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Court of Appeal:
Lawyers With No Expert Witness in Action for Medical Malpractice Are Subject to Suit
Justices See Minimal Merit in Doctor’s Malicious Prosecution Claim
By a MetNews Staff Writer
Attorneys who represent a client in a medical malpractice action and have no experts lined up to testify are vulnerable to a malicious prosecution action, the Court of Appeal for this district has held, affirming the denial of an anti-SLAPP motion.
Acting Presiding Justice Audrey Collins of Div. Four authored the unpublished opinion, filed Monday. Expressing agreement with the decision by Los Angeles Superior Court Judge Daniel S. Murphy to allow the lawsuit brought by Whittier obstetrician/gynecologist Kenneth Purdom to go forward, she noted:
“It is a longstanding rule that the testimony of an expert witness is required in a professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether any negligence by the defendant caused the plaintiff’s damages.”
Yet, attorneys Ying Xu, Eric Chen and Samantha Larsen of the Law Offices of Eric K. Chen in the City of Industry and San Bernardino practitioner Kaleigh Ragon had retained no expert in the malpractice action they brought on behalf of Ying Hong Zhang in his lawsuit against Purdom, resulting in the granting of judgment in favor of the doctor at the close of the plaintiff’s case.
‘Objectively Unreasonable’
“Without expert testimony on the standard of care, breach, and causation, Zhang’s claim was not legally tenable,” Collins wrote. “It was therefore objectively unreasonable for the Attorneys to bring the medical malpractice claim, and to maintain that claim through trial, without the necessary expert support.”
The jurist noted that the first prong of the judgment anti-SLAPP statute, Code of Civil Procedure §425.16—protected conduct—was clearly met, but that Purdom succeeded in meeting his burden under the second prong by showing that his claim has minimal merit.
Zhang contended that he had consented to one type of laparotomy—entailing an incision into the abdomen—but a surgery of a different sort weas performed. No expert testimony was needed, he argued on appeal, because “in today’s modern world vast amounts of reliable information is accessible by anyone from the palm of their hand.”
Contention Is ‘Nonsensible’
Collins responded:
“The suggestion that the factfinder at trial could or should use a smartphone to do independent research into medical terms is nonsensical and unprofessional. Such outside research would violate the factfinder’s obligation to consider only the evidence presented in court. Moreover, the suggestion that these medical terms required research discredits the Attorneys’ argument that this information is common lay knowledge.”
She added:
“In the underlying action the Attorneys did not present any evidence, expert or otherwise, as to the difference between the procedures and whether it was substantial. The Attorneys’ showing therefore does not defeat Purdom’s claim as a matter of law.”
From the failure to procure services of an expert, Collins said, malice can be inferred.
The case is Purdom v. Xu, B327564.
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