Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INC 046558. Douglas P. Miller, Judge.
Mink Law Firm and Lyle R. Mink for Plaintiff and Appellant.
Madory, Zell and Pleiss, Stephen H. Zell, Stephen J. Martino; Agajanian, McFall, Weiss, Tetreault & Crist, Scott B. McFall and Susan Heider for Defendant and Respondent.
OPINION
RAMIREZ, P.J.
Introduction
In this medical malpractice case, plaintiff Sandra Snodgrass appeals from the trial court’s judgment following a grant of summary judgment in favor of defendant Eisenhower Medical Center. Plaintiff’s lawsuit was based on defendant’s alleged failure to inform her of the results of her x-ray while providing emergency care treatment of plaintiff’s back condition. In granting defendant’s motion for summary judgment, the trial court found that defendant’s expert evidence showed that defendant’s treatment neither caused nor contributed to plaintiff’s injury and that plaintiff’s expert evidence failed to show that there was a triable issue of material fact on the element of causation. In challenging the trial court’s ruling, plaintiff argues that the defense expert’s opinion was an insufficient basis for granting the motion for summary judgment. Based on the reasoning set forth in Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493 (Bushling) we disagree with plaintiff and so affirm the judgment.
Plaintiff filed her lawsuit against the Eisenhower Medical Center and the doctors at the medical center who were involved in her care. At plaintiff’s request, the court dismissed the doctors from the lawsuit. All references to “defendant” in this opinion are to the medical center only.
Factual and Procedural Background
On October 25, 2002, plaintiff, who was 55 years old, fell out of bed and was in need of emergency medical assistance. She was transported by ambulance to the medical center, where she was examined by Dr. Euthymn Kontaxis for low back pain and referred to radiology for X-rays. Plaintiff had a prior history of low back pain as a result of a car accident four years earlier, for which she continued to receive medical care. Dr. James Cohen, the radiologist, examined plaintiff’s X-rays and made the following notations: “moderate wedge compression deformity at the T12 level of indeterminate age. No additional fracture evident. There is a mild focal kyphosis at the thoracolumbar junction. Paravertebral soft tissues appear intact.” Dr. Kontaxis diagnosed plaintiff with acute myofascial strain of the lumbar spine, prescribed pain medication, and ordered plaintiff’s discharge with instructions to follow up with her private physician. Plaintiff’s discharge instructions specifically advised her to call her physician for an appointment on Monday, October 28, 2002.
Plaintiff continued to experience pain over the next several months and was evaluated by three additional doctors, including surgeon Dr. James Forage. On November 19, 2003, over a year after plaintiff’s fall, Dr. Forage performed a T12 corpectomy with T11 to L1 fusion. Dr. Forage’s report indicated that he performed diskectomies at the T11-T12 and T12-L1 sites.
On October 21, 2004, plaintiff filed her complaint for medical malpractice. In her complaint, plaintiff alleged that defendant was negligent in examining, diagnosing, and treating her. She specifically alleged that defendant failed to advise her about her compression fracture and Dr. Cohen’s recommendation for a consultation with an interventional radiologist. She learned about the fracture on August 26, 2003, upon receiving a copy of her X-rays. She alleged that, as a result of defendant’s negligence, she suffered physical and psychological injuries, incurred additional medical expenses, and suffered other related damages.
In addition to answering plaintiff’s complaint, defendant filed a motion for summary judgment. Defendant contended that plaintiff had failed to prove the necessary elements of breach of duty and causation. In support of its motion for summary judgment, defendant submitted Dr. Michael Smolens’s declaration. Dr. Smolens opined that, based on his knowledge and experience and his evaluation of plaintiff’s medical records, the treatment provided by defendant’s nursing and hospital staff fell within the standard of care and did not cause or contribute to plaintiff’s injuries.
Plaintiff objected to Dr. Smolens’s declaration for several reasons, including that his opinions were conclusory and lacked foundation. In objecting to the lack of foundation, plaintiff argued that Dr. Smolens’s declaration failed to provide the details of his education, training, and experience. Plaintiff also argued that Dr. Smolens’s declaration failed to provide a sufficient factual basis for his conclusions.
In plaintiff’s separate statement of disputed and undisputed facts, plaintiff again took issue with Dr. Smolens’s qualifications to provide opinions concerning the standard of care and causation. Plaintiff contended that defendant’s care and treatment fell below the standard of care and, specifically, that reasonable care would have included informing plaintiff of Dr. Cohen’s findings and recommendation in a timely manner. The declaration of plaintiff’s expert, Dr. Marshall Morgan, provided evidence in support of her contention.
The trial court overruled plaintiff’s evidentiary objections and granted defendant’s motion.
Discussion
Plaintiff claims the trial court erred in granting defendant’s motion for summary judgment because Dr. Smolens’s opinions were insufficient to justify a judgment as a matter of law on the issues of negligence and causation. As to whether defendant’s conduct fell below the standard of care, plaintiff argues that Dr. Morgan’s opposing opinion showed that there was a triable issue of material fact. As to the issue of causation, plaintiff argues that Dr. Smolens’s opinion was conclusory, in that he failed to provide the reasons upon which his opinion was based. For this last argument, plaintiff relies on Kelley v. Trunk (1998) 66 Cal.App.4th 519 (Kelley).
Defendant responds that it was entitled to summary judgment if it provided evidence sufficient to negate even one element of plaintiff’s cause of action. Defendant does not challenge plaintiff’s claim that there was a triable issue of material fact on the element of breach of duty. Rather, defendant argues that: 1) the trial court properly overruled plaintiff’s evidentiary objections to Dr. Smolens’s declaration; 2) the declaration sufficiently supported Dr. Smolens’s opinion on lack of causation based on his experience, training and practice as an emergency room physician, as well as his review of plaintiff’s medical records; and 3) plaintiff thereafter failed to satisfy her burden of showing a triable issue of material fact on the element of causation.
In reviewing a ruling granting summary judgment, we independently review the record to determine whether there is any triable issue of material fact. (Code Civ. Proc., § 473c, subd. (c); Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972.) In making this determination, we apply the same three-part analysis as applied by the trial court: first, we identify the issues as framed by the pleadings; second, we determine whether the defendant has shown that the plaintiff cannot establish one or more elements of her prima facie case; and, third, if the defendant is successful, we consider whether the plaintiff has shown the existence of a triable issue of material fact. (See Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274; Wachovia Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1048-1049.) The last two parts of the above analysis require that we liberally construe plaintiff’s evidence and strictly scrutinize defendant’s evidence, resolving any evidentiary doubts or ambiguities in plaintiff’s favor. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
Plaintiff’s complaint contains a single cause of action for medical malpractice. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. [Citation.]” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305, citing Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) Plaintiff alleged that defendant breached its duty of care by failing to inform her about Dr. Cohen’s diagnosis and recommendation, thereby causing a delay in treatment and the need for additional medical care.
Defendant claimed that plaintiff could not establish that its conduct constituted a breach of the duty of care and resulted in any additional injury to plaintiff. In support of defendant’s claim, defendant submitted Dr. Smolens’s five-page declaration, which sets forth his experience with emergency medicine and his experience with the particular condition involved in this case. Dr. Smolens also discussed plaintiff’s records and the factual basis for his opinion. Based on his training and experience and his review of plaintiff’s records, Dr. Smolens concluded that, “the emergency room nursing and other ancillary hospital personnel of [defendant] was within the standard of care in that the nursing personnel followed the physicians orders; kept the physician aware of the patient’s condition while she was in the emergency room; and provided [plaintiff] with appropriate Aftercare Instructions.” On the issue of causation, Dr. Smolens added: “It is my professional opinion, to a reasonable degree of medical probability, that there was no act or omission by [defendant’s] nursing or other ancillary hospital personnel in their care and treatment of [plaintiff] on October 25, 2002, or thereafter, which caused or contributed to any injury to [plaintiff].”
In support of her opposition to defendant’s motion for summary judgment, plaintiff provided Dr. Morgan’s three-page declaration and curriculum vitae. Dr. Morgan’s curriculum vitae lists his extensive experience and expertise. In his declaration, Dr. Morgan also discussed his training and experience and then provided a brief summary of plaintiff’s treatment at defendant’s facility. Dr. Morgan’s opinions were contained in the following paragraph: “Based on my education, training, medical background, medical experience, and the medical records described above, my professional opinion, to a reasonable degree of medical probability, is that the care and treatment of plaintiff by defendant [] fell below the standard of care in that [defendant] had an obligation, and was required, to inform plaintiff of the findings and impression of Dr. Cohn [sic] in a timely fashion but did not do so; further, that [defendant] fell below the standard of care in failing to have a reliable mechanism for ensuring that the discrepancies in Dr. Cohn’s [sic] x-ray report would be communicated to plaintiff in a timely way.”
While Dr. Morgan’s declaration was adequate to show a triable issue of material fact on the question of whether defendant’s conduct fell below the standard of care (see Hanson v. Grode, supra, 76 Cal.App.4th at p. 607), his declaration was silent on the question of whether defendant’s conduct caused plaintiff any injury. Plaintiff admits that she did not submit expert evidence on the issue of causation.
On this critical issue, plaintiff instead attacks Dr. Smolens’s opinion directly by arguing that Dr. Smolens failed to provide any reasons for his opinion. As stated above, plaintiff relies on the case, Kelley, supra, 66 Cal.App.4th 516. In Kelley, the plaintiff lacerated his forearm on broken glass and received emergency medical care from the defendant, Dr. Leon Trunk. Dr. Trunk stitched up the laceration and discharged the plaintiff with Tylenol with codeine for pain. Although the plaintiff twice contacted Dr. Trunk and complained about the pain, Dr. Trunk only prescribed additional pain medication and advised him to see his primary care physician. After two visits with his primary care physician, the plaintiff was referred to an orthopedic specialist, who promptly performed surgery for “compartment syndrome.” (Kelley, supra, at p. 521.) The plaintiff sued Dr. Trunk and his primary care physician claiming that his negligent medical care caused him to lose the use of his arm and suffer neurological damage, scarring, skin grafts, and pain.
In Kelley, Dr. Trunk moved for summary judgment and submitted the page-and-a-half-long declaration of his medical expert. The expert provided a brief summary of his credentials and chronology of plaintiff’s treatment. The expert then concluded, “[a]t all times . . . Trunk acted appropriately and within the standard of care under the circumstances presented.” (Kelley, supra, 66 Cal.App.4th at p. 522.)
The court in Kelley addressed the question of whether Dr. Trunk’s opinion was sufficient to support summary judgment. The court began its discussion by setting forth the applicable rules: “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.] [¶] Expert testimony is admissible only if based on matter of a type that may reasonably be relied on by an expert in forming an opinion on the subject to which his testimony relates. (Evid. Code, § 801, subd. (b).) [¶] 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. (See Evid. Code, § 802.) Standard instructions give juries the common sense directive that ‘[a]n opinion is only as good as the facts and reasons on which it is based.’ (BAJI No. 2.40.) An expert’s opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. [Citations.]” (Kelley, supra, 66 Cal.App.4th at pp. 523-524.)
Based on these rules, the court concluded that the grant of summary judgment was improper on three grounds. First, the defense expert’s declaration was inadmissible because he failed to disclose the matter relied upon in forming his opinion. The plaintiff in Kelley, however, waived this error by not raising an objection. (Kelley, supra, 66 Cal.App.4th at p. 524.) Second, “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.) Because an expert’s opinion stands or falls on the reasons given for that opinion, the expert’s failure to provide reasons to explain certain critical issues in the case rendered it insufficient to carry the defendant’s burden on a motion for summary judgment. (Ibid.) Third, the plaintiff’s expert provided an opposing opinion, thereby raising a triable issue of material fact. (Ibid.) Any one of these grounds would have been sufficient to defeat the defendant’s motion for summary judgment in Kelley.
There are some obvious dissimilarities between the facts in the present case and the facts in Kelley. Unlike the expert’s opinion in Kelley, Dr. Smolens’s opinion was not inadmissible for lacking foundation or being conclusory. Generally, expert opinion is admissible if the opinion is sufficiently beyond common experience such that its admission would assist the trier of fact. (Evid. Code, § 801, subd. (a); see Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1116.) Particularly, the issue of causation in medical malpractice cases is sufficiently beyond common experience and, therefore, expert opinions on causation are routinely admitted. (See Jennings, supra, at p. 1117.) As usual, the admissibility of opinion testimony is left to the trial court’s sound discretion and will not be disturbed absent an abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694; Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1442-1443.)
In his declaration, Dr. Smolens explained that his opinions were based on his training and expertise and his review of plaintiff’s medical records. Because Dr. Smolens provided the foundational facts and reasons for his ultimate conclusion, the trial court properly overruled plaintiff’s evidentiary objections.
The more important question, however, was whether these foundational facts and reasons were sufficient to support a judgment in defendant’s favor as a matter of law. In other words, was Dr. Smolens’s declaration sufficient to show that plaintiff could not establish the element of causation required for her medical malpractice claim?
On this question we are persuaded by the reasoning set forth in Bushling, supra, 117 Cal.App.4th 493. In that case, the appellate court affirmed the grant of summary judgment in favor of a surgeon (Dr. Rosson), an anesthesiologist (Dr. Caruso), and a hospital in a medical malpractice case. The plaintiff was a patient who alleged he had suffered a shoulder injury during or after surgery to remove his gall bladder and to biopsy a mole on his shoulder because of the defendants’ negligence. Plaintiff alleged the injury may have taken place during the surgery while being repositioned to reach the mole on his shoulder, or after surgery while being transported from the operating room. Both doctors and the hospital filed motions for summary judgment. The trial court granted the motions and the plaintiff appealed. Like the plaintiff in the present matter, the plaintiff in Bushling contended that the declarations submitted in support of the doctors’ motions were conclusory and thus insufficient to establish a prima facie case for the defense.
The declarations at issue were those of a board certified anesthesiologist (Dr. Jain) and a general surgeon (Dr. Cobb) who had performed surgeries similar to the one performed on the plaintiff. Dr. Jain opined that Dr. Caruso had met the standard of care in treating the plaintiff, based on Dr. Jain’s “experience, together with her review of all the records in the case” and the deposition testimony of the doctor who had treated and performed surgery on the plaintiff’s shoulder. Dr. Cobb opined that the plaintiff’s shoulder pain was not caused by the gall bladder surgery and that Dr. Rosson had met the standard of care, based on his experience and review of the records in the case.
In response to the plaintiff’s argument on appeal that these declarations were insufficient to establish a prima facie case for the defense because they were conclusory, the appellate court concluded that they were sufficient because the opinions they contained were based on the declarant’s experience and a review of the plaintiff’s medical records. “To state that one has experience in certain medical procedures and has reviewed pertinent medical records and that based on that experience and that review, the declarant has found nothing to support a claim of medical malpractice and therefore concludes that there was none is not an improper conclusion for an expert witness. The expert has given an explanation for that expert’s conclusion that defendants are not guilty of medical malpractice: Based on the expert’s experience and the patient’s medical records, there is no evidence to support a claim of negligence as a cause of injury. The reason for the opinion is the absence of evidence of medical malpractice.” (Bushling at p. 509.)
Here, Dr. Smolens stated in his declaration, at paragraph 6, that “The opinions set forth in this declaration are based upon my training, experience, and my personal knowledge about this case . . .” derived from reviewing the specified medical records and other documentation regarding plaintiff’s injury. Under Bushling, this is sufficient support for Dr. Smolens’s opinion that none of defendant’s employees caused or contributed to plaintiff’s injury.
At oral argument on this case, counsel for defendant interpreted Dr. Smolens’s opinion on lack of causation as being based primarily, or even solely, upon his opinion that the care and treatment plaintiff received from defendant’s employees met the standard of care. We disagree. It is evident to this court that Dr. Smolens’s opinion on lack of causation stands on its own, i.e., it was based at the very least in part on his experience as an emergency room physician and his review of plaintiff’s medical records, rather than solely on his opinion that defendant’s employees met the standard of care. Under Bushling this is sufficient evidence to show that plaintiff cannot establish the element of causation, and makes it fatal to plaintiff’s case that she did not present evidence on that element in her opposition to defendant’s motion for summary judgment.
Disposition
We affirm the trial court’s judgment. The parties shall bear their own costs on appeal.
We concur: McKINSTER, J., RICHLI, J.