Response_to_separate_statement

Response

Cal. Super. - 6th Dist.July 1, 2016

aA W O N oe 0 9 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16CV297194 Santa Clara - Civil SERENA J. KALLAS, ESQ. (SBN: 306776) KALLAS LEGAL, APC 770 L Street, Suite 950 Sacramento, CA 95814 P: 916.633.0677 F: 916.490.4507 sjkallas@kallaslegal.com Attorney for Plaintiff, BELAL MAQDOOR Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/6/2018 4:37 PM Reviewed By: K. Lev Case #16CV297194 Envelope: 1917410 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA BELAL MAQDOOR, Plaintiff, V. DR. TAI HUYNH, DDS; NEWGEN DENTISTRY, a business organization of unknown status; and DOES 1 through 50 inclusive, Defendants. Plaintiff, BELAL MAQDOOR (“Magqdoor”) submits this Separate Statement of Disputed and Undisputed Material Facts in Opposition to the Motion for Summary Judgment filed by Defendants NEWGEN DENTISTRY and DR. TAI HUYNH, DDS (together, “Newgen”) CASE NO. 16CV297194 RESPONSE OF PLAINTIFF BELAL MAQDOOR TO SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS AND EVIDENCE IN OPPOSITION OF DR. TAI HUYNH, DDS AND NEWGEN DENTISTRY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Date: ~~ September 20, 2018 Time: 9:00 a.m. Dept: 9 Action Filed: Trial Date: July 1, 2018 December 3, 2018 (together, the “Defendants” and collectively with Maqdoor, the “Parties”). . Lev Case No. 16CV297194 1 RESPONSE OF PLAINTIFF TO SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS AND EVIDENCE IN OPPOSITION OF DEFENDANTS’ MSJ aA W O N oe 0 9 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOVING PARTY'S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE Moving Party's Undisputed Material Facts and Supporting Evidence: Opposing Party's Response and Supporting Evidence: I. On May 9, 2014 Plaintiff presented to New Gen Dentistry complaining of pain at tooth #14. He was seen and treated by Dr. Huynh. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, Y 4(a). I. Disputed. Plaintiff went to NewGen Dentistry for an examination of the mouth because there was sensitivity in the upper left cheek area of] his mouth. Evidence: [Exhibit A, Plaintiff’s Declaration, 9 2. 2. Dr. Huynh took a full mouth x-ray. This did not show any obvious signs of infection at tooth #14, but there was noted to be several cavities on teeth #3, 5, 11, 12, 28, 29, and 30. Tooth #13 was also noted to have a defective filing. Dr. Huynh determined that tooth #30 may not need a root canal and the defective filing at tooth #13 should be replaced with a crown. Dr. Huynh advised Plaintiff that he should see and endodontist to evaluate tooth #14 to determine if the tooth could be saved as the tooth #14 was symptomatic to percussion. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, 9 4(b). 2. Disputed. Plaintiff did have a full mouth x-ray and was advised of all the defects in his mouth; however, he was not advised that he should see an endodontist to find out if the tooth could be saved. Instead before leaving the office on May 9, 2014, Dr. Huynh had a follow up scheduled on May 14, 2015 for the extraction of tooth #14. Evidence: [Exhibit A, Plaintiffs Declaration, 9 3. 3. Plaintiff returned to see Dr. Huynh on May 14, 2015, at which time he told Dr. Huynh that he did not see the endodontist because he did not have the money to pay for it. On the 14", Mr. Maqdoor was complaining of persistent pain at #14 and he said he “just wanted the tooth extracted.” Dr. Huynh agreed to proceed with extraction for him. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, 4(c). 3. Disputed. Dr. Huynh had a follow up scheduled on May 14, 2015 for the extraction of tooth #14. Evidence: [Exhibit A, Plaintiff’s Declaration, 9 3. 4. During the procedure, the crown and 4. Disputed. Just weeks following the Case No. 16CV297194 2 RESPONSE OF PLAINTIFF TO SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS AND EVIDENCE IN OPPOSITION OF DEFENDANTS’ MSJ aA W O N oe 0 9 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moving Party's Undisputed Material Facts and Supporting Evidence: Opposing Party's Response and Supporting Evidence: the coronal part of tooth #14 broke at the gum line. After the tooth broke, Dr. Huynh separated the roots. To separate the roots he used a surgical burr and a surgical hand piece. Dr. Huynh was able to remove all of the roots without difficulty and after the procedure an x-ray was taken to ensure that there was no residual root, tooth or other material remaining. A periapical x-ray was taken to confirm there was no remaining material. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, 9 4(f). procedure, after a cone beam scan of the #14 and CT scan of the mouth for closer inspection of #13 and #15 area, Dr. McDonald found that there was a white sharp piece of material which is bone in the most unusual position and that there was irregular bone and probable sinus communication. However, Dr. Huynh would not have been able to positively conclude there wasn’t an osseous body because he only took a visual exam, and according to him an osseous body needs an x-ray or a CAT scan and neither was not taken at the Plaintiff’s last visit on May 28, 2015. Evidence: Exhibit A, Plaintiff’s Declaration § 12, referring to Exhibit 1, Dr. McDonald’s report. [Exhibit B, Deposition of Dr. Huynh p.125:7-22; p. 126:18-23. S. At the end of the procedure gel foam was placed and the site of the extraction was sutured. Before the patient left, he was given prescriptions for antibiotics and pain medication and he was told to contact the office if there was any problem and he was given a follow up appointment for the following week. S. Undisputed. Case No. 16CV297194 3 RESPONSE OF PLAINTIFF TO SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS AND EVIDENCE IN OPPOSITION OF DEFENDANTS’ MSJ aA W O N oe 0 9 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moving Party's Undisputed Material Facts and Supporting Evidence: Opposing Party's Response and Supporting Evidence: See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, 9 4(g). 6. Dr. Huynh did not remove the filling on #13, or render any treatment to #13. No problems with #15 were shown on the x-ray taken at the conclusion of the procedure. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, § 4(h). 6. Disputed. Just weeks following the procedure, after a cone beam scan of the #14 and CT scan of the mouth for closer inspection of #13 and #15 area, Dr. McDonald found that there was a white sharp piece of material which is bone in the most unusual position and that there was irregular bone and probable sinus communication. However, Dr. Huynh would not have been able to positively conclude there wasn’t an osseous body because he only took a visual exam, and according to him an osseous body needs an x-ray or a CAT scan and neither was not taken at the Plaintiff’s last visit on May 28, 2015. Evidence: Exhibit A, Plaintiff’s Declaration § 12, referring to Exhibit 1, Dr. McDonald’s report. [Exhibit B, Deposition of Dr. Huynh p.125:7-22; p. 126:18-23. 7. Plaintiff returned to the clinic on May 21% complaining of excruciating pain, and expressing a belief that some root was still present. Dr. Huynh reassured the patient that the roots had been removed; because the patient insisted that was not the case, a panoramic and periapical x-ray of #14 were taken which showed no evidence of retained tooth material. In addition, the area was palpitated confirming some pain, but there was no evidence of swelling or infection. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, 4(j). 7. Disputed. Just weeks following the procedure, after a cone beam scan of the #14 and CT scan of the mouth for closer inspection of #13 and #15 area, Dr. McDonald found that there was a white sharp piece of material which is bone in the most unusual position and that there was irregular bone and probable sinus communication. However, Dr. Huynh would not have been able to positively conclude there wasn’t an osseous body because he only took a visual exam, and according to him an osseous body needs an x-ray or a CAT scan and neither was not taken at the Plaintiff’s last visit on May 28, 2015. Evidence: Exhibit A, Plaintiff’s Declaration § 12, referring Case No. 16CV297194 4 RESPONSE OF PLAINTIFF TO SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS AND EVIDENCE IN OPPOSITION OF DEFENDANTS’ MSJ aA W O N oe 0 9 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moving Party's Undisputed Material Facts and Supporting Evidence: Opposing Party's Response and Supporting Evidence: to Exhibit 1, Dr. McDonald’s report. [Exhibit B, Deposition of Dr. Huynh p.125:7-22; p. 126:18-23. 8. Dr. Huynh suspected that the patient may have developed a dry socket, in part because he was a smoker which puts him at a higher risk for developing this problem, so dry socket paste was placed into the extraction site during the 21% visit. Before the patient left the office, additional pain medications were prescribed and he was told to return within a week. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, Y 4(j). 3. Undisputed. 0. The return visit took place on May 28, 2015. The patient was reporting that the pain was still present, and he also reported that the filling had come out of tooth #13. The area of the extraction socket was examined, no bleeding or swelling was noted, but with palpation there was some pain reported, so more dry socket paste was place. Dr. Huynh also told the patient that the filling at #13 needed to be replaced for the short term but it would likely need a crown in the future. Plaintiff told Dr. Huynh that he did not want treatment on #13 at the time. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, 9 4(k). 0. Undisputed. 10. Because the pain seemed to be improving Dr. Huynh advised Mr. Maqdoor that further follow up would not be necessary, but he could call the office or make an appointment if the situation did not improve or if there as any problem. See Exhibit A, Plaintiff’s dental records 10. Undisputed. Case No. 16CV297194 5 RESPONSE OF PLAINTIFF TO SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS AND EVIDENCE IN OPPOSITION OF DEFENDANTS’ MSJ aA W O N oe 0 9 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moving Party's Undisputed Material Facts and Supporting Evidence: Opposing Party's Response and Supporting Evidence: from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, § 4(1). 11. Plaintiff returned to the clinic on May 31° complaining of pain in the upper left quadrant. An examination was performed and an x-ray was taken. The x- ray showed bone loss around the extraction site which Dr. Huynh advised the patient about. During his examination, Dr. Huynh observed that part of the mesial root at #15 was exposed which was making the area sensitive to temperature change. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, § 4(m). 11. Disputed. The Plaintiff returned to the clinic on March 31, 2016 and this is when he was referred to an endodontist. Evidence: Exhibit A, Plaintiff’s Declaration § 13; Exhibit C, Plaintiff’s dental records from NewGen Dentistry, p. 2. 12. To address this problem, a sensitivity strip was place on the exposed area. The patient was told again that #13 needed to have the filling replaced and he was referred to an oral surgeon for further evaluation as to the source of his ongoing pain. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, § 4(n). 12. Disputed. Dr. Huynh stated that he referred the Plaintiff to an oral surgeon because the extraction site of tooth #14 “look abnormal” not per se because of an evaluation as to the source of his ongoing pain. Evidence: [Exhibit B, Deposition of Dr. Huynh p.131:19-24 13. Before the patient left the office, his antibiotic and pain medication prescriptions were refilled. See Exhibit A, Plaintiff’s dental records from Newgen Dentistry, p. 1; see also Exhibit B, Declaration of Dr. Baron, 9 4(0). 13. Undisputed. 14. After this visit Dr. Huynh had no further contact from Plaintiff. See Exhibit A, Plaintiffs dental records. 14. Undisputed. 15. On June 24, 2015, Plaintiff presented to Oral Surgeon Dr. Alex McDonald complaining of chronic pain in the upper left jaw. Dr. McDonald performed a physical exam and a limited cone beam 15. Undisputed. Case No. 16CV297194 6 RESPONSE OF PLAINTIFF TO SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS AND EVIDENCE IN OPPOSITION OF DEFENDANTS’ MSJ aA W O N oe 0 9 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moving Party's Undisputed Material Facts and Supporting Evidence: Opposing Party's Response and Supporting Evidence: scan of the tooth #14 area. See Exhibit B, Declaration of Dr. Baron, 4(r); see also Exhibit C, Plaintiff’s dental records from Dr. McDonald, p. 1-3. 16. The exams identified a sharp, white piece of bone in an unusual position closer to tooth #15 than the area of tooth #14, extending through the mucosa. See Exhibit B, Declaration of Dr. Baron, 4(r); see also Exhibit C, Plaintiff’s dental records from Dr. McDonald, p. 1-3. 16. Undisputed. 17. Dr. McDonald also identified problems with teeth #13 and #15 and associated bone loss to these areas with possible sinus communication and low grade infection. See Exhibit B, Declaration of Dr. Baron, 4(s); see also Exhibit C, Plaintiff’s dental records from Dr. McDonald, p. 1-3. 17. Undisputed. 18. Dr. McDonald removed the piece of bone. See Exhibit B, Declaration of Dr. Baron, 4(t); see also Exhibit C, Plaintiff’s dental records from Dr. McDonald, p. 2. 18. Undisputed. 19. Plaintiff then presented to UCSF who offered exploratory surgery in order to determine the cause of Plaintiff’s continued pain and discomfort. The UCSF doctors found no evidence of any retained root material. The UCSF dentist suspected that Plaintiff had developed a small chronic oroantral fistula associated with the extraction of tooth #14. 19. Disputed. When the Plaintiff was examined by UCSF weeks after the extraction by Dr. Huynh, on June 10, 2015, it assessed there was a fracture of #13 and a retained root tip at #14. Evidence: [Exhibit D, Plaintiff’s dental records from UCSF Dentistry, p. 1. Case No. 16CV297194 7 RESPONSE OF PLAINTIFF TO SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS AND EVIDENCE IN OPPOSITION OF DEFENDANTS’ MSJ aA W O N oe 0 9 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moving Party's Undisputed Material Facts and Supporting Evidence: Opposing Party's Response and Supporting Evidence: See Exhibit B, Declaration of Dr. Baron, § 4(u); see also Exhibit D, Plaintiff’s dental records from UCSF, p.1. 20. On July 1, 2016 Plaintiff’s filed the operative complaint alleging negligent treatment of Plaintiff’s teeth Nos. 13 and 14 by leaving one of the roots of an extracted tooth in Plaintiff’s gum. See Exhibit E, Plaintiff’s Complaint. 20. Undisputed. 21. Dr. Huynh complied with the standard of care with respect to the care and treatment provided to Plaintiff. See Exhibit B, Declaration of Dr. Baron, 9 5-15. 21. Disputed. Just weeks following the procedure, after a cone beam scan of the #14 and CT scan of the mouth for closer inspection of #13 and #15 area, Dr. McDonald found that there was a white sharp piece of material which is bone in the most unusual position and that there was irregular bone and probable sinus communication. Further, Dr. McDonald found that tooth #13 was compromised to the point where it is going to take a root canal. However, Dr. Huynh concluded that the mouth just needed to heal when in fact he would not have been able to positively conclude there wasn’t an osseous body because he only took a visual exam, and according to him an osseous body needs an x-ray or a CAT scan and neither was not taken at the Plaintiff’s last visit on May 28, 2015. Further the Defendant did not provide sufficient information as to the nature of the extraction, and the imminent possibility of complications still existing, such as the dry socket since he was an occasional smoker. Now according to the most recent examination, Mr. Magqdoor is assessed to need a bone grafting and sinus lift because Dr. Huynh did not comply with the standard of care with respect to the care and treatment provided to the Plaintiff. Evidence: Exhibit A, Plaintiff’s Declaration § 12, referring to Exhibit 1, Dr. McDonald’s report. Exhibit B, Deposition of Dr. Huynh p.125:7-22; p. 126:18-23. Case No. 16CV297194 8 RESPONSE OF PLAINTIFF TO SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS AND EVIDENCE IN OPPOSITION OF DEFENDANTS’ MSJ aA W O N oe 0 9 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moving Party's Undisputed Material Opposing Party's Response and Supporting Facts and Supporting Evidence: Evidence: [Exhibit D, Plaintiff’s dental records from Dr. Polan. DATED: September 6, 2018 KALLAS LEGAL, APC. Case No. 16CV297194 By: SN : Serena J. Kallas oo Attorney for Plaintiff Belal Maqdoor 9 RESPONSE OF PLAINTIFF TO SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS AND EVIDENCE IN OPPOSITION OF DEFENDANTS’ MSJ