March 15, 2021

The Court of Appeal Fourth Appellate District Division One State of California (“California Appellate Court”) stated in its unpublished opinion dated February 16, 2021, “plaintiffs who are likely injured from common injections may well be entitled to res ipsa [loquitor] jury instructions … but such instructions are proper without any expert testimony only “where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised” … A plaintiff cannot expect to rely on res ipsa as a panacea, riding it all the way through to a trial when the fact finder would necessarily need some expert assistance for even a cursory understanding of what probably happened, as well as how and why it occurred.”

The Underlying Facts

Gutierrez went for a routine dental appointment at Smile San Diego. Her regular dentist, Dr. Javier Valadez, was running late so she was seen by Dr. Joseph R. Wisnieski instead. He evaluated her and recommended a deep cleaning procedure, to which Gutierrez agreed. The remainder of her appointment was with registered dental hygienist Timothy L. Gradney (Gradney) , who gave her three injections of a local anesthetic in conjunction with the cleaning procedure. According to Gutierrez, the first two injections were uneventful and Gradney began the cleaning. But when he paused to give her a third shot, there was an “instant pop” in her mouth followed by severe pain. Gutierrez reluctantly allowed Gradney to finish but had various symptoms from that point forward—including ongoing pain and swelling in her face and head, ear ringing, tearing in her left eye, dripping from her left nostril, and difficulty with facial control on the affected side.

Gutierrez filed a complaint alleging medical malpractice and general negligence by Smile San Diego, doctors Wisnieski and Valadez, and hygienist Gradney. Gradney moved for summary judgment, providing supportive expert declarations from doctors Edmond Hewlett and Stanley Malamed, who both concluded that Gradney’s treatment of Gutierrez met the standard of care for hygienists in the dental community. Their opinions were based on reviews of declarations from the parties and Gutierrez’s dental charts.

Gutierrez’s opposition to Gradney’s motion was supported only by her own declaration, in which she maintained that Gradney’s injection was negligently administered and damaged her trigeminal nerve—something she was apparently told by other doctors. She provided no expert declaration of her own, believing her reliance on res ipsa loquitor automatically entitled her to move past the summary judgment stage. The trial court granted Gradney’s motion, noting that Gutierrez’s failure to provide a competing expert opinion on the issue of negligence was fatal to her action. Gutierrez appealed.

California Appellate Court Opinion

The California Appellate Court held: “In our review, we conclude that (1) the expert declarations supported a determination that Gradney was not negligent notwithstanding the issue of Gutierrez’s actual injury or its cause, (2) evidence that Gradney met the standard of care was dispositive under any theory of liability that applied to him, and (3) the plaintiff’s reliance of res ipsa loquitor in this type of medical malpractice case does not nullify the need for at least some expert testimony. We consequently affirm the trial court’s grant of summary judgment.”

Source Gutierrez v. Gradney, D076991.

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