Photiadas v. Busati
Filed 5/26/06 Photiadas v. Busati 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
CHERI PHOTIADIS, Plaintiff and Appellant, v. MOHAMMED BUSATI, Defendant and Respondent. | B186429 (Los Angeles County Super. Ct. No. MC016171) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Frank Y. Jackson, Judge. Reversed.
Harold Kippen for Plaintiff and Appellant.
Ford, Walker, Haggerty & Behar, William C. Haggerty and Jay D. Brown for Defendant and Respondent.
INTRODUCTION
Plaintiff Cheri Photiadis appeals a judgment following the grant of the summary judgment motion of defendant Mohammed Busati. Photiadis's complaint for dental malpractice alleged that Busati's negligent dental treatment caused injury to her teeth. Busati supported his summary judgment motion with his own expert witness declaration that his dental treatment satisfied the standard of care. Busati's declaration, stating only that he was a licensed California dentist, was not sufficient to qualify him as an expert witness. Busati's declaration, moreover, did not disclose the matter Busati relied on to form his opinion that he treated Photiadis without negligence and with the degree of skill and care of a reasonably skillful and prudent dentist practicing in the community. We conclude that Busati did not meet his burden of showing that Photiadis's cause of action had no merit, and did not shift the burden to Photiadis to show the existence of one or more triable issues of material fact. We therefore reverse the judgment.
PROCEDURAL and FACTUAL HISTORY
On January 26, 2005, Photiadis filed a complaint for dental malpractice against defendant Busati. It alleged that Photiadis employed Busati to open her tooth No. 18 to prepare a root canal, but Busati started a root canal in the wrong tooth and left the root canal unfinished, causing Photiadis's tooth to become infected and causing two teeth to become so bone damaged and fragile that they need to be replaced. The complaint also alleged that Busati dragged his drill across Photiadis's front teeth, causing a large chip on one tooth, and that because Busati did not have a current DEA number, Photiadis was prevented from having a prescription filled to alleviate her pain.
On May 20, 2005, Busati filed a motion for summary judgment. Photiadis filed her opposition on August 11, 2005. The facts alleged in the motion and opposition, some of which the parties dispute, are as follows.
Photiadis came to Smile Care for extreme pain in either tooth No. 18 (as alleged by Busati) or tooth No. 20 (as alleged by Photiadis). On November 19, 2003, Busati treated Photiadis by opening and medicating tooth No. 18. Photiadis did not indicate that tooth No. 21 was painful. X-rays revealed an infection in tooth No. 18. Busati performed a filling to tooth No. 27, adjusted tooth No. 21 occlusally, and instructed Photiadis to return to finish treatment on tooth No. 18. Because Photiadis was a medical patient, Busati had to obtain authorization before performing root canal treatment. The parties disputed the medication provided to Photiadis at her November 19, 2003, visit. Busati alleged that he prescribed medication, and at that time had a valid DEA license; Photiadis alleged that another doctor prepared the medication because Busati had no DEA license on that date.
On November 24, 2003, Photiadis returned to Dr. Busati for treatment. Busati alleged that Photiadis now identified tooth No. 21 as the source of her pain, but Photiadis alleged that she stated she did not have pain in tooth No. 21. At this time Photiadis accused Busati of working on the wrong tooth.
After missing appointments on December 1 and 2, 2003, Photiadis returned on February 27, 2004, with pain in tooth No. 18. Busati prescribed additional antibiotics and pain medication.
Photiadis missed two appointments on March 4 and 8, 2004. She returned on March 11, 2004, but the parties disputed the treatment occurring on that date. Busati alleged that tooth No. 18 was again opened and medicated and canals were cleaned using hypoclorite and a rubber dam. Photiadis alleged that the rubber dam was not placed in her mouth. Busati informed Photiadis that the prognosis for tooth No. 18 was poor because of mobility, and prescribed antibiotics and Vicodin.
Photiadis canceled a March 25, 2004, appointment. Busati informed Photiadis it was critical to irrigate canals of tooth No. 18 because that tooth was infected, and told her tooth No. 18 might need to be extracted because it had a poor prognosis.
The parties disputed events in March and April 2004. Busati alleged that Photiadis canceled appointments on March 29 and April 2. Photiadis alleged that between March 11 and April 19, she met with Busati six or seven times in an attempt to complete the root canal, which Busati was unable to do. On April 19, Photiadis requested that tooth No. 18 be filled. Busati informed her that the root canal treatment could not be finished because infection was still present.
Regarding their final appointment, Busati alleged that he referred Photiadis to an endodontist, while Photiadis alleged that Busati never referred her to an endodontist. The parties agreed that Photiadis did not see Busati after April 19, 2004.
STANDARD OF REVIEW
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