The Court of Appeal of the State of California Third Appellate District (El Dorado) (“California Appellate Court”) ruled in its unpublished opinion filed on June 22, 2020 that the defendant gastroenterologist was not entitled to summary judgment in a California medical malpractice case where the plaintiff alleged that the defendant negligently perforated her colon and/or negligently failed to discover the perforation during a colonoscopy, causing her to suffer severe injuries.
The defendant filed a motion for summary judgment and in support of that motion filed an affidavit from his gastroenterologist expert that stated “[b]ased upon my review of the records, my knowledge, education, training and experience, it is my opinion that [the defendant] was within the standard of care at all times while caring for [the plaintiff]” and further stated that the defendant “was not negligent and did not fall below the standard of care in his care of [the plaintiff] during the colonoscopies.” The expert noted that the plaintiff “unfortunately developed a perforation in the colon,” but declared that this was a “known risk of a colonoscopy” and the plaintiff was aware of the risk as she signed an informed consent form specifically describing that risk. The plaintiff opposed the motion but did not submit an affidavit from an expert in opposition.
The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.
California Appellate Court Opinion
The California Appellate Court reversed the trial court’s grant of summary judgment to the defendant, stating that the defendant had the initial burden to present evidence that would require a reasonable trier of fact to find that the defendant’s treatment of the plaintiff was within the standard of care, thereby negating an essential element of the plaintiff’s negligence claim. The California Appellate Court stated that the moving party’s burden cannot be satisfied by an expert declaration consisting of ultimate facts and conclusions that are unsupported by factual detail and reasoned explanation, even if it is admitted and unopposed; because an expert opinion is worth no more than the reasons and facts on which it is based, an expert opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value.
With regard to the case it was deciding, the California Appellate Court stated that the expert declaration presented by the defendant “amounts to little more than a bare statement that [the plaintiff’s] treatment was within the standard of care. It does not elaborate or explain why [the defendant’s] treatment was within the standard of care, except to suggest that a perforation is a “known risk of a colonoscopy,” of which [the plaintiff] was aware, having signed an informed consent form before the procedure. [The defendant’s] position appears to be that since a perforated colon is a known risk of the procedure, the perforated colon suffered by [the plaintiff] necessarily was within the standard of care. This does not follow.”
With regard to the plaintiff’s theory that the defendant negligently failed to check for a perforation before terminating the colonoscopy, the defendant had the burden to show he is entitled to judgment as a matter of law on any theory of liability reasonably embraced within the allegations of the plaintiff’s California medical malpractice complaint. The California Appellate Court stated that the defense expert’s “declaration does not even address this theory of liability. It does not set forth the standard for determining whether a perforation—a known risk—has occurred, or what conduct is required to meet it. The declaration concludes that [the defendant’s] treatment was at all times within the standard of care, but fails to elaborate upon or explain the basis for this conclusion. Strictly construing the [defense expert’s] declaration, as we must, we conclude it was not sufficient to meet [the defendant’s] initial burden to establish the nonexistence of a triable issue of material fact … Accordingly, the trial court erred in granting summary judgment.”
Source McAlpine v. Norman, C088327.
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