons for concluding that Dr. Roshan did not breach the standard of care or cause decedent’s death. (Ibid.)
Thus, the burden shifts to plaintiff to provide a declaration from a qualified 3 expert stating that Dr. Roshan’s care and treatment of decedent fell below the standard of care and caused or substantially contributed to decedent’s death.
In her opposition, plaintiff provides the declaration of Dr. Bailey, who is an expert in internal medicine and infectious diseases. Dr. Bailey opines that “[g]enuine and triable issues of material fact exist with regard to whether Dr. Roshan and his colleagues met the applicable standard of care for an infectious disease specialists [sic] from May 5, 2022 until decedent was transferred to UCLA on 5/21/22.” (Bailey decl., ¶ 14(a).)
“Genuine and triable issues of material fact exist as to whether Dr. Roshan's and colleagues’ acts and omissions, including the failure to recognize the risk of prolonged meropenem treatment and de-escalate to a narrower-spectrum effective agent once sensitivity of the 5/05/22 Pseudomonas isolate was reported, failure to obtain a sternal wound culture and recommend repeat chest CT scan when purulent drainage was observed on 5/17/2022 in conjunction with clinical deterioration (re-intubation and re-emergence of positive sepsis screen results on that date), and failure to consider more aggressive treatment beyond quinolone monotherapy (levofloxacin) for MDRO Pseudomonas once identified from the 5/15/22 respiratory culture on 5/19/22 in light of the recent 5/17 deterioration noted previously [such as addition of Zerbaxa (ceftolozane-tazobactam) as was done after transfer by the UCLA team] were substantial factors contributing to delay in placing Noe Aguilar on the transplant liver list following his transfer to UCLA for that purpose and his ultimate death on June 11, 2022.” (Id. at ¶ 14(b).)
Many of the actions or inactions that are mentioned in Dr. Bailey’s declaration occurred after Dr. Roshan stopped treating decedent on May 8, 2022. For example, the alleged failure to obtain a sternal wound culture and recommend a repeat chest CT scan after purulent drainage was observed on May 17, 2022 were events that occurred after May 8, 2022, and thus are not evidence that Dr. Roshan’s care and treatment of decedent fell below the standard of care.
However, the alleged failure to switch to a narrow-spectrum antibiotic and keep administering a broad-spectrum antibiotic apparently occurred on May 5, 2022, when Dr. Roshan was treating decedent. The failure to switch to a narrow-spectrum antibiotic was also allegedly a substantial factor in causing the delay in putting decedent on the liver transplant list, which ultimately led to his death on June 11, 2022. (Ibid.)
Thus, plaintiff has met her burden of showing the existence of triable issues of material fact with regard to whether Dr. Roshan’s care and treatment of decedent fell below the standard of care and caused or substantially contributed to his death. As a result, the court intends to deny Dr. Roshan’s motion for summary judgment, and the alternative motion for summary adjudication.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: JS on 6/22/2025. (Judge’s initials) (Date)
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