Opinion
NOT TO BE PUBLISHED
APPEAL from an order and judgment of the Superior Court of Los Angeles County No. SC082069, Valerie Baker, Judge.
Law Offices of Steven C. Gambardella, Steven C. Gambardella; Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon for Plaintiff and Appellant.
Taylor Blessey, Raymond L. Blessey and Barbara M. Reardon for Defendant and Respondent.
ASHMANN-GERST J.
Appellant Peter Sternberger (Sternberger) appeals from a trial court order granting summary judgment to respondent Michael Garbarini (Garbarini). Because disputed facts exist, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Sternberger falls and injures his right shoulder, elbow, and wrist
On September 10, 2002, Sternberger, a finish carpenter, fell off a ladder and injured his right shoulder, elbow, and wrist.
Sternberger undergoes surgery
On September 16, 2002, Sternberger consulted with orthopedic surgeon Anthony Zoppi. Dr. Zoppi recommended that Sternberger undergo arthroscopic surgery to repair the torn ligaments that he sustained from falling off the ladder. Prior to undergoing this surgery, Dr. Zoppi informed Sternberger that: (1) his wrist would become arthritic without surgery; (2) there was a risk that the surgery might not be successful; (3) the benefit of the surgery would be that he would have 70 percent to 80 percent use of his hand back; and (4) after the surgery, he would need approximately six weeks of recovery time for his arm and wrist to feel better; after that time, he would undergo six weeks of physical therapy. Sternberger was never told that his hand could “ claw.”
On November 1, 2002, Dr. Zoppi performed arthroscopic surgery on Sternberger’s right wrist. Garbarini administered anesthesia for the surgery. Specifically, during the surgery, Garbarini administered light general anesthesia and gave Sternberger an axillary nerve block, of which Sternberger was unaware. Sternberger was conscious during the administration of the axillary nerve block, and expressed discomfort from it. Following the surgery, Garbarini prescribed the pain medication, Percocet, and did not treat Sternberger again.
Later, after the surgical procedure was completed, Sternberger had “ dense numbness” in his right upper extremity, as well as a complete loss of motion. These symptoms disappeared within a week.
Sternberger’s fingers begin to claw; Sternberger begins physical therapy
During his postoperative visits with Dr. Zoppi, Sternberger complained of pain in his right wrist and hand, limited motion in his right fingers, and tenderness, stiffness, and swelling of the right wrist and hand. At his second postoperative visit, Dr. Zoppi informed Sternberger that he would need to begin physical therapy because his fingers were clawing, even though his right wrist and arm were still in a cast. When Sternberger asked Dr. Zoppi why this was occurring, Dr. Zoppi could not give him a definitive answer.
On November 25, 2002, Sternberger began physical therapy. During physical therapy, Sternberger saw Dr. Zoppi on a biweekly basis. While Sternberger continued physical therapy, Dr. Zoppi was concerned about the clawing, and prescribed another three or six weeks of therapy. Dr. Zoppi never explained the reason for the clawing problem, despite Sternberger’s inquiries regarding its cause.
Dr. Zoppi closely monitored Sternberger’s progress from November 2002 through April 2003. Aside from noting Sternberger’s difficulties, he observed improvement as well. For example, on December 6, 2002, Dr. Zoppi remarked that Sternberger “ has been doing better.” Likewise, on January 8, 2003, Dr. Zoppi observed that Sternberger was “ having better extension.” Then, on February 10, 2003, Dr. Zoppi commented that “ [t]here is good stability persay [sic] to the wrist.”
Sternberger stops physical therapy when Dr. Zoppi concludes that his hand was not going to improve
Sternberger’s physical therapy continued until January 20, 2003, and he stopped seeing Dr. Zoppi by April 28, 2003. Sternberger stopped seeing Dr. Zoppi when Dr. Zoppi informed him that his hand was good as it “ was going to get, that [he] should just deal with it.” Sternberger’s medical records confirmed Dr. Zoppi’s assessment that Sternberger’s condition was likely permanent: “ A discussion was had with the patient regarding the findings today. I do not see a significant change and I feel that we are probably at a stationary status here. I have discussed with him that he needs to continue with exercises. He does not have the means to go in for therapy. I have discussed with him that surgery will not likely help very much and would not recommend surgical intervention at this time. I will plan to see him back in two months time.”
Sternberger learns that he suffered a nerve injury when he received the axillary nerve block performed by Garbarini
Because his hand was not healing and because he wanted a second opinion, Sternberger obtained and reviewed a copy of his medical records. Thus, in late May 2003, Sternberger read his medical records and learned for the first time that Garbarini had performed an axillary nerve block on him during the surgery.
On August 18, 2003, Sternberger met with Dr. Joel Aronowitz, a neurologist. Dr. Aronowitz informed him that he may have sustained a nerve injury when he received his anesthesia. Specifically, Dr. Aronowitz explained that the axillary nerve block could have caused Sternberger nerve damage. Based upon Dr. Aronowitz’s information, Sternberger first suspected that Garbarini had acted negligently.
Dr. Aronowitz’s assessment was subsequently confirmed by Dr. Neil F. Jones. In early October 2003, Dr. Jones examined Sternberger and concluded that he had probably sustained a brachial plexus injury and injury to his ulna nerve. Dr. Jones suspected that Sternberger’s difficulties “ related to his axillary block performed at the same time as his general anesthesia.”
In a subsequent evaluation in January 2004, Dr. Jones noted that Sternberger’s pain and numbness were increasing. Dr. Jones reiterated that Sternberger’s weakness “ probably indicates an injury to the brachial plexus at the time axillary block” administration.
The nature of Sternberger’s injury was reconfirmed by Dr. Kenneth L. Nudleman, who also found that Sternberger had sustained a brachial plexus injury.
Sternberger’s permanent injury
As a result of his injury, Sternberger suffered loss of dexterity in his right hand. He is no longer able to work as a carpenter because he cannot control his tools. He continues to suffer intermittent stabbing pain in his wrist and numbness in his arm and hand. He is in a financially desperate situation.
Sternberger institutes this medical malpractice action against Garbarini
On March 26, 2004, Sternberger served Garbarini a notice of intention to commence action. On June 24, 2004, Sternberger filed this civil action against Garbarini for professional negligence. Garbarini answered the complaint.
Garbarini’s successful motion for summary judgment
On June 9, 2005, Garbarini filed a motion for summary judgment, arguing that (1) Sternberger’s complaint was time-barred by the applicable statute of limitations (Code Civ. Proc., § 340.5); and (2) his treatment was within the appropriate standard of care and was not a substantial factor in causing Sternberger’s injury. In support of his motion, Garbarini offered an expert declaration from Dr. Clayton Varga. Dr. Varga opined that Garbarini’s performance of the axillary nerve block fell within the applicable standard of care and did not cause or contribute to Sternberger’s postoperative complaints and injuries.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Sternberger opposed Garbarini’s motion. In support of his opposition, Sternberger presented the trial court with an expert declaration from Dr. Don F. Mills. Unlike Dr. Varga, Dr. Mills believed that Garbarini’s performance of the axillary nerve block fell below the standard of care and caused an injury to Sternberger’s brachial plexus; that injury has caused Sternberger’s complaints of numbness and/or pain and/or clawing of his fingers.
At the hearing on August 10, 2005, the trial court indicated its intent to grant Garbarini’s motion for summary judgment on statute of limitations grounds only. Specifically, the trial court stated that the one-year statute of limitations began to run in January 2003, when Sternberger stopped physical therapy. The trial court found that at that time a reasonable person would have suspected negligence because (1) Sternberger suffered the injury, the clawing of his fingers, within one month of surgery; (2) he was told that he had to begin physical therapy earlier than originally planned because of the clawing; and (3) by the end of January 2003, Sternberger knew that his fingers had become clawed. Following the hearing, the trial court issued an order, granting Garbarini’s motion on all grounds asserted in his moving papers.
Judgment was entered, and this timely appeal followed.
DISCUSSION
I. 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 of Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
II. Because a triable issue of fact exists regarding when Sternberger learned of his injury, the trial court erred in granting Garbarini’s motion for summary judgment
Section 340.5 provides that an action against a health care provider based upon professional negligence must be brought within “ three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” The one-year period may be extended by the required 90-day notice of intent to sue a health care provider. (§ 364, subd. (a).) If the notice of intent to sue is served within 90 days of the expiration of the statute of limitations, the time for commencement of the action is extended by 90 days from the date of service of the notice. (§ 364, subd. (d).)
Under the one-year provision of section 340.5, the relevant portion of the statute in the instant case, the term “ injury” means both a person’s physical condition and its negligent cause. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99.) Thus, the statute of limitations does not commence merely because the patient is aware of a physical manifestation of injury. Rather, the “ one-year period commences when the plaintiff is aware of both the physical manifestation of the injury and its negligent cause.” (Rose v. Fife (1989) 207 Cal.App.3d 760, 768.) Thus, once a patient knows, or by reasonable diligence should have known, that he has been harmed through professional negligence, he has one year to bring his suit. (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.)
The patient is “ ‘ charged with “ presumptive” knowledge of his negligent injury, and the statute commences to run, once he has ‘ “ notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation . . . . ” ’ [Citation.] Thus, when the patient’s “ reasonably founded suspicions [have been aroused],” and []he has actually “ become alerted to the necessity for investigation and pursuit of [his] remedies,” the one-year period for suit begins. [Citation.]’ [Citation.]” (Artal v. Allen (2003) 111 Cal.App.4th 273, 279.)
Applying these legal principles, we conclude that a triable issue of fact exists as to when Sternberger knew, or should have known, that Garbarini may have caused his injury. Prior to Sternberger’s operation, Dr. Zoppi advised him that his recuperation would take months. His arm and wrist would take about six weeks to recover from the surgery, after which he would require six weeks of physical therapy. Based upon his physician’s advice, Sternberger reasonably anticipated a period of extended recovery.
Furthermore, Sternberger’s symptom’s, including pain, stiffness in his wrist and hand, and clawing, did not necessarily reveal the physical manifestation of permanent injuries. For example, while Sternberger experienced “ dense numbness” and complete loss of motion in his right upper extremity following surgery, those symptoms disappeared within a week. And, from December 2002 through February 2003, Dr. Zoppi continually observed improvement in Sternberger’s condition. Thus, Sternberger could reasonably have believed that he would get better.
Even if Sternberger’s pain, stiffness, and clawing were immediately recognizable as injuries, these “ injuries” certainly did not give him notice of Garbarini’s alleged malpractice. In fact, at least twice, Sternberger asked Dr. Zoppi why his hand was clawing, and Dr. Zoppi had no explanation. Dr. Zoppi never advised Sternberger that he was suffering from nerve damage or that his symptoms were caused by negligence.
It was not until April 28, 2003, that Dr. Zoppi informed Sternberger that his condition was stationary and not going to improve. Within a month, Sternberger began reviewing his medical records to ascertain why he was not healing properly. At that time, Sternberger first discovered that Garbarini had performed an axillary nerve block.
His suspicions aroused, Sternberger met with Dr. Aronowitz and learned that he may have sustained nerve injury when he received the axillary nerve block. Based upon Dr. Aronowitz’s information, Sternberger first suspected Garbarini’s negligence.
Because Sternberger served his notice of intention to sue Garbarini on March 26, 2004, approximately 11 months after Dr. Zoppi notified him that his condition was stationary and approximately eight months after Dr. Aronowitz notified him of possible nerve damage, Sternberger’s complaint, filed on June 24, 2004, was timely. (§ § 340.5, 364, subd. (d).)
III. A triable issue of fact exists regarding whether Garbarini complied with the applicable standard of care
In his complaint, Sternberger alleges that Garbarini committed medical malpractice. The basic elements of this cause of action are: “ (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.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200; Dawson v. Toledano (2003) 109 Cal.App.4th 387, 396.)
The standard of care in a medical malpractice case requires that a physician exercise in diagnosis and treatment “ that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) A plaintiff establishes the element of causation when he produces sufficient evidence “ ‘ to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability that the plaintiff would have obtained a better result.’ ” (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314– 1315.)
As the parties agree, the standard of care the element of medical causation must be determined by expert medical opinion. This is proper because “ ‘ “ ‘ [t]he standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations] . . . .” ’ [Citations.]” [Citations.]’ ” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606– 607 (Hanson).) “ 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 (Kelley).)
“ ‘ “ California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” [Citations.]’ ” (Hanson, supra, 76 Cal.App.4th at p. 607.)
California courts have also addressed the requirements for expert declarations submitted in connection with summary judgment motions in medical malpractice cases. (Hanson, supra, 76 Cal.App.4th at p. 607.) “ 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.) . . . 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.) An opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment, so an expert’s declaration without illuminating explanation may be insufficient to carry the burden in moving for summary judgment. (Id. at p. 524.) Expert opinions are worth no more than the reasons and factual data upon which they are based. (Hanson, supra, 76 Cal.App.4th at p. 607.)
In support of his motion for summary judgment, Garbarini submitted the expert declaration of Dr. Varga, who is board certified in anesthesiology and pain medicine. Dr. Varga’s declaration is vague and conclusory at best. All he declares is that (1) “ the combination of light general anesthesia and an axillary nerve block . . . [were] within the standard of care” ; (2) “ the technique [used] by . . . Garbarini . . . was well within the standard of care” ; and (3) “ it is my professional opinion that to a reasonable medical probability . . . Garbarini’s administration of general anesthesia and an axillary nerve block did not cause or contribute to [Sternberger’s] alleged post operative complaints and injuries.” Dr. Varga offers no supporting facts or reasons for his conclusions. For example, he does not explain why an axillary nerve block was required, how an axillary nerve block is supposed to be performed, whether the axillary nerve block that Garbarini performed on Sternberger was performed properly, and how Sternberger’s injuries can be reconciled with Garbarini’s treatment of Sternberger. Absent basic foundational facts, such as these, we conclude that Dr. Varga’s declaration was insufficient to shift the burden from Garbarini to Sternberger in connection with this summary judgment motion. (See, e.g., Kelley, supra, 66 Cal.App.4th at p. 524; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123– 126 (Powell).)
Even if Dr. Varga’s declaration were sufficient, Garbarini still was not entitled to summary judgment. In opposition to Garbarini’s motion, Sternberger offered the expert declaration of Dr. Mills, a board certified anesthesiologist. Like Dr. Varga, Dr. Mills reviewed Sternberger’s medial records; however, he reached a contrary conclusion. Dr. Mills opined that the axillary nerve block performed by Garbarini fell below the standard of care. Dr. Mills’s opinion created a disputed fact as to whether Garbarini’s performance of the axillary nerve block conformed to the applicable standard of care and whether it caused or contributed to Sternberger’s injuries. (Hanson, supra, 76 Cal.App.4th at pp. 607– 608; Powell, supra, 151 Cal.App.4th at pp. 124– 126.)
In his respondent’s brief, Garbarini asserts that Dr. Mills’s declaration is too conclusory to create a triable issue of fact. We cannot adopt this argument for two reasons. First, a declaration offered by a plaintiff in opposition to a motion for summary judgment need not be detailed and is entitled to all favorable inferences; as such, it is sufficient to defeat Garbarini’s motion for summary judgment. (See, e.g., Powell, supra, 151 Cal.App.4th at p. 125.) Second, Dr. Mills’s declaration offers nothing less than Dr. Varga’s declaration. Liberally construing the declaration of Sternberger’s expert and resolving any doubts as to the propriety of granting summary judgment in favor of Sternberger, as we must, compel U.S. to conclude that Dr. Mills’s declaration is sufficient to overcome Garbarini’s motion for summary judgment. (Id. at pp. 125– 126.)
Finally, Garbarini challenges Dr. Mills’s declaration as follows: Dr. Mills claims to concur with the opinion of Dr. Jones that the axillary nerve block caused an injury to the brachial plexus. Because Dr. Jones did not diagnose a brachial plexus injury, but merely speculated as to its existence, there is no factual basis for Dr. Mills’s opinion as to causation. Garbarini reads the evidence far too narrowly.
Dr. Jones diagnosed Sternberger with, among other things, “ probable right brachial plexus injury.” He suspected that at least a portion of Sternberger’s injuries were related to the axillary block performed by Garbarini. Based in part upon this diagnosis, Dr. Mills opined that the axillary nerve block caused an injury to the brachial plexus. This evidence is sufficient to create a triable issue of fact and save Sternberger’s lawsuit from dismissal at this stage of the proceedings. (Powell, supra, 151 Cal.App.4th at pp. 124– 126.)
DISPOSITION
The order and judgment of the trial court are reversed. Sternberger is entitled to costs on appeal.
We concur: Acting P. J., DOI TODD, J. CHAVEZ