Opinion
B297140
04-08-2020
MAURA TUSO, Plaintiff and Appellant, v. DAVID M. ALESSI et al., Defendants and Respondents.
Khashayar Law Group, Daryoosh Khashayar, for Plaintiff and Appellant. Schmid & Voiles, Denise H. Greer, Jennifer K. Villebro, Deborah S. Taggart, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC675776) APPEAL from a judgment of the Superior Court of Los Angeles County, Georgina T. Rizk, Judge. Affirmed. Khashayar Law Group, Daryoosh Khashayar, for Plaintiff and Appellant. Schmid & Voiles, Denise H. Greer, Jennifer K. Villebro, Deborah S. Taggart, for Defendants and Respondents.
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Plaintiff and appellant Maura Tuso sued defendants and respondents Dr. David Alessi and Dr. David M. Alessi, M.D., P.C., dba Alessi Institute (collectively, Alessi) for negligence, professional negligence, and intentional infliction of emotional distress after suffering facial burns from a cosmetic laser treatment. The trial court granted Alessi's motion for summary judgment. Tuso contends reversal is required because the trial court erroneously excluded her expert's declaration. She further contends that summary judgment was improper because even without an expert declaration, she raised triable issues of material fact on her claims for professional negligence and intentional infliction of emotional distress.
Tuso's first amended complaint also had a cause of action for negligence, based on a theory of negligent hiring or supervision. Because Tuso's appellate briefing does not address that cause of action, we do not consider it on appeal.
The trial court did not abuse its discretion when it sustained Alessi's objections to Tuso's expert's declaration, and Alessi was entitled to judgment as a matter of law. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts supported by the evidence before the trial court, making all reasonable inferences in plaintiff's favor. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
Alessi is a licensed physician and surgeon, specializing in cosmetic dermatology. Tuso began seeing Alessi for cosmetic procedures, beginning with Botox injections in August 2016. On May 24, 2017, she saw Alessi for laser removal of dark spots on her face. Alessi did not obtain Tuso's signature on a written statement of informed consent for the laser treatment, which used a Lumenis M22 laser machine.
During the procedure, Tuso started screaming in pain. She heard a "singeing" sound, felt an electrical scalding, and smelled something burning with smoke. Alessi lowered the settings on the machine and continued the laser treatment. When the procedure was complete, Alessi noted that a portion of Tuso's forehead became "blanched," meaning pale. He informed Tuso of the blanching.
The next day, Tuso texted one of Alessi's employees that she had developed some blistering overnight in several areas. Alessi prescribed Silvadene cream and Minocycline. Over the next few days, Tuso continued to text Alessi's office, sending photos of her face and stating that her face was swollen including her eyes and nose; she had chills; her lips felt numb; and she had blisters on her face. Alessi's office confirmed that she had been prescribed ointment and antibiotics and was taking them. When Tuso texted a staff member and asked if she should go to the emergency room, the staff member told her to trust her gut. Tuso later went to an emergency room and was referred to the burn unit at UCSD where she received further treatment.
Tuso's complaint
Tuso's first amended complaint included causes of action for negligence, professional negligence, and intentional infliction of emotional distress (IIED). The factual allegations stated that during the laser treatment, Tuso began to feel a severe burning sensation and demanded that the procedure be stopped to alleviate the pain. Alessi continued the treatment despite Tuso's protests. Tuso was provided with negligent medical treatment that caused severe pain and facial burns. In support of her IIED claim, Tuso alleged that Alessi's conduct in refusing to discontinue the laser treatment on her demand is an outrageous act that shocks the conscience of an average person. She further alleged that Alessi knew that his refusal to stop would cause Tuso severe emotional distress, and he acted either intentionally or in reckless disregard of Tuso's physical and emotional pain.
Alessi's motion for summary judgment
Alessi filed a motion for summary judgment, arguing that Alessi's use of the laser machine met the standard of care, that Tuso could not prove legal causation, and that Alessi did not negligently cause injury to Tuso. Alessi also argued Tuso could not establish that Alessi engaged in extreme and outrageous conduct towards Tuso, or that any emotional distress Tuso suffered was proximately caused by Alessi's conduct.
Defendant's evidence
Alessi's motion was supported with declarations by Dr. Gennady Rubenstein, M.D., a board certified dermatologist, and Alessi, as well as excerpts from depositions and discovery responses.
Alessi's declaration stated that he had used the Lumenis M22 machine hundreds of times before Tuso's procedure, he was comfortable with it, and he never intended to injure her or cause her any physical or emotional harm. In his deposition testimony, Alessi stated he instructed the staff to take off a cream previously applied to the face; he wiped the face with sterile wipes; he applied a cooling gel; he set the parameters for the laser machine for it to do an internal calibration; he input the patient's skin type (noting here that Tuso is in between two categories, because she both burns a little and tans a little); and the machine produced a preset parameter. Here, the machine preset came up at 19, and he turned it down to an intensity setting of 18, because Tuso was in between skin types. As the procedure began, Tuso told him it "really hurt"; he stopped and left the surgical room for about 15 minutes; he confirmed that his assistant had applied numbing cream to Tuso's face. He resumed the procedure at the same setting. When Tuso complained it "hurts too much," he recalibrated the setting down to an intensity level of 16, and she said it was much more tolerable. On certain parts of Tuso's face, she complained it was hurting; he suggested allowing more time between spots to cool down, and she agreed. After the treatment was complete, a moisturizing ointment was applied to Tuso's face. While Tuso was standing at the front of the office, Alessi noted that some areas of Tuso's face had become "blanched" as a result of the procedure, and he informed her of this. He also cautioned Tuso that if there were any blisters or welts to contact him immediately.
In her deposition testimony, Tuso claimed she told Alessi that she was experiencing severe pain and asked him to stop, perhaps a dozen times. She acknowledged that Alessi stopped at one point, and she believed that he turned the setting lower, as she experienced reduced pain.
Rubinstein's declaration gave his professional background and stated he had reviewed Tuso's medical records, photographs from Alessi's office and from UCSD, the texts sent by Tuso to Alessi's office, and the deposition transcripts for Tuso and Alessi. Rubinstein gave his expert opinion that Alessi's actions and treatment of Tuso before, during, and after the procedure complied with the standard of care and that he did not negligently cause Tuso's injuries. Rubinstein's opinion was based upon his review of the records, including his determination that Alessi had assessed Tuso's skin before the procedure, ensured the laser was properly calibrated, and turned down the settings when Tuso expressed feelings of pain during the procedure. Rubinstein also noted that Alessi had used a topical numbing agent before the procedure, and his response in prescribing topical creams and antibiotics when Tuso reported post-procedure blistering was appropriate. Rubinstein stated that it was his professional opinion that to a reasonable degree of medical probability, the care and treatment Alessi provided to Tuso did not cause or contribute to Tuso's injuries. Use of the laser machine can result in some blistering, burns and blistering are a known risk of the procedure, and burns and blistering can and do occur in the absence of negligence.
Plaintiff's opposition
Tuso filed an opposition to the motion for summary judgment, together with an Exhibit A that consisted of several unauthenticated photographs. Tuso also filed supporting declarations by Tuso and Dr. William F. Groff, a dermatologist.
In her declaration, Tuso stated that Alessi told her the pain was normal and continued the procedure, at which point her eyes began to tear and she yelled at him to stop. He kept going and said it's almost done, only one more. Since the incident, she has been getting treatment, but she continued to have scars on her face and cannot be in the sun for too long and has to wear hats.
Groff's declaration gave his professional background and stated he was familiar with the standard of care and practice for a cosmetic dermatologist in California. Groff had "personally examined Ms. Tuso as a result of this injury and [was] familiar with her medical history relating to this case." He was familiar with the laser machine used for laser treatment on Tuso and had used it "for many years." Groff gave his "expert opinion to a reasonable medical certainty that Dr. David Alessi fell below the standard of care in his treatment of Ms. Tuso, and that any reasonable doctor in the same situation would not have continued to treat her after hearing her scream, or cry." He continued, "it is my expert opinion that a reasonable doctor would have stopped the treatment at the time the patient demanded that the doctor cease treatment." Groff further opined that "Dr. Alessi negligently and improperly assessed Ms. Tusso's [sic] skin and used a setting that was too aggressive for Ms. Tuso's skin." In summarizing the ways in which Alessi had acted negligently, Dr. Groff stated that Alessi "failed to . . . apply the appropriate degree of topical and . . . failed to stop treatment once Ms. Tuso screamed and asked him to stop. Furthermore, if he provided the topical it was not sufficient since the burn on her face was so severe." He reiterated his "opinion to a reasonable degree of medical certainty that [Alessi] fell below the standard of care in the industry in their treatment of Ms. Tuso on the date of the incident, and that if these defendants would have stopped when she has started to yell, or would have provided the proper amount of topical, Ms. Tuso would not have been injured, or at the very least not to the extent she is injured now."
Dr. Groff also opined that Dr. Alessi fell short of the standard of care in the industry by not providing Ms. Tuso with a written explanation of the risks of the procedure and obtaining her written confirmation that she understood and accepted the risks. This portion of Dr. Groff's expert opinion is not relevant to Tuso's claims because the complaint does not allege that her injuries were caused by Dr. Alessi's failure to obtain a written acceptance of the risks of the laser treatment.
Defendant's reply and objections to plaintiff's evidence
Alessi objected to the admission of Exhibit A, the photographs attached to Tuso's opposition. Alessi also objected to Groff's expert declaration, Tuso's declaration, and portions of Tuso's attorney's declaration. Alessi's reply brief argued that Tuso had not shown a triable issue of material fact on any of her claims.
Trial court's ruling
The court issued a tentative ruling that it planned to grant Alessi's motion for summary judgment. The tentative ruling included the court's planned rulings on evidentiary issues. The trial court sustained Alessi's objections to Exhibit A, the unauthenticated photographs. It also sustained Alessi's objections to Groff's declaration as lacking foundation, conclusory, and lacking any reasoned explanation. Specifically, the ruling stated that Groff "does not identify what documents he considered in support of his opinion, such as medical records or depositions that would describe Defendant's conduct. He states only that the examined [Tuso.] He states he is familiar with her medical history, but does not provide foundation for that." The court provided additional explanation for its determination that Groff's opinions were conclusory and speculative, citing to two published opinions for the requirement that an expert declaration must include a "reasoned explanation" for why the underlying facts lead to the ultimate conclusion. The court found that there was no foundation for Groff's factual assertions of what occurred at the time of the laser treatment. It further found Groff's opinion to be speculative, when he stated "if [Dr. Alessi] provided the topical it was not sufficient since the burns on her face were so severe."
Since Alessi had shifted the burden to Tuso to show a disputed factual issue on standard of care and causation, and since Groff's declaration was incompetent as evidence, Alessi was entitled to summary judgment on the Tuso's negligence claims. The court noted that the declarations of Tuso and her counsel were not material to the disposition of the motion, as neither are medical experts. On Tuso's IIED claim, Tuso had not shown that there was any material factual issue on the element of extreme and outrageous conduct.
Responding to the court's tentative ruling at the hearing, Tuso began by arguing that the caselaw required the court to liberally construe Groff's declaration, and the court agreed, stating "even under the liberal construction the Court found the declaration and its opinion and foundation lacking." Tuso argued that Groff's statement that "if [Alessi] provided" the topical, "it was not sufficient since the burn on her face was so severe," was not speculative; Tuso contended that Groff had focused on the severity of her burn and concluded that Alessi should have used more ointment "if he did at all." Tuso argued that Groff did not have to list what documents he reviewed. "[H]e just has to note her medical history. And he personally saw her, examined her, knew her skin condition or what level should have been applied. . . . [H]e doesn't have to know exactly what level was provided, he can see her skin, see the scars, see the visible injuries that occurred on her face, and then know that . . . if there was the M22 laser machine used on her face, it was definitely a high, an aggressive . . . level for her face and her skin condition." Alessi argued that Groff's declaration was inadequate because it merely stated his conclusions without providing any causal link or any foundation as to how Groff knows the information he is claiming to know, and how he reached his ultimate conclusions. Alessi pointed to the numerous inadequacies of the declaration: "we don't know if he's seen Dr. Alessi's medical chart, we don't know if he's seen any deposition testimony, we don't know if he reviewed any declarations that were submitted by the defense." In addition, Groff "doesn't state what, if anything, his examination of the plaintiff potentially led to [his] conclusions. [¶] There's no explanation as to when the examination took place, where it took place, what he saw, what he did, if anything. It[] just says that he examined her. That's simply not sufficient foundation [to] support these conclusions that he's stating in his declaration." Tuso offered a rebuttal argument that again emphasized that Groff examined Tuso and that his declaration stated that based on her injuries, there was not enough ointment and the laser machine was "at a setting that was too aggressive for her face and skin condition, which Dr. Alessi improperly assessed." Tuso contended that Groff's statement that he knew Tuso's medical history is sufficient, without having to list out what documents were reviewed or giving the date he saw her. The court excluded Groff's declaration and granted Alessi's motion for summary judgment. Tuso filed a timely appeal.
DISCUSSION
Standard of Review
Summary judgment is appropriate "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) The defendant bears the initial burden of showing that the plaintiff cannot establish one or more elements of each cause of action, or that there is an affirmative defense to it. (§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) If the defendant makes one of the required showings, the burden shifts to the plaintiff to establish a triable issue of material fact. (Aguilar, at p. 850.) To defeat summary judgment, the plaintiff must "'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, 477.) Supporting declarations of the moving party are strictly construed, while those of the opposing party are liberally construed. (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
Except where the trial court has sustained evidentiary objections, we review the record de novo to decide whether summary judgment should be granted. (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 778 (Fernandez).) "We review the trial court's ruling on the admissibility of expert testimony for abuse of discretion." (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 154 (Sanchez).) "[E]videntiary objections based on lack of foundation, qualification of experts, and conclusory and speculative testimony are traditionally left to the sound discretion of the trial court." (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226.) "A court abuses its discretion if its ruling is '"so irrational or arbitrary that no reasonable person could agree with it."' [Citation.] 'When applying the deferential abuse of discretion standard, "the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious."' [Citation.] 'It is the appellant's burden on appeal to show the trial court abused its discretion.' [Citation.]" (Sanchez, at p. 154.) Negligence in the medical malpractice context , and the role of expert witness declarations
The California Supreme Court has declined to reach the issue of the appropriate standard of review when a trial court has made evidentiary rulings in the context of a summary judgment motion. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.) We follow the weight of authority, which applies an abuse of discretion standard to evidentiary rulings on summary judgment motions. (See, e.g., Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852, quoting DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679 ["According to the weight of authority, appellate courts 'review the trial court's evidentiary rulings on summary judgment for abuse of discretion'"]; see generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 8.168, p. 8-148 ["Pursuant to the weight of authority, appellate courts review a trial court's rulings on evidentiary objections in summary judgment proceedings for abuse of discretion"].) --------
"When a defendant health care practitioner moves for summary judgment and supports his motion with an expert declaration that his conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence." (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.) Because "the conduct required of a medical professional is not within the common knowledge of laymen, a plaintiff must present expert witness testimony to prove a breach of the standard of care. [Citations.] Plaintiff also must show that defendants' breach of the standard of care was the cause, within a reasonable medical probability, of his injury." (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509 (Bushling).)
"If the evidence as to the requisite due care is uncontroverted, the trial court may properly address the question as a matter of law and proceed to a consideration of the defendant's alleged negligence." (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1000 (Flowers).) Proof of causation may also require expert testimony "[w]here the complexity of the causation issue is beyond common experience." (Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal.App.4th 1563, 1569; accord, Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 290.)
Admissibility of expert declarations
"The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed." (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 (Bozzi).) In a summary judgment proceeding, an expert's opinion may be rejected if it is conclusory, speculative, without foundation, or stated without sufficient certainty. (Fernandez, supra, 31 Cal.App.5th at p. 779; Sanchez, supra, 8 Cal.App.5th at pp. 155-156.) "An expert declaration is admissible to support or defeat summary judgment if the expert's testimony would be admissible at trial in accordance with Evidence Code section 720. An expert may testify to an opinion on a subject 'that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Evid. Code, § 801, subd. (a).)" (Bozzi, supra, 186 Cal.App.4th at p. 761.) "Declarations must show the declarant's personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion." (Ibid.)
An "expert opinion 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." (Bushling, supra, 117 Cal.App.4th at p. 510 [plaintiff's experts in medical malpractice case did not create material dispute by stating it was "'more probabl[e] than not'" that plaintiff's injury resulted from trauma during surgery without explanation or facts other than assumed facts for which no evidence was presented].) "When the moving party produces a competent expert declaration showing there is no triable issue of fact on an essential element of the opposing party's claims, the opposing party's burden is to produce a competent expert declaration to the contrary." (Bozzi, supra, 186 Cal.App.4th at pp. 761-762.)
No abuse of discretion to exclude Groff's declaration
The trial court did not abuse its discretion when it excluded Groff's declaration on the grounds that it was conclusory and lacked a factual foundation or a reasoned explanation. Groff's declaration did not state that he had reviewed any medical records or any other written documentation, such as discovery responses or deposition testimony, in preparing his expert opinion. Instead, he simply stated that he had "personally examined Ms. Tuso as a result of this injury and [was] familiar with her medical history relating to this case." Citing Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189 (Garrett), Tuso argues the trial court failed to liberally construe Groff's declaration, and instead applied a strict construction and found it inadmissible, even though it could be reasonably understood that Groff had reviewed Tuso's medical records.
There is a split of authority on whether the rule of liberal construction applies to the question of whether an expert declaration is admissible. (See, e.g., Garrett, supra, 214 Cal.App.4th at p. 189 ["rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact"]; c.f. Fernandez, supra, 31 Cal.App.5th at p. 779, quoting Bozzi, supra, 186 Cal.App.4th at p. 761 ["'Only admissible evidence is liberally construed in deciding whether there is a triable issue.'"].) Here, we agree with the trial court that even liberally construed, Groff's declaration did not meet the standard for admissibility, because it lacked both an adequate explanation of the facts being relied upon as the basis for Groff's opinion, and because it was conclusory. (Fernandez, supra, 31 Cal.App.5th at pp. 781-782.)
Groff opined that Alessi "negligently and improperly assessed [Tuso's] skin and used a setting that was too aggressive." He also opined that a reasonable doctor would have stopped the treatment when the patient demanded. Finally, he opined that Alessi did not use enough topical cream, and that if he had done so and had stopped when Tuso demanded, Tuso "would not have been injured, or at the very least not to the extent she is injured now." Groff's declaration contained only conclusory opinions about what he thought occurred, and lacked the necessary factual foundation to support his opinions.
An expert opinion may not be based on assumptions of fact that are without evidentiary support. (Bushling, supra, 117 Cal.App.4th at p. 510.) Groff's declaration stated he examined Tuso and was familiar with her medical history, but did not specify the date on which he examined Tuso, the manner in which he became familiar with her medical history, or what information he had about the condition of Tuso's skin before the treatment. Even applying a liberal construction, Groff's opinion that Alessi had improperly assessed Tuso's skin and used a setting that was too aggressive is only supported by his passing reference to the severity of her burns. Significantly, there is no indication that Groff reviewed the deposition testimony of Dr. Alessi as to his determination and categorization of Tuso's skin type in determining the proper settings; nor of the deposition testimony of what the preset setting was (19), or the settings used (18 and then 16). Groff opined that "a reasonable doctor would have stopped the treatment at the time the patient demanded that the doctor cease treatment." But he did not address the uncontroverted evidence that Alessi reduced the setting after Tuso complained of pain; he did not address whether the alleged injuries were caused by continued treatment only after her complaints; and he did not opine whether Alessi's action in reducing the setting was consistent with a reasonable standard of care. Groff's declaration does not offer any opinion on how he would categorize Tuso's skin, or what settings would have been appropriate. In addition, while Groff opines that Alessi was negligent in failing to apply the appropriate amount of topical cream, his declaration demonstrates that his opinion is not based on facts, but an assumption that Alessi either applied no topical cream, or an insufficient amount. The absence of any information about what facts Groff relied on means that Groff failed to provide reasoned analysis connecting any facts that were supported by the evidence to his opinions regarding negligence or causation. As a result, his conclusions and the entire declaration was inadmissible.
Alessi supported the motion for summary judgment with an expert declaration by Rubinstein opining that Alessi had not acted in a negligent manner, and that Alessi's actions were not the cause of Tuso's injuries. Unlike Groff, Rubinstein reviewed the medical records and deposition testimony. Tuso made no objection to the admissibility of Rubinstein's declaration, and so the burden shifted to plaintiff to submit an expert declaration demonstrating the existence of a material factual dispute on whether Alessi's conduct fell below the standard of care and causation. (Borrayo, supra, 2 Cal.App.5th at p. 310.)
We conclude the trial court did not abuse its discretion by excluding Groff's declaration. Alternatively, Groff's declaration could not raise a triable issue of material fact and defeat defendant's summary judgment motion because his opinions rested on conjecture and speculation.
Res Ipsa Loquitur
Tuso contends that, even if the trial court correctly excluded Groff's expert declaration, the extent and nature of her burns raise a material factual issue under the doctrine of res ipsa loquitur. Tuso argues on appeal that this theory was not waived because she argued in her opposition that expert testimony was not required to establish liability. Tuso likely waived this theory by failing to argue it to the trial court, but regardless, the doctrine does not apply to the facts of this case.
"The doctrine of res ipsa loquitur, which evolved into a rule to determine whether circumstantial evidence of negligence is sufficient, has been codified as 'a presumption affecting the burden of producing evidence.' (Evid. Code, § 646, subd. (b).) [¶] For this presumption to arise, three conditions must be satisfied: 1. the accident must be of the kind that ordinarily does not occur absent someone's negligence; 2. the cause or instrumentality must have been within the defendant's exclusive control; and 3. it must not have been due to the plaintiff's voluntary action or contribution. [Citations.] When these prerequisites are met, the trier of fact is allowed to assume the existence of the presumed fact unless the defendant introduces evidence to the contrary." (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943; see also Flowers, supra, 8 Cal.4th at p. 1001 [negligence in the context of medical malpractice can be proved only by expert testimony, except in the rare circumstance where the standard of care required is a matter of common knowledge].)
In his declaration, Rubinstein gave his expert opinion that burns and blistering are a known risk of laser treatment, and that "[b]urns and blistering can and do occur in the absence of negligence." This is also not a factual scenario where the standard of care is a matter of common knowledge, and so Tuso cannot rely on the doctrine of res ipsa loquitur as a defense against summary judgment.
Intentional infliction of emotional distress
Tuso also argues that the court erred in granting summary judgment on her claim for intentional infliction of emotional distress, because at the very least, she had raised a factual issue as to how strongly she asked Alessi to stop the laser treatment, how often she asked, and whether she was crying or sobbing. Because Alessi's expert declaration established that Alessi had acted within the standard of care, Tuso cannot show that his conduct was extreme and outrageous.
Intentional infliction of emotional distress requires (1) "outrageous" conduct by the defendant, (2) that the defendant intend to cause (or recklessly disregard the probability of causing) emotional distress, (3) severe emotional distress and (4) causation. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300.) "Outrageous" conduct is that which is so extreme that it exceeds all bounds usually tolerated in a civilized society. (Ibid.) Even accepting Tuso's assertion that Alessi continued the laser treatment after she was crying and asking him to stop, we find as a matter of law that his conduct is not sufficiently outrageous as to support a claim of intentional infliction of emotional distress.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants and respondents Dr. David Alessi and Dr. David M. Alessi, M.D., P.C., dba Alessi Institute.
MOOR, J. I concur:
KIM, J. BAKER, Acting P. J., Dissenting
I would reverse. The trial court's refusal to consider Dr. Groff's declaration as evidence in opposition to summary judgment—the linchpin of its rationale for granting summary judgment—was an abuse of discretion. A comparison of Dr. Groff's declaration with Dr. Rubinstein's declaration reveals the only material difference is Dr. Rubinstein's listing of medical records he reviewed. (In fact, when it comes to explaining the reasons for their opinions, Dr. Groff does as good or better than Dr. Rubinstein.) Dr. Groff, however, states he personally examined Tuso and was familiar with her medical history. That in my view is sufficient foundation for a declaration opposing summary judgment, especially when other aspects of Dr. Groff's declaration reveal familiarity with the specific facts of the case (e.g., the use of a Lumenis M22 laser) that could have come only from the medical history review he averred he undertook.
BAKER, Acting P. J.