Avakian v. Tenet Health System

Filed 3/24/06 Avakian v. Tenet Health System CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, William Highberger, Judge. Reversed.

Bookman & Kent, Robert K. Kent and Lawrence E. Bookman for Plaintiff and Appellant.

Randolph M. Even & Associates, Scott R. Diamond and Jennifer J. Villafana for Tenet Health System Health Corp., Defendant and Respondent.

Cassel Malm Fagundes, Joseph H. Fagundes and Pamela R. Peters; D'Antony, Poliquin & Doyle and Geoffrey T. Moore for Queenscare Family Clinic and Mary T. David, Defendants and Respondents.

Moore, Winter, Skebba & McLennan, Jamie B. Skebba and Neil G. MacMillan for Christopher NG, Defendant and Respondent.

INTRODUCTION

Plaintiff and appellant Paul Avakian (Avakian) filed a medical malpractice lawsuit. He appeals from a summary judgment entered against him. We reverse because there are triable issues of fact.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Avakian experiences pain.

In April 2001, Avakian was an 18-year-old who had dropped out of high school and was attending continuation school. He was in excellent health and he engaged in a number of athletic endeavors.

On April 13, 2001, Avakian started to feel pain in his abdominal area which gradually increased. That evening, Avakian believed he took some over the counter pain medicine in an attempt to alleviate the pain. The pain continued for the next two days. Avakian had trouble sleeping and he was vomiting. He might have had a fever.

b. Avakian's emergency room visit on April 15, 2001.

Early on the morning of April 15, 2001, Avakian went to the emergency room at Queen of Angels/Hollywood Presbyterian Medical Center (Queen of Angels, or the hospital) where he was first seen by a nurse. Avakian told the nurse he was having severe pain in the right lower abdominal area, had been nauseous, and had been vomiting. The nurse took Avakian's vital signs and obtained a urine sample.

Defendant and respondent Christopher Ng, M.D. reviewed Avakian's chart that included the nurse's notes. Avakian told Dr. Ng about what had been happening to him, including that he had been experiencing severe pain in the right lower abdominal area that was spreading towards his back. Dr. Ng physically examined Avakian.

A urinalysis showed elevated white blood cells. Dr. Ng told Avakian he had a urinary infection. Dr. Ng gave Avakian a prescription for antibiotics, but to wait two days before taking the medicine. Dr. Ng also told Avakian to drink a lot of fluids. After being at the hospital for about four hours, Avakian was discharged.

Over the next two days, Avakian's pain increased.

c. Services rendered to Avakian at Queenscare on April 18, 2001.

On April 18, 2001, Avakian went to defendant and respondent Queenscare Family Clinic (Queenscare) to have the prescription filled. Prior to filing the prescription, defendant and respondent Mary David (a nurse practitioner) examined Avakian. After the examination, Ms. David told Avakian he did not have a urinary infection, but would fill the prescription anyway. Ms. David did not provide Avakian with another diagnosis, instruct him to return to the hospital, nor tell him to see his own physician. Ms. David told Avakian to return in one month.

Because Ms. David did not tell Avakian he had a serious problem, he and his mother thought the pain was â€