Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. GC037069, Jan A. Pluim, Judge.
Law Office of Stephen L. Belgum and Stephen L. Belgum for Plaintiff and Appellant.
Schmid & Voiles and Suzanne De Rosa for Defendants and Respondents.
KRIEGLER, J.
Plaintiff and appellant Melissa Burnam appeals from a judgment following an order granting summary judgment in favor of defendants and respondents Arvin Taneja, M.D., and his medical corporation Arvin Taneja, M.D., Inc. in this medical malpractice action. Burnam contends: (1) Dr. Taneja and the corporation failed to demonstrate the absence of a material fact issue for trial, because the declaration of their medical expert did not contain reasoned explanations for his opinions; and (2) her medical expert was competent to opine on the medical treatment that Burnam received. We conclude Dr. Taneja and the corporation failed to shift the burden of proof for summary judgment, and therefore, we reverse.
FACTS AND PROCEDURAL BACKGROUND
The undisputed facts are taken from the declarations submitted in support of the motion for summary judgment and the opposition to the motion for summary judgment.
Burnam gave birth to a child in September or October 2004 and had stopped breast-feeding by October 26, 2004. On January 31, 2005, Burnam consulted Dr. Taneja about breast augmentation surgery. Dr. Taneja documented Burnam’s measurements and his plan for augmentation with saline implants. He discussed the risks of the surgery. Burnam signed a consent form. Breast augmentation surgery was performed on April 26, 2005, six months after Burnam had stopped breast-feeding. Dr. Taneja examined Burnam on April 27 and May 9, 2005. On both visits, Burnam was doing well and Dr. Taneja advised her to perform daily massage to decrease the risk of contractures.
On June 6, 2005, Burnam reported significant milk production and right breast pain. Dr. Taneja advised her to cease the massages. He removed the implants on June 27, 2005. He found milk had accumulated, and he placed drains in both breasts. On June 30, 2005, Dr. Taneja examined Burnam again. She complained of pain at the drain sites. He removed the drains in July 2005, because they were no longer draining milk. However, on July 11, 2005, Burnam continued to have milk drain from her right breast. Dr. Taneja noted that she might need the right drain replaced. On July 14, 2005, Burnam continued to have milk draining from the nipples and the incisions in both breasts. Dr. Taneja recommended replacing the drains.
On July 15, 2005, Burnam visited plastic surgeon Jacob Haiavy, M.D. Dr. Haiavy found sternal swelling and diagnosed a possible infection in the right breast, as well as lactorrhea in the left breast. He aspirated the sternal swelling to provide Burnam immediate relief and directed her to continue taking antibiotics. However, Burnam was later admitted to a hospital emergency room with a 104 degree fever. On July 18, Dr. Taneja replaced the drains. He discovered that milk had accumulated again and he irrigated the sub-pectoral pockets. Burnam visited a specialist who diagnosed galactorrhea not associated with childbirth and referred her to an endocrinologist. On July 28, 2005, Dr. Taneja again examined Burnam. Burnam was still draining significant amounts of milk from both breasts. Dr. Taneja planned to continue the drains. On August 19, 2005, Burnam reported no further milk from the drains. The left drain had fallen out and she felt improved. Dr. Taneja said she might need scar revision surgery and recommended that she return in two weeks. However, she did not return.
On April 26, 2006, Burnam filed a complaint against Dr. Taneja and the corporation for negligence and breach of contract that alleged as follows. On January 31, 2005, Dr. Taneja and the corporation entered into a written contract to provide medical services, including breast augmentation and follow-up care, in a safe and competent manner. Dr. Taneja and the corporation breached the contract by failing to provide the services in a safe and competent manner. On April 26, 2005, Dr. Taneja and the corporation undertook her medical care. They were negligent in their treatment, failed to possess and exercise the degree of knowledge and skill ordinarily possessed and exercised by other local medical and health services providers, and caused Burnam to suffer injuries.
Defaults were apparently taken against two additional defendants, New Image Plastic Surgery Specialist and The Advanced Medical Institute.
On December 21, 2006, Dr. Taneja and the corporation each filed a motion for summary judgment on the grounds that the treatment Burnam received was within the standard of practice and the treatment did not cause or contribute to Burnam’s injuries. Both motions submitted an expert declaration by plastic surgeon Michael Falvey, M.D. Dr. Falvey declared that he was familiar with the standard of practice as applied to the practice of plastic surgery in Southern California. He had reviewed Burnam’s medical records and her deposition testimony in order to render an opinion as to the treatment she received. Dr. Falvey provided the medical history as set forth above, except he did not mention Burnam’s childbirth and breast-feeding history. He opined that based on his practice, training, and experience, and a review of the medical records and deposition testimony, Dr. Taneja had met the standard of care in all respects regarding the treatment he provided to Burnam. In addition, based on his practice, training, and experience, and his review of the medical records and the deposition testimony, he opined that to a reasonable degree of medical probability, no act or omission by Dr. Taneja caused or contributed to any injury claimed by Burnam.
On March 1, 2007, Burnam filed an opposition to the motions for summary judgment arguing that Dr. Taneja and the corporation had not met their burden on summary judgment, because Dr. Falvey’s declaration was vague and he had provided no explanation for his opinions. Burnam submitted the declaration of medical expert William Weil, M.D., to demonstrate the existence of triable issues of fact. Dr. Weil stated that he was an assistant clinical professor of medicine at UCLA School of Medicine, and he listed staff privileges at several local hospitals. He had worked in private practice until 1985. From 1985 to 2004, he was employed as the medical director for a succession of health plans. He declared that he was familiar with the standard of care applicable to medical providers, including those in the practice of plastic surgery. He reviewed Dr. Falvey’s declaration and many of Burnam’s medical records. He opined that based on his education, training, and experience, and his review of the medical records, the treatment provided by Dr. Taneja was beneath the applicable standard of care and directly caused her to suffer injury.
Dr. Weil noted that although Dr. Taneja had provided Burnam with an informed consent form that discussed pregnancy and breast-feeding, the information related only to a patient who became pregnant after augmentation surgery. There was no informed consent concerning the post-partum placement of implants. Dr. Weil opined that the procedure was performed too soon after childbirth in a mother who had breast-fed her child. Performance of augmentation surgery so soon after childbirth was below the standard of care for post-partum patients who had breast-fed their children. In addition, a lactating mother who performs massage as advised by Dr. Taneja will stimulate milk production. Dr. Taneja’s instruction was below the standard of care. Dr. Weil also opined that Dr. Taneja removed the drains prematurely in July 2005, since the evidence showed Burnam was still draining milk during visits on July 11 and 14, 2005. Surgical reinstallment of the drains and removal of accumulated milk would not have been necessary if Dr. Taneja had not erroneously removed the drains. The result was below the standard of care. Dr. Weil summarized his opinions that Dr. Taneja’s treatment fell below the standard of care as follows: poor judgment as to the timing of the surgery in relation to Burnam’s history of post-partum breast-feeding was directly related to the bad result; failure to provide informed consent about augmentation surgery in a post-partum, lactating patient that would have given Burnam an opportunity to postpone surgery to a safer time; negligent instruction to perform massage following surgery when lactation was occurring; and negligent management of the lactation and drainage, resulting in bilateral mastitis, fever, and infection leading to removal of the implants and resulting in scarring that will require additional reconstructive surgery.
Dr. Taneja and the corporation each filed a reply arguing that Dr. Falvey’s declaration contained reasoned explanations of his opinions and Dr. Weil had not demonstrated that he was qualified to render an expert opinion. Dr. Taneja and the corporation also submitted informed consent forms signed by Burnam. Dr. Taneja and the corporation filed evidentiary objections to Dr. Weil’s declaration as well; namely, his statements that he was familiar with the applicable standard of care, his opinion that the treatment provided fell beneath the standard of care and caused Burnam injury, and his summary of the areas in which the treatment fell below the standard of care.
A hearing was held on March 15, 2007. The trial court sustained Dr. Taneja’s and the corporation’s evidentiary objections on the ground that Dr. Weil had not demonstrated he was familiar with the standard of care required of physicians under similar circumstances to those of the instant case and granted the motions for summary judgment. On April 5, 2007, the trial court entered judgment in favor of Dr. Taneja and the corporation. Burnam filed a timely notice of appeal.
DISCUSSION
Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) On the other hand, if a defendant seeking summary judgment fails to demonstrate that the plaintiff cannot establish one or more elements of the cause of action, the burden does not shift to the plaintiff and the motion must be denied. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467; Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1142 [“Under the statute, the burden does not shift to a plaintiff resisting summary judgment until a moving defendant has met his or her initial burden to negate the plaintiff’s action”]; Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289-290.)
Dr. Taneja’s and the Corporation’s Expert Declaration
Burnam contends Dr. Falvey’s declaration did not show the absence of a triable issue of fact, because he failed to provide reasons to support his opinion that Dr. Taneja’s treatment met the standard of care and did not cause Burnam’s injuries. She is correct.
“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], except in cases where the negligence is obvious to laymen. [Citation.]” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523-524, fn. omitted.) “Expert witnesses normally testify concerning the bases for their opinions, and the court may require the expert to state the bases before giving his opinion. [Citation.] . . . An expert’s opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. [Citations.] [¶] . . . [¶] . . . [An] opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.” (Ibid.)
“An expert’s opinion, however, ‘may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]’ [Citation.]” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.)
In Kelley v. Trunk, supra, 66 Cal.App.4th 519, Division Seven of this court held that “a defendant doctor 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.” (Id. at p. 521.) In that case, the defendant doctor brought a summary judgment motion supported by an expert declaration from another doctor, in which the expert listed his credentials and the medical records he reviewed, recited the facts of the case, and stated his opinion that the defendant at all times acted within the standard of care. (Id. at p. 522.) The court in Kelley concluded the expert declaration was insufficient to meet the defendant’s burden in moving for summary judgment. (Id. at p. 524.) “Summary judgment is appropriate in every case where the statutory standard is met, and the absence of material issues for trial established. However, that standard is not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.” (Id. at pp. 524-525; cf. Hanson, supra, 76 Cal.App.4th 601 declining to apply Kelley to an expert declaration submitted in opposition to a motion for summary judgment.)
Dr. Falvey’s declaration is not materially different from that before the court in Kelley. The opinions that Dr. Falvey expressed in his declaration were purely conclusory, without any explanation connecting the factual predicates to his ultimate conclusions. Dr. Falvey’s bare opinion that Dr. Taneja met the standard of care and did not cause Burnam injury had no evidentiary value without illuminating explanation. It bears emphasis that Dr. Falvey’s declaration contains no discussion of the complications experienced by Burnam and the specific treatment employed by Dr. Taneja, rendering the declaration insufficient to support summary judgment.
Dr. Taneja and the corporation contend Burnam waived her contention by failing to file an evidentiary objection to Dr. Falvey’s declaration. No objection was required, because the issue Burnam presents on appeal is not the admissibility of the declaration, but its adequacy to support summary judgment. Burnam raised this argument in her opposition in the trial court, which was sufficient to preserve the argument for appeal. Evidentiary objections were not required. (See Kelley v. Trunk, supra, 66 Cal.App.4th at p. 524.) The fact is that Dr. Falvey’s declaration was inadequate as a matter of law to negate an essential element of Burnam’s causes of action. The moving parties did not meet their burden on summary judgment and the judgment must be reversed.
DISPOSITION
The judgment and the order granting the motions for summary judgment are reversed. The trial court is directed to enter a new and different order denying the motions for summary judgment. Appellant Melissa Burnam is awarded her costs on appeal.
We concur: TURNER, P. J., MOSK, J.