Metropolitan News-Enterprise


Friday, August 21, 2020


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Expert Testimony in Wrongful Death Suit Improperly Tossed—C.A.


By Sandra Hong, Staff Writer


A wrongful death lawsuit against a Whittier obstetrician was resuscitated by this district’s Court of Appeal after it found that “clear, reasoned” expert testimony at trial was improperly stricken  despite it raising triable issues of material fact regarding the doctor’s conduct in treating a patient who died of a rare immunodeficiency condition a month after giving birth.

The opinion by Div. Five Presiding Justice Laurence D. Rubin reverses a summary judgment granted by Los Angeles Superior Court Judge Marc D. Gross, who tossed out testimony from the plaintiffs’ expert witness on ground that the expert had never treated patients with the particular disease.

Without the expert testimony, Gross found plaintiffs failed to demonstrate there was a possible link between the doctor’s standard of care and the April 2014 death of 34-year-old Marleny Escobar, whose autopsy report showed she had hemophagocytic lymphohistiocytosis (“HLH”) and a fungal infection throughout her body.

Plaintiffs’ Expert Testimony

Rubin, however, concluded that the testimony from Dr. Paul Sinkhorn, an obstetrician and gynecologist with 35 years of clinical and academic teaching experience, was sufficient to show the existence of a triable issue of fact regarding the cause of Escobar’s death.

Sinkhorn’s testimony asserted that earlier treatment in Escobar “more probably than not” would have slowed progression of the disease, citing research that found patients who receive recommended treatment for HLH have “a median survival of 54 percent.”

Rubin said, in his unpublished opinion filed Wednesday:

“This is not a case where we can say the expert’s opinion was ‘clearly invalid and unreliable’ and would be unlikely to assist the jury in its fact-finding mission.”

Escobar’s husband, Edy Hernandez, and two sons filed suit against Dr. Azmath Qureshi, alleging she failed to investigate a host of troubling symptoms Escobar experienced during pregnancy, which led to her premature death. Her symptoms had included painful urination, blood in her urine, daily fevers, coughing, congestion, and weight loss, according to Rubin’s opinion.

Urinalysis and blood work showed abnormalities.

Defendant’s Expert Testimony

Qureshi argued that Escobar’s symptoms did not fit the criteria of HLH. Qureshi presented expert testimony from Dr. Kenneth McClain, a pediatrician specializing in hematology and oncology who treated children with HLH.

McClain testified that Escobar’s blood work did not match the criteria for an HLH diagnosis while under Qureshi’s care, and that by the time the disease was diagnosable “she would not have survived the disease process.”

On appeal, Qureshi maintained that Sinkhorn lacked adequate foundation to testify because he had never “seen, diagnosed, or treated a case of HLH.” Rubin rejected that argument, citing Sinkhorn’s practice and teaching experience, as well as his own research on the disease and review of McClain’s articles.

“What [Sinkhorn] lacked in HLH experience he filled in by relying on Dr. [McClain’s] own studies,” Rubin wrote. “The different qualifications of the two medical experts—Dr. [McClain] was not an obstetrician and did not treat pregnant women—goes to the weight that the trier of fact might assign to their opinions.”

The case is Hernandez v. Qureshi, B290866.

Counsel for Hernandez was Ashton R. Watkins of the Law Offices of Ashton Watkins in Los Angeles. Counsel for Qureshi were Mark V. Franzen, Jennifer L. Sturges, and David P. Pruett of Carroll, Kelly, Trotter, Franzen & McBride in Long Beach.


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