Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. EC044742, Michelle R. Rosenblatt, Judge.
Kaye Scholer, Jan E. Dodd and Matthew G. Clark for Plaintiff and Appellant.
Patterson, Lockwood, Harris & Jurich, Richard G. Harris and Christie O. Beard for Defendant and Respondent.
MANELLA, J.
Appellant Ebrahim Salomon brought suit against his physician, Sasan Najibi, M.D., for medical malpractice. Dr. Najibi moved for summary judgment on the grounds that his treatment of Salomon met the applicable standard of care and did not cause Salomon’s injuries. The court granted the motion, finding that Salomon had raised a triable issue of fact with respect to standard of care, but not with respect to causation. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint
The complaint alleged that in January 2006, Salomon was a patient of Dr. Najibi, “at which time [Dr. Najibi] negligently performed a left arm brachiocephalic arteriovenous fistula placement and vein cephalic dilation as well as other medical procedures” which resulted in loss of mobility on Salomon’s left side and loss of hearing in his left ear.
A “fistula” is an abnormal passage or communication, usually between two internal organs. (Dorland’s Illustrated Medical Dict. (28th ed. 1994) (Dorland’s), p. 635.) An “arteriovenous fistula” (AV fistula) is a “communication... between an artery and a vein in which the blood flows directly into a neighboring vein.” (Ibid.) AV fistulas are surgically created to “provide a site of access for hemodialysis tubing.” (Ibid.)
B. Motion for Summary Judgment
In May 2008, Dr. Najibi moved for summary judgment. The motion was supported by two declarations -- one from Dr. Najibi and one from defense expert, David Cossman, M.D.
Dr. Cossman’s declaration was based on a review of the medical records. In addition to the declarations, approximately 20 documents obtained from Salomon’s medical records were filed in support of the motion.
According to both declarations, Salomon suffered from “end stage renal disease” requiring hemodialysis three times per week. From 2004 to 2006, Salomon’s blood was accessed for treatment by the dialysis machine through a “left internal jugular vein tunneled dialysis catheter” placed prior to Salomon’s treatment with Dr. Najibi.
As explained in Salomon’s brief, hemodialysis involves extracting the blood from a patient’s body, removing waste and returning the filtered blood. (See Dorland’s, supra, at p. 748.)
As explained in Salomon’s brief, because of the volume of blood involved, hemodialysis treatment requires more than an ordinary intravenous line. An “internal jugular vein tunneled dialysis catheter” is a thin, flexible plastic tube threaded into the patient’s internal jugular vein (a large vein in the neck), intended to remain in place on a semi-permanent basis, allowing repeated access to the patient’s blood system for dialysis treatment. (See Dorland’s, supra, at p. 279 [defining catheter]; p. 1810 [defining internal jugular vein].)
In June 2005, Dr. Najibi performed a surgical procedure to create a “radiocephalic [AV] fistula” in Salomon’s left arm. The fistula was intended to replace the jugular vein catheter, but it did not properly “mature” and proved inadequate for effective hemodialysis.
As both parties discuss in their briefs, an AV fistula is considered a superior method of access for hemodialysis treatment because it is less likely to develop complications than a catheter and can be used for a longer period than a catheter.
In this context, “mature” means develop and become effective for use in hemodialysis.
On January 26, 2006, Dr. Najibi “reevaluated the left radiocephalic [AV] fistula by venography..., and revised it to a new left brachiocephalic [AV] fistula, ” that is, he performed a venogram and created a second AV fistula in a different location in Salomon’s left arm. Dr. Najibi examined Salomon after the procedure; he appeared to be suffering no negative effects in his hand, arm or fingers. The second AV fistula successfully matured over the following weeks. On April 4, 2006, Dr. Najibi recommended that the second AV fistula be used for hemodialysis treatment and that the jugular vein catheter be removed after the fistula had been successfully used.
A venogram is an x-ray of a vein that has been filled with a contrast medium. (See Dorland’s, supra, at pp. 1279, 1405, 1814.)
An April 4, 2006 medical document signed by Dr. Najibi stated that Salomon “ha[d] no complaints” and that the “[l]eft hand neurologically is intact without deficits.”
It was not clear precisely when Dr. Najibi believed the jugular vein catheter should have been removed. In the April 4, 2006 medical document signed by Dr. Najibi, he recommended “[u]s[ing] the left arm [AV] fistula for hemodialysis” and removing the jugular vein catheter “after the fistula has been used for hemodialysis successfully, ” indicating the second AV fistula had not yet been used successfully. In a later document, dated May 23, 2006, Dr. Najibi stated that Salomon “came in today with complaint of left upper extremity edema” and that “MRA [magnetic resonance angiography] of the neck was performed that had shown presence of left brachiocephalic vein occlusion.” In the May document, Dr. Najibi stated that Salomon had had a jugular vein catheter placed two years earlier and that “[d]espite strong recommendations, [Salomon] ha[d] failed to followup for removal of this catheter.”
According to Dr. Najibi and Dr. Cossman, Salomon began to develop edema or swelling in his left arm in May 2006. Dr. Najibi again recommended that the jugular vein catheter be removed, but Salomon refused the procedure. The swelling continued and “there was concern” that “some stenosis of the left brachiocephalic vein was developing.” Accordingly, “it was recommended” that Salomon undergo “percutaneous transluminal angioplasty” and “stent of the left brachiocephalic vein, or placement of a right upper arm AV fistula, with ligation of the [existing] upper extremity brachiocephalic fistula.”
The brachiocephalic veins, also called the innominate veins, are “the two veins that drain blood from the head, neck and upper extremities.” (Dorland’s, supra, at pp. 1804, 1807.) “Stenosis” essentially means narrowing. (See Dorland’s, supra, at p. 1576.) Dr. Cossman described Dr. Najibi’s assessment as follows: the “left brachiocepahlic [AV] fistula [was] still functional for dialysis, ” but “there was concern that proximal central venous stenosis had developed.” The declarations further stated that in November 2006, Marc Freidman, M.D., performed a “fistulogram” to assess the function of the existing left arm AV fistula and that Dr. Freidman found some occlusion of the brachiocephalic vein, and a “patent left brachial artery to cephalic vein fistula with no evidence of stenosis into its confluence with the caudal left internal jugular vein.”
“Percutaneous transluminal angioplasty” or “PTA” is a procedure that mechanically opens blood vessels using a collapsed balloon which is threaded into the narrow part of the vessel and then inflated. (See Dorland’s, supra, at pp. 79-80.) “Ligation” essentially means to tie off. (Id. at pp. 939-940.) It is not clear from either declaration when these recommendations were made or by whom. In a document signed May 23, 2006, Dr. Najibi recommended PTA and placement of a stent in the left brachiocephalic vein; but not placement of a right arm AV fistula or ligation of the existing fistula.
Dr. Najibi and Dr. Cossman both expressed the following opinions with respect to the standard of care: (1) “the vascular surgery care provided to Mr. Salomon was at all times and in all respects appropriate, and in compliance with the medical standard of care”; (2) the creation of the left brachiocephalic AV fistula by Dr. Najibi “was a reasonable and appropriate alternative after the left radiocephalic fistula failed to mature and proved inadequate for effective hemodialysis”; (3) “Dr. Najibi appropriately assessed the patient after he developed swelling of his left upper extremity and related symptoms, and he recommended a reasonable and appropriate plan of treatment”; and (4) “[t]he treatment recommend by Dr. Najibi was in conformance with the medical standard of care, and was consistent with ‘second opinions’ offered to the patient by other vascular surgeons Mr. Salomon consulted.”
The declarations discussed matters that occurred after June 2006, apparently to support that Dr. Najibi’s recommendations were in line with recommendations made by other physicians. According to the declarations, Salomon sought the opinions of other vascular surgeons who “similarly recommended modification or relocation of the dialysis access site, ” including ligation of the existing left brachiocephalic AV fistula and removal of the jugular vein catheter. The only specific recommendation discussed in the declarations was that of Robert Oblath, M.D., who in January 2007, reportedly advised placement of a new AV fistula in Salomon’s right arm and removal of the jugular vein catheter when the new fistula matured.
Dr. Najibi concluded with respect to causation: “In my opinion, the left upper extremity swelling which Mr. Salomon developed, and the subsequent related neurologic symptoms and complaints, were consequences of his original left internal jugular vein tunneled dialysis catheter and/or interference by that catheter with the function and flow of the left brachiocephalic or innominate vein in the upper chest.” Dr. Cossman stated: “In my opinion, the left upper extremity swelling which Mr. Salomon developed, was caused by central venous occlusion related to the left internal jugular vein tunneled dialysis catheter proximal to a high flow AV fistula. Ligation of the [AV fistula] or preservation of the [AV fistula] with successful angioplasty of the left brachiocephalic vein as recommended would have provided relief of the swelling.” (Italics added.)
C. Opposition
The hearing on the motion for summary judgment was originally scheduled for August 8, 2008. In July, Salomon’s counsel asked to be relieved, and in August, the court granted counsel’s motion. The hearing on the summary judgment motion was continued by the court to October 3, 2008.
On September 25, Salomon, representing himself, filed an opposition, which included a declaration he executed. The declaration stated that Dr. Najibi’s declaration was incorrect, because Salomon had suffered from swelling before and after the creation of the second AV fistula in January 2006. Salomon further stated that his decision to keep the jugular vein catheter in place was due to the recommendations of other doctors, who specifically advised that he keep it until after his kidney transplant surgery. Salomon did not initially include an expert declaration with his opposition. However, he attached to his declaration guidelines purportedly promulgated by the National Kidney Foundation which stated that placing an AV fistula on the same side as a jugular vein catheter was inappropriate.
To support the statements in the declaration, Salomon offered records dated from September 2005 to July 2006, apparently prepared by medical personnel before and after his dialysis treatments, which reported pre-treatment edema of his face and hands. Salomon also stated in the declaration that he “had no sensory, motor or nerve deficit in [his] left hand prior to LEFT FISTULA surgery by [Dr. Najibi].” In a supplemental declaration, Salomon said Dr. Najibi “waited 12 months exasperating [sic] the damages despite repeated complain[t]s of swelling” and “[d]espite repeated complain[t]s of swelling [Dr. Najibi] never diagnosed root cause of this swelling for more than 12 months.”
Salomon received a kidney transplant in April 2008.
The court sustained objection to the guidelines except to the extent they were referenced in the declaration of the expert Salomon eventually retained. The declaration of Alan R. Koslow, M.D., Salomon’s expert, referenced this part of the guidelines.
At an ex parte hearing on September 29, Salomon asked the court for a continuance to allow him to obtain an expert declaration. At that time, Salomon indicated he intended to obtain a declaration from Richard McKann, M.D., and that he was in the process of retaining counsel. The court continued the hearing to October 31. On October 17, Salomon, still representing himself, submitted a second opposition to the summary judgment motion, including a declaration from Alan R. Koslow, M.D.
In his declaration, Dr. Koslow stated that he had been provided for review “copies of [the] permanent medical records of [Salomon] from various sources including Dr. Najibi[, ] Providence St. Joseph’s Medical Center[, ] and Encino-Tarzana Medical Center, UCLA School of Medicine, UCLA Medical Center, Lancelot Alexander, M.D.[, ] Cedars Sinai Medical Center, and Kidney Center of Sherman Oaks.” Dr. Koslow stated that according to the medical records, Salomon began to experience swelling of his face and arm sometime between June 2005, when the first AV fistula was attempted, and January 2006, when Dr. Najibi placed the second AV fistula. Dr. Koslow stated that Salomon “directly report[ed] to me that he had mentioned [the swelling] to Dr. Najibi multiple times” and that Salomon’s symptoms were “well documented in the dialysis access notes” but “not documented in [] Dr. Najibi’s notes at all.” On January 26, 2006, the date of the second AV fistula procedure, Dr. Najibi attempted to perform a venogram, but, according to Dr. Koslow, was unable to do so. “Over the ensuing several months culminating on June 13, 2006... [Salomon’s] swelling continued to worsen and [he] developed a neurological deficit in the left upper extremity and also a hearing loss on the left.” At that time, Jeffrey Velotta, M.D. recommended (1) that the existing AV fistula be ligated; (2) that a new AV fistula be placed in the right arm; (3) that the jugular vein catheter be removed; and (4) that a venogram be performed. Salomon refused the procedures. According to Dr. Koslow, however, there had been “no worsening of his neurological deficit from that point on and also no worsening of his edema from that point on.” Dr. Koslow further stated: “[B]y the time that [Salomon] was diagnosed in June [2006] to a high degree of medical certainty[, ] the damage was permanent and would not have been reversed even with the recommended procedures by Dr. Velotta....”
With respect to the venogram, which Dr. Najibi stated was performed on January 26, 2006, the day of the second fistula surgery, Dr. Koslow stated: “[N]o venogram is documented in the records of January 26, 2006.” Dr. Koslow further stated that the venogram Dr. Najibi attempted was of the forearm only. In Dr. Koslow’s opinion, Dr. Najibi should have performed a “central venous venogram.”
Attached to the opposition was a document dated June 14, 2006, that appeared to have been prepared by Dr. Velotta. It recommended with respect to Salomon’s symptoms -- described as loss of hearing and loss of mobility in left arm -- angioplasty of the occluded vein, removal of the AV fistula in his left arm “since the subclavian/innominate stenosis is very likely to recur, ” and placement of an AV fistula in his right forearm.
Dr. Koslow explained Salomon had suffered an “occlusion” or blockage in his left innominate vein caused by the presence of the jugular vein catheter and attributed the resulting injury to the high blood flow from the AV fistula into the area of the occlusion. Dr. Koslow concluded: “In my opinion, the AV [f]istula blood flow in the face of the innominate vein which had thrombosed by the tunneled catheter being present caused the edema and the n[eu]rologic deficit, to a high degree of medical certainty.”
A thrombosis is an obstruction in a blood vessel caused by “an aggregation of blood factors” -- essentially a blood clot. (See Dorland’s, supra, at pp. 1707-1708.)
Dr. Koslow placed the blame for Salomon’s injuries squarely on Dr. Najibi’s treatment, concluding that his treatment fell below the standard of care in four respects: (1) Dr. Najibi placed the first AV fistula in June 2005 on the same side as the existing jugular vein catheter, contrary to National Kidney Foundation guidelines; (2) Dr. Najibi did not rule out central venous thrombosis and occlusion as soon as Salomon began to complain about swelling; (3) in January 2006, Dr. Najibi placed the second AV fistula in the same arm as the first, “which would just exacerbate the swelling”; and (4) “Dr. Najibi did not proceed with any evaluation for central venous thrombosis and venous hypertension” between January 2006 and May 2006 “when [t]he patient developed more profound swelling and neurological symptoms.” Summarizing Dr. Najibi’s culpability, Dr. Koslow stated: “[T]he left upper extremity swelling which [Salomon] developed and the subsequently related neurological symptoms and complaints were [the] consequence of both the original left internal jugular vein tunneled dialysis catheter and the primary [AV] fistulas that were placed by Dr. Najibi. The negligent act came not only in placing the AV fistulas, but in the failure to[, ] as the primary vascular surgeon treating the patient during this time, ... properly diagnose and treat the edema and this failure falls below the standard of care.”
D. Reply
In his reply, Dr. Najibi contended that Salomon misled the court, obtaining a continuance of the hearing on the summary judgment motion through “[f]raud on the [c]ourt, ” and that his opposition should be stricken. The reply also objected to the form of the response to Dr. Najibi’s separate statement of undisputed facts. Dr. Najibi further objected to certain evidence submitted by Salomon, including the National Kidney Foundation guidelines, but did not raise any specific evidentiary objections to Dr. Koslow’s declaration or address his conclusions.
E. Hearing and Order
At the hearing, Dr. Najibi’s counsel urged the court to reject the opposition on procedural grounds, specifically asking the court to strike Dr. Koslow’s declaration, because Salomon “misled the court in obtaining the continuance.” The court denied the motion to strike and stated its intent to address the motion on the merits and to consider Dr. Koslow’s declaration.
The court announced a tentative ruling in favor of Dr. Najibi. Salomon, still representing himself, emphasized the evidence that the swelling began after the first AV fistula procedure -- not the second, as stated in Dr. Najibi’s supporting declarations -- and the evidence that a jugular vein catheter and AV fistula should not be placed on the same side of the patient’s body. The court stated that this evidence was not determinative because the basis of the tentative “was not with respect to the standard of care” but was “based upon causation.”
The court granted the motion for summary judgment, stating in its order: “The court finds that the declaration of [Dr. Cossman] submitted with the Summary Judgment Motion of [Dr. Najibi] showed that the care and treatment provided by [Dr. Najibi] [to] [Salomon] was within the standard of care and was not a substantial factor in causing [Salomon’s] injuries. The opposing declaration of [Dr. Koslow] provided an opinion that [Dr. Najibi’s] care and treatment was below the standard of care, but did not establish that [Dr. Najibi’s] care and treatment was a substantial factor in causing [Salomon’s] injuries. Thus, the undisputed facts show that [Salomon] cannot establish the essential element of causation.”
Judgment was entered in favor of Dr. Najibi, and this appeal followed.
By the time of this appeal, Salomon was represented by counsel.
DISCUSSION
A. Burden of Proof and Standard of Review
“Medical providers must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances. [Citation.] Thus, in ‘“any medical malpractice action, the plaintiff must establish: ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.’ [Citation.]”’” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122, quoting Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
When moving for summary judgment in a medical malpractice action, the physician defendant has the initial burden of showing that the claim lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 121.) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence, and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)
“In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation].” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) Where the party moving for summary judgment in a medical malpractice action is the defendant doctor, he or she “‘is not entitled to obtain summary judgment based on a conclusory expert declaration which states the opinion that no malpractice has occurred, but does not explain the basis for the opinion.’” (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 123, quoting Kelley v. Trunk, supra, 66 Cal.App.4th at p. 521.) An expert declaration “‘[w]ithout illuminating explanation, ’” is “‘insufficient to carry [the doctor’s] burden in moving for summary judgment.’” (Powell v. Kleinman, supra, at p. 124, quoting Kelley v. Trunk, supra, at p. 524.) However, because courts in evaluating summary judgment motions must “‘consider all of the evidence’” and “‘all of the inferences reasonably drawn therefrom, ... ‘in the light most favorable to the opposing party’” (Powell v. Kleinman, supra, at pp. 121-122, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844-845), the standard applied to the opposing plaintiff’s expert declarations is less exacting. To be deemed sufficient to defeat a summary judgment motion, expert declarations submitted by the plaintiff need not be as detailed as that of the moving party because such declarations are “entitled to all favorable inferences.” (Powell v. Kleinman, supra, at p. 125; accord, Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332 [“The requisite of a detailed, reasoned explanation for expert opinions applies to ‘expert declarations in support of summary judgment, ’ not to expert declarations in opposition to summary judgment.”], italics omitted; see Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 529 [“If the only problem with [the expert’s] declaration was that it was insufficiently detailed, we would agree with the [plaintiffs] that the declaration could provide sufficient support for their claimed dispute of fact.”].)
In reviewing a grant of summary judgment, the appellate court conducts a de novo examination of the record to determine whether the moving party was entitled to summary judgment as a matter of law or whether an issue of material fact remains. (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1476, quoting Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) In order to do so, “‘we must assume the role of the trial court and reassess the merits of the motion’ taking into consideration ‘only the facts properly before the trial court at the time it ruled on the motion. [Citation.]’” (131 Cal.App.4th at p. 1476.) “In carrying out this function, ‘we apply the same three-step analysis required of the trial court: “‘First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond.... [¶] Secondly, we determine whether the moving party’s showing has [satisfied his or her burden of proof] and justif[ies] a judgment in movant’s favor.... [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.’”’” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson, supra, 131 Cal.App.4th at p. 1476, quoting Brantley v. Pisaro, supra, 42 Cal.App.4th at p. 1602.)
Here, Dr. Najibi sought to establish that he complied with the applicable standard of care and that there was no causal connection between any allegedly negligent conduct and the resulting injury. The trial court concluded that Dr. Najibi initially negated the elements of breach of duty of care and causation. The court further concluded that Salomon, through the declaration of Dr. Koslow, raised a triable issue of fact with respect to duty of care, but not with respect to causation. Salomon contends that the trial court was incorrect in its conclusion that he raised no triable issue of fact on causation. We agree.
A. Dr. Koslow’s Declaration Raised Triable Issues as to Causation.
With respect to causation and injury, Dr. Najibi and Dr. Cossman did not dispute that Salomon suffered permanent mobility damage to his left arm and permanent hearing loss in his left ear. Nor did they dispute that this damage was the result of the occlusion of a major vein -- the innominate or brachiocephalic -- and the resulting edema or swelling. Moreover, Dr. Cossman specifically stated that the edema and resulting injury were caused by the occlusion in conjunction with the proximal “high flow AV fistula.” Without admitting that placement of the AV fistula was incorrect, both essentially expressed the opinion that the location of the AV fistula could not have been a legal cause of Salomon’s injuries because the edema would not have occurred in the absence of the catheter, the edema did not begin until May 2006, and Dr. Najibi had advised Salomon to remove the jugular vein catheter prior to that time. They further opined that Dr. Najibi’s recommendation of angioplasty (PTA) and placement of a stent in the innominate/brachiocephalic vein, a course which Salomon rejected, would have prevented the permanent injury Salomon suffered.
Neither Dr. Najibi nor Dr. Cossman specifically addressed whether placement of either AV fistula on the same side as the existing jugular vein catheter was appropriate. However, Dr. Cossman’s opinion suggests that Dr. Najibi’s decision to place the second AV fistula in Salomon’s left arm was a factor in the edema and resulting injury.
Dr. Koslow’s opposing declaration was sufficient to raise triable issues of fact with respect to causation. Dr. Koslow specifically stated: “In my opinion, the AV fistula blood flow in the face of the innominate vein which had thrombosed by the tunneled catheter being present caused the edema and the n[eu]rologic deficit, to a high degree of medical certainty.” He stressed that the swelling and subsequent neurological damage “were consequence[s] of both the original left internal jugular vein tunneled dialysis catheter and the primary AV fistulas that were placed by Dr. Najibi.” Moreover, Dr. Koslow stated that Dr. Najibi breached his duty of care not only in his choice of where to place the AV fistulas, but also by failing to diagnose and treat the occlusion when the swelling first began -- not in May 2006, but prior to January 2006. In addition, Dr. Koslow expressed the opinion that placing the second AV fistula without performing a central venous venogram and failing to proceed with any type of evaluation for central venous thrombosis between January 2006 and May 2006, when “[t]he patient developed more profound swelling and neurological symptoms, ” further exacerbated Salomon’s condition and resulted in permanent neurological damage. If the occlusion manifested in January 2006 or earlier and became exacerbated immediately after placement of the second AV fistula, Salomon’s injuries predated the treatment recommendations on which Dr. Najibi relied to establish his defense -- removal of the catheter sometime between April and May 2006 and angioplasty and placement of a stent on May 23, 2006. Under Salomon’s version of events, Dr. Najibi’s proposals came too late to prevent Salomon’s injuries.
In sum, Dr. Koslow’s declaration clearly placed the blame for Salomon’s neurological injuries on Dr. Najibi’s actions in (1) placing the AV fistulas on the same side as the jugular vein catheter; and (2) failing to diagnose and treat the occlusion before permanent injury occurred. Dr. Koslow’s declaration was thus sufficient to raise triable issues of fact with respect to causation.
We find support for our conclusion in Hanson v. Grode, supra, 76 Cal.App.4th 601, where the plaintiff’s expert stated that the plaintiff suffered nerve damage during surgery and that “the care defendants provided” was a cause of his injuries. The court concluded that although the declaration was “a bit obtuse” in its discussion of causation, the defendants’ summary judgment motion should have been denied: “[The plaintiff] is entitled to all favorable inferences that may reasonably be derived from that declaration. These inferences include a reading of the declaration to state that the nerve damage [the plaintiff] suffered during surgery was caused by the conduct of defendants, which conduct fell below the applicable standard of care. Nothing more was needed.” (Id. at pp. 607-608.)
Dr. Najibi contends that the failure of Dr. Koslow to expressly state that the placement of either of the AV fistulas was a “substantial” cause of the swelling and neurological damage rendered his declaration insufficient to raise a triable issue concerning causation. Dr. Najibi cites Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1313-1314, which defined “cause” as “‘something that is a substantial factor in bringing about an injury, damage, loss or harm.’” As Salomon points out in his brief, Dr. Koslow expressed the opinion that Dr. Najibi was responsible not only for the improper placement of the AV fistulas but for the failure to diagnose and treat the occlusion before Salomon suffered permanent neurological damage. Accordingly, Dr. Koslow’s failure to describe either or both of these factors as a “substantial” cause does not deprive his declaration of its effect. Moreover, the court in Espinosa made clear that “[i]n a medical malpractice action the element of causation is satisfied when a plaintiff produces sufficient evidence ‘to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result.’” (Ibid., italics omitted, quoting Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.) Dr. Koslow’s statement that the swelling and resulting neurological damage were caused by AV fistula blood flow in the face of the undiagnosed occluded innominate/brachiocephalic vein was sufficient to support that Salomon would have had a better result had Dr. Najibi not placed the AV fistula on the same side as the jugular vein catheter.
B. The Trial Court Did not Abuse Its Discretion by Addressing the Merits.
In opposing the summary judgment motion without the assistance of counsel, Salomon did not strictly conform to the procedural rules. In particular, his opposition papers were filed late and his statement of disputed facts did not follow the statutory requirements. (See Code Civ. Proc., § 437c, subd. (b)(1).) Dr. Najibi contends the trial court should have stricken Salomon’s opposition and granted summary judgment on procedural grounds.
Whether to grant a summary judgment motion when the opposition is procedurally defective lies within the trial court’s discretion. (Code Civ. Proc., § 437c, subd. (b)(1); see, e.g., Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 171 [“It is within the trial court’s discretion in a proper case under section 437c, subdivision (b)(3) to refuse to consider evidence not referenced in the opposition papers.”]; Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson, supra, 131 Cal.App.4th at p. 1478 [“[T]he trial court has discretion under Code of Civil Procedure section 437c to overlook procedural errors in the moving and opposition papers, ... if the evidence presented warrants it.”]; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315 [“Whether to consider evidence not referenced in the moving party’s separate statement rests with the sound discretion of the trial court, and we review the decision to consider or not consider this evidence for an abuse of that discretion.”].) “In this setting, as in others involving the exercise of discretion, it is not the function of an appellate court to substitute its own view as to the proper decision. Rather, an abuse of discretion by the trial court must be shown -- action which is arbitrary or capricious or without any basis in reason.” (Blackman v. Burrows (1987) 193 Cal.App.3d 889, 893.)
The trial court concluded that despite the inadequacies of Salomon’s opposition papers, it would address the merits. The motion and the opposition centered around two basic issues: whether Dr. Najibi breached the applicable standard of care and whether any such breach caused the neurological injury Salomon suffered. The expert declarations addressing these issues were brief. Salomon made clear in his original opposition that his negligence claim was based on the placement of the AV fistula in his left arm -- the same side as the jugular vein catheter -- and on Dr. Najibi’s failure to diagnose or treat the swelling prior to May 2006. Salomon’s failure to strictly observe the procedural requirements could not have misled Dr. Najibi about the basis for the opposition or the issues to be addressed at the hearing. Under these circumstances, the trial court did not abuse its discretion in deciding to proceed on the merits.
The trial court’s denial of the motion was in line with authorities which have held that “to grant the drastic remedy of summary judgment in the face of a defense obvious to the court and to the moving party, because of a mere procedural failure, ” constitutes an abuse of discretion. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra, 102 Cal.App.4th at p. 316; accord, Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113 [where “the most cursory review of all the papers shows the motion to be utterly without factual or legal merit, the court has no discretion to grant the summary judgment” even though opposing party filed inadequate statement of disputed facts]; Gilbertson v. Osman (1986) 185 Cal.App.3d 308, 316 [where motion involved “relatively simple issues and only a few pages of evidentiary material, ” court would have abused discretion in granting motion based on failure to submit statement of disputed facts].)
Dr. Najibi contends that by seeking a continuance based on his intent to obtain a declaration from Dr. McCann and then submitting a declaration from Dr. Koslow, Salomon violated the doctrine of judicial estoppel, describing this doctrine as “appl[ying] to cases where the party has made a factual representation in a legal proceeding that contradicts a representation made in the same proceeding or a prior one.” The doctrine of judicial estoppel applies when: “‘“(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.”’” (Safai v. Safai (2008) 164 Cal.App.4th 233, 246, quoting International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350.) The position taken by Salomon in seeking the continuance -- that he would obtain a declaration from a medical expert supporting his view that Dr. Najibi was negligent in placing the AV fistula on the same side as the jugular vein catheter -- was not “totally inconsistent” with the position he took subsequently. The only difference was in the identity of the doctor involved. Moreover, Dr. Najibi did not establish that Salomon, who was acting in pro per after a last-minute withdrawal by his counsel, and who remained in fragile health throughout the proceedings, acted deliberately rather than out of ignorance or mistake. Accordingly, the doctrine does not apply.
C. Dr. Koslow’s Declaration Was Properly Considered.
Dr. Najibi raises for the first time on appeal the contention that Dr. Koslow’s declaration lacked foundation. Dr. Najibi protests that Dr. Koslow did not “provid[e] the back-up medical evidence which [he] relied upon in forming his opinions.” The failure to object to Dr. Koslow’s declaration on these grounds precludes consideration of this issue on appeal. (Code Civ. Proc., § 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing shall be deemed waived.”]; § 437c, subd. (d) [“Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived.”].) Moreover, Salomon attached a number of medical documents to his declaration that provided foundation for Dr. Koslow’s statements and Dr. Koslow’s recitation of the chronology of events is in line with the declarations and documents submitted by Dr. Najibi.
Dr. Najibi cites Garibay v. Hemmat (2008) 161 Cal.App.4th 735 for the proposition that expert declarations must include the medical evidence which the expert relied on in forming his opinions. In Garibay, the moving party presented no independent evidence of the underlying facts, merely an expert opinion which stated that assuming certain facts gleaned from the medical records were true, the defendant was not negligent. The expert had improperly “attempted to testify to the truth of the facts stated in the declaration... as independent proof of the facts.” (Id. at p. 743.) Here, the underlying facts were established by other declarants with personal knowledge -- Dr. Najibi and Salomon -- and by the medical documents introduced by both sides.
D. The National Kidney Foundation Guidelines Were Properly Admitted and Considered.
Dr. Najibi contends the National Kidney Foundation guidelines with respect to placement of an AV fistula in relation to a jugular vein catheter were inadmissible hearsay. As the trial court noted, Dr. Koslow referenced these guidelines in his declaration, creating an inference that they were admissible as the accepted medical standard for placement of catheters and AV fistulas intended for hemodialysis access. (See Evid. Code, §§ 452, subd. (h), 1341.) Dr. Koslow also stated that in his opinion, Dr. Najibi’s placement of the AV fistulas on the same side as the jugular vein catheter was inappropriate and that had he not done so, the injury to Salomon would not have occurred. Thus, even were we to agree that the guidelines themselves were inadmissible, we would not reach a different result.
DISPOSITION
The judgment is reversed. The matter is remanded for further proceedings consistent with this opinion. Salomon is awarded his costs on appeal.
We concur: EPSTEIN, P. J., SUZUKAWA, J.