Thursday, July 9, 2020
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Headline Expert’s Declaration Didn’t Say Enough to Justify Summary Judgment—C.A.
By a MetNews Staff Writer
An expert’s declaration that a specific injury in the course of surgery commonly occurs, as was understood by the patient, and that the doctor’s performance did not fall below an acceptable standard of care, was insufficient to warrant summary judgment for the defense in a medical malpractice action, the Third District Court of Appeal has held.
The opinion by Justice Ronald B. Robie, filed June 22 and certified for partial publication yesterday, reinstates an action brought by Christi McAlpine against Daniel A. Norman, a gastroenterologist in South Lake Tahoe, California. She claims that through negligence on his part, she suffered injuries in the course of his performing colonoscopies on her in 2015.
In moving for summary judgment, Norman presented a declaration from an expert in gastrointestinal disorders, John Cello, director of the University of California, San Francisco Esophageal Motility Center. McAlpine provided no contradictory declaration by an expert.
Norman’s motion was granted by retired Nevada County Superior Court Judge C. Anders Holmer, sitting on assignment to the El Dorado Superior Court.
Flaw in Declaration
In the published portion of the opinion, Robie said:
“The expert declaration presented by Norman amounts to little more than a bare statement that McAlpine’s treatment was within the standard of care. It does not elaborate or explain why Norman’s treatment was within the standard of care, except to suggest that a perforation is a ‘known risk of a colonoscopy,’ of which McAlpine was aware, having signed an informed consent form before the procedure. Norman’s position appears to be that since a perforated colon is a known risk of the procedure, the perforated colon suffered by McAlpine necessarily was within the standard of care. This does not follow.”
He continued:
“As McAlpine argues, one of her central theories of liability was that Norman negligently failed to check for a perforation before terminating the colonoscopy. As the party moving for summary judgment, Norman 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 McAlpine’s complaint.”
Standard Not Stated
The jurist added:
“Cello’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 Norman’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 Cello declaration, as we must, we conclude it was not sufficient to meet Norman’s initial burden to establish the nonexistence of a triable issue of material fact.”
In the unpublished portion, Robie’s opinion rejects McAlpine’s contention that Holmer abused his discretion in denying leave to amend.
The case is McAlpine v. Norman, 2020 S.O.S. 3374.
The initial request for publication was made by the Irvine law firm of Hodes, Milman and Liebeck, LLP, which specializes in malpractice cases. Opposition was filed, with the court’s permission, by Norman.
Benjamin Ikuta of the Nonprofit Legal Services, Inc. and others filed an additional request for publication.
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